Brierly v. Alusuisse Flex. Packaging

• Decision Date: 27 October 1998
• Docket Number: No. 97-6190,97-6190
• Citation: 184 F.3d 527
• Parties: (6th Cir. 1999) Jeffrey D. Brierly, Administrator of the Estate of Paul Brierly, Plaintiff-Appellant, v. Alusuisse Flexible Packaging, Inc.; David Ellison, Defendants-Appellees. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 527

184 F.3d 527 (6th Cir. 1999)

Jeffrey D. Brierly, Administrator of the Estate of Paul Brierly, Plaintiff-Appellant, v.Alusuisse Flexible Packaging, Inc.; David Ellison, Defendants-Appellees.

No. 97-6190

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: October 27, 1998

Decided and Filed: June 10, 1999

Rehearing and Suggestion for Rehearing En Banc Denied July 30, 1999.

Joseph M. Kelly(briefed), Fred E. Fischer, FISCHER & GREENE, Louisville, Kentucky, for Plaintiff-Appellant.

William P. Swain(briefed), John W. Phillips, Michael S. Maloney, BOEHL, STOPHER & GRAVES, Louisville, Kentucky, John L. Smith(briefed), John H. Harralson, III, Smith & Helman, Louisville, KY, Arnold Taylor, O'HARA, RUBERG, TAYLOR, SLOAN & SERGENT, Covington, Kentucky, for Appellees.

Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort.No. 95-00103--Joseph M. Hood, District Judge.

Before: GUY, DAUGHTREY, and MOORE, Circuit Judges.

AMENDED OPINION

MARTHA CRAIG DAUGHTREY, Circuit Judge.

This diversity wrongful-death action was originally filed in state court against two defendants, only one of whom had been served when the case was removed to federal court.The district court remanded, after finding lack of proof of complete diversity.When the case was removed a second time by the previously unserved defendant, however, the district court denied the plaintiff's renewed motion to remand, finding complete diversity and concluding that the one-year time limitation on removal of diversity cases contained in 28 U.S.C. 1446(b) was inapplicable.On the merits, the district court then granted the defendants' motions for summary judgment holding that the plaintiff does not meet any of the exceptions to the Kentucky Workers' Compensation Act that would permit the filing of an independent wrongful death action.Finding no error, we affirm.

PROCEDURAL AND FACTUAL BACKGROUND

Paul Brierly was killed in an explosion at the Alusuisse Flexible Packaging plant on August 30, 1993.Electing to forego the decedent's statutory right to workers' compensation benefits, Brierly's estate instead filed this wrongful death action in state court, alleging that Alusuisse "deliberately intended" to kill Brierly, which, if proven, would exempt him from the exclusive remedy provisions of the Kentucky Workers' Compensation Act.

At the time of his death, Brierly was a co-op student attending Shelby County Vocational School and was working with Alusuisse under the supervision of David Ellison, among others.Alusuisse manufactures materials for packaging and labeling foods and pharmaceutical medicines.The printing press components used to produce the labels gradually develop a buildup of ink and adhesive materials, and the workers eliminate the buildup by disassembling the components and running them through a "large-parts washing machine."The washing machine was similar to a dishwasher, but the solvent cleaning solutions used had low flash points and were highly flammable.

The parties do not disagree about the events leading up to the accident that took Brierly's life.On Friday, August 27, 1993 -- three days before the accident -- the seal on the main pump of the parts washing machine broke, allowing the flammable solvent solution to leak during operation of the machine.The employee who was operating the machine when the leak developed shut the washer down, notified Alusuisse's maintenance department, and reported the problem to his supervisor.The maintenance department made plans to remove the pump on the following Monday.

The district court found that the following precautions were taken to minimize the possibility that the removal of the pump would generate sparks and thus create a fire hazard:

(1) the electricity to the machine was locked out and tagged out; (2) the washing machine and solvent supply reservoir were drained of solvent; (3) the pit below the washer was ventilated with a compressed air hose over the course of the entire weekend to purge any accumulated fumes from underneath the machine; (4) the washing machine door was left open Friday evening so that the interior of the machine could be aired out over the weekend; (5) and a special floor-level ventilation system was left running during the weekend to help purge the room of fumes.

