Petition for Writ of Certiorari — Young v. Cargill

(1) Supreme Court, U.S.

FILED

Wa 091558 FEB 2- 2010

OFFICE OF THE CLERK

No

IN THE

SUPREME COURT OF THE UNITED STATES

LORENE YOUNG

PETITIONER

CARGILL

RESPONDENT

ON PETITION FOR A WRIT OF CERTIORARI

TO

UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Marcia V. Forsett

1405 Greentree Avenue

Bartow, FL 33830

863-605-5359

Attorney for Petitioner

QUESTIONS PRESENTED

Is Cargill entitled to summary judgment as a

matter of law?

Whether Cargill is entitled to Employer

Immunity based on Florida’s Workers

Compensation Act Section 440.11 (2) Fla. Stat

§440.01- 440.60 (2000).

Was Lorene Young considered an employee of

Cargill?

Did Cargill know or should have known of the

dangers of the use Anhydrous Ammonia.

LIST OF PARTIES AND CORPORATE

DISCLOSURE STATEMENT

All current parties appear in the caption of the

case on the cover page, co-defendant Cromwell

was dismissed as a defendant. Cargill is not a

publicly traded corporation

TABLE OF CONTENTS

QUESTIONS

PRESENTED.....

LIST OF PARTIES AND

CORPORATE

STATEMENT..

TABLE OF

CONTENTS

TABLE OF

APPENDICES.........

TABLES OF CITED

AUTHORITIES.......

OPINIONS

oS). eres

JURISDICTION........

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

STATEMENT OF THE CASE...

REASONS FOR GRANTING

fi. 3 7 Renner

CONCLUSION...

Vi

10

INDEX TO APPENDICES

APPENDIX A Copy of Docket of the United

States Court of Appeals for the 11 Circuit

APPENDIX B Affidavit of Carla L. Rushing

APPENDIX C Mrs. Youngs’ Medical synopsis

APPENDIX D A report from the Minnesota

Department of Agriculture Agronom and plant

protection division Dated from 01/01/1997 to

11/27/2007.

APPENDIX E Judge Virginia M. Hernandez

Covington’'s order dated December 15, 2008

APPENDIX FF Service Agreement

APPENDIX G The final order/ opinion of the

United States District from the Middle District of

Florida issued by Judge Hernandez-Covington

APPENDIX I Article from Highlands Today

dated December 30, 2001, Anhdrous Ammonia

Spill Day,TexasTnalLawyer.com article., Lake

Wales Chemical Spill article., Chemical Safety

Board Article

?

TABLE OF AUTHORITIES CITED

Booher v. Pepperidge Farm Inc., 465 So. 2d 985,

eS ea os cc aseneceu iit pes 20,22

Conklin v. Cohen, 287 So.2d 56, 60

Bo eater AA en omen Net he AER pg 24

Crawford v. Florida Steel Corp., 478 So.2d 855,

10 Fla. L. Weekly 2507

CPEn. Pe. 3 DGGE. FOG aiccsisscscccvcencnvcees pe 24

Aretha Davis et al vs. Anvil knitwear Inc. 20

Fed. Appx. 197;2001 U.S. App. LEXUS 22295

i ge) | ae as .....-pg 24

Dresher v. Burt (1996), 75 Ohio St.3d 280,

Sisscssskario nesshucsbndncteiessaebedunsspaaciaen pg 25

Grzybowski v. Aquaslide "N' Dive Corp. Un re

Aquaslide "N” Dive Corp.) 85 B.R. 545, 547 (9th

Fe ie sakcvcrnsccesckcnagencteceeesl pg 24

Hikmet v. Turkoglu, 2009 Ohio 6477 (Ohio App

12/10/2009), 2009 Ohio 6477 (Ohio App.,

BEEN Setesusducesscnassenasndnenneb untae pg 26

In re Jarvar, Case No. 04-62762-7

(Bankr.Mont. 12/18/2009) (Bankr.Mont.,

MN. check Uevancsulandeaiine iaacneaeueee pg 25

Younie v. Gonya (In re Younze), 211 B.R. 367,

373 (9% Cir. BAP 1997) cccccccccecceeeeeee. ng 24.

vi

STATUTES AND RULES

Florida’s Workers’ Compensation Act. Fla. Stat. §

440.01-40.60 (2001).

Florid2’s Workers’ Compensation Act. Fla. Stat. §

440.015 (2001).

Michigan’s Workers Disability Compensation Act

of 1969 Act 317o0f 1969.

The South Carolina Workers’ Compensation

Law Title 42 §42-1-540.

Ohio Revised Code Title 41 Labor and Industry

Chapter 4113.06 Negligence of Employer.

Texas Workers’ Compensation Act § 401.012

Definition of Employer.

OTHER

Copy of Docket of the Umied States Court of

Appeals for the 11 Circuit

“ 30 + Treated at Hospitals In SunPure

Industrial Accident” By Joe Seelig and Joe Rice,

Sunday December 30, 2001 Highlands Today.

Affidavit of Carla L. Rushing

A report from the Minnesota Department of

Apriculture Agronom and plant protection

division Dated from 01/01/1997 to 11/27/2007.

Vil

‘The final order/ opinion of the United States

District from the Middle District of Florida

issued by Judge Hernandez: Covington

Mrs. Youngs’ Medical synopsis

http://www.acusafe.com/Newsletter/Stories/0102

News-MonthlyIncidents.htm

The 1987 version of the Standard Industrial

Code which can be accessed on the U.S.

department of Labor, Occupational Safety and

Health Administration’s website at

www.osha.pov.

http-/Negal-

dictionary.thefreedictionary.com/Parol+ Evidence

www.meriam-webster.com/dictionary

Google — Anhydrous Ammonia.

http://video.google.com/videoplay?docid=2788301

342151420145#,

http://video.google.com/videoplay?docid=2788301

3421514201 45#docid=-4423993229000614212

viii

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of

certiorari issue to review the judgment below.

OPINIONS BELOW

|x ] For cases from federal courts:

The final order/ opinion of the United

States District from the Middle District of

Florida in Appendix G and the Final

order/Mandate of the United States court of

Appeals for the 11" Circuit in Appendix H to

the petition.

JURISDICTION

For cases from federal courts:

The date on which the United States Court of

Appeals decided my case was September 9,2009.

A timely petition for rehearing was denied by the

United States Court of Appeals on the following

date: November 5, 2009 and a copy of the order

denying rehearing appears at Appendix A.

THE JURISDICTION OF THIS COURT IS

INVOKED UNDER 28 U.S.C.

§1254 (1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED.

Florida’s Workers’ Compensation Act. Fla. Stat. §

440.01-40.60 (2001).

Michigan's Workers Disability Compensation Act

of 1969 Act 317o0f 1969.

The South Carolina Workers’ Compensation

Law Title 42 §42-1-540

Ohio Revised Code Title 41 Labor and Industry

Chapter 4113.06 Negligence of Employer.

Texas Workers’ Compensation Act § 401.012

Definition of Employer.

STATEMENT OF THE CASE

On December 29, 2001 there was a chemical]

explosion of anhydrous ammonia gas at the

SunPure Ltd. Citrus processing plant in Avon

Park FL, the leak qualified as a mass casualty

incident, sources stated that the leak occurred in

a feeder line.! Ambulances from three different

counties transported patients to four different

hospitals. 7Highlands County Emergency

Operations Center Director Bill Nichols stated

the gas release happened around 7am, he carries

with him a hazardous materials book listing the

hazardous materials for every business in

Highlands County. He stated that SunPure was

listed as having anhydrous ammonia and

chlorine present. He also stated that the release

of both of these chemicals simultaneously could

lead to the evacuation of people living and

working within a one-mile radius of the plant.

According to Larry Hadden, (environmental!

health and safety manager for Cargill) It only

takes a small amount of ammonia to make

1“ 30 + Treated at Hospitals In SunPure Industrial

Accident” By Joe Seelig and Joe Rice, Sunday December

30, 2001 Highlands Today.

2 dd

4“ 30 + Treated at Hospitals In SunPure Industrial

Accident” By Joe Seelig and Joe Rice, Sunday December

“0, 2001 Highlands Today.

sensitive people ill/or irritated.4 Reports of

exactly how much ammonia leaked differs.

According to Mr. Hadden the venting happens

periodically and the venting worked as it should

have . There 1s a difference of opinion as to

where the actual release valve was located. It is

Mrs.Youngs’ opinion that the valve had to be

located close to the ground ( and most certainly

not 20 feet in the air as indicated by Mr.

Hadden)® because the bang of the explosion and

the engulfment of the gas was virtually

simultaneous. Videos of similar accidents on the

internet shows clouds that move and expand

horizontally.6 Mrs. Lorene Young (a lead

supervisor ) was one of 30 plus employees of

Citrus force Staffing who had to be transported

to hospitals in the immediate area. Since that

time Mrs. Young has expenenced severe

respiratory problems including chemically

induced asthma, bronchitis and frequent nose

4 /d.

6“ 30 + Treated at Hospitals In SunPure Industrial

Accident” By Joe Seelig and Joe Rice, Sunday December

30, 2001 Highlands Today.

6 Google — Anhydrous Ammonia.

http://video. google,com/videoplay?docid=2 78830 1342151420

145#,

http://video. google.com/videoplay?docid=2 78830 1342151420

1 45#docid=-44239932290006 14212

bleeds, she suffers from short term memory loss,

panic attacks and anxiety Mrs. Young continues

to be under doctors’( she sees a pulmonary

specialist 2 or 3 months due to her chronic

bronchitis) care from the injuries she sustained

from exposure to anhydrous ammonia on a daily

basis and the massive exposure she sustained on

December 29,2001.

The jobs included, but were not limited to,

unloading fruit, receiving fruit, sectioning of

fruit, etc. on a continuous basis, the employees,

including Mrs. Young were exposed to ammonia.

According to the Affidavit of Ms. Carla L.

Rushing dated April 3, 2008’ she was also a lead

and was exposed to ammonia on a daily basis

according to Ms. Rushing in her written

statement and Mrs. Youngs’ statements the

ammonia was the result of leaks in the

equipment at the plant. Employees would

complain of shortness of breath and headaches.

Mrs. Rushing and Mrs. Young would report these

complaints to the Plant Manager, Larry Plair,

and on occasions he would go and obtain aspirin.

On several occasions, Mr. Plair got angry about

the complaints and would begin to curse. He

would sometimes allow the workers to take a 15

minute break. However, he would order them

back to work after the break , in addition he

7 Affidavit of Carla L. Rushing is located in Appendix B

would advise everyone that it was safe to go back

into the ammonia exposed work area. The

majority of the workers were Hispanic and did

not speak English or very little; and sometimes

they would ask for leads (supervisors) not to

complain to Mr. Plair for fear of retribution, loss

of jobs or retaliation. It is unknown if all or (any)

of the workers were undocumented workers ,

Naturalized citizens or Spanish Speaking

Americans. Mr. Plair told Mrs. Rushing that if

the workers were poing to complain that she

needed to bring 1n new ones. Mrs. Rushing

complained to Mr. Jeff Dicks who was a Cargill

(direct hire) Employee. He replied that Cargill

knew of the leaks but that there was nothing

that he could do about it. At least once per week,

the workers would have to leave their work area

due to ammonia exposure. They were advised by

Mr. Plair to take their work to another area of

the plant that may not have been affected by

ammonia at that time. This routine action was

taken only after workers began to faint and/ or

vomit. No one from Cargill ever gave any

warnings of an anticipated or possible ammonia

leak, there was no alarm system in place that

would sound in case of build up of the pressure of

ammonia fas in the pipes. Mrs. Young

approached Mr. Plair and other Cargill employee

supervisors of the need for safety training, in

English and Spanish since most of the employees

were Hispanic. On the date of the accident Mrs.

6

Young was transported to Lake Wales Medical

Center and was admitted for 24 hours for

observation (Mrs. Young had extra exposure to

the ammonia because immediately after the

explosion she ran to separate parts of the plant

to warn her employees and make sure they all

evacuated) only to return on December 31, 2001

to be admitted again. Mrs. Young has been

admitted on a systematic basis to Lake Wales

Medical Center since the accident a record

twenty-three times from December 29, 2001 to

November 7, 20048 there have been several more

visits to the hospital since November of 2004

including a visit to Florida Hospital in Sebring

Florida on September 29,2006 however, those

records are not available as of January 25, 2010.

Mrs. Young filed suit in State Court against

Cargill Juice and KC Cromwell (Citrus force

Staffing ) for injuries she sustained in a chemical

explosion in Cargill’s Avon Park ,Florida plant

on December 28,2005, the case was removed to

the United States District Court for the Middle

District of Florida on July 25,2006. A Cross

claim was entered by Cargili against KC

Cromwell for indemnity, the case was

designated a track 2 case in federal court on July

26,2006, the cross claim was dismissed on

January 04, 2007. Various motions were made

§ Mrs. Youngs’ Medical synopsis is located in Appendix C.

then case management report was completed on

October 05, 2007 after which there were

attempts at mediation. Mrs. Young’s motion to

amend complaint to include neghgence and gross

negligence was denied on May 28, 2008.

Depositions were taken. The case was reassigned

to Judge Hernandez-Covington on August

05,2008 from Judge James Whittemore. Motions

for summary judgment were heard on December

02,2008, Cargill filed a motion for summary

judgment (Middle District of Florida docket

number 98 case 06-01350-CV-T-27-MAP) and

Mrs. Young filed a motion for partial summary

judgment asserting that the plain language of

the Service Agreement shows that the intent

was for Cromwell(Citrusforce) to be an

Independent Contractor (Middle District of

Florida docket number 105 06-01350-CV-T-27-

MAP ) and that order was issued on December-

15-2008. Notice of appeal was filed February

02,2009. Appeal to the United States Court

Appeals for the 11 circuit was submitted by

Mrs. Young through counsel on May 11,2009

asserting that Summary Judgment was

inappropriate and denied Mrs. Young an

opportunity for a jury trial , on June 11, 2009

Cargill filed a motion to dismiss for failure to

prosecute and for enlargement of time, on June

17,2009 Appellee Cargill submitted E-Brief.

There was a motion for leave to file Appellee

brief out of time on June 23,2009.

8

On August 07,2009 Appellee’s motion to dismiss

and for extension of time was denied and

Appellee’s motion to file its brief out of time was

granted. Appellee brief was also filed on August

7,2009. Judgment and Opinion was entered on

September 09,2009 denying Mrs. Youngs’

Appeal. Mrs. Young through counsel filed a

Petition for Rehearing Enbanc on September

23,2009. On November 05,2009 the Petition for

Rehearing was denied. Case was closed and

Mandate issued on November 13,2009.

® Copy of Docket of the United States Court of Appeals for

the 11% Circuit is in Appendix A

REASONS FOR GRANTING THE PETITION

There is a conflict of decisions between the

Middle District of Florida and the 9% Circuit

Court of Appeals and the Appellate court of Ohio.

There are differences of opinions on what

institutes a genuine material issue of fact. What

constitutes a material issue of fact in deciding to

grant a summary judgment motion is a very

important question because it poses a bar to

litigants who want their day in court. One of our

basic freedoms puaranteed by the United States

Constitution is our right for the redress of

grievances. Our Workers’ Compensation Laws

were developed to ease excessive htigation

however, it was not the intent of the legislators

to have those laws eliminate all Jegal redress for

injuries.

