Akers v. Quality Carriers, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA

CHARLESTON DIVISION

RUSSELL R. AKERS,

Plaintiff,

v. CIVIL ACTION NO. 2:21-cv-00660

QUALITY CARRIERS, INC.,

Defendant.

MEMORANDUM OPINION AND ORDER

The Court has reviewed the Complaint (Document 1-1), the Defendant’s Motion to Dismiss

(Document 3), and the Memorandum in Support of Motion to Dismiss (Document 4).1 For the

reasons stated herein, the Court finds that the Motion to Dismiss should be granted, and the

Complaint should be dismissed for failure to state a claim upon which relief can be granted.

FACTUAL ALLEGATIONS

The Plaintiff, Russell R. Akers, brings this action against the Defendant, Quality Carriers,

Inc., alleging the latent manifestation of pancreatic cancer caused by exposure to unidentified

chemicals during the course of his employment for the Defendant’s predecessors in interest.

From January 1977 until 1985, Mr. Akers was employed by Union Carbide Corporation. At that

point, operation of Union Carbide Corporation was transferred to Chemical Leaman Tank Lines,

Inc., now known as Quality Carriers, Inc. Mr. Akers continued his employment with Chemical

Leaman Tank Lines, Inc. from 1985 until 1991.

1 The Defendant filed and served its Motion to Dismiss on December 22, 2021. LR Civ. P. 7.1(a)(7) of the Local

Rules of Procedure for the United States District Court for the Southern District of West Virginia gives parties 14 days

from the date of service to file a response to a motion to dismiss. The Plaintiff has not filed a response.

As a tank cleaner, Mr. Akers primarily was responsible for the “flushing out and removal

of chemical components from rail tank cars” at a worksite operated by his employer. (Compl. § II)

(Document 1-1.) The Defendant’s predecessor allegedly “maintained a hazardous workplace

which on a daily basis endangered the health and wellbeing of the Plaintiff and all of his co-

workers.” (Compl. § III.) Additionally, “no protective gear in the form of hazmat suit or the like

was provided to protect the Plaintiff and others against the exposure to such hazardous chemicals

and to the potential adverse health effects resulting therefrom.” (Compl. § IV.)

After consultation with several medical professionals and health care providers, the

Plaintiff was ultimately diagnosed with pancreatic cancer on November 20, 2019. His doctor, Dr.

Muhammad Omer Jamil, “confirmed to the Plaintiff that the probable cause of the pancreatic

cancer was…Plaintiff’s prior exposure to one or more chemicals to which the Plaintiff and others

were regularly and repeatedly exposed.” (Compl. § VII.) The Plaintiff alleges that his treatment

is ongoing, and he has incurred hundreds of thousands of dollars in medical bills. He asserts that

his pain, suffering and distress is “directly attributable to the gross negligence of his predecessor

employer, Union Carbide Corporation, whose conduct rises to the threshold of a ‘Manolis’

standard of tortious conduct.” (Compl. Prayer)

STANDARD OF REVIEW

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure

to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or

pleading. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521

F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading

contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.

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R. Civ. P. 8(a)(2). Additionally, allegations “must be simple, concise, and direct.” Fed. R. Civ.

P. 8(d)(1). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly,

550 U.S. 544, 555 (2007)). In other words, “a complaint must contain “more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly,

550 U.S. at 555. Moreover, “a complaint [will not] suffice if it tenders naked assertions devoid

of further factual enhancements.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557)

(internal quotation marks omitted).

The Court must “accept as true all of the factual allegations contained in the complaint.”

Erickson v. Pardus, 551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual

inferences from those facts in the plaintiff’s favor.” Edwards v. City of Goldsboro, 178 F.3d 231,

244 (4th Cir. 1999). However, statements of bare legal conclusions “are not entitled to the

assumption of truth” and are insufficient to state a claim. Iqbal, 556 U.S. at 679. Furthermore,

the court need not “accept as true unwarranted inferences, unreasonable conclusions, or

arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir. 2000).

