Bradley v. Phillips Chemical Co.

Decision Date22 March 2007
Docket NumberCivil Action No. H-05-3912.
PartiesAdrienne BRADLEY, et al., Plaintiffs, v. PHILLIPS CHEMICAL COMPANY, et al., Defendants.
CourtU.S. District Court — Southern District of Texas

Grover G. Hankins, The Hankins Law Firm, John Orville Jones, Jones and Young, Melvin Houston, Attorney at Law, Houston, TX, for Plaintiffs.

Edward J. Patterson, III, Fulbright and Jaworski, George W. Billy Shepherd, III, Allison Standish Miller, Cruse Scott Henderson & Allen LLP, Patrick M. Flynn, Attorney at Law, James Lloyd Mount, Jeffry Paul O'Dea, Burt Barr and O'Dea, Houston, TX, Bruce Alan Fickman, Associate General Counsel, Pittsburgh, PA, Stuart M. Israel, Martens Ice et. al., Royal Oak, MI, for Defendants.


ATLAS, District Judge.

This case arises from an explosion at Phillips Petroleum Company's ("Phillips") K-Resin Unit in Pasadena, Texas on March 27, 2000. Plaintiffs are individuals who were employed by Phillips on the day of the explosion and have now sued Phillips for personal injuries allegedly suffered from the incident. Many, but not all, of the Plaintiffs sought arid were paid some workers' compensation under the Texas Workers' Compensation Act ("TWCA"), TEX. LAB.CODE § 401.001 et seq. Plaintiffs claim fundamentally that Defendants defrauded them and other injured employees and violated state and federal law by misrepresenting the existence of valid workers' compensation insurance covering Plaintiffs' injuries.1

Pending before the Court are various motions for summary judgment filed by Phillips, its insurance carrier, a law firm, and numerous individuals associated with those Defendants.2 There also are pending motions by several parties for various forms of procedural relief.3

The Court has carefully considered the applicable law, the entire record in this case, and the exhaustive briefing on these issues. The Court concludes that there are no genuine material issues of fact and that summary judgment in the Defendants' favor on the issue of Phillips's workers' compensation subscriber status is warranted.


This controversy arises from Phillips's response to a catastrophic explosion on March 27, 2000, at Phillips's Pasadena Plastics Complex. One worker was killed and many others were wounded. Two days later, on March 29, according to Plaintiffs, the injured employees were called to a meeting with representatives of the Williams Bailey law firm. The attorneys allegedly informed the employees that Phillips had a workers' compensation plan, written and carried by Pacific, that would provide compensation for the employees' injuries.

There is no dispute that Pacific wrote a workers' compensation insurance policy, C42650183, for the policy period November 1, 1999, to November 1, 2000, ("Policy"),4 which was a renewal of a prior policy that Phillips had purchased from Pacific at least one year earlier. Williams Bailey allegedly told the employees that, under Texas law, because Phillips had workers' compensation insurance, the workers would be compensated but could not file personal injury claims against Phillips.5

In November 2005, Plaintiffs filed this suit against Phillips (including several subsidiaries), Pacific, Williams Bailey, Paper Allied-Industrial, Chemical and Energy Workers International Union and Local 4-227 ("PACE") (the employees' union), as well as various individuals associated with those institutions. Plaintiffs assert that at the March 29th meeting, Defendants intentionally misrepresented the state of Phillips's workers' compensation insurance. They accuse Phillips of using an internal employee benefit plan to pay some compensation to injured workers in order to create the appearance of workers' compensation insurance, so that the employees would not file individual negligence suits. Plaintiffs have asserted numerous state and federal law claims arising from these events.6