440.015 Legislative intent.--It is the

intent of the Legislature that the Workers’

Compensation Law be interpreted so as to

assure the quick and efficient delivery of

disability and medical benefits to an

injured worker and to facilitate the

worker's return to gainful] reemployment

at a reasonable cost to the employer. It is

the specific intent of the Legislature that

workers' compensation cases shall be

decided on their merits. The workers’

compensation system in Florida is based

on a mutual renunciation of common-law

10

rights and defenses by employers and

employees alike. In addition, it is the

intent of the Legislature that the facts in a

workers’ compensation case are not to be

interpreted liberally in favor of either the

rights of the injured worker or the nghts

of the employer. Additionally, the

Legislature hereby declares that disputes

concerning the facts in workers'

compensation cases are not to be piven a

broad liberal construction in favor of the

employee on the one hand or of the

employer on the other hand, and the laws

pertaining to workers' compensation are to

be construed in accordance with the basic

principles of statutory construction and

not liberally in favor of either employee or

2mployer. It is the intent of the

Legislature to ensure the prompt delivery

of benefits to the injured worker.

Therefore, an efficient and self-executing

system must be created which is not an

economic or administrative burden. The

Division of Workers' Compensation shall

administer the Workers' Compensation

Law in a manner which facilitates the self.

execution of the system and the process of

ensuring a prompt and cost-effective

delivery of payments. !°

The intent in Michigans’ Workers

Compensation act reads as follows:

AN ACT to revise and consolidate the laws

relating to worker's disability

compensation, to increase the

administrative efficiency of the

adjudicative processes of the worker's

compensation system: to improve the

qualifications of the persons having

adjudicative functions within the worker's

compensation system; to prescribe certain

powers and duties; to create the board of

worker's compensation magistrates and the

worker's compensation appellate

commission; to create certain other boards;

to provide certain procedures for the

resolution of claims, including mediation

and arbitration; to prescribe certain

benefits for persons suffering a personal]

injury under the act; to prescribe certain

limitations on obtaining benefits under the

act; to create, and provide for the transfer

of, certain funds; to prescribe certain fees;

10 F'lorida’s Workers’ Compensation Act.

Fla. Stat. § 440.015.

to prescribe certain remedies and penalties;

to repeal certain parts of this act on specific

dates; and to repeal certain acts and parts

of acts.!!

In South Carolina their Act explains the

rights and remedies associated between

iemployees and Employers.

Employee's nghts and remedies under Title

exclude all others against employer.

The nghts and remedies granted by this

Title to an employee when he and his

employer have accepted the provisions of

this Title, respectively, to pay and accept

compensation on account of personal injury

or death by accident, shall exclude all other

rights and remedies of such employee, his

personal representative, parents,

dependents or next of kin as against his

employer, at common law or otherwise, on

account of such injury, loss of service or

death.

Provided, however, this limitation of

actions shall not apply to injuries resulting

from acts of a subcontractor of the

employer or his employees or bar actions by

an employee of one subcontractor against

11 Michigan’s Workers Disability Compensation Act of 1969

Act 317of 1969

another subcontractor or his employees

when both subcontractors are hired by a

common employer.!?

In Ohio the Act describes what is

considered neghgence by an employer.

When it appears in an actior. described in

section 4113.03 of the Revised Code that

the injury or death was caused in whole or

in part by the neglect of the employer in

failing to properly furnish, maintain,

construct, guard, repair, inspect, or protect

any of the ways, works, boats, wharves,

plant, machinery, appliances, or tools, in

any way connected with or in any way used

in the business of the employer, in any

manner required by the law of this state or

of the United States, or by any defective or

unsafe condition in the ways, works, boats,

wharves, plant, machinery, appliances, or

tools, except simple tools, in any way

connected with or in any way used in the

business of the employer, the fact that such

employee continued in said employment

with knowledge of such negligent omission

or want of care or such defective or unsafe

condition is not a defense unless by the

12 ‘The South Carolina Workers’ Compensation Law Title 42

§42-1-540.

14

terms of his employment it was expressly

made the duty of such employee to report

such neglect or such defective or unsafe

condition to the employer and the evidence

discloses that such employee failed so to

report, and that the employer was not

otherwise possessed of knowledge of such

negligent, unsafe, or defective condition.

Such employee shall not be held to have

assumed the risk of:

(A) The negligent act of any fellow servant

or employee of such employer, done in

obedience to the immediate or peremptory

instructions or orders given by the

employer, or any other person who has

authority to direct the doing of said act;

(B) The want of necessary and sufficient

rules and regulations, or the lack of

enforcement of same, for the government of

such employees in the construction,

operation, and maintenance of such ways,

works, boats, wharves, machinery, plant,

appliances, or tools, or the employing or

retention of any incompetent servant.!4

18 Ohio Revised Code Title 41 Labor and Industry Chapter

4113.06 Neghgence of Employer

15

In Texas the Definition of an Employee is

as follows

sec. 401.012. DEFINITION OF

EMPLOYEE. (a) In this subtitle,

"employee"

service of another under a contract of hire,

means each person in the

whether express or implied, or oral or

written.

(b) The term “employee” includes:

(1) an employee employed in

the usual course and scope of the

employer's business who is directed by the

employer temporanily to perform services

outside the usual course and scope of the

employer's business;

(2) a person, other than an

independent contractor or the employee of

an independent contractor, who is engaged

in construction, remodeling, or repair work

for the employer at the premises of the

employer; and

(3) a person who is a trainee

under the Texans Work program

established under Chapter 308

(c) The term "employee" does not

include:

(J) a master of or a seaman

on a vessel engaged in interstate or foreign

commerce; or

(2) a person whose

employment is not in the usual course and

scope of the employer's business.

(d) A person who is an employee

for the purposes of this subtitle and

engaged in work that otherwise may be

legally performed is an employee despite:

(1) a license, permit, or

certificate violation arising under state

law or municipal ordinance; or

(2) a violation of a law

regulating wages, hours, or work on

Sunday.

(e) This section may not be

construed to relieve from fine or

imprisonment any individual, firm, or

corporation employing or performing work

or a service prohibited by a statute of this

state or a municipal ordinance. !4

This case was filed in State Court on December

23,2003 it has been over 6 years since suit was

filed and 9 years since the accident that this case

has not been prompt or cost-effective, as was the

intent of the Florida Statutes Mrs. Young is still

unable to work due to her injuries sustained in

the accident. To give Cargill a summary

judgment based on employer immunity when a

14 ‘l‘exas Workers’ Compensation Act § 401.012 Definition

of Employer.

reasonable prudent person could easily conclude

that the defendant was grossly negligent because

the defendants knew or should have known of the

likelihood that an explosion of ammonia would

occur would be unfair anc unjust. Two weeks

before the Cargill leak on December 17, 2001

there was an ammonia leak at a citrus processing

plant in Lake Wales, Florida which is very close

in vicinity to the Avon Park facility owned by

Carpill.!® Shortly after the December 29,2001

explosion about 5 days later there was another

industrial accident at the Avon Park facility( the

cause of the explosion is unknown) the explosion

was so intense it actually blew out windows and

siding from the building front and it shifted the

beams in the administrative offices. On October

08, 2000 Cargill had 4500 LBS of ammonia

released at a facility in Havelock Minnesota.!® If

Cargill had significant control of the

instrumentality and equipment at the Avon Park

facility then as an employer they should have

known that an ammonia explosion might occur

and should have provided significant safeguards

16 http:/www.acusafe.com/Newsletter/Stories/0102News

MonthlyIncidents.htm

16 This information was on a report from the Minnesota

Department of Agriculture Agronom and plant protection

division Dated from 01/01/1997 to 11/27/2007, there is also

listed 8 other incidents where chemicals were wasted a

copy of this report is in Appendix D

18

to protect its’ employees from harm. It is Mrs

Youngs feeling that Cargill management was

either too detached from the day to day running

of the facility to be an actual employer, or if they

did know of the constant ammonia leaks and

possibility of an explosion then the company is

grossly negligent, Cargill can not have it both

ways especially since the Florida Workers

Compensation Statute state that the Statute

should not favor either the employer or the

employee but strike a fair and equitable

balance.

The Standard Industrial Code defines “help

services’ as “establishments primarily engaged

in supplying temporary or continuing help on a

contract or fee basis.”!7 However, there is no

mention of Independent Contractor which is

expressly mentioned in the contract between

Cargill and Citrus force (Cromwell). “The actual

employment relationship rather than the

subjective intent of the parties should control in

any determination of whether a special employee

may sue the special employer for work-related

\? Judge Virginia M. Hernandez Covington's order dated

December 15, 2008, quoting the 1987 version of the

Standard Industrial Code which can be accessed on the

U.S. department of Labor, Occupational Safety and Health

Administration’s website at www.osha,egoyv. in Appendix E

19

injuries.”!8 The actual relationship between

Cromwell and Cargill is entitled “SERVICE

AGREEMENT” and has an indication that

Cromwell/Citrus force was an Independent

Contractor’? and indicated what was to be paid

per hour to both Leads/Forklift operators and

General workers, there was no mention of how

supervisors or managers were to be paid. In the

case of Crawford v. Florida Steel Corp., 478 So.2d

55, 10 Fla. L. Weekly 2507 (Fla. App. 1 Dist.,

1985) there was a question of whether an

employee was a borrowed servant. Crawford was

paid by North Florida, not its alleged special

employer, Flonda Steel. Mrs. Young was paid by

Cromwell and not Cargill.

A general employer is one who contracts

, while a special

employer is one to whom the general

employer has loaned his empioyee.

Stuyvesant Corp. v. Waterhouse, ...., and

Berrier v. Associated Indemnity Co., .... In

this latter instance, the employee is known

as a "special employee," or sometimes a

“borrowed servant." The courts have

directly with an employee

'§ Booher v. Pepperidge Farm Inc., 465 So. 2d 985, 986

(Fla. 1985)

i@ Service Agreement attached in Appendix F

20

generally agreed that the criteria for

determining the existence of an employer-

employee relationship for purposes of the

“borrowed servant" doctrine are:

(1) whether a contract for hire,

expressed or implied, exists between the

employee and the alleged special employer:

(in the instant case the contract for hire is

expressed in a contract that specifies

Independent contractor)

(2) whether the work being done at

the time of the injury was essentially that

of the alleged special employer; and ( the

work was being done for Cargill)

(3) whether the power to contro] the

details of work being done at the time of

the accident resided in the alleged special

employer. (there is a question as to the

extent of contro] that Cargill had over the

premises, because Cargill states that a

valve was closed by an unknown person

not knowing who was trained to maintain

the pressure valve and who was not

demonstrates a significant lack of

control .)?°

In the instant case there is a service agreement

between Cargill and Cromwell (CitrusForce)

which indicates that CitrusForce is and

Independent Contractor the difference between

the Booher case and the present one is that the

court stated that The actual employment

relationship rather than the subjective intent of

the parties should control in any determination

of whether a special employee may sue the

special employer for work-related injunes.*!

Subjective is defined as characteristic of er

belonging to reality as perceived rather than as

independent of mind:2? There is not mention of a

written contract in the Booher opinion .

According to the Merriam-Webster’s website the

definition of objective is as follows: condition in

the realm of sensible experience independent of

individual thought and perceptible by all

observers :23 In the instant case there is a Service

20 Final Order from the United States District Court for the

Middle District of Florida issued by Judge Hernandez-

Covington.

21 Hooher v. Pepperidge Farm Inc., 465 So. 2d 985, 986

(Fla. 1985)

#2 www.mernam-webster.com/dictionary/subjective

23 Jd

Agreement which can be perceived (read ) by

anyone, therefore there would be no need to use a

subjective test. The purpose of the agreement

was to document the responsibilities of each

party. The parol evidence rule is a principle that

preserves the integrity of written documents or

agreements by prohibiting the parties from

attempting to alter the meaning of the writen

document through the use of prior and

contemporaneous ora] or written declarations

that are not referenced in the document. The

parol evidence rule applies to written contracts to

safeguard the terms of the contract. The courts

assume by the paro] evidence rule that contracts

contain the terms and provisions that the parties

specifically intended and lack those provisions

that the parties did not want.*4 The court should

look to the four corners of the document when the

contract is available.

Cargill insists that it is a special employer and

deserves immunity from suit. However ...the

employer may become hable if he commits some

act of negligence for which he should be held

liable to the independent contractor's employee,

irrespective of the employer-independent

contractor relationship. City of Mount Dora v.

24 hitp://legal dictionary thefreedictionary.com

/Parol4 Evidence

Voorhees, compare Conklin v. Cohen, 287 So.2d

56, 60 (Fla.1973).25

In a case from South Carolina summary

judgment was Granted to an employer because

Appellants were considered grossly negligent

simply because a contract was cancelled for goods

which resulted in loss of income to Appellee. In

Mrs. Youngs case, her working environment and

industrial accident caused her to loose

work/revenue since December of 2001. Therefore

Cargill should be held as being grossly neglgent.

If loss of money or revenue was determined to be

gross negligence then what about loss of health

due to an industrial accident.7®

Therefore Cargill should not have received a

summary judgment.

The proponent of a summary judgment motion

bears a heavy burden to show that there are no

disputed facts warranting disposition of the case

on the law without trial." Younie v. Gonya (In re

Younie), 211 B.R. 367, 373 (9% Cir. BAP 1997)

(quoting Grzybowski v. Aquaslide "N' Dive Corp.

(In re Aquaslide "N" Dive Corp.), 85 B.R. 545,

2) Crawtord v. Florida Steel Corp., 478% So.2d 855, 10 Fla. L

Weekly 2507 (Fla. App. 1 Dist., 1985)

26 Aretha Davis et al vs. Anvil knitwear Inc. 20 Fed. Appx.

197:2001 U.S. App. LEXUS 22295 (October 2001)

24

547 (9th Cir. BAP 1987)). The manner in which

this burden is proven depends on which party

has the burden on a particular claim or defense

at the time of trial.2?7

There are different views of what is

a genuine material issue of fact in

different Distnct Courts , When

seeking summary judgment on the

ground that the nonmoving party

cannot prove its case, the moving

party bares the initia] burden of

informing the trial court of the basis

for the motion, and identifying those

portions of the record that

demonstrate the absence of a

genuine issue of material fact on an

essential element of the nonmoving

party's claims. Dresher v. Burt

(1996), 75 Ohio St.3d 280, 293. A

moving party does not discharge

this mitial burden under Civ.R. 56

by simply making a conclusory

allegation that the nonmoving party

has no evidence to prove its case. Id.

Rather, the moving party must

affirmatively demonstrate by

affidavit or other evidence allowed

27 In re Jarvar, Case No. 04-62762-7 (Bankr.Mont.

12/18/2009) (Bankr.Mont., 2009)

by Civ.R. 56(C) that the nonmoving

party has no evidence to support its

claims. Id. If the moving party

meets this initial burden, then the

nonmoving party has a reciprocal]

burden outlined in Civ.R. 56(E) to

set forth specific facts showing that

there is a genuine issue for trial

and, if the nonmoving party does

not so respond, summary judgment,

if appropriate, shall be entered

against the nonmoving party. Id.“8

Therefore because there is conflict between

districts about the determination of what a

genuine issue of material fact is, and there is a

conflict between districts about the definition of

what constitutes an Employee versus an

Independent Contractor and There is a conflict

between districts about what constitutes Gross

Neghgence and there is environmental! concerns

about how green our planet should and those

concerns are of great public interest the

Supreme Court of the United States should

grant this Writ of Certiorari.