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,

do not suffice . . . [because courts] ‘are not bound to accept as true a legal conclusion couched as

a factual allegation.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

To survive a motion to dismiss, “a complaint must contain sufficient factual matter,

accepted as true, ‘to state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 570). In other words, this “plausibility standard requires a plaintiff

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to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.’” Francis, 588

F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the complaint, “articulate

facts, when accepted as true, that ‘show’ that the plaintiff has stated a claim entitling him to relief.”

Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557). “Determining whether a complaint

states [on its face] a plausible claim for relief [which can survive a motion to dismiss] will . . . be

a context-specific task that requires the reviewing court to draw on its judicial experience and

common sense.” Iqbal, 556 U.S. at 679.

DISCUSSION

The Defendant urges the Court to dismiss the Complaint. It argues that under West

Virginia’s Workers’ Compensation Statute, it is immune from common law liability for the

Plaintiff’s alleged injury from workplace exposure. The Defendant argues that neither exception

to this immunity is applicable or alleged. First, it contends there is no allegation that the

Defendant has not fulfilled its obligations under the statute. Second, it contends that the

“deliberate intention” exception to immunity is not applicable because the Plaintiff must have first

filed a claim for Workers’ Compensation benefits, which is not alleged in the Complaint. In the

alternative, even if he did not need to file a claim for Workers’ Compensation benefits for this

exception to apply, the Defendant asserts that the Plaintiff fails to adequately plead facts to support

the required elements of “deliberate intention”. Finally, the Defendant alleges that the Complaint

fails to comply with the proper procedure required by the West Virginia Code.2

2 The Defendant’s motion asserts that the Plaintiff has failed to follow the procedures of W.Va. Code § 23-4-

2(d)(2)(B) as an alternative ground for dismissal. While this provision is present in the current version of the section,

it was not included in the 2005 amendments. As detailed herein, the Court finds that the 2005 version of the statute

is controlling in this matter. Therefore, the Court will not address this argument.

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West Virginia’s Workers’ Compensation Statute provides broad immunity to employers

from lawsuits brought by employees based on workplace injuries or death. W. Va. Code 23-2-6.

The available benefits under the statute, in turn, “supplant common law remedies, making an

employer, in compliance with the Act, immune from common law liability to its employees for

negligently causing injuries.” United Financial Casualty Company v. Ball, 941 F.3d 710, 714 (4th

Cir. 2019). This general immunity from suit “is not easily lost.” Roney v. Gencorp, 431 F.Supp.2d

622, 627 (S.D. W.Va. 2006). Under the statute, an employer may only lose this immunity, in full

or in part, in two ways: (1) defaulting on payments or otherwise failing to comply with the

provisions of the act, see W. Va. Code §§ 23-2-6, 23-2-8, or (2) if the injury stems from the

“deliberate intention” of the employer. See W. Va. Code § 23-4-2(c). Absent these exceptions,

an employee’s exclusive remedy for a workplace injury is through the Workers’ Compensation

fund. See Young v. Apogee Coal Co., LLC, 753 S.E.2d 52, 55 (W. Va. 2013).

Here, accepting all alleged facts as true and drawing all reasonable inferences in favor of

the Plaintiff, the Complaint fails to state a claim for either exception to employer immunity.

The West Virginia Workers’ Compensation Statute provides:

Any employer subject to this chapter who subscribes and pays into

the workers' compensation fund the premiums provided by this

chapter or who elects to make direct payments of compensation as

provided in this section is not liable to respond in damages at

common law or by statute for the injury or death of any employee,

however occurring, after so subscribing or electing, and during any

period in which the employer is not in default in the payment of the

premiums or direct payments and has complied fully with all other

provisions of this chapter.

W. Va. Code 23-2-6. Thus, so long as an employer both pays its premiums and otherwise

complies with the statute’s mandates, it remains immune from common law liability for workplace

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injuries. Although more than thirty years have lapsed since the Plaintiff was last employed by the

Defendant’s predecessors in interest, clearly he has alleged a workplace injury, and the general

provisions of the Workers’ Compensation statute apply.3 Further, the general immunity

provision, cited above, has remained substantively unchanged since at least 1975, and was,

therefore, in effect throughout Plaintiff’s employment with the Defendant’s predecessors.4 The

Plaintiff does not allege that either the Defendant, or Defendant’s predecessors in interest,

defaulted in any payments or otherwise failed to meet the requirements of the statute. Thus, he

has failed to plead facts sufficient to prove this exception to his employer’s statutory immunity to

common law liability.

