Akers v. Quality Carriers, Inc., Civil Action 2:21-cv-00660

CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
PartiesRUSSELL R. AKERS, Plaintiff, v. QUALITY CARRIERS, INC., Defendant.
Decision Date07 February 2022
Docket NumberCivil Action 2:21-cv-00660

RUSSELL R. AKERS, Plaintiff,


Civil Action No. 2:21-cv-00660

United States District Court, S.D. West Virginia, Charleston Division

February 7, 2022



The Court has reviewed the Complaint (Document 1-1), the Defendant's Motion to Dismiss (Document 3), and the Memorandum in Support of Motion to Dismiss (Document 4).[1] For the reasons stated herein, the Court finds that the Motion to Dismiss should be granted, and the Complaint should be dismissed for failure to state a claim upon which relief can be granted.


The Plaintiff, Russell R. Akers, brings this action against the Defendant, Quality Carriers, Inc., alleging the latent manifestation of pancreatic cancer caused by exposure to unidentified chemicals during the course of his employment for the Defendant's predecessors in interest. From January 1977 until 1985, Mr. Akers was employed by Union Carbide Corporation. At that point, operation of Union Carbide Corporation was transferred to Chemical Leaman Tank Lines, Inc., now known as Quality Carriers, Inc. Mr. Akers continued his employment with Chemical Leaman Tank Lines, Inc. from 1985 until 1991.


As a tank cleaner, Mr. Akers primarily was responsible for the “flushing out and removal of chemical components from rail tank cars” at a worksite operated by his employer. (Compl. § II) (Document 1-1.) The Defendant's predecessor allegedly “maintained a hazardous workplace which on a daily basis endangered the health and wellbeing of the Plaintiff and all of his co-workers.” (Compl. § III.) Additionally, “no protective gear in the form of hazmat suit or the like was provided to protect the Plaintiff and others against the exposure to such hazardous chemicals and to the potential adverse health effects resulting therefrom.” (Compl. § IV.)

After consultation with several medical professionals and health care providers, the Plaintiff was ultimately diagnosed with pancreatic cancer on November 20, 2019. His doctor, Dr. Muhammad Omer Jamil, “confirmed to the Plaintiff that the probable cause of the pancreatic cancer was…Plaintiff's prior exposure to one or more chemicals to which the Plaintiff and others were regularly and repeatedly exposed.” (Compl. § VII.) The Plaintiff alleges that his treatment is ongoing, and he has incurred hundreds of thousands of dollars in medical bills. He asserts that his pain, suffering and distress is “directly attributable to the gross negligence of his predecessor employer, Union Carbide Corporation, whose conduct rises to the threshold of a ‘Manolis' standard of tortious conduct.” (Compl. Prayer)


A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted tests the legal sufficiency of a complaint or pleading. Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008). Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”


Fed. R. Civ. P. 8(a)(2). Additionally, allegations “must be simple, concise, and direct.” Fed.R.Civ.P. 8(d)(1). “[T]he pleading standard Rule 8 announces does not require ‘detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a complaint must contain “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Moreover, “a complaint [will not] suffice if it tenders naked assertions devoid of further factual enhancements.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted).

The Court must “accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 93 (2007). The Court must also “draw[ ] all reasonable factual inferences from those facts in the plaintiff's favor.” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999). However, statements of bare legal conclusions “are not entitled to the assumption of truth” and are insufficient to state a claim. Iqbal, 556 U.S. at 679. Furthermore, the court need not “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice . . . [because courts] ‘are not bound to accept as true a legal conclusion couched as a factual allegation.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). In other words, this “plausibility standard requires a plaintiff


to demonstrate more than ‘a sheer possibility that a defendant has acted unlawfully.'” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 570). A plaintiff must, using the complaint, “articulate facts, when accepted as true, that ‘show' that the plaintiff has stated a claim entitling him to relief.” Francis, 588 F.3d at 193 (quoting Twombly, 550 U.S. at 557). “Determining whether a complaint states [on its face] a plausible claim for relief [which can survive a motion to dismiss] will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679.


The Defendant urges the Court to dismiss the Complaint. It argues that under West Virginia's Workers' Compensation Statute, it is immune from common law liability for the Plaintiff's alleged injury from workplace exposure. The Defendant argues that neither exception to this immunity is applicable or alleged. First, it contends there is no allegation that the Defendant has not fulfilled its obligations under the statute. Second, it contends that the “deliberate intention” exception to immunity is not applicable because the Plaintiff must have first filed a claim for Workers' Compensation benefits, which is not alleged in the Complaint. In the alternative, even if he did not need to file a claim for Workers' Compensation benefits for this exception to apply, the Defendant asserts that the Plaintiff fails to adequately plead facts to support the required elements of “deliberate intention”. Finally, the Defendant alleges that the Complaint fails to comply with the proper procedure required by the West Virginia Code.[2]


West Virginia's Workers' Compensation Statute provides broad immunity to employers from lawsuits brought by employees based on workplace injuries or death. W.Va. Code 23-2-6. The available benefits under the statute, in turn, “supplant common law remedies, making an employer, in compliance with the Act, immune from common law liability to its employees for negligently causing injuries.” United Financial Casualty Company v. Ball, 941 F.3d 710, 714 (4thCir. 2019). This general immunity from suit “is not easily lost.” Roney v. Gencorp, 431 F.Supp.2d 622, 627 (S.D. W.Va. 2006). Under the statute, an employer may only lose this immunity, in full or in part, in two ways: (1) defaulting on payments or otherwise failing to comply with the provisions of the act, see W.Va. Code §§ 23-2-6, 23-2-8, or (2) if the injury stems from the “deliberate intention” of the employer. See W.Va. Code § 23-4-2(c). Absent these exceptions, an employee's exclusive remedy for a workplace injury is through the Workers' Compensation fund. See Young v. Apogee Coal Co., LLC, ...

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