28 Hikmet v. Turkoglu, 2009 Ohio 6477 (Ohio App

12/10/2009), 2009 Ohio 6477 (Ohio App., 2009)

26

CONCLUSION

For all of the foregoing reasons, petitioner

respectiully request that the Supreme Court

j f

grant review of this matter.

Respectfully submitted,

Marcia V. Forsett

14056 Greentree Avenuc

Bartow, FL 33830

(863)605-5359

Attorney for Petitioner

January 28, 2010

APPENDIX A

i

WS Coun of Appeals for the Meventh Cirant

Umsited States Court of Appeals

for the Eleventh Circait

56 Forsyth Sucet, N.W

Athanta, GA 30303-2289

(404) 335-6100

09-10315-FF

Lorene Young v. Cargill Juice North America

Closed

Docket #: 09-103 15-FF

Short Style: Lorene Young v. Cargill Juuce North Amenca

Docket Date: 01/20/2009

Lead Case:

Agency:

Natere of Suit: Tons: Pasonal Injury: Product Liability

Misc. Type:

Clerk: York, Mamendedla

Clerk Phone: (404) 335-6175

Distnet Information

Docket #: 06-01350-CV-T-27-MAP Judge: Virginia M. Hernandez Covingion

Dkt Date: 07/21/2006 District: Flonda-Middle

NOA Date: 01/14/2009 Office: MFL-Tampa

Secondary Case information

Decket#: Judge:

Dkt Date: //

Case Kelationships

|[Docket #|Short Style{Relation|Status}

Pending Motions

No Pending Motions

http-//paces.cal ] .uscourts gov/CHMSDK TP FW X

Page | of 7

1/25/2010

US Coun of Appeals for the Eleventh Circurt Page 2 of 7

Usited States Court of Appeals

for the Eleveath Circuit

% Forsyth Suect, NW

Atlanta GA 30303-7289

(404) 335-6100

09-10315-Fk

Lorene Young v. Cargill Juice North America

LORENE YOUNG,

Piamuti-Appellant,

VOISUS

CARGILL JUICE NORTH AMERICA, IN(

fn a. Cargill Citro-Amenica, Inc.,

ldcfendant-Appelles

(ross Claimant,

KC CROMWELL, IN(

{na Spartan Premier, Inc.,

dba Citns Force Staffing

bitp //pacer_ca\ | uscourts gov/CHMSDK TP FW X 1/25/2010

'

US Coun of Appeals for the Eleventh Circuit Page 3 of 7

Detendant

Cross Defendant

United States Court OF Appeals

FOR the Eleventh Circuit

56 Forsyth Strcet, NW

Atlanta, GA 30303-2289

(404) 335-6100

OF eres

09-10315-FF

Lorene Young v. Cargill Juice North America

Appenant it 7 Appellant Attorney

Lorene Young rcia Vestylena Forsett

PO BOX 82 The Forsen Law Office

FROSTPROOF , FL. 33843-0082 1405 GREENTREE AVE

\-Brief Tendered: Appellant filed on 05/11/2009 \BARTOW, FL. 33830-6745

ppellant Brief Filed filed on 05/11/2009 (863) 605-5359

ecord Excerpts filed on 05/11/2009 narciaforset@msn.com

ees: Pala on 8 0202/2008 ; . ‘o Briehing Information Found

SaaS Appellee _ | mw... f

Ga “argill Juice Nerth America, lac. ames sM. Droadowski

Address Not On File Hahn Loeser & Parks, LLP

200 PUBLIC SQ STE 2800

“LEVEL.AND, OH 44114-2306

216) 274-2553

Fax: (216) 274-2573

peulrontarthi@achatow com

i -Brief Tendered: Appellee filed on 06/17/2009

_Mppellee Brief Filed filed on 08/07/2009

Dawn R. Hays

Hahn Loeser & Parks LLP

65 E STATE ST STE 1400

COLUMBUS, OH 43215-4209

614) 233-5122

Fax: (614) 221-5909

rhays@hahnlaw com

Oo Briefing Information Found

ew

x) nen mm gm —

_Kaitial Service

b miteseGred

FE STATE ST STE 1400

hup /ipacet.cal | .uscourts gpov/CHMSDKTP_FW X 1/25/2010

4

US Court of Appeals for the Eleventh Circunt

COLUMBUS, OH 43215-4209

(614) 233-5122

Fax: (614) 221-5909

——

Jeanne |. Seewald

Hahn, Loeser & Park, LIP

800 LAURFI. OAK DR STE 600

NAPLES, FL 34108-2705

(239) 594-2900

Fax’ (239) 592-7716

j scewald@hahnlaw com

[Robert J. Fogarty

Hahn Loeser & Parks, LIP

200 PUBLIC SQ STE 3300

CLEVELAND, OH 441 14.2315

(216) 621-0150

Fax: (216) 241-2824

fogarty @hahnlaw 1. COM,

Briae T. McEMatrick

PO BOX 3913

rAMPA, FL 33601-3913

(813) 228-7411

Bryan D. Hall

Bush Ross, P A

1801 N HIGHLAND AVI

rAMPA, FL 33602-2656

$13) 224-9255

Fax (813) 223-9620

Pohl @bushross.com

ee * ——

——

Pape 4 of 7

United States Court of Appeals

fur the Eleventh Circuit

56 Forsyth Surect, NW

Atkaota, GA 30303-2289

(404) 335-6100

09-10315-FF

Lorene Young v. Cargill Juice North America

\ aR

Entry me 4

[Probable Jurisdiction Noted

DK T2 (Docketing Notice) issued. To:Ronald Louis

Nelson, c’Bnan 1, Mckifatnck, c:Bryan D. Hull,

c' Dawn Rae Grauel; c: James M_ Drozdowski, c: Jeanne

A. Seewald; c-Robert J Fogarty, c:Sheryi L. Loesch

http://pacer.ca) | uscourts gov/CHMSDK TP _FWX 1/2 52010

US Coun of Appeals for the Eleventh Circat Page 5 of 7

, 1 . ‘}o2702/2009][A pplication t to Appear P Pro Hac Vice fir yawn R Hays No | . }

~__ ]f02/03/2009)[A pearance Form Submitted — —_lfOawnR Hays FNo |

, Dawn R. Hays’ Application to Appear Pro Hac Vice is

; vzy6s2009} ;RANTED. (TKK) s No

= OT2 (Notice of court action) issued To Dawn R

OCR OM ays: ¢'Sheryl L. Loesch _| z

7 rry i (Appearance form/bar admission letter) issued |

—_ feaesre Rescues M. Drozdowski NO

|fo2720/2009]fMotion to Withdraw as Counsel | No |

Dawn Rae 4

oor sro CIP Filed <a

| enh A. K LK I (Lent etter to district court) issued. To Sheryl i _| a

ae saieeadiaiesiiindii iain ;

0 302/2009fCertificate o of Interested Persons fie orene Young No |

~ 0104720090 iginal Pupers - 2 vols pldgs ; | | expandable f folder _ INo |

[| —__03705/2009H{Motion to withdraw as counsel GRANTED (SKF) __| [No |

| 3/05/2 REC3 (Letter returning record to district court) issued No 7

a fo:Sheryl L. Locech ead

james M

| fpucsrcodfrsmenace rom sumines ——_vmsatas pS

MOT?2 (Notice of court action) issued. c Bnan TI |

McE)fatrick; c:Bryan D. Hull, c:Dawn R. Hays, c Dawn

0 3/09/2 Gravel, c Jarnes M. Drozdowski, c Jeanne L. No

Seewald; c:Robert J). Fogarty; c:-Ronald Louis Nelson,

> Sheryl L. Loesch: c: Y Lorene

aa iver! L. Losacks ¢: Young, Lore . |

D1S-1 (Dismissal notice, 14 days to correcta default)

)3/16/2 ssued To Young, Lorene, c Dawn R Hays: c James M No

p Drozdowski; c:Sheryl L. Loesch =

3/27/2009Court Reporter Financial Arrangements: Paul Spangler [No _

. 0373072009 ranscript Order Form: 12/2/08 mot hrg (ProSe) ____f-orene Young §No_

| ~ {f03730/2009fCourt Reporter Acknowledgement: 12/2408 mot big __{[Paul Spangler [No _|

+= a = ss 9

|}03/30/2009f Transcript Filed in D.C“ 12/2/08 mothrg {Paul Spangler {No |

. Josvsaraooap tice ranscript Filing, Rec. from C1 Rptr : 12/2/08 me ' Spangler JNo

{ __f03730/2009fCount Reporter Financial Arrangements. i Paul Seas Jeo .

eth __ 138 1/2009[Briefing Notice issued

] RICIV (Letter confirming brief due date) issued —

3731 2009TTo: Y oung, Lorene, c Dawn R Hays, c James M

wozdowski

| Ty ‘}o410972009] Certificate of Readiness 2 _ ok. _ = {

fouar20 appearence Form Submitted on In.

Vestylens

http //pacer.cal }.uscourts gov/CHMSDK TP.FWX 1/25/2010

US Coun of Appeals for the eventh Circun Page 6 of 7

I _lForsen tS

loan — CIP Filed ~_ |fDawn R Hays |INo |

; . lames M oe

pe sr00nhe 41P Filed Drozdows! i No

Cargill Juice

ORRECTED Cenuficate of Interested Persons: (Atty a

== att thal ki) gg Amenca,fNo

ms) 4! Brief Tendered Appellant by Marcia Vestylena - Ee Es

S/I 2000 Lorene Young |No

‘ a Bref Filed M 5/21 PTD (Missing date on oe

1$/1 1/2009] proof of service, Record I-xcerpts need to be separated = |jLorene Young |/No

from api brief) (Atty: Marcia Vestylena Forsett) — - . —

j Record Excerpts: M- 5/21 PTD (Durable Cover, Cover

age need to be in compliance with |ith Cir. Ro 28-1{a), ,

niin: Missing 4 copes, Complaint, answer, doc #128, #179) aD SN Pe

[Atty | Marcia Vestylena Forsett) re :

BR7 (Bnef deficiency letter) issued To Marcia |

$/12/20099 Vestylena Forset, c Dawn RK. Hays, c James M No i

Drozdowsta ;

—— —_—— —= —

I: EXC- ic IV (Record Excerpts deficiency letter) issucd |

)5/12/20099To:Maraa Vestylena Forse, c Dawn R_ Hays, c James No

M Drozdowska

ae eee : — ta Eee. mS ea dies os ae:

rp) uice

Motion to Dismiss Appeal fur Failure to Proseane & for “i

_ ON sarge of Time: (Atty: James M amanda i~y a ta

: emai iii Nl inns — “argill Juice ian

W15/2009§corrected cos (Atty James M_ Drozdowski) North Amenca jiNo i

inc

6/1 1 20099t.-Bined Tendered Appellee by Dawn R. Hays North Amenca,jNo

= a SS ee les =

vargall Juice “|

Ir

———— = ~ —_--—- {_—__ a = 2 es =z ,

MOT2 (Notice ‘of court action - to file OOT motion)

6d 1 9/2008 ete To Dawa BR. Hays, c James M_ Drozdowski, No

Marcia | Vestylena Forseti

rs ee NS SOD a 7 ay ud -_

| ation for Leave to File Ape’s Resp Brf Out of Time gta

s/21

ae Na “fie James M. Drordowski) fi Amenca,ENo

EE ee —_—_— a

Ape’s MW’ ‘TD this appeal and for an extension of time to

08/0 12009ffile tu tf is DENIED Ape's mot to file its bref out of No

ime is GRANTED aU L/SHB/E EEC) |

OT2 (Notice e of court action) issued. To James M [

16/0 1720099) rozdowsia: c Dawn KR Hays; c Marca Vestylena No

| ‘Onsen | —_

; = = r-= — _ — - -— «—_—_ —— -— - -~—+ -— -—-- = = '

} | | argill Juice | }

http //pacers call uscourts gov/CHMSDK TP. FW X 1/25/2010

BEST AVAILABLE COPY

US Court of Appeals for the Eleventh Carquit Pape 7 of 7

JNorth Amenca

‘ENO

pavo i000 Appeiie Bnef Filed: (At: James M. Drozdowski)

— ee = pee

7 ae 7 1/2009 Recoad on Appeal _ = eae ] [No tl

8/) 1/2009Exhibits — No 7

: fo910972009) fudgeeet I Entered | No |

: IPIN1A (Notice of issuance of opinion) issued. « costs

taxed against the appellant cJames M_ Drozdowslh. ;

ceteieee: Marcia Vestylcna Forsctt, c Virgima M. Hemandez aoe

__r-ovingion _ aati —

fosrosr20099Opinion Issued aa No_

19/23/7200 Yertificate of Interested. P emsons s (Atty - Marcia __— : Young

Vestylena Forsett) ees —

| resorption for Rehearing En Banc: (Atty Marcia Vestal oer ‘ieee ‘Young No

Forset) J, seeipeeiatie

mz MP-} (Multi-Purpose Purpose letier) issued - "remumned response

| 10/01/2009{t0 petition en banc- . To:/Dawn R. Hays, c-James M No

| Drozdowsli; c-Marcia Vestylena Forseti a Oe

x The Petition(s) for Rehearing are DENIED and no Judge

n bi active service on the Court having requested

_—— hat the Coun be polled on reheanng cn banc, the ihn

Petitions) for Reheanng En Banc are DENIED —___ :

REHG) (Letter enclosing order) issued. To‘Maraa |

1 1/05/20098 Vestylena Forsett; c: Dawn R_ Hays; c- James M No

(+ _ |} sD rozdowska a

— — ——- --—|

d and Exhibits Returned t to Distna Coun: 3 v

| HS2008ROA & 1 fid EXH | re)

J - ~ /[111372009fCASE CLOSED-Mandate Issued } [No |

oad | 1/13/2009{Mandate | Issued _ — [No |

! DT! (1 etter i issuing mandak ’ issued To Sheryl hery! 1.

11/13/2009)Loesch; c Dawn KR. Hays, cJames M Droedowski, Yo

> Marcia | Vestylena F ‘corset

PAC FE R Service C enter _

t raasaciiog Receipt

01/25/7010 16-20-43

PACER Logie: inst! dC emt Code: ‘|

Description: docket sect [Case Nember: §09-103157F

Baiabte Pages: ii i fo a3

\ ———— = es —=—== ——

Sead Comment Change Client Code View Billing History Search

|http://pacer.ca} | .uscourts gpov/CHMSDK TP_FW X 1/25/2010

APPENDIX B

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

[AMPA DIVISION

LORENE YOUNG,

Plawititt,

CASE NO.B,0@ -cV - 1290-7 -27 WiAf

v

CARGILL JUICE NORTH AMERICA, INC

Defendant

AFFIDAVIT OF CARI

STATE OF FLORIDA

COUNTY OF HILLSBOROUGH

The affant, CARLA L. RUSHING, being duly swom upon oath, deposes

and states as follows

| am over the age of 18

2 From November 22, 2001 thwough May 31, 2002 | was employed by

Citrus Force Staffing. Inc. and assigned to work at the Cargill Juice Plant located

on Sun Pure Road in Avon Park, Florida

3 My job ttle was that of a “Lead and | was responsibie for

Supervising approximately 40 employees whose jobe included, but were not

lamited to, unloading fruit, receiing frutt, sectioning of fruit, etc

4 On @ continuous, day to day basis, the employees, ncdiuding myself

and the Piaintif, were exposed to ammonia

7) This ammonia was the result of leaks in the equipmen at the plant

Several of my workers would complain to me about being short of

breath and having headaches

& | would report these complaints to the Plant Manager, Larry Plair,

and sometmes he would go and get aspirin

9 On several occasions, Mr. Plait would get angry about the

complaints and begin cursing. He would sometimes aliow the workers to take a

15 minute break. However, he would order them back to work after the break. In

addition, he would advise everyone that 1 was safe to go back mto the ammonia

exposed work area

10 The majorty of the workers were Hispanic and did not speak

English or very Witte; and sometimes they would ask me not to complain to Mr.