The only other way the Plaintiff could recover outside of the statute’s Workers’

Compensation system is if the “deliberate intention” exception applies. The “deliberate intention”

exception allows for an employee to recover excess damages above that received under the statute

if the injury results “from the deliberate intention” of the employer. Roney, 431 F. Supp. 2d at 630

(citing W. Va. Code 23-4-2(c)).

As a threshold matter, given the different requirements under multiple versions of the

relevant statutory provision, the Court must first determine which version of the “deliberate

intention” section is applicable. The West Virginia Legislature amended the relevant section in

2005, and again in 2015. In 2005, the section allowed employees, alleging deliberate intention,

to bring a “cause of action against the employer . . . for any excess of damages over the amount

received or receivable in a claim for benefits under this chapter, whether filed or not.” W. Va.

3 In Roney v. Gencorp, this Court similarly applied the West Virginia Workers’ Compensation Act to a latent injury

from workplace exposure that occurred decades prior. 431 F. Supp. 2d 622 (S.D. W. Va. 2006).

4 See, e.g., 1975 West Virginia Laws ch. 145 (H.B. 821); 1991 West Virginia Laws ch. 16 (S.B. 132); 2003 West

Virginia Laws 2nd. Ex. Sess. Ch. 27 (S.B. 2013).

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Code § 23-4-2(c) (2005) (emphasis added). Thus, under the plain meaning of the 2005 version,

filing a claim for benefits under the statute’s compensation scheme was not a prerequisite for filing

a lawsuit. The Legislature altered this in 2015, adding the new requirement that “[t]o recover

under this section, the employee . . . must, unless good cause is shown, have filed a claim for

benefits under this chapter.” W. Va. Code § 23-4-2(c). Therefore, while the Plaintiff’s failure to

file for workers’ compensation benefits would not be fatal to the deliberate intention claim under

the 2005 version, it would be fatal under the current version.

Historically, West Virginia courts have held that the statute in effect at the time of the

injury should control. See, e.g., Smith v. State Workmen’s Compensation Comm’r, 219 S.E.2d

361, 363-64 (W. Va. 1975). However, prior to applying this general rule, the Court first looks to

the specific language the legislature utilized. State ex rel Roy Allen S. v. Stone, 474 S.E.2d 554,

560 (W. Va. 1996) (A court must “look first to the statute's language. If the text, given its plain

meaning, answers the interpretive question, the language must prevail, and further inquiry is

foreclosed.”). The plain text of both versions of the statute gives clear guidance on the applicable

law. In 2005, the amended section was applied to “all injuries occurring and all actions filed on

or after the first day of July, two thousand five.” W. Va. Code § 23-4-2(f) (2005) (emphasis added).

This updated version extended the reach of its applicability beyond injuries occurring on or after

July 1, 2005, to also include any lawsuits filed on or after that date. The 2015 version, however,

does not include such a clause. Instead, the relevant sections read:

(f) The reenactment of this section in the regular session of

the Legislature during the year 2015 does not in any way affect the

right of any person to bring an action with respect to or upon any

cause of action which arose or accrued prior to the effective date of

the reenactment.

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(g) The amendments to this section enacted during the 2015

session of the Legislature shall apply to all injuries occurring on or

after July 1, 2015.

W. Va. Code §23-4-2(f)-(g). Unlike the 2005 version, these amendments apply only to injuries

suffered on or after July 1, 2015. It further provides that this applicability provision does not

impact claims which arose or accrued prior to the amendment. In this case, the Complaint was

brought in 2021, but the alleged injury occurred between 1977 and 1991. Thus, while the lawsuit

was initiated after the 2005 amendment and the 2015 amendment, the injury occurred beforehand.

Therefore, by its terms, the 2015 statute does not cover the injury alleged in the Complaint, but the

broader language contained in the 2005 amendment could. Accordingly, based on the express

terms of both amendments, the 2005 version, which does not make the filing of a benefit claim a

prerequisite to filing suit, applies. Thus, the Plaintiff’s failure to allege the filing of a workers’

compensation claim would not defeat a deliberate intent action.