Plaintiffs have filed a "Motion to Continue under Rule 56(f)" ("Continuance Motion") [Doc. # 64], seeking discovery and additional time to respond to the summary judgment motions regarding the "subscribership status of the Defendant Phillips Petroleum."7 One of Plaintiffs' counsel also adds that he hopes to "flesh out supplementary issues that were inadvertently omitted due to a disagreement in tactical approach" among counsel.8 Plaintiffs have already obtained a lengthy continuance under Rule 56(f), see Minute Entry Order of June 20, 2006 [Doc. # 47], and have since filed responses to Defendants' Motions and two surreplies. Additional delay of consideration of the summary judgment motions is not warranted. "In order to obtain a continuance of a motion for summary judgment for discovery purposes, a party must set forth some statement to the court indicating why additional discovery is necessary and `how additional discovery will create a genuine issue of material fact.'" Canady v. Bossier Parish School Bd., 240 F.3d 437, 445 (5th Cir. 2001) (citing Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 28 F.3d 1388, 1395 (5th Cir. 1994)). Plaintiffs have not met their burden and do not specifically identify how additional discovery will assist them. The Motion to Continue is denied.


Rule 56 of the Federal Rules of Civil Procedure mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a sufficient showing of the existence of an element essential to the party's case, and on which that party will bear the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc); see also Baton Rouge Oil and Chem. Workers Union v. ExxonMobil Corp., 289 F.3d 373, 375 (5th Cir.2002). In deciding a motion for summary judgment, the Court must determine whether "the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits filed in support of the motion, 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); Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Hart v. Hairston, 343 F.3d 762, 764 (5th Cir.2003).

For summary judgment, the initial burden falls on the movant to identify areas essential to the nonmovant's claim in which there is an "absence of a genuine issue of material fact." Lincoln Gen. Ins. Co. v. Reyna, 401 F.3d 347, 349 (5th Cir.2005). The moving party, however, need not negate the elements of the nonmovant's case. See Boudreaux v. Swift Transp. Co., 402 F.3d 536, 540 (5th Cir.2005). The moving party may meet its burden by pointing out "`the absence of evidence supporting the nonmoving party's case.'" Duffy v. Leading Edge Products, Inc., 44 F.3d 308, 312 (5th Cir.1995) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 913 (5th Cir. 1992)). However, if the moving party fails to meet its initial burden, the motion for summary judgment must be denied, regardless of the nonmovant's response. Baton Rouge Oil and Chem. Workers Union, 289 F.3d at 375.

If the moving party meets its initial burden, the nonmovant must go beyond the pleadings and designate specific facts showing that there is a genuine issue of material fact for trial. Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.2001) (internal citation omitted). "An issue is material if its resolution could affect the outcome of the action. A dispute as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party" DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir.2005) (internal citations omitted).

In deciding whether a genuine and material fact issue has been created, the facts and the inferences to be drawn from them must be reviewed in the light most favorable to the nonmoving party. Reaves Brokerage Co. v. Sunbelt Fruit & Vegetable Co., 336 F.3d 410, 412 (5th Cir.2003). However, factual controversies are resolved in favor of the nonmovant "only when there is an actual controversy — that is, when both parties have submitted evidence of contradictory facts." Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th Cir.1999). The nonmovant's burden is not met by mere reliance on the allegations or denials in the nonmovant's pleadings. See Diamond Offshore Co. v. A & B Builders, Inc., 302 F.3d 531, 545 n. 13 (5th Cir.2002) (noting that unsworn pleadings do not constitute proper summary judgment evidence (quoting Johnston v. City of Houston, 14 F.3d 1056, 1060 (5th Cir.1994))). Likewise, "unsubstantiated or conclusory assertions that a fact issue exists" do not meet this burden. Morris v. Covan World Wide Moving, Inc., 144 F.3d 377, 380 (5th Cir.1998). Instead, the nonmoving party must present specific facts which show "the existence of a `genuine' issue concerning every essential component of its case." Id. In the absence of any proof, the court will not assume that the nonmovant could or would prove the necessary facts. Little, 37 F.3d at 1075 (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)).

Finally, "[w]hen evidence exists in the summary judgment record but the nonmovant fails even to refer to it in the response to the motion for summary judgment, that evidence is not properly before the district court." Malacara v. Garber, 353 F.3d 393, 405 (5th Cir.2003). "Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment." See id. (internal citations and quotations omitted); see also de la O v. Hous. Auth. of El Paso, 417 F.3d 495, 501 (5th Cir.2005) ("`Judges are not like pigs, hunting for truffles buried in briefs.'" (quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991))).


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