Plair for fear of retribution or retaliation

11 Mr. Plaw eventually advised me that | needed to bring in new

workers if the Current workers were going to complain

12 | complained about the ammona problems to my supervisor, Jeff

Dicks, a Cargill Employee. He replied that Cargill knew of the leaks but there was

nothing he could do about if

13 Al least once per week, the workers would have to leave thei work

areas due to ammonia exposure. We were adivised by Mr. Piair to take Our work

lo another area of the plant that may not be affected by anmwnonia at that given

ume. This aclion was taken only after workers began to faint and/or vomit

14 No one from Cargill ever gave us warnings of an anticipated of

possible ammonia leak

15 At not teme during my employ at the Cargill plant did they ever

provide any safety training to me or any other workers \

16 About a month into my employ at the Cargill plant, the Plamutt

advised Mr. Plair and other Cargill superiors of the need for safety training for all

workers, especially Hispanic, because most of them understood very Iittle

English

FURTHER AFFIANT SAYETH NAUGHT

SUBSCRIBED AND SWORN TO before me this 3 day of April, 2006 by

Carla i! Rushing who ts _ personally known of produced

"C259 (172 i3- (%/ O as identification

0

‘abe I P Kunth LAD

Notary Public (\

State of Flonda

My Commission Expiwes

) Nos Ge i £47 __

tn Nekary Prt State of Florita

Y Tene Cxcenas

m< f hy Cacneson DD4 10508

ra. 2-720

APPENDIX C

PSYCHIATRIC INvrLPENDENT MEDICAL EVALUDA TiuUin

Lorene Young

A REVIEW OF RECORDS:

Lake Wales Medical Center Emergency Room record

12/29/01. Chemical inant inhalation and chemical pneumonitis She

presented with sore throat from ammonia inhalation. Given O02, CATAPRES, and

SOLU-MEDROL. She was admitted to the hospital and discharged the next day.

12/31/01 Diagnosed bronchitis and sinusitis and treated with antibiotic

Admission to Lake Wales Medical Center

01/11/02. She was admitted to John Bateman, M_D , for symptoms of

productive cough with blood-tinged sputum. Sukumar Mathan, M D., consulted and felt

that the curzent problem was not related to the chemical exposure. He recommended

antibiotics Mahesh Allam, M D.. also consulted and recommended COMBI VENT

inhaler and FLOVENT. He also recommended follow-up pulmonary function tests as an

outpatient and follow-up examinations every 6 months for 2 years to rule out the remote

possibility of the development of interstitial pulmonary fibrosis or asthma. Discharged

on 01/15/02 on LEVAQUIN, FLAGYL, PREDNISONE, and SEREVENT inhaiers

Stephen M. Kreuzer, MD , pulmonary specialist

09/18/02. She was on DIOVAN, TYLENOL, and SEREVENT. Weight

226 Diagnosed under-treated chemical asthmatic bronchitis Recommend SEREVENI

revularly followed by FLOVENT.

12/16/02. She weni to the E.R. several days ago with discolored sputum

Has infectious bronchitis and sinusitis with underlying asthma. Prescribed DYPLYLINE,

DEXAMETHASONE, ALLEGRA D, ASTELIN nasal 2 puffs a day, NASONEX 2 puffs

twice a day, and TEQUIN 400 mg. per day

01/10/03. Had a good response to the treatment. Now weighs 234

pounds Pulmonary tests repeated. Diagnosed reasonably stable asthma and sinusitis

She is to continue SEREVENT and FLOVENT and ASTELIN.

03/25/03 She was never a smoker and never had any pre-existing asthma

before the ammonia exposure. She had some worsening of her occupational asthma and

fasciitis of the leg. ADVIL, SKELAXIN, SEREVENT, and FLOVENT.

05/27/03. She is now stable. Continue the same medications and avoid all

chemicals at work and in the home

8] Arturo G. Gonzalez, M.D, psychiatnst

12/06/02. Complains of shortness of breath, numbness in her feet, joint

pain, insomnia, depression, fatigue, and iitability since her accident of 12/29/01

Depressed mood started about 2 months after the accident. Beck Depressive Inventory

scored 17 An MMPI-2 was said to be valid Diagnosed Adjustment Disorder with

Depression and Psychological Factors affecting a Physical Condition LEXAPRO

Staried

03/25/05 LEXAPRO upset her stomach. Still having chest congestion

and breathing difficulties’ Try PAXIL CR 12.5 mg. per day

05/27/03. PAXIL seems to be helping. Says her workplace closed. She

has not been paid since 12/02

Page 10 of 12

PSYCHIATRIC INvreCENDENT MEDICAL EVALUATiw.«

Lorene Young

i 07/30/03. Feels under great stress Not working and has no money Only \

income is child suppon of $550 per month Can‘t even afford her blood pressure

medication. Gave her samples of 12 5 PAXIL

10/22/03. Had hean atiack on 08/15/03. She was hospitalized for 4 days

The attack occurred while her daughter was being air evacuated to Tampa General after

an accident Current medications include ACCUPREL, HCTZ, SEREVENT, and PAXIL

12> 5m Has applied for SSD

Stephen J. Szabo, M.D, psychiatrist

02/05/03. Symptoms include depression secondary to financial problems

and a loss of her prestigious position as a supervisor on her shift. She feels reyected in

thai she was nol supported by her managers and her company when she was injured. She

reports insomnia, anorexia, inability to do her housework, but no suicidal symptoms

Hamilton Depression Rating Scale scored 28 Beck Depression Inventory scored 18

Diaunosed Adjustment Disorder with Depression and Anxious Mood as well as Chronic

Bronchitis He says she does not need psycholopical treatment or medications. He says

she has no evidence of a Post-traumatic Siress Syndrome

6 Stuan M. Brooks, MD , pulmonary specialist

02/06/03. He says he ts unable to confirm a diagnosis of asthma or of

Reactive Airways Dysfunction Syndrome from the information available. He says she

does not suffer from allergic-type occupational asthma Most of his repon was

describing papers he had published on the subject

Susan Hansted, A.R.N_P.

12/29/03. Pain continues. Saw pulmonologist. Sleeps 3-4 hours a night

Poor memory. Continue PAXIL CR

02/22/04. Had a cold and was coughing up blood. Has to sleep sitting up

in a chair. Court cancelled last week and was reset for 10/04/04. Increase PAXIL to 25

mu. per day

; 05/05/04 Constant aching in chest in addition to her usual pain To see

cardiologist tomorrow. Headaches intermittently. Switch to ZOLOFT 100 mg. daily

06/16/04. Some better. Enjoyed going to church. Will increase ZOLOFI

to 180 mw. daily

07/28/04. She says a black car has been following her constantly. A

police officer confirmed that tt was a Worker's Comp. rep. following her.

09/14/04. Any stress seems to make everything worse. Frequently using

inhaler. Frequent headaches. Increase ZOLOFT to 200 mg per day

01/28/05. She missed her last 2 appointments. Decreased ZOLOFT

temporarily t0 100 mg. per day. Will increase back to 100 ma. bid when feeling better.

Court postponed again

03/04/05. Depressive symptoms about the same

Charles G Walker, M D, psychiatrist

04/01/04. She had got back on PAXIL 25 mg. per day. It hasn't helped

much so will go back to ZOLOFI

Page 11 of 12

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FLORIDA HOSPITAL

Heantland Division

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EMERGENCY DEPARTMENT

DISCHARGE INSTRUCTIONS

oou7iz3e 4 4«(Catra/r008 O80504176!

YOUNG, LOREME opz7 86 F SOY

tieergeacy

DEPAUW 00, MICHAEL

LUT) || | tea

DSS-CHINST sin

PATENTS COPY

PSYCHIATRIC INvwEPENDENT MEDICAL EVALUATION

Lorene Young

if 11/17/04 House damaged by hurricanes Depression very slightly better

ZOLOFT 100 mg. twice per day

KC Omments:

Follow-Up With:

Central Florida Health Care

950:'‘CRI7TA W

Avon Park, Fl

fel. No. 452 - 3000

Wheo

Within one to two days

Commeats

Patient Education Materials

LORENE YOUNG has been given the following patient education materials

Injury & iliness

NOSEBLEED

Bleeding from the nose most commonly occurs due to injury or drying and cracking of the inner lining

of the nose (especially dusing a “common cok® or “hay fever atiack). High blood pressure and

hardening Of the arteries also cause nosebleeds

HOME CARE:

1) if a packing was put in your nose, do not pull on ft oF try to remove it yourself, unless diected to do

SO by your docior, You will be given an appointment to have it removed

2) Do not blow your nose for 12 hours afier the bleeding stops. This will allow a strong blood clot to

form. Do not pick your nose. This may restart bleeding

3) Avoid alcohol and hot liquids for the next two days. Alcohol or hot liquids in your mouth can dilate

blood vessels in your nose and cause bleeding to Start again

4) Do not take ibuprofen (Advil, Motrin), naprosyn (Aleve) or aspirin-containing medicines since these

UWn the blood and may promote nose bieeding. You may take Tylenol (acetaminoptien) for pain,

unless another pain medicine was prescnbed

5) If the bleeding starts again, sf up and lean forward to prevent swallowing blood Pinch your nose

Ugiitly fur exactly five minutes (watch the Glock). If bleeding bs not Controfied, continue to pinch

and cal} your doctor of return to this facilay

6) If hugh blood pressure was a cause for your nosebleed, have your blood pressure checked again

tomorow

f) If you have a@ “coid” of “hay fever with dry nasal membranes, lubricate the nasal passages by

to

Name’ LORENE YOUNG 29 - Sep - 2006 14:37 FHHD

Page No: 2 of 5

applying a small amount of Vaseline inside the nose with @ Q-tip twice a day (moming and night)

Avoid overheating your home, which can dry the aw you breath and worsen your conda@ion

FOLLOW UP with your docior as advised for packing removal. Nasal packing should be rechecked or

removed withm 2-3 days

RETURN PROMPTLY or contact your doctor if any of the following occu

Another nosebleed thal you cannoli control

Dizziness, weakness of fainting

Fever over 89.5’ F (375°C)

Headache

Sinus of tacial pain

Shortness of breath or trouble breatiang

Name: LORENE YOUNG 29 - Sep - 2006 14:37 FHHD

Page No: 3 of 5

Patient Visit Summary

LORENE YOUNG has been given the following list of patient education materials and

follow-up instructions

Patient Education Materials

Injury & Hliness

EPISTAXIS, Adult

Follow-Up Instructions

Follow-Up With:

RUIZ MD, JOS!

When

Comments

Follow-Up With:

Central Flonda Health Care

950 CR17A W

Avon Park, Fl

fel No 452 - 3000

When:

Within one to two days

Comments

3200 PHYSICIANS WAY (8653) 382

SEBRING, FL 33870

if you had any cultures of x-1ays performed during your visit, your final reports will be

Name: LORENE YOUNG

2006 14.37 FHHD

Page No 4 of §

LISI

reviewed You wil] be Comlacied a any turher instructions are needed

1 LORENE YOUNG, understand that the teatment | received was rendered on an

[Emergency basis only and that further treatment may be necessary. | have been given a

copy of the above imstructions and | will arrange for follow-up care as outlined above. If my

condition worsens, | will call my doctor or return to the Emergency Deparimen

Patent & Qgnature i date Vrovidet wignature Vale

NAT Wer NE YOUN AA rae S 14 34f 14

APPENDIX D

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APPENDIX E

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

LORENE YOUNG,

Plaintiff,

v. Case No. 8:06-cv-1350-T-33MAP

CARGILL JUICE NORTH AMERICA,

INC., et al.,

Defendants.

ORDER

This matter comes before the Court upon

consideration of

Defendant Cargill Juice North America, Inc.’s

Motion for

Summary Judgment (Doc. # 98), filed on May 29,

2008; Plaintiff

Lorene Young’s Motion for Partial Summary

Judgment

(Doc. #105), filed on May 30, 2008: and the

responses thereto. For

the reasons that follow, Defendant’s motion for

summary

judgment is granted and Plaintiffs motion for

partial summary

judgment is denied

I. Background

Viamntiff Lorene Young's claims arise from

injumnes she

allegedly sustained as a result of an ammonia

leak at

Defendant Cargill Juice North America, Inc.’s

Avon Park juice

processing plant on December 29, 2001. (Doc. ##

2 at 2; 98 ata).

At the time of the accident, Young was employed

by

Defendant KC Cromwell, Inc. and was working

on assignment at

Cargill. (Doc.# 2 at 2). Pursuant to a joimt

venture with

another company, Cargill had assumed

operations at the

existing Avon Park plant in the fall of 2000. (Doc.

He 98 at).

Pursuant to the terms of a Services Apreement

with

Cargill, Cromwell was providing Cargill with “an

adequate

number of [Cromwell] employees to meet

Cargill's staffing

needs” 1n two job classifications: Lead

Person/Forklift

Operator and General Laborer.} Woc. # 98-5 at

7). Under the

terms of the Services Apreement, Cromwell

provides an on-site

Management ‘Team to supervise Cromwell

employees while they are

working at Cargill.. The Management Team's

responsibilities include training Cromwell)

employees on

Carpill’s rules and procedures, monitoring

compliance with

those procedures, and ensuring that Cromwell

cc

employees “have

the proper safety training.’

‘The Services Agreement also provides that

Cromwell shall

purchase and maintain Worker's Compensation

Insurance Employer's laabilty Insurance, and

Commercial General

Laability Insurance.

Section & of the Agreement states

Independent Contractor. [Cromwell] shall act at

all

times as an independent contractor, and nothing

contained herein shall be construed to create the

relationship of principal and agent, or employer

and employee between |[Cromwelll and Cargill

[Cromwell] employees assigned to perform the

Services for Cargill are solely the employees of

|[Cromwel)].

Young was hired by Cromwell in October 2001

and

immediately placed at Cargill in the position of

“Lead.”

(Doc. # 105 at 2). Approximately one month later,

Younyp was

promoted to “Supervisor Lead.” According to

Young,

Cargill employee Charles Hudson was her direct

supervisor at

Cargill and was authorized to give Young

assignments regarding

where in the plant Cromwell employees were to

work. Hudson was also authorized to tell Young

when to take Employer's Liability Insurance, and

Commercial General

laability Insurance. Section & of the Apreement

states:

Independent Contractor. [Cromwell] shall act at

all

times as an independent contractor, and nothing

contained herein shall be construed to create the

relationship of principal and agent, or employer

and employee between [Cromwell] and Cargill.

