Boyer v. Weyerhaeuser Co.

• Decision Date: 22 August 2014
• Docket Number: No. 14–cv–286–wmc.,14–cv–286–wmc.
• Citation: 39 F.Supp.3d 1036
• Parties: Milton BOYER and Kathy Boyer, Plaintiffs, v. WEYERHAEUSER COMPANY, 3M Company, Metropolitan Life Insurance Company, and Owens–Illinois Inc., Defendants.
• Court: U.S. District Court — Western District of Wisconsin

39 F.Supp.3d 1036

Milton BOYER and Kathy Boyer, Plaintiffs

v.WEYERHAEUSER COMPANY, 3M Company, Metropolitan Life Insurance Company, and Owens–Illinois Inc., Defendants.

No. 14–cv–286–wmc.

United States District Court, W.D. Wisconsin.

Signed Aug. 22, 2014.

Opinion Granting Reconsideration in Part Nov. 4, 2014.

Michael P. Cascino, James Nicholas Hoey, Robert G. McCoy, Cascino Vaughan Law Offices, Ltd., Chicago, IL, for Plaintiffs.

Joshua J. Metcalf, Ruth F. Maron, Tanya D. Ellis, Forman Perry Watkins Krutz & Tardy LLP, Jackson, MS, Edward J. McCambridge, Emily Zapotocny, Segal McCambridge Singer & Mahoney, Ltd., Brian O'Connor Watson, Edward M. Casmere, Matthew John Fischer, Schiff Hardin LLP, Chicago, IL, William P. Croke, Von Briesen & Roper, S.C., Milwaukee, WI, for Defendants.

OPINION AND ORDER

WILLIAM M. CONLEY, District Judge.

Plaintiffs Milton and Kathy Boyer bring claims against defendants arising out of Milton's exposure to asbestos and a related disease, malignant mesothelioma

. Before the court are two motions to dismiss. In the first motion, defendant Weyerhaeuser Company, the former owner of a door manufacturing plant where Milton Boyer worked and asbestos fireproofing products were produced, moves to dismiss the claims brought against it as barred by Wisconsin's Workers' Compensation Act. (Dkt. # 8.) In the second motion, defendant Owens–Illinois Company seeks dismissal of product liability claims premised solely on its licensing of a patent claiming a fireproof door. (Dkt. # 86.) For the reasons that follow, the court will grant both motions and dismiss Weyerhaeuser and Owens–Illinois as defendants.¹

ALLEGATIONS OF FACT²

A. The Parties

Plaintiff Milton Boyer previously was employed at a door manufacturing plant in Marshfield, Wisconsin, where asbestos fireproofing products were manufactured and products containing asbestos were used in the manufacturing process. Plaintiff Kathy Boyer is his wife.

Defendant Weyerhaeuser Company is the former owner of the Marshfield plant. Weyerhaeuser is legally responsible for the conduct of Roddis Plywood Corporation, the former (former) owner and operator of the Marshfield plant. Defendant 3M designed, manufactured and sold masks for personal breathing protection in occupational settings, including the 3M 8710 mask. Defendant Metropolitan Life Insurance Company allegedly conspired to conceal information about the health hazards of asbestos from both individual end-users and industry. Finally, defendant Owens–Illinois sold licenses for a patent to manufacture fireproof doors, which in practice incorporated asbestos-containing cores. Owens–Illinois also manufactured, sold and designed asbestos products, including a fireproof door core under the brand name “Kaylo.”

B. Exposure to Airborne Asbestos Fibers

Plaintiffs allege that Milton Boyer “inhaled airborne asbestos fibers released during operations at the Marshfield plant as a result of the following:”

a. his employment at the Marshfield plant beginning in or around 1973;

b. asbestos fibers contaminating the home, auto, lunchroom, and other locations where non-work related activities were performed;

c. asbestos fibers released from the Marshfield plant operations, which contaminated the surrounding community; [and]

d. transport of asbestos fibers from the Marshfield plant to other locations.

(1st Am. Compl. (dkt. # 69) ¶ 14.) Plaintiffs allege that as a result of these exposures, Milton Boyer “suffered from the asbestos related disease malignant mesothelioma

.” (Id. at ¶ 16.)

In pleading negligent and intentional nuisance claims against defendant Weyerhaeuser in particular, plaintiffs further allege that:

Weyerhaeuser, during operations to manufacture fire doors at the Marshfield plant beginning on the 1950s, caused asbestos fibers to be released and contaminate the air in various settings in which no work related activities were being conducted or the plaintiff was not engaged in worked related activities, including without limitation:

a. the community surrounding the plant;

b. homes and vehicles;

c. landfills; and

d. activities on the premises which were not work related.

(Id. at ¶ 43.) Plaintiffs also allege that “the operations of Weyerhaeuser's Marshfield plant caused dangerous asbestos fibers to be transported to areas more distant through various means, including without limitation:”

a. worker clothing, personal effects, hair and skin which had been contaminated by asbestos fibers at the plant; andb. collecting, removing, hauling, and dumping asbestos waste materials.

(Id. at ¶ 44.)