However, despite this, the allegations in the Complaint fall woefully short of establishing

the statutory elements for a “deliberate intention” claim. Under this exception, the immunity from

suit provided by the statute “may only be lost if the employer or person against whom liability is

asserted acted with ‘deliberate intention.’” W. Va. Code § 23-4-2(d)(2) (2005). This may only be

satisfied in one of two ways: (1) specific intent by the employer, or (2) demonstration of an unsafe

working condition. W. Va. Code 23-4-2(d)(2)(i) -(ii) (2005).

To prove that the employer acted with specific intent, the employee must prove that the

employer “acted with a consciously, subjectively and deliberately formed intention to produce the

specific result of injury or death to an employee.” W.Va. Code 23-4-2(d)(2)(i) (2005). It

specifically excludes allegations or even proof of negligent conduct “no matter how gross or

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aggravated” and “willful, wanton or reckless misconduct.” Id. The Plaintiff alleges nothing to

reach this level of specific intent. In fact, the prayer for relief specifically attributes the injury to

the “gross negligence” of the employer. Clearly, this path to recovery is not plausibly alleged.

The second pathway to satisfying the “deliberate intention” exception is through

demonstration of an unsafe work condition. To meet this standard, the Plaintiff must allege and

prove five specific elements:

(A) That a specific unsafe working condition existed in the

workplace which presented a high degree of risk and a strong

probability of serious injury or death;

(B) That the employer, prior to the injury, had actual

knowledge of the existence of the specific unsafe working condition

and of the high degree of risk and the strong probability of serious

injury or death presented by the specific unsafe working condition;

(C) That the specific unsafe working condition was a

violation of a state or federal safety statute, rule or regulation,

whether cited or not, or of a commonly accepted and well-known

safety standard within the industry or business of the employer, as

demonstrated by competent evidence of written standards or

guidelines which reflect a consensus safety standard in the industry

or business, which statute, rule, regulation or standard was

specifically applicable to the particular work and working condition

involved, as contrasted with a statute, rule, regulation or standard

generally requiring safe workplaces, equipment or working

conditions;

(D) That notwithstanding the existence of the facts set forth

in subparagraphs (A) through (C), inclusive, of this paragraph, the

employer nevertheless intentionally thereafter exposed an employee

to the specific unsafe working condition; and

(E) That the employee exposed suffered serious compensable

injury or compensable death as defined in section one, article four,

chapter twenty-three whether a claim for benefits under this chapter

is filed or not as a direct and proximate result of the specific unsafe

working condition.

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W. Va. Code § 23-4-2(d)(2)(ii) (2005). These elements have not been alleged. The Complaint

contains the conclusory allegation that the “Defendant’s predecessor maintained a hazardous

workplace” which endangered its employees daily. (Compl. § III). Further, the Plaintiff alleges

that no protective gear was provided to the workers. This is the extent of the allegations regarding

the maintenance of an unsafe working condition.

Through a liberal reading of the Complaint, the Plaintiff has arguably pled the first element,

that a dangerous condition existed. However, even under a liberal reading, the Plaintiff fails to

allege the remaining elements. There is no allegation that the employer was aware of “the high

degree of risk and the strong probability of serious injury or death” from exposure to the chemical

components, or what the chemicals were. No allegation points to any specific state or federal

statute, rule, or regulation, or any common industry safety measure that was violated. Additionally,

no allegation asserts that the employer was aware of the high risk and intentionally exposed

employees to it. Finally, while the Complaint contains an allegation that the workplace condition

is the probable cause of the injury, the Plaintiff does not allege, with any specificity, that the

chemicals were the direct and proximate cause of his injury.

Accordingly, because the Plaintiff fails to state a claim upon which relief can be granted,

under either exception to the employer’s immunity, the Complaint must be dismissed.

CONCLUSION

Wherefore, after thorough review and careful consideration, the Court ORDERS that the

Motion to Dismiss (Document 3) be GRANTED and that this matter be DISMISSED WITHOUT

PREJUDICE.

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The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to

any unrepresented party.

ENTER: _ February 7, 2022

IRENE C. G

UNITED STATES DISTRICT JUDGE

SOUTHERN DISTRICT OF WEST VIRGINIA

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