[(Cromwelll employees assigned to perform the

Services for Cargill are solely the employees of

Cromwell.

Young was hired by Cromwell in October 2001

and

immediately placed at Cargill in the position of

“Lead.”

(Doc. # 105 at 2). Approximately one month later,

Young was

promoted to “Supervisor Lead.” According to

Young,

Cargill employee Charles Hudson was her direct

supervisor at

Cargill and was authorized to give Young

assignments regarding

where in the plant Cromwell employees were to

work.

Ifudson was also authorized to tell Young when

to take Cromwell

employees out of a certain area based on safety

concerns and

when it was safe to let employees return to that

area.

Cargill uses anhydrous ammonia as part of its

evaporation

process to create juice concentrate. (Doc. ## 98 at

4, 105 at

3). On December 29, 2001, an ammonia release

occurred,

resulting in the evacuation of numerous

employces and

transportation of approximately thirty four

employees to the

hospital for evaluation. (Doc. # 98 at 7-8). Young

alleges

that she received “personal and psycholopical

injures’ as a

result of her exposure to the ammonia. (Doc. #

105 at 3). As

a result of these alleged injunes, Young collected

workers:

compensation benefits for wage replacement and

medical

expenses. (Doc. ## 98 at 8; 98-5 at 32-33).

Cargill contends that a subsequent investigation

revealed

that the leak occurred as a result of an unknown

individual

closing a suction valve on the refrigeration

system. (Doc. #

98 at 8). The Occupational Safety and Health

Administration

(OSHA) inspected the facility following the

accident and

issued citations to Cargill for serious violations of

OSHA

regulations. Ud.; Doc. # 98-4 at 2). Cargill alleges

that

none of the citations from OSHA were related to

the relief

valve relheving ammonia pressure on December

29, 2001, and

that OSHA’s report did not indicate how a

release could have

been prevented if Cargill had followed OSHA

regulations

(Doc. # 98-4 at 2)

Young's two-count complaint asserts claims of

intentional

conduct against both Cargill and Cromwell.3

(Doc. # 2).

Young alleges that her injuries resulted from

Carpill’s

failure to “properly inspect, maintain, and/or

repair its

equipment.” (Doc. # 2 at 2). In addition, Young

alleges that

Cargill knew that its equipment was in need of

repair, that

other ammonia leaks had occurred because of

this faulty or

defective equipment, and that another ammonia

leak was

virtually certain to occur. Young further

alleges that Cargill knew its equipment created a

dangerous

condition, but intentionally chose to disregard

the danger and

instruct 1ts employees to work in these conditions

without

warning employees of the danger or

implementing appropriate

safety measures and training. Cargill asserts, as

one of several

affirmative defenses ,that Young’s claims are

barred by

the immunity conferred under

Section 440.11(2) of Florida’s Workers’

Compensation Act.

Fla. Stat. §§ 440.01-440.60 (2000). Section 440.11

provides

that an employee who receives workers’

compensation

benefits for a workplace injury may not

thereafter file suit against

her employer for damages resulting from those

injuMmes unless

the employer committed an intentional tort

which caused the

injury. Fla. Stat. § 440.11(1).4

Cargill seeks summary judgment as to all of

Youngs

claims, asserting that Cargill is immune from

sult because,

(1) it was Young’s employer for purposes of

workers

compensation law at the time of the ammonia

leak, and (2)

Young cannot assert facts demonstrating that

Carpill’s actions

constitute an intentional tort. (Doc. # 98 at 10

24). Young

argues that statutory immunity is not availabk

to Cargill

because Cargill cannot establish that it exerted

the requisite

control over Young to qualify as her employer

(Doc. # 113 at

1). In addition, Young asserts that Cargill

intentionally

created a situation where death or injury was a

substantial

certainty and, therefore, Cargill is not entitled to

SuUTDMary

judgment on the intentional tort issue. Young

seeks summary

judpment only as to the issue of whether Young

was,

at all tumes material, an employee of

Carpill such that Cargill may be entitled to

immunity under

Section 440.11(2). The arguments offered by

Young and Cargill

on this issue are essentially the same as those

asserted in

relation to Carpill’s summary judgment motion

il. Summary Judgment Standard

Summary judgment 1s appropriate “if the

pleadings,

depositions, answers to interrogatories, and

admissions on

file, together with the affidavits, if any, show

that there is

no genuine issue as to any material fact and that

the moving

party is entitled to judgment as a matter of law~

Fed. R.

Civ. P. 56(c). A factual dispute alone is not

enough to

defeat a properly pled motion for surnmary

judgment; only the

existence of a genuine issue of material fact will

preclude a

rrant ol summary judgment. Anderson v. laberty

} y J y

Labby, Irie

V7 US. 242, 247 46 (1986)

An issue is penuine il the evidence is such that a

reasonable jury could return a verdict for the

NoOnmMmoVviInp

party. Mize v. Jefferson City Bd. of Educ a4

Midd 739, 742

(1)ith Cir. 1996) Ceiting Hairston v. Gainesville

on Publyp

Co., 9 F.4d 913, 91% (l1ith Cir. 1993)). A fact 1:

material if

it may alfect the outcome of the suit under the

poverning law

Allen v. Tyson Foods, Inc., 121 F.3d 642, 646

(llth Cir. 1997)

The moving party bears the mitial burden of

showimnp

the court, by relterence to materials on file, that

Lhere are

no penuine issues of material fact that should be

decided at

trial. Hickson Corp. v. N. Crossarm-Co., $57 F°3¢

IZo6, 12600

() ith Cir. 2004) (eating Celotex Corp. v. Catrett,

A777 UD

‘ ‘ fy ‘ ; sey i

f, 323 (1I9Y866)) When a moving party ha

; : | y

—

pleadings, and by its own affidavits, or by

‘depositions,

answers to interropatones, and admissions on

file, designate

specific facts showing that there is a penuine

issuc for

tria).” Jeffery v. Sarasota White Sox, Inc., 64

I.3d 590,

593 94 (1th Cir. 1995) (citing Celotex, 477 U.S

at 424)

If there is a conflict between the parties’

allegations

or evidence, the non-moving party's evidence 1s

presumed to be

true and all reasonable inferences must be drawn

in the nonmoving

party's favor. Shotz v. City of Plantation, Fia.,

544

hd 116), 1164 1th Cir. 2003). Ha reasonable

fact finder

evaluating the evidence could draw more than

one inference

from the facts, and Hf that inference introduces a

penuine

issue Of material fact, the court should not grant

KuMmmMmary

judgment. Samples ex rel. Samples v. City of

Atlanta, 46

iho 2d 1428, 1330 (11th Cir. 1988) (citing Augusta

Iron & steel!

Works, Inc. v. Employers Ins. of Wausau, &35

2d 655, 8560. 1th Cir. 1988)). However, if the

non-movant's response

consists of nothing “more than a repetition of his

conclusional allepations,” summary judgment is

not onl y

proper, but required. Morris v. Ross, 663 F.2d

1032, 1034

(Jith Cir. 198])

Ii]. Analysis

A. Employer Status

Under Florida's Workers’ Compensation Act, an

employer

must pay an employee workers compensation

benefits if the

employee suffers an accidental injury arising out

of work

performed in the course of employment. Fla

Stat. § 440.09.5

Generally, an employers hability is limited to

amounts

recoverable under the Workers Compensation

Act. Fda. stat

§ 440.1101). This workers’ compensation

immunity extends to

employers that utilize “the services of employees

of a help

supply services company, as set forth in

Standard Industry

Code Number 7363° when such employees are

acting 1n

furtherance of the employer’s business. Fla. Stat

§

440.112); Tu-Lane Invs., Inc. v. Orr, &&9 So. 2d

961, 963(F la. lst DCA 2004)

Standard Industria] Code (“SIC”) Number 7363

defines

“help supply services” as “lelstablishment:

primanily engaged

in supplying temporary or continuing help on a

contract or fee

basis. 6 According to SIC Number 73634, the

temporary help i:

on the payroll of the supplying company but

under the direct

or general supervision of the business utilizing

the help

The term “help supply services company”

defined to include

temporary help services and employee leasing

COM panies Tu

Lane, #89 So. 2d at 964; Caramico v. Artcrait

Indus., Inc.,

127 So. 2d 348, 349 (Fla. 5th DCA 1999)

On May &, 2008, Young fhled a motion to amend

her

complaint to add new claims for neplpence and

pross

nephpence. Woc. # 90). United States Distnet

Judge Jame:

I) Whittemore denied Younp’s requested

amendments as futile,

statinp that the facts alleged by Young

established that

Carpill had “special employer immunity from

suit under

I“londa’s Worker's Compensation Act, Fla. Stat. §

440.11(2).”7(Doc. # 97 at 1). Pursuant to the law

of the-case doctrine,

this Court's prior holding that Cargill is entitled

LO

workers compensation immunity as a special

employer must

continue to povern this case unless “the initial

decision was

‘clearly erroncous and would work a manifest

Injustice.”

Christianson v. Colt Indus. Operating Corp., 446

U.S. 800,

#16-1'7 (988) (quoting Arizona v. California, 460

U5. 605,

618 n. 8 1983)). Young has pointed to no

evidence to

establish that the Court's previous determination

was either

clearly erroneous or manifestly unjust.

One of Young's primary arguments on this point

is that

“lilt is clear from the plain language of the

c

OCrVICCS

Agreement’ that Cromwell and Cargill did not

intend for

Cargill to be the employer of Cromwell employees

assigned to

work at Cargill's plant. (Doc. # 105 at 14). In

support of

this argument, Young rehes on ‘Thornton v

Paktank I‘lorida,

Inc., 409 So. 2d 31 (Fla. 2d DCA 1981) as

“controlling” case

law. In Thornton, the court found the borrowed

servant

doctrine inapplicable based on a contract

provision slacunp

that the temporary help service's workers were

not to be

considered employees of the contracting company

“for any

purpose.” Id. at 34. However, ‘Thornton has since

been

overruled by the Flonda Supreme Court in

Booher v. Pepperidgefk arm, Inc., 468 So. 2d 985,

986 (Fla. 1985). The present rule

as established in Booher ts that, “The actual

employment

relationship rather than the subjective intent of

the parties

should control in any determination of whether a

special

employee may sue the special employer for work

related

injunes.” 468 So. 2d at 985

The record evidence in this case clearly supports

a

finding that at the time of the accident Young

was working in

furtherance of Cargill’s business as an employee

of a help

supply services company under contract with

Cargill. ‘Thus,

the law of this case stands to the efiect that

Cargill

qualifies as a “special employer’ for purposes of

workers

compensation immunity. Young's Motion for

Summary Judgment is

therefore demed

Is. Intentional Tort Exception

By necessity and design, Florida’s workers’

compensation

system “is based on a mutual renunciation of

common-law rights

and defenses by employers and employees alike.”

Fla. Stat. §

440.015 (2000). Under this system, an employer

accepts

vicarious hability for employees’ work-related

mjunes

repardless of fault in exchange for immunity

from tort

liability. Mullarkey v. Ila. Feed Milis, Inc., 268

&, «)

a dt) 2a

363, 366 (Fla. 1972). The employee gives up his

tort remedies, but is assured of medical

compensation without the

cost, delay, and uncertainty of lLtipation. Id. The

tort

immunity afforded employers under the statute

is a critical

aspect of the workers’ compensation system. See

John T

Burnett, The Enipma of Workers’ Compensation

Immunity: A Call

to the Lepislature for a Statutonly Defined

Intentional ‘Tort

Kxception, 28 Fla. St. U. L. Rev. 491, 491-492

(2001)

(discussing the policies behind workers’

compensation immunity

and development of the intentional! tort exception

to such immunity).

Hiowever, the Florida Supreme Court has

recognized an

intentional tort exception to an employer's

workers

compensation immunity where an employe!

engages 1n an

“intentional act designed to result in or that 1s

substantially certain to result in injury or death

Lo the

employee.” Eller v. Shova, 630 So. 2d 537, 539

(Fla. 1983)

(citations omitted). In the present case, Young

seeks to hold

Cargill hable for her injuries under this

intentional tort

exception. Young does not allege that Cargill

acted with

deliberate malhce to harm Young or other

workers and,

therefore, the Court confines its analysis to the

alternative

basis for finding an intentional tort

Mlorida apphes an objective standard in

considering the’substantially certain” prong of

the test. ‘Turner v. PCR,

Inc., 754 So. 2d 683, 691 Ula. 2000). Under an

objective

test, “an analysis of the circumstances in a case

lis]

required to determine whether a reasonable

person would

understand that the employer's conduct wa:

‘substantially

certain to result in injury or death to the

employec.”

at 688. ‘The employer's actual intent 1s not

controlling under

this approach. Rather, 1t must be determined

whether the

employer should have known that its conduct

was substantially

certain to result in injury or death. Id

The Florida Legislature amended the Workers’

Compensation

Act in 2003 to codify the intentional tort

exception to

workers compensation immunity. See Bakerman

v. Bombay Co.,

Inc., 961 So. 2d 259, 262 n. 3 (Fla. 2007). The

2003

amendments heighten the intentional tort

standard from

“substantially certain” to “virtually certain.” Fla

Stat. § 440.1101)(b) (2008). However, because the

accident at

issue here occurred on December 29, 2001, and

the statute does

not apply retroactively, pre-2003 workers’

compensation law

roverns this case. See Bakerman, 961 So. 2d at

262 n. 3; see

also Locke v. Suntrust Bank, 484 F.3d 13438, 1350

n. 5 (1th

Cir. 2007) (applying the pre-2003 “substantially

certain”

standard where the incident complained of

occurred in 2002). contends,

is there any evidence that it intentionally

concealed any risks related to the potential

toxicity of

ammonia exposure in the workplace. Ud. at 17

22)

j ‘

Young asserts that Cargill was aware that

ammonia was

frequently leaking into certain work areas and

having adverse

effects on workers, but that Cargill failed to take

any

corrective action. (Doc. # 113 at 6-8). kurther,

Young

alleges that Cargill intentionally concealed

known risks of

ammonia exposure by telling Cromwell workers

that there was

not enough ammonia in the air to make anyone

sick

Young has testified in her deposition that several!

employees complained to her about the ammonia

smell and on

occasion would request medication for headaches

(Doc. # 104-2

at 27-29). Young has further attested that when

she reported

ammonia odors to Charles Hudson, her direct

Supervisor at

Cargill, he usually removed Cromwell employe

from those

areas and would not allow worker:

until the area had

been deemed safe. Ud. at

occasion, Younp

reports that she kept her employs

area WwW hie re

ammonia Odors were present and Hudson

imphed there might be

negative repercussions to that decision

llowever, Young admits that Cargill never

reprimanded her or

Young has also offered the testimony of Carla

ltushing,

another Cromwell lead supervisor, which reflects

similar

reports from several employees regarding

intermittent symptoms

of ammonia exposure. (Doc. # 106-2 at 22-30)

Rushing has

asserted that her Cargill supervisor told her that

nothing

could be done about the ammonia odor but that if

she or other

workers were feeling any physical effects, they

should take a

break and get some fresh air. Young and Rushing

have both indicated that Larry Plair, Cargill's

Plant Manager, told them on separate occasions

that there was no

danger to employees from the levels of ammonia

that wert

present 1n certain work areas

(Doc. HH 104-2 at 36°41; 106-Zat 25, 29°30, 45)

Although this evidence suggests that Cargill may

have

acted neghgently in exposing workers to levels of

ammonite

that were known to be causing physical

symptoms in some

individuals, the evidence does not establish that

Carpill

intentionally withheld “knowledge of a defect or

hazard which

poseld] a Prave threat of ITLL y LO ¢ mploy ee!

