Evans v. B.F. Perkins Co., a Div. of Standex Intern. Corp.

• Decision Date: 28 January 1999
• Docket Number: No. 98-1002,98-1002
• Citation: 166 F.3d 642
• Parties: David Wayne EVANS, Plaintiff-Appellant, v. B.F. PERKINS COMPANY, A DIVISION OF STANDEX INTERNATIONAL CORPORATION; Diversified Converters, Incorporated; E.I. Dupont De Nemours and Company, Incorporated, Defendants-Appellees, and Medical College of Virginia Hospitals Authority, Party in Interest.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 642

166 F.3d 642

David Wayne EVANS, Plaintiff-Appellant, v. B.F. PERKINS COMPANY, A DIVISION OF STANDEX INTERNATIONAL CORPORATION; Diversified Converters Incorporated; E.I. Dupont De Nemours and Company, Incorporated Defendants-Appellees and Medical College of Virginia Hospitals Authority, Party in Interest.

No. 98-1002.

United States Court of Appeals Fourth Circuit.

Argued Oct. 28, 1998.

Decided Jan. 28, 1999.

ARGUED: Bradford Manson Young, Karl Lloyd Santone, Chandler, Franklin & O'Bryan, Charlottesville, Virginia, for Appellant. Raymond Michael Ripple, E.I. Dupont de Nemours and Company, Wilmington, Delaware; Philip Browder Morris, Morris & Morris, P.C., Richmond, Virginia, for Appellees. ON BRIEF: Lawrence B. Chandler, Jr., Chandler, Franklin & O'Bryan, Charlottesville, Virginia, for Appellant. Donna L. Goodman, E.I. Dupont de Nemours and Company, Wilmington, Delaware; Ann Adams Webster, Morris & Morris, P.C., Richmond, Virginia; H. Aubrey Ford, III, Cantor, Arkema & Edmunds, Richmond, Virginia, for Appellees.

Before ERVIN and HAMILTON, Circuit Judges, and MOON, United States District Judge for the Western District of Virginia, sitting by designation.

Affirmed by published opinion. Judge HAMILTON wrote the opinion in which Judge ERVIN joined. Judge MOON wrote a separate opinion concurring in part and dissenting in part.

OPINION

HAMILTON, Circuit Judge:

David Evans appeals the district court's order dismissing his Virginia common law action against E.I. du Pont de Nemours and Company, Incorporated (Du Pont) and two of Du Pont's independent contractors, Diversified Converters, Incorporated (DCI) and B.F. Perkins Company (Perkins), ¹ to recover damages for injuries he sustained in an industrial accident at DCI's plant in Chester, Virginia, on March 28, 1996, allegedly as a result of the defendants' negligence and breach of warranties. The district court concluded that it lacked subject matter jurisdiction, see Fed.R.Civ.P. 12(b)(1), over Evans' Virginia common law action because under the Virginia Workers' Compensation Act, Va.Code Ann. §§ 65.2-100 to 65.2-1310 (VWCA or the Act), Du Pont and DCI were statutory employers of Evans, and Perkins was Evans' fellow statutory employee, and, therefore, the defendants were immune from Evans' Virginia common law action under the VWCA, which provides the exclusive remedy for Evans. For the reasons stated below, we affirm.

I

Du Pont is a global chemical and energy company that manufactures, among other products, TYVEK. TYVEK is a synthetic paper replacement used as construction sheeting material. Prior to the mid-1990's, Du Pont produced TYVEK in four steps: step one was the production of rolls of high-density polyethylene fibers; step two involved the thermal heat and pressure bonding of the polyethylene fiber rolls into sheets for various end-use applications; step three was the printing of logos on the sheets; and step four involved the conversion of the sheets into small rolls according to customer width and length specifications.

In the mid 1990's, Du Pont decided to diversify its TYVEK sheeting business by offering market-specific TYVEK products. Du Pont contracted with Perkins for Perkins to develop a machine to allow Du Pont to produce market-specific TYVEK products, to develop an operating procedure for the new machine, to demonstrate the use of the machine applying the operating procedure, and to supply the auxiliary safety equipment for the machine.

In compliance with its contract with Du Pont, Perkins designed and produced the "TCP machines." The TCP machines added a new thermal embossing step to the TYVEK processing. The TCP machines combined this new thermal embossing step with the previously used thermal bonding step and the previously used logo printing step. This new thermal embossing step, which required the changing of embossing rolls, enabled Du Pont to produce market-specific TYVEK products. Also, in accordance with its contract with Du Pont, Perkins developed a "Roll Changing System Operating Procedure" (Roll Changing Procedure or TCP Roll Changing Procedure) for Du Pont's TCP machines. This Roll Changing Procedure set forth the steps for changing the rolls on Du Pont's TCP machines and also designated exactly what auxiliary safety equipment Perkins and Du Pont would supply for the roll changes, including Perkins' roll change demonstration.