JURISDICTION

The court has jurisdiction over this action pursuant to 28 U.S.C. § 1332. Plaintiffs Milton and Kathy Boyer are citizens of Wisconsin. (1st Am. Compl. (dkt. # 69) ¶ 1.) Defendant Weyerhaeuser Company is incorporated in the state of Washington, with its principal place of business in Washington. (Id., Ex. A (dkt. # 69–1).) Defendant 3M Company is incorporated in the state of Delaware, with its principal place of business in Minnesota. (Id. ) Defendant Metropolitan Life Insurance Company is incorporated in the state of Delaware, with its principal place of business in New York. (Id. ) Finally, defendant Owens–Illinois, Inc. is incorporated in the state of Delaware, with its principal place of business in Ohio. (Id. ) In light of the extent of plaintiff Milton Boyer's injuries, the amount in controversy also exceeds $75,000.

On the face of the amended complaint, plaintiffs purport to name three other, unnamed insurance companies as defendants. The law is clear, however, that “because the existence of diversity jurisdiction cannot be determined without knowledge of every defendant's place of citizenship, ‘John Doe’ defendants are not permitted in federal diversity suits.” Howell, by Goerdt v. Tribune Entm't Co., 106 F.3d 215, 218 (7th Cir.1997). The court, therefore, will dismiss these unnamed defendants. See id. Should plaintiffs learn the name of these insurance companies in a timely fashion and wish to add them as defendants—assuming their addition would not destroy complete diversity—plaintiffs may seek leave from the court to amend their complaint.

OPINION

I. Weyerhaeuser's Motion to Dismiss

Weyerhaeuser posits two bases for dismissing plaintiffs' complaint. First, Weyerhaeuser contends that plaintiff's claims of negligent and intentional nuisance—the sole claims alleged against Weyerhaeuser³ —are barred by the exclusivity provision of Wisconsin's Workers' Compensation Act (“WCA”), Wis. Stat. § 103.03(2). Second, defendant contends that plaintiffs' allegations fail to meet the requirement of Federal Rule of Civil Procedure 8. Because the court finds that plaintiffs' claims are barred by the WCA, the court need not reach the second basis for dismissal.

A. Overview of Wisconsin's Workers Compensation Act

Wisconsin Statute § 102.03(1) defines employer liability where the following applicable “conditions” occur:

(a) Where the employee sustains an injury.

(b) Where, at the time of the injury, both the employer and employee are subject to the provisions of this chapter.

(c)1. Where, at the time of the injury, the employee is performing service growing out of and incidental to his or her employment.

2. Any employee going to and from his or her employment in the ordinary and usual way, while on the premises of the employer, or while in the immediate vicinity of those premises if the injury results from an occurrence on the premises; ...

...

(e) Where the accident or disease causing injury arises out of the employee's employment.

...

Subsection (2) of the same statute provides that “Where such conditions exist the right to the recovery of compensation under this chapter shall be the exclusive remedy against the employer, any other employee of the same employer and the worker's compensation insurance carrier.” Wis. Stat. § 102.03(2) (emphasis added).

Because it was the parties' focus in briefing Weyerhaeuser's motion to dismiss, the court will also focus on the requirements that (1) “the employee is performing service growing out of and incidental to his or her employment” under § 102.03(1)(c) 1; and (2) “the accident or disease causing injury arises out of the employee's employment,” § 102.03(1)(e). See Johnson v. Hondo, Inc., 125 F.3d 408, 418 (7th Cir.1997) (“In order for employer liability under the Worker's Compensation Act to be triggered, the injured employee at the time of injury had to have been ‘performing service growing out of and incidental to his or her employment’ and ‘the accident or disease causing injury [must have arisen] out of the employment.’ ”) (citing Weiss v. City of Milwaukee, 208 Wis.2d 95, 105, 559 N.W.2d 588, 591 (1997) ).

B. Analysis

Anticipating plaintiffs' response, defendant's opening brief focused on the “dual persona” exception to the WCA exclusivity provision. (Def.'s Opening Br. (dkt. # 9) 7–1 (discussing Henning v. Gen. Motors Assembly, 143 Wis.2d 1, 419 N.W.2d 551, 552 (1988) ).) In their opposition brief, however, plaintiffs contend that the WCA does not govern plaintiffs' injuries because the injury was not sustained while plaintiff was “performing service growing out of and incidental to his or her employment” and because “[p]laintiff's community exposures and take-home exposures do not as a matter of law ... arise from the ‘course of employment.’ ” (Pls.' Opp'n (dkt. # 85) 3.)

With respect to whether Boyer's injury was sustained while he was performing service growing out of and incidental to his employment, this requirement is easily met by the facts as plead. As the Wisconsin Supreme Court explained in Weiss, 208 Wis.2d at 105, 559 N.W.2d at 591 :

[P]erforming service growing out of and incidental to his or her employment is used interchangeably with the phrase course of employment. Both phrases refer to the time, place, and circumstances under which the injury occurred.

An injury is said to arise in the course of the employment when it takes place within the period of the employment, at a place where the employee

...