Connelly v

Arrow Arr, Inc., 568 So. 2d - ~6451 (Fla. 3d DCA

1990)

(finding that an employer will be considered to

have acted in

the behef that injury was certain to occur where

it withholds

such knowledge from the employee).8 Florida

Courts rarely

find that an « mploye rs conduct rises to the level

of an

intentional tort, even ‘in the face of sometime

eprepgious

acts by employers and managers. Woodson \v

Ivey, 917 So. 2d

993, 996 (Fla. 5th DCA 2 ) (citing Byers

Ritz, 890 So. 2d

843, 347 (Fla. 3d DCA 2004))

probability of injury

is not sufficient to overcome

compensation immunity

‘| LMOnCS \ ixcel l ndaus

IStUCA 1994)

conduct that supports a finding of an intentiona

tort. In

Turner, the employer, PCR, was deve loping a

replacement

coolant for Freon using a highly reactive

compound that was

subject to explosions. 754 So. 2d at 684-85. Even

after PCR

was notified that the compound was being taken

off the market

because of its explosive qualities, PCR continued

to use it

and did not inform its employees of this danper

Id. at 685

[In addition, the employer knew of several!

previous explosions

at the plant, some involving this same compound

Applying the

objective test, the Florida Supreme Court found

that there was

sufficient evidence to present material issues of

fact that a

reasonable employe rin these circumstance:

would know that its

intentional conduct was substantially certain t

result in

Injury or death. Unlike ‘Turner, the evidence 11

this case does not

establish pnor knowledge or intention

concealment on the

for @rigostib iFpjpus Or aceatl AItho vr» tne re org

riOow: Lihat

{ arll employee: were aware that Qrrie if vel ot

ammonia

heakape was occurriny, the testimony shows Lhat

Carpill bad no

kKnowledpe of the source of the leaks or the

concentration ol

ammonia that was present in the work area:

Phe testimony of Younp and Kushinp suppest

that several

Cromwell employees sulfered intermittent

physical symptoms due

to some level olf ammonia ¢ Xposure lbioweve r, Uli

flourt doe!

not lind that, based on the yinptoms reported by

Urie-te

cmployees, Cargill 6nould have known that

fey ivu Prijtary Gol

agewuth W zit substantia ly certain Lo occu! ‘to the

Contrary,

there is no evidence that any ¢ mployes sulfered

franmsientl pry cal ellect from their expo ure LO

tL?)

aMpparenilly mall amount aimnonla pre ent in

mea furthermore, Cargill has ollered expert

teesbummoaony La

the ellect that a number of micro copic leaks are

Cx pPecled in a juice proce inv systlem Lhat an

ammonia Odor

can be detected well belore the ammonia level

~~ Dpecomes nNOoxiou!

lo the worker, and that individuals have varying

sensitivilies lo ammonia exposure (Doc. GR-&

at 23

fmiportantly, Young has not shown that Carpill

had eATiy

knowledge that a release ol the type or

mapnitude that

occurred on December 29, 2001], wa: mkely Lo

Occul Carpill

representatives have Le: lilicd that the accident

In question

occurred when a reliel vaive released a build up

of aarrirgrigriid

caused by Line Mn propcy closure of a suction valve

by anh

unknown individual, and Younp has offered no

evidence to rebut

this contention. (Doc. #4# 102 at JG; 10% at 12°13)

LSSUMMINP

that ¢ arpill: assertion is truce, Yo inp has not

hown that

Carpill had prior knowledge of circumstance

that mipht make

ich an accident lhkely to happen. the record

contains no

evidence of a pnor problem with either the

£uUction Valves Oo7

the rehel valves on the refriyeration system

Young has not

even alleped that the relhef valves malfunctioned

at the time

of the release. There also were no previou:

releases from the

rehef valves that might have put Cargill on

notice of the

possibility of such a release

further, unlike the circumstances in ‘J'urner,

Young has

not established that Cargill intentionally

concealcd a known

risk of a large release of ammonia at the plant

Althouph

Plair sometimes told Young and Rushing that a

little amount of

ammonia would not hurt anyone, there is no

evidence that Play

intentionally concealed the presence of known

toxic levels of

ammonia in work areas or his knowledpe that

seri0us Injury

would occur if workers were placed in those

areas. In fac ..

both Young and Kushing have testified that Plair

him: { if would

often work in the areas that Cromwell employees

were relusing

to work in due to the ammonia odor. (Doc. ##

104-2 at 29-30,

35-37; 106-2 at 25-26). Also, Young has testified

that, on

most occasions, both Hudson and Plair removed

workers from

areas with ammonia odors and did not let the

workers return

until the areas were deemed safe. (Doc. # 104-2

at 29, 34-35,44)

Youny asserts that Cargill's failure to properly

train

its employees contmbuted to the ammonia release

that caused

Youny’s injuries. However, in her desosition,

Young stated

that “Carpill’s representatives, including [Larry

Hiaddeén,

Carpill’s Environmental and Safety Manager,

and Mike

Loudermilk, Carpill’s Satety/Refriperation

Supervisor}, were

well trained in the use and handling of ammonia

n

(Doc. #115 at 20). Young has also testified that

bhe was

aware of the risks associated with ammonia

exposure, that she

pave salety talks to employees that included the

Lopic ol

ammonia, and that she knew to remove he

{ m ployees when she

detected a strong odor of ammonia. (Doc. # 104-2

al 4.4 44,

OJ). Thus, Young has not shown that Cargill's

actviong

prevented Young from making an informed

decision repardiny the

msks of working in a facility that uses anhydrous

ammonia ab

part of its refrigeration process

In Pendergrass v. K.D. Michaels, Inc., the court

considered plaintiffs allegations that defendant's

lack of

safety training contmbuted to plaintiff's fatal

Injuries

946 So. 2d 684. The plaintiff in Pendergrass was

killed when

a wall that he was constructing collapsed due to

the

defendants’ failure to brace the wall. Id. at 686

The

defendants did not have a salety propram in

place, but

instructed workers to use their common sense

and to be

careful. Id. at 687. Pendergrass’s estate alleped

that the

delendants committed an intentional! tort

because, among other

things, they failed to provide a safety propram

and failed to

instruct Pendergrass in salety precautions and

recognition of

danpers. The Pendergrass court, in addressing

the training issue,

found that at most the lack of training was an act

of

nephpence, not an intentional tort, because

Pendergrass was

nol using machinery that required special

training and it

should seem “fairly obvious” that walls and

bricks might fal]

during construction of walls. Similarly, Young

was not working with specialhzed cquipment at

Cargill and the

evidence shows that she was aware that a release

of ammonia

requiring evacuation might occur. (Doc. # 104-2

atl 59°61)

Thus, as in Pendergrass, Carpill’s failure to have

an official

training program in place regarding ammonia

does not establish

that its conduct rises to the level of an

intentional tort

Young also asserts that Cargill should have

known that

the accident was substantially certain to occur

because

Cargill's plant was not up to code and that it

failed to

follow known safety protocol. (Doc. # 113 at 3-6)

In

support of this contention, Cargill pots to

OSHA violations

that Cargill received after the December 29,

2001, accident

‘The OSHA citations, which were classified as

“serious, related to Cargill's failure to follow

certain

safety and training procedures.

(Doc. #H# 98 at &-9; 102 at28 34, 113 at 5-6)

The defendants in Pendergrass were similarly

cited for

OSHA violations. Unlike here, however, the

Pendergrass

violations were directly related to the accident

that caused

Pendergrass 's injuries. 936 So. 2d at 686-687

IkXven so, the

court there held that the OSHA violations did not

change the

outcome of the case or create a material issue of

fact on the

intentional tort issue. ‘The court reasoned that

“a serious violation would not of itself constitute

ali

mtentional tort, because it only requires a

substantial

probability, not certainty, of injury or death.” Id

In

ligyhit of the holding in Penderprass, the Court 1

nol

persuaded that the OSHA violations 1n this case

which were

not even directly related to the cause of the

December 29,

2001, acaident, would lead a reasonable jury to

find that the

subject accident was substantially certain to

OCCU

Minally, Young asserts that the “totality of the

jrcaumstances establishes that Cargill's

intentional conduct

was substantially certain to result in injury o1

death

(Doc # 113 at 19°20) Citing to several cases that

reyect the

“cumulative approach to ascertaining whethet

Injury was a

substantial certainty,” Cargill argues that Young

cannot “add

Lopether small risks of injury in order to reach a

combined

total where the likelhood of injury to some

employee sometime

is likely to happen.” (Doc. # 98 at 22-24) (ating

Allstates

hMireproofing, Inc. v. Garcia, 876 So. 2d 1222,

1226

(la. 4thDCA 2004) Gnternal citations omitted)

Feraci v. GrundyMarine Constr. Co.,

315 F. bupp 2d 1197, 1211 UN.D. Fla.2004))

The Court agrees. In Feraci v. Grundy Marine

Construction, Co., plaintiff sought to establish

that

defendant was hable for injpumes he sustaimed

while working

ata construction site, based on allepations ol

twenty two

“prossly negligent” acts or omissions by

defendant which

evidenced a “willful and wanton disregard for

[plaintiffs]

safety.” 315 F. Supp. 2d at 1202-03. Plaintiff

argued that

“the composite of circumstances’ showed that

injury or death

to plaintiff was substantially certain to occur

Applying Florida law, the district court rejected

this

position, stating that even if the twenty two

prossly

negligent acts or omissions had occurred,

Plaintiff could not

“lump them together to demonstrate substantial

certainty.”

ld. Lakewise, Young cannot add together each of

Cargill's

negligent actions to assert that, in the aggregate,

they

establish that an intentional tort was committed

Under the circumstances of this case, Young has

not

established a penuine issue as to any material

fact that might

lead a jury to find that a reasonable employee in

Cargill's

position should have known that injury or death

to Young was

substantially certain to occur. ‘hus, the Court

finds that Cargill is

not subject to hatihty under the intentional tort

exception to workers’ compensation immunity

Cargill's motion

for summary judpment is therefore due to be

ranted

Accordingly, it is hereby

ORDERED, ADJUDGED, and DECREED

(1) Plaintiff Lorene Young's Motion for Partial

Summary

Judgment (oc. # 105) is DENIED

(2) Defendant Cargill Juice North America, Inc.’

Motion for

Summary Judgment (Doc. # 98) 1s GRANTED

(3) The Clerk is directed to enter judgment in

favor of

Defendant Cargill Juice North Amenica, In

terminate

any pending motions, and close the file

DONE and ORDERED in Chambers in ‘Tampa

Florida. this 15th

day oF December 2008

\ Iirpilyyn hiernande Z LOVIN LU

United State District Judge

Or pit

All Coun ( of Kecor

APPENDIA I

JAK ag (206890)

SERVICES AGREEMENT

rHiS AGREEMENT made as of this 12" day of October, 2001, by and betweer

Cttrusforce Staffing, a S corporsiton with an address of 1000 North Ashley Drive, Sufte 600,

Tampa, FL 33602, (Company’) and Cargl) Caro Pure, LP. 6 Detzware Limited Partnarsixp

with an eddress of 100 East 6 Street, Frostproof, FL 3384S"Carplil")

WITNESSE TH

WHILREAS, Cargill has @ continuing need for contract services: and

WHERLAS, Gompany is 8 leading provicter of such services to businesses in the United

States and bs willing to provite buch sorvices;

NOW, THEREFORE, tn considerabon of the mutual promees herein Conmiained, the

parles hereto agree as fobows

1 Services Provided. Company will provide to Cargill the services desorbed

in Exhibit A attached hereto and made « part hareof (the “Services") as Cargill shall require at

ke facities located at 100 Exsi 6" Sweet, Frostproof, Fl 39643, 1552 SunPure Rd, Avon

Park, FL 33825; and 3788 Seiy Ra, Fort Pharce, FL 34981 pursumnt to the terms and

conditions of this Agreement. The parttes may, from time to tine, amend Exddba A in 6 writing

signed by a duly authorized representative of ewch) party

2 Term This Agreement shel contiwe tw a term of one (1) year after the

date first entered above, unless sooner torminaied as set forth here’, and will automaticaly

renew for ke addRional terms unless elfer party serves written notice of Rs Intent to tecminete

the Agreement not less than thirty (50) days prior to the termination of any such term

Notwithstanding the foregoing, ether party hereto poor to the expiration of any such may

terminate this Agreement af any Gine with or without cause by giving not ees then turty (30)

derys written notice to the offer party hereto. The provisions of this Agreement whare the

content of this Agreement so indicates shall survive any termination or cancellation of the

Agreement

3 Rates for Services. For the frst year of thts Agreement, the rates for the

partormance of the Services pursuant to thts Agreement shell not exceed those se? forth In

Exthibtt B attachod horsto and made 8 part hereof. However, that should there be a matortal

change of law of reguiation by the federal, state or local government impacting Company's

costs, such 85 6 Change In social securtty nates, minimum wage, etc., the parties may mutuality

agree bo an increase

{AK JOOU!

SAK Bg (206590)

4 INVONCES

(a) Company shall subnit lo Cargil @ weekly invotce for the Servives wiwol: shes

indicate the number of hours, nate per hour, names of empboyess and job Classifications

worked during the previous Monday ttyough Sunday billing penod. Company shall attach to

the invoice, copies of departmental time sheet(s) on which the invoices ts based, the time

sheets must have boon signed by an authorized Cargill representative to verify the hours

worked. Company bs responsible for getting all sgnatures. The invoice shall comtain

breakdowns for each department Campany shall not bib Cargill for time during which

Company emptoyees are taking lunch breaks or for Dave: time to or fom Carpal facitines

(b) Invoices BUbmilted hereunder shal be due and payable on receipt by Caroli,

provided, however, that Cargii wil return to Company invoices which do not meet the

requirements noted in Paragraph 4(a) tor correcton and wil not pay the invoices until a property

prapared Involce bs submitted

> Reports. Company stwall proviie to Cargill weekly reports which contain

the number of hours worked by Company employees for Cargill and the aggregate baling to

Cangit by Company with respect to each of the job Gaselfications set forth on Exh A

6 Buyer Satistaction. Services shall be pertormed in a professional and

workmanike and timely manner t achieve ther intended purpose, in accordance with incustry

standards and the standards and specifications sel out by Carpi, further, Company agrees

that & shal pértorm the Services hereunder to the salislaction of Carpli and agrees to abow

Cargill & reasonabbe penod of time to determine if the Services provided by Company were

performed in @ satisfactory manner. i Carpll determines within eo reasonable penod of time

that the Servives provided by a Company employee are nol satisfactory, and Company 5 30

noUfied, Cargill wil not be charged for such Services and Company wil) provide corrective

Services and. if necessary Of requested, replacement personnel Upon notihication trom Cargill

or within 8 mutually agrecd upan penod ot ime

7 Laws and Regulations. Company agrees that ff will comply with all knws

and regulations applicable to Company’s employees, inchuding, but not limhed to, the Fai

Labor Standards Act, Tite Vii of the Civi Rights Act of 1964, thre Ape Discrimination in

Emproyment Act of 1967, the Rehabiitaton Act of 1873, the Immigration Reform and Control

Act of 1986, the Americans with Disxb/lies Act of 1990. the Family and Medical Leave Act. the

Labor Managemen Relations Act, the Migrant Seasona! Agricultural Worker Protection Act,

and the Florida Civé Rights Act

8 independent Contractor. Compeny shail act at al times as an

indepondent contractor, and nothing contained herem shal be construed to create the

relationship of principal and agent, or employer and ampioyse between Company and Caryl

The Company employees &6signed to perform the Senices for Carp” are solety the

enptoyees of Company

C AK VOOUL

0. Company Obligations.

(a) Company shail rocrull, interview, test, celect and hire the persons who

shall provide the Services hereunder. Company shall be responsible for checking +0

immigration foms, doing periodic drug testing, and checking tocal criminal records for felony

convictions. Company shall also ascertain that immediate family members of Company

employees providing the Services hereunder do not work et a competitor's facility and shall not

allow such indMiduals to perform such Services at Cargill, Cargill may waive this requirement

at ite cole and absolute discretion on e case-by-case basis at the request of Company.