At this same time, Du Pont contracted with DCI for DCI to complete the processing of TYVEK at the DCI plant in Chester, Virginia. Specifically, Du Pont contracted with DCI for DCI to perform the new thermal embossing step and the final step of converting the TYVEK rolls into smaller rolls for Du Pont's customers. DCI agreed to use Du Pont's TCP machines to perform the thermal embossing step and agreed to follow Du Pont's procedure for roll changes, developed by Perkins.

After designing and producing the TCP machines and developing the TCP Roll Changing Procedure for Du Pont, Perkins still had some obligations to fulfill under its contract with Du Pont. In an effort to comply with its remaining obligations, Perkins subcontracted with M & R Constructors, Incorporated (M & R), for M & R to demonstrate the roll change on Du Pont's TCP machines at the DCI plant on March 11-13, 1996. Further, as required by the Du Pont-Perkins contract, Perkins provided DCI with Du Pont's TCP Roll Changing Procedure for use during the March 11-13 roll change and also supplied DCI with auxiliary safety equipment necessary for the March 11-13 roll change and future roll changes.

On March 11-13, 1996, M & R, under the direction of Perkins, performed the roll change on Du Pont's TCP machines at DCI. Evans, an employee of M & R, participated in the roll change. During the roll change, Perkins, DCI, and M & R discussed and analyzed Du Pont's TCP Roll Changing Procedure and modified the procedure to the satisfaction of Du Pont and DCI.

The next roll change on Du Pont's TCP machines at DCI was scheduled for March 28, 1996. Under its contract with Du Pont, DCI was responsible for the completion of the March 28 roll change. DCI subcontracted with M & R for the M & R crew, who had participated in the March 11-13 roll change, to complete the March 28 roll change.

On March 28, 1996, prior to the roll change, an M & R employee performed work for Perkins on Du Pont's TCP machines at DCI. Later that day, the M & R crew hired by DCI arrived at DCI to change the rolls on the TCP machines. Evans, M & R's employee, was part of this M & R roll change crew. No representative of Perkins was present for the roll change. During the roll change, one of the seven and one-half ton embossing rolls fell on Evans' leg, causing severe injuries. As a result of his injuries, Evans lost his right leg below the knee, three toes from his left foot, and a portion of his left foot.

On July 10, 1997, Evans filed this diversity action in the United States District Court for the Eastern District of Virginia against Du Pont, DCI and Perkins. See 28 U.S.C. § 1332. Pursuant to Virginia common law, Evans sought to recover damages from the defendants for the injuries he sustained in the roll change accident at DCI's plant in Chester, Virginia, on March 28, 1996, allegedly as a result of the defendants' negligence and breach of warranties. Specifically, Evans averred he sustained injuries because (1) Du Pont negligently designed, developed, manufactured, and distributed the TCP machines and its operating procedure; (2) Perkins negligently designed, developed, and produced the TCP machines and the TCP Roll Changing Procedure; (3) DCI negligently modified the TCP Roll Changing Procedure and negligently conducted the March 28 roll change; and (4) Du Pont, DCI and Perkins breached their warranties that the TCP machines, the auxiliary safety equipment, and the modified TCP Roll Changing Procedure "were safe." (J.A. 12-14).

Du Pont, DCI and Perkins filed motions to dismiss Evans' Virginia common law action pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), claiming the district court lacked subject matter jurisdiction over Evans' action because Evans' sole remedy was pursuant to the VWCA. Specifically, Du Pont and DCI claimed Evans' sole remedy was under the VWCA, because Evans was a statutory employee of Du Pont and DCI. Perkins contended Evans' sole remedy was pursuant to the VWCA because Perkins and Evans were fellow statutory employees of Du Pont.

After hearings on the motions to dismiss, the district court entered an order granting Du Pont, DCI and Perkins' motions to dismiss Evans' Virginia common law action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). The district court concluded that DCI, in contracting for the changing of the TCP rolls, performed a part of Du Pont's business of processing TYVEK. Therefore, the district court concluded that under the VWCA, Du Pont and DCI were statutory employers. With regard to Perkins, the district court recognized that Du Pont contracted with Perkins for Perkins to develop the procedure for the TCP roll changes, DCI followed the procedure developed by Perkins during the March 11-13 roll change, and DCI used a modified version for the March 28 roll change. The district court, without further discussion, granted Perkins' motion to dismiss on the ground that it and Evans were fellow statutory employees of Du Pont, and, therefore, Evans' sole remedy was pursuant to the VWCA. Evans noticed a timely appeal of the district court's order granting the defendants' motions to dismiss. ²

On appeal, Evans contends that the district court erred in granting the defendants' Rule 12(b)(1) motions to dismiss his Virginia common law action for lack of subject matter jurisdiction. Specifically, Evans contends that the TCP Roll Changing Procedure that DCI contracted with M & R for M & R to perform was not part of Du Pont's business, and, therefore, Du Pont and DCI were not statutory...