(b) Company shall train the persons who shall provide the Services

hereunder. This training shall include an orientation on specific job responsibilities and genoral

expectations of Company employees assigned to Cargill, training on safety measures, and

training on the role of the Company Management Team.

(c) Company shall have sole responsiblity to counsel, discipline, review,

evaluate, set the pay rates of, and terminate its employees assigned to provide Services to

Cargill.

(d) Company assumes tull responsibility for all contributions, taxes and

assessments with respect to is employees under ell applicable federal, state and local laws

eee ree ae ces ac ar aa Company further warrants

vst R will comply with all other applicable federal, state or local laws or regulatons appiicable

fo Company as an employor regarding compensation, hours of work or other conditions of

(e) Company agrees to keep all Carpi confidential Information supplied to

aind/or learned by Company pursuant to thts Agreement and the performence of the Services

it the strictest confidence. Canfidential information shall mean any commercially sensitive

intformation in fits broadest Ccontead, and shall inciude, but not be limited to, access codes.

personal identification numbers and other information related to or obtained upon Cargill's

computers or computer network. Company shefl take and matntsin proper and appropriate

steps to protect the confidential information received or aamed by Company. Campany shail

not disdose or uso Cargill's confidential Information, except as required for the efficient

performance of the Services, or as may be required to be dicclosed pursuant to judicial or

governmental process or procedure. Company's obligations with respect to Cargill's

cainfidentie! information shall survive the expiration or termination of this Agreement. Nothing

sttall be considered confidential information under this paragraph which is, or through no

urtauthorized act or omission of Company becomes, part of the public domain or is lawfully in

Campany’s possession prior to disclosure by Cargill or being lcamod by Company.

(f) Company shall pertorrn the Services in a sate and secure manner, shall

be responsible for initiating, maintaining and supervising all safety precautions and programs

in connection fhe Services and shall comply with al of Cargill's plant and facility safety rules

and requirements. Company shail inform and train all Company employees of the rules set out

in exhib C attached hereto and made 8 part hereof.

CAR 00003

JAK-ag (20659)

(g) | Company wil provide Cargill upon request with any relevant supporting

records refating to iis obligations under the contract.

10. Supplies and Office Space. Company shail be responsible for supplying

personnel batiges to Company empioyees to be wom while on assignment at Cargill. Such

badges shall be retumed upon compilation of each Company employee's shift. Company shall

also be responsibie for providing the following supplies to Company employees: safety

glasses, stecl-toed boots, heir nets, gloves, raineults, earplugs, hard hats, and jumpsuits.

Company shall provide and license its own office space. Company shall secure, pay and be

responsible for all equipment, services (phones, etc.) for such space.

11 Indenmnification. Company shall Indemnity and hoid harmless Cargill and its

parant company, Carpi, Incorporated, and thetr subsidiaries, agents, employees, directors,

successors, and assigns, from and against any and ail claims, losses, actions, damages,

expenses, and afi other liabilities, including but not limited to attorncys’ fees and litigation

costs, arising out of or resulting from Company's breach of this Agreement, negligent act or

omd@esion, of nogligem performance of or failure to perform the Services. Cargill shall give

reasonebie notice to Company of any such claim, toss, acton, damage, axpense or other

Babiiity. Company's obligations pursuant to this Paragraph shall urvive the expiration or

termination of thts Agreement.

12. Insurance. Company shal purchese and maintain the following insurance:

Workers’ Compensation, Employer's Liability Insurance, and Commercial Genera! Liability

insurance (including personal intury, broad form property damage, contractual Indemnity

Rabliity and automobile Eability), Such Insurance coverage shall be written for not less than

$5,000,000 or as required by law, whichever bs greater, this coverage may be obtained by a

combination of primary and 6xosss policies. Cargill and Its parent company, Cargill,

incorporated, shall be ieted as additional Insureds under Company's commercial general

lability policy and employer's ability policy. Certificates of such Insurance shall be provided to

Cargl. tf sald Insurance policy bs to be canceled or changed by Insured or Insurer 8D as to

affect the coverage required by this Agreement, at least ten (10) days pnor written notice of

such cancellation or change shall be sent to Cargill at the address to which Invoices are to be

sera by Company.

13. Notkes. All notices which f may be necessary or proper for either Cargit

or Company to give of deliver to the ether shall be sent and shall be deemed given when sant

by registered or certified mall and postege prepa, and if given by Cargill to Company shail be

addressed to:

Catrustorce Statting

1000 North Ashley Drive

Suite 600

Tampa, FL 33602

Atin: Vincent Licata

CAR 00004

and if given by Company to Cargill, shail be addressed to:

Cangil Citro Pure, L_P.

P.O. Box 2000

Frostproof, Florida 33843-2000

Attn: Larry Stueve

Fither party may change its address and/or designation of representative by

giving written notice of such change to the other party.

14. Assignment. Company shail not assign its rights and obligations hereunder

rut the prior written consent of Cargi This Agreement shall be binding upon and shall

ire to the benefit of the parties hereto, and thei: respective successors and assigns.

15. Amendments. This Agreement, and the provisions hereof, may be altered,

amended, modified or superseded only In a writing executed by both of the parties hereto.

16. Enforcement, Waiver. No waiver of or failure to exercise any option, right or

privilege under the terms of this Agreement by either of the parties hereto on any occasion or

occasions shall be construed to be a walvet of the same or of any other option, right or

privfege on any other occasion.

17. Ente Agreement. This Agreement, togefher with the Exhibits referenced

herein, shall constitute the entire Agreement between the parties with respect to the subject

metter and supsreedes af previous Agreements between Cargill and Company retating to the

subject matter hereof. ;

18. Goverming Law. The terms, conditions and performance of this Agreement

shall be govemed by the laws of the State of Florida.

IN WITNESS WHEREOF, the pertles hereto have caused this Agreement to be

executed by thelr duty authorized officers as of the day and year first written above.

CITRUSFORCE STAFFING

m Lic J Yi, j/? /

Title: President

6 CAR 00005

EXHIBIT A

SERVICES PROVIDED BY COMPANY

|. General Requirements.

> shail provide an adequate number of Company employees to meet Cargiis

staffing needs In the job classifications set forth below, as communicated to

Company shall be capable of eupplying personne! to provide the Services hereundor for three

shifts, seven days per week, if needed. Cargill shall give to Company three (3) days advance

notification of anticipated staffing needs.

it. Job Classifications.

This Agreement provides for two job classifications — Lead Person/F orkiit Operator,

and General Laborer — for whose Services Cargill shall pay Company at the rates indicated im

Exhibit B. Should Company receive a request to place a Company employee in a position not

listed In this Exhibk A, Company shall contact Cargifs Operations General Manager for

approval before filling the job.

The job classifications inchude the following:

A Managemen Team

1. Responsibilities

Company shall provide a management Team at no charge to Cargill, whose

overall goal is to ensure that Cargill experiences no loss of productivity due to

inadequate or insufficient stafiing.

The dutles of the Management Team inctude, but are not iimited to, the following:

a. The Management Team wil work at Cargill on-site to manage and

supervise Company employees during thelr assigned shifis. The Team

will work closely with Cargill, including being avaliable for weekly meetings

with Cargill (lf requested), to ensure thal operations move smoothly.

b The Management Team must leam the different product ines and

responsibilities of each position staffed by Company employees at Carg!!

as well as particular procedures determined by Cargill 6o that the

Management Team can spot trouble and recognize performance problems

or infractions of rules and procedures by Company employees.

Cc. The Management Team bs responsible for placing Company employees in

positions for which they are best sulted or where they are most needed in

CAR 00006

JAK-ag (206590)

order to keep production at an optimum bevel, at the direction of Cargill.

The Management Team must make certain that Cargill is sufficiently

staffed al all times, including nights, days, and weekends. The Team is

responsible for assuring that Cargill receives the maximum benefit from

Company employees; k meets this requirement by providing overall

direction and coordinstion of Company empioyees and monitoring and

transferring Company employees to ensure that Cargill is recelving the

best service and production possble.

The Management Team Is responsible for training Company employees

on Cargilfs rules and procedures and.monioring compllance. The Team

ts responsible for implementing Cargi! programs, folowing-up as

necessary (e.g., safety Incidents), and communicating with Company

employees on performance-relaied issues. The Management Team is

respohsible for making sure that all Company employees have the proper

safety training. The Team will handle emergency situatone, such as

minor accidents, and must be knowledgeable about emergency

procedures. The Management Team is responsible for reporting any

safety Inckdents Involving a Company employee to Carpill. The Team wil

have on-site first aid kits.

The Management Team is responsible for providing materials and

supplies needed by Company employees, as set forth in Paragraph 10 of

the Agreemant.

The Management Team is responsible for ensuring round-the-clock

coverage of the Cargill plant. At least one individual from the

Management Team must be on site, of be available by phona/pager to be

on site within one hour, as needed.

The Management Team shall have full decision-making authority

regarding this Agreement. The Management Team shail have the

authority to resolve any invoicing or billing Issue directly with Cargill.

Shoukd Company choose to provide an on-site computer, the

Management Team will havo access and be trained on employee

information retrieval and data entry.

The Management Team shail monitor Company employees and be certain

that Compeny employees meet the rules set forth in Exhibit C. The Team

ts responsible for collecting time sheets from Company employees, tuming

them in to Company’s payroll department, and distributing payroll to each

Company employes. The Management Team shall verify that Company

employees comply with all safety and security procedures required by

Cargli.

7 CAR 00007

a

b

G.

d

Lead Person

JAK-ag (208590)

The Managemen Team is responsible for supplying to Carpi all required

reports, as set forth in the Agreement.

Experience and Other Requirements

Good work history and venfiable references.

Working knowledge of employment laws

Strong people management skills.

Willing/able to work overtime as needed.

Wiling/able to work in inclement weather and non-climate controlled

environment

Ability to provide hands-on training and orientation to Company

employess.

Familiar with Company's payro’ and invoice system and able to resolve’

invoice disputes directly with Cargill.

1. Responsibilities

The Lead Person, a/k/a Crew Leader, is the primary contact for Company employees

assigned to provide Services to Cargill. The Lead Person wil disseminate Information

to Company employees on work assignments, shits, and performance-related issues.

2. Experience and Other Requirements

a.

b

C.

Wling/able to provide hands-on training and/orentation.

Familar with Cargil's plant and work needs

Willing/able to work In inclement weather and non-ciimate controtied

environment.

Forkiifi Operator

1 Responsibiities

Operate a forklift.

ne Re oe

CAR 00008

a

b.

Laborer

JAKCag (206590)

Willing/able to work In inclement weather and non-cimate controlled

environment

Licensed to operate a forkiifi.

1. Responsibilities

A wide range of responsibilities bs envisioned for the laborer, including emptying

bottles/conteiners into packing matensa!l hoppers, moving packing materials, grading

frult, and generally supporting the opereting lines in the plant. Responsibilifies may also

include placing Individual units of finished product into individual containers and then

into shipping case blanks.

2. Experience and Other Requirements

a.

b.

Able to ft at least 50 pounds on a regular basis during each shift.

High degree of manual dexterity in both hands.

Able to work with others quickly and efficiently, Including working with

crews of 3 to 9 other individuais.

Able to recognize specific problems related to product packing quality,

product Gefects, and packing material defects while product is moving past

them, or ls being unpacked at a station.

Able to sit/stand for 8 to 12 hour shifts.

Normal visual acuity with or without correction.

Able to respond to safety equipment cues, such as homs and lights.

Able to follow mutti-step oral directions.

Able to work in inclement weather and In non-climate controlled

environment.

9 CAR 00009

JAK:ag (206590)

EXHIBIT B

BILL RATES

The bill rate covered by this agreement shall be a fiat rate for each site as follows

Frostproof

Lead Person / Forklift Operator $11.55 per hour

General Laborer $ 9.26 per hour

Avon Park

|_ead Person / Forkdiff Operator $11.55 per hour

General Laborer $ 9.26 per hour

Fort Pherce

Lead Person / Forkilff Operator $12.35 per hour

General Laborer $ 9.51 per hour

” CAR 00010

JAK 29g (208590)

EXHIBIT C

RULES FOR COMPANY EMPLOYEES

Company shail inform its employees of the following expectations Cargill has of Company

employees assigned to perform Services at Cargill's plarit.

These rules are not intended to be all inclusive.

WHEN WORKING ON CARGILL PREMISES, COMPANY EMPLOYEES WILL BE EXPECTED

TO:

1. Work Schedule. Company employees shail:

A

3

C.

Be on time and at assigned work area at scheduled work time.

Perfom 6 full day's service by working unt the appointed leaving time.

Notify the: Supervisor 48 s00n a8 possible if they must leave thelr work due to

Hiness or personal emergency. if the supervisor is not available, then the Cargill

contact should be notified.

2. Personal Behavior, Company employees shall:

A

B

C.

Conduct themselves with honesty, integrity. taimess, and concem for others.

Use pay telaphones for personal calls.

Not disturb or interfere with the work of other employees, whether Company

employees or Cargill employees.

Not harass others In any way. Harasement based on age, race, religion, national

ongin, of sex including unwelcome sexual advances will not be tolerated.

(Company employees who believe they have been harassed while performing

services at Cargill should be directed to report the Incident to Company’s

Management Team immediately. Cargill wil assist Company in Its investigation )

Not engage in any fighting, horseplay, or insubordination, and refrain from using

abusive or threatening language. Adult behavior conducive to a highly

productive work environment is expected always.

Not solicit for any outside business or organization while working on Cargill

premises.

"1 CAR 00011

H

A

B

JAK.eg (206540)

Never take, or participate in taking, any Cargill products or property, or the

property of another person.

Not use the Cargil employes bulletin board.

Not report to work under the influence of, or use or possess on Cargill .

any controlled substance (Including legal medica! prescriptions that may impair|a

person's performance) or alcoholic beverages.

Wear an Kientification tag while on Cargill premises and return the lay upon

completion of the shift.

Not possess flrearms or othar weapons on Cargill premises.

. Company employees shalt-

Conduct themselves in @ manner that ensures thel personel safety and the

safety of those working eround them. ff they are unsure how to perform assigned

job tasks or conduct any process safely, they should ask Company's

Managemen eam for training. Hf they are injured or become ii white at Cargill,

they should notity the Management Team immediately. Cargill personnel roa

authorize the retum to work after an injury of any Company employee.

Always keep objects in thelr proper places and keep work areas clean and fred of

debris

Smoke and eat in authorized areas only.

Smoking ls permitted:

ein designeted area outside Contract Service breakroom

Eating ls permitted:

eConuact Service breakroom only

¢No food or drinks may be taken to the work area

12

CAR WOO12Z

APPENDIX G

IN THE UNITED STATES COURT OF

APPEALS

FOR THE ELEVENTH CIRCUIT

NO. 09-10315

NON- ARGUMENT CALENDAR

D.C. DOCKET NO.06-01350-CV-T-27-MAP

LORENE YOUNG,

PLAINTIFF

VERSUS

CARGILL JUICE NORTH AMERICA, INC

DEFENDANT

KC CROMWELL, INC

DEFENDANT

Appeal from the United States District Court

Kor the Middle District of Florida

September 9, 2009

Before TJOFLAT, BIRCH and HULL, Circuit

Judges.

PER CURIAM:

This 1s a personal injury case. ‘lhe district

court granted defendant summary judgment on

the ground that defendant was plaintiff's

statutory employer and entitled to immunity

from suit pursuant to Florida’s Workers’

Compensation Act. Plaintiff appeals, contending

that the “intentional tort” exception to such

immunity applies and that matecnial issucs of

fact remain to be litigated regarding that

exception. We disagree, and therefore affirm. The

intentional tort exception docs not apply for the

reasons stated in the district court’s December

15, 2008 order granting Appellee summary

judgment.

Affirmed

APPENDIX H

IN THE UNITED STGATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

NO. 09-10315

NON-ARGUMENT CALENDAR

DC, DOCKET NO.0G 01350-CV-T-27-MAP

LORENE YOUNG

PLAINTIFF

VERSUS

CARGILL JUICE NORTH AMERICA, INC

DEFENDANT

KC CROMWELL, INC

DEFENDANT

Appeal from the United States Distnct Court For

the Middle district of Florida

November 05,2009

The Petition(s) for Rehearing are DENIED and

no Judge in regular active service on the Court

having requested that the Court be polled on

rehearing en banc, the Petition(s) for Rehearing

kn Banc are DENIED.

Dated 11/05/2009

APPENDIX I

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Anhydrous Ammonia Spill Day Page | of 2

Ezine

@rticles

Anhydrous Ammonia Spill Day

By Pau wk Cove

Article Word Count: 659 (Vien ~uwynary) Comments (9)

* It looks like someone declared June 8, 2007 to be the day for serious Antrydrous Ammonia

spills from refrigeration systems across the country. There were three separate instances of

significant spilis reported today. Mount Sterling, KY, Wyalusing, PA, and Milwaukie, OR all

had releases in the last 24 hours. No one was killed, but a number of people were taken to

the hospilal, businesses were evacuated, and residents were told to shelter in place

There were explosions associated with two of the incidents. There are reports that the

ammonia leak at a Nestle Plant in Kentucky caused an explosion that blew down a wall at

that plant; no injunes from the explosion or falling debris have been reported. The American

Cold Storage facility in Oregon had an unexplained (a5 yet) explosion result in the ammonia

leak. There were no reports of an explosion associated with the leak at Cargill laylor Beel

Piant in Pennsylvania

Anhydrous Ammonia ts favored in many large Cooling systems because it has better heat

transfer characterisucs and is cheaper than the refrigerant gasses used in home cooling

systems and refrigerators. The problem 1s that this material ls very reactive and is classified

as 6 Toxic by Inhelation gas. Fortunately, the gas is extremely Irritating at wel below the

toxic level so that when & minor leak happens, unprotected people evacuate the area qukkly

with little urging. A catastrophic leak, however, can overcome people before they have a

chance to get clear. This is partially because many people are temporarily blinded by less

than lethal concentrations

The food Industry has long maintained that they should not have to comply with any

handling restrictions on Anhydrous Ammonis required under various Federal laws, since they

don’t actually handie Anhydrous Ammonia; it stays in a closed system. During the regulatory

comment period they complained about being required to submit information under the new

Chemical Facility Antt-terrorism standards based on the 7,500 pound Screening Threshold

Quantity (STQ) Isted in the proposed Appendix A, Chemicals of Interest, to 6 CFR part 27.

Cooling systems having more than 7,500 pounds of Anhydrous Ammonia in the system

would make that food processing Company a ?Chemical Facility? under the rules of this

regulation.

According to the EPA Risk Management Pian (RMP) guidance documents, 7,500 Ibs of

Anhydrous Ammonia released in 10 minutes ume from a pressurized system (clearly a

catastrophic teak, not a faulty valve) will have a plume with a toxic end point 3.2 miles down

wind from the site of the leak (Table 9, 1.5 m/s wind speed). That means that anyone

between the leak and 3.2 miles downwind could be exposed to dangerous Concentrations of

Anhydrous Ammonia.

Rather obviously, from the lack of casualties, none of these three release events came any

where neer 7,500 lbs in 10 minute release rate requwed for a 3.2 mile long Loaic plume

There is nothing in any of the available article that tetls anything about the release rate for

http://ezinearticles com/? Anhydrous-Ammonia-Spill- Day &id=599 1 1 34 opt=print 1/4/2010

Anhydrous Ammonia Spill Day Pape 2 of 2

these accidents, but from the description they did not seem to be Catastrophic releass

events But what about the explosion caused by the release in Kentucky ?

Anhydrous Ammonia ts @ very reactive chemical, and even by itself can form an explosive

mimture when mixed with air at concentrations of 16 to 25% Ammonia in air, though it would

require @ strong ignitlon source. It reacts to produce explosive by-products when it mixes

with Chionne, Bromine or lodine. Violent reactions occur with Bleach or Peroxides. It also

forms explosive Compounds with Gold, Silver and Mercury. So, while explosions are not part

of the normal operating conditions of refrigeration systems using Anhydrous Ammons as a

refrigeram, an explosion after a significant leak would not be totally unexpected

Just maybe, DHS was correct in setting the STQ lmut for Anhydrous Ammonia at @ low

enough level so thal some refrigeration plant users Could be labeled as Chemical Facilites

Patrick J. Coyle has 15 years expenence with the US Army, including 6 stint a¢ 4 Physical

Security NCO in Europe. He has also spent 12 years working as a Process Chemist 6 a

specially chemicel manufac turing company

Further wlormation concerning the new regulations concerning protecting chemical plants

from terronst attack can be found at

http;//www.members .aql.com/ChemPlantSec/ChemPilantvecurity pum

Article Source: htyp://EzineAnides-comy/ /expet=Patrick Coyle

This article has been viewed 600 Uume(s)

Articie Submitted Qn. June O08, 2007

http://ezinearticles.com/? Anhydrous Ammonia-Spill-Day&id=599 11 3&opt=print 1/4/2010

Tyson Foods Ammonia Gas Leak - Ammonia Gas Exposure Lawsui'! hkely against Tyson

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Tyson Foods Ammonia Gas Leak -

Leads to Death of One Worker and

Serious Injuries to Another.

Ammonia Gas Lawsuit likely

against lyson

Ammonia Gas Death at Tyson Plant

SOUTH HUTCHINSON- One worker was killed

and another hospitalized after an ammonia gas

leak at the Tyson Foods Inc. plant

While working at the Tyson Foods plant, a 51

year-old man was killed and a 55-year-old man

was hospitalized with chemical burns after the

accident. The men were refngeration workers at

the Tyson Foods plant. They came in contact

with ammonia gas after a refrigeration line broke

outside of the main plant al Tyson Foods Inc.

This Tyson Food ammonia gas inhaltion accident

happened on Nov. 1st, 2006.

Ammonia Gas Exposure Iahalation Lawsuit

The Willis Law Firm in Houston Texas has

previously represented fiveworkers with ammonia

gas inhation when they were exposed to high

pressure ammonia gas at Western Packing Plant

in Sealy Texas. The ammonia gas lines had been

cut by a worker employed by another contractor

and when the ammonia gas valve was opened,

the high pressure ammonia gas engulfed about

15 workers, and seriously injuring six workers.

The ammonia gas inunes ranged from severe

lung damage, eye damage respritory damage. A

ammonia gas lawsuit was settled out of court. For

a Free Case Consultation concerning this Tyson

Food accident of any other ammonia gas

inhalation severe injury ot death, call Houston,

Texas Trial Lawyer for more information and

help. Call Toll Free 1-800-633-9858

http://www .texasiriallawyer.com/news/news page php?AnicleID=274

Call Toll Free

1-801-883-9858

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ee re ee

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Residence:

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Injury/Accident:

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Details

Accident/Injury:

1/13/2010

Tyson Foods Ammonia Gas Leak - Ammonia Gas Exposure Lawsuil likely against Tyson Page 2 of 2

Click Here to Contact a Lawyer

For a Free Case Evaluation

-Notica/Disclosure

Disclaimer

Mr. Wilils is Board Certified In Personal Injury Trial Lew by the Texas Board of Lega!

Specie zation.

Mr. David Willls of the Willis Law Firm is licensed in Texas and New York, with

principle offices at 1221 McKinney St. #3333 Houston, Texas 77010.

toms Wie! lewyer home - office - board certiicadgon - about te firme acto accident kewyer - cer & Weck eccidenta

wetcteioma sfomey : eutomotive detects - canstuctun ectiderts © maar tirve Ofshwre lew - 10 whoeter bucking eUidborite

carehcal palsy - SUV rollover Cases Sengerous products - wrongis Geet lew eccitonts & lweute

taltroed FELA cleires - off ig & offtekd injury industriel accidents - apinal Cord inpury were wetding fod burmen

nurting borne shuse - teuwretc bron bgury product bebiity wwe Contact 8 hreryer

http //www.texastnallawyer.com/news/news page.phip?Anicle!D-274 1/1372010

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Chemical leak lake wales flonda

fron) karen smarte (veeatiiste ps @hounad corm)

Sent. Fr 1/22/10 1205 AM

lo marastorseti@amsn com

bh Maraa,

Here's a few more aruides and websites. | nope tus 1s helpful Please et me know if any of thes cs helpful. { vt

califex you later

ntp://www_ acusate.com/Newsetter/S tanes/01L02News -Monthlylacidents him

December 17, 2001 Florids Ammonia Leak injures 9

invesugalors probeng @ polenwally fetal indusiiai accalent af a Lake Wales Carus plan are Concentating on

Btwngs seakng @ 4-6 mch-diameter pape thal carted bquid ammonia trom a juice Chiler Ptan officials saci that

appears tat an O-nng faded at the end of a ppe Cap releasing anhydrous ammonia into the Carosuco North

Amenca plard east of the cay. Nine people incuching two siate agncamure deperiment employees and a

tede ral agricullure worker were wyured. Officasts sand members of Casosuco's hazardous matertal team hed

abeady suted up and rescued tree of the waar when fefigtters arnived. Source: CSH CIRC

December 23, 2001 Custodial Worker Killed by Ammonia Leak

Wisconsin state ofhasth are investigating an acaden thai kfed an Oscar Mayer Foods custockal worker and

syured one other when they were exposed 10 tozac gas icakung from a ruptured Cooler tank. The two men

were moving & lank of arnoma 1 a boadang dock when a ine broke. sping 50 gations of ammonia. Source

CSB CIRC

hip Hetstoday comnewsiehs anp 35619/

Ammonia Leak Sours OSHA on Citrus Processing Plant

dul 8, 2002 12:00 AM, By Sandy Smith

bh wasn the sweet smell of oranges and lernons employees smetied at 4 Lake Wales, Fla. Gurus processing

\plam lak December. i was ammoma, and it sent six workers to the hospital

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Preventing Workplace Violence

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t - Mailed

Discussed

Recent

Gurosuco North America faces $40,900 in proposed fines from the Occupatronal Safety and Health

Adiminastration (OSHA) after investigators found 4] senous violations of occupational safety and heefth

Slandards.

“Each of those violabons was senous enough that it could result in serious ingury or even death if it's not

conected,” said Les Grove, area director for the OSHA office in Tampa. “Citrosuco doesn't have a hestory of

senous wolations in the lest Uwee years,” he added, saying the company received e 10 percent reduction mn

fines because of a

OSHA inspectors began investigating the company when a seal on 8 pipe carrying anhydrous anmona

ruptured last year, releasing approsdmately 10,000 pounds of ammonia. Ammornsa is used as a refngerart at

the faciny

The company wes Gted for failure to install a railing on a ramp, leaving a six-foot drop, failure to place quality

control mezsures an seals of heat exchangers, poor recordkeeping, lating to make shut-off valves accessitde

in the event of an emergency and lack of proper training, among others

The company dedined conment. Ctrosuco has untd July 3 to coniest the citations and proposed penalies

wrth the independent Occupational Satety and Health Review Commassian or to request an informal

conference with the area director

bhotmal Irusted emad wih powerful SPAM protection. S.gn up now

http ://oll42w_ blul42 mail live com/mail/PrintSbell_aspx?typemessago& cpids =ca | e938 5e 1/23/2010

| GSB lovestiganve Team to Examine Fatal Ammonia Release near Columbia, South Carol Page | of |

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CSB Investigative Team to Examine Fatal Ammonia Release near

Columbia, South Carolina

July 15 2009

Winahington, DC. July 1% 2008 — The U5. Chemical Safety Board is deploying an investigation team bo the ate of an

( entrydrous eramote: releese Bet occured eerto: lodey af Tenne: bwhusties, located sou: of Gwerece, Sad) Corolre, fe

} agency ennounced

Acoudng © meds teapots @ women driving her cas neat the factity wae overcome by Ine saumOrS vEpO! and was

tay wpewed Seven other mdb shunts were token bo © boca! hospital fr whet were thought to b> non-ite Ovestering nnpetes

Acoreorée is @ shong ered (het effects fhe reap@etory syatem 8 in a Chemicel used i 2 vartety of buhatrios mocking

Be merntectsre of tertfiLrern ani in Commercad mulrigeraton systems

The C58 teem wil be headed by hwestigation Superssor Robert Hell, PE. Board Mernbe: Witham E Vhight wil

acoompeny te wan end ad 6 te Cusl spokesperson

The C65 = on independent federal agency charged with brostigating ndustte! Cheewcel ecaderts Tie agency's

board manbers ase appoirted by the president end confmened by the Senate CS mvestgatons bok ito af sepects of Chawecel

eocidenta, inchudeng physical Causes such as equaapmerd tellus os wel es Pedequeces in neguésfons, industry staruterds, and

ey ied Qe ds pee

The Board does not eve ctehons of ines bl does make sefety recommendations to plants. industry orgerdradbons

labor groups. end regubetory egenctes suc es OGHA and EPA Vell ou webelts, wey cob gov

for more btormatson. cortect Pitlkc Affaire Specinitet Amy MoConuuh (on bocatioe) oof 202 640.80-46

UB Chemical Satety Bomrd | 2175 K Street WW | Washington, OC 20037 | srw cab gov

http /Awww_.csb gov/newsroony detail. aspx7nid=2668 SID-OR pg=1AF All-y%2P2f%2I 1/23/2010