Before the pump was replaced and welding begun, Alusuisse took additional safety measures: "(1) water was placed in the pit below the machine so as to prevent sparks from igniting any dried solvent residue left behind from the leaking pump; and (2) welding blankets were placed on and around the filter basket housing and parts washing machine."

Dave Ellison, Alusuisse's corporate safety director, made two trips to the parts washing room on Monday.On his second trip to the washing room, Terry Lingle, the employee responsible for overseeing operation of the parts washing room, expressed concern that about the possibility that sparks created during the welding process could ignite a fire.However, both Ellison and Gary Wordlow, the maintenance supervisor, reassured Lingle about the many precautions that had been taken.Wordlow even volunteered to do the welding himself, but maintenance lead-man Reinhold Ritzi decided that he would do the welding because he had more experience than Wordlow.Subsequently, Ellison and Wordlow gave their final approval for the welding.

Wordlow, Ellison, and Ritzi apparently believed that the parts washing room had been monitored with the "LEL" meter, a device which is used to measure the "lowest explosive limit" of solvent vapor in an area before a flammable source is introduced.In the wake of the explosion, however, it was discovered that the LEL meter had not been used.Each of the men involved stated that they had assumed that one of the others had obtained the readings.

A "fire watch" crew was assembled before Ritzi began the welding.Wordlow and other maintenance crew members - including Brierly - stood by with fire extinguishers watching for stray sparks that could ignite a fire.Brierly, the least experienced member of the crew, was almost 12 feet away from the welding site, further away than any of the other crew members.

As Ritzi prepared to weld the filter basket cover, a spark ignited undetected residual solvent fumes inside the parts washing machine, causing an explosion.The explosion blew off the steel door on the opposite end of the parts washing machine, and the door struck Brierly, resulting in his death.Wordlow, Ritzi, and one other worker also suffered injuries as a result of the incident.

Several state and local administrative agencies investigated the explosion, including the Kentucky Labor Cabinet, the Kentucky Fire Marshal's office, and the Environmental Protection Agency.The Kentucky Labor Cabinet issued a citation to Alusuisse and assessed a $24,500 civil penalty based on the insufficiency of the precautions taken the day of the accident and the inadequate training of some of the workers in first aid and use of fire extinguishers.The Kentucky Fire Marshal's office concluded that the explosion was accidental.

After a coroner's inquest, the coroner's jury found that Alusuisse "deliberately placed [Brierly] and other employees in a known, unsafe and hazardous position" and recommended that the case be submitted to the Shelby County grand jury.On June 20, 1994, the grand jury indicted Alusuisse for reckless homicide under KRS 507.050, a class D felony.The indictment alleged that Alusuisse "committed the offense of reckless homicide when it recklessly caused the death of Paul D. Brierly by failing to perceive the substantial and unjustifiable risk of explosion which constituted a gross deviation from the standard of care that a reasonable person would observe in the situation as it then existed."

Brierly's administrator filed this tort action on his behalf in the Shelby County Circuit Court on May 12, 1994, naming Alusuisse and David Ellison as defendants.On June 8, 1994, within 30 days of being served with the complaint, Alusuisse removed the state court action to federal district court on the basis of diversity jurisdiction.On March 30, 1995, the district court remanded the action to the Shelby Circuit Court on Brierly's motion, because Alusuisse had failed to introduce evidence to establish complete diversity by showing that Ellison was no longer a citizen of Kentucky.Alusuisse then filed a motion to reconsider, which the district court denied, based on its conclusion that 28 U.S.C. 1447(d) divested it from jurisdiction to consider such a motion after having remanded the case.At the same time it filed the motion to reconsider, Alusuisse also filed a second notice of removal.The district court again remanded the case, holding that the party that seeks to remove an action has the burden to present evidence of diversity in response to a motion to remand.

Ellison did not consent to either of Alusuisse's notices of removal or the motion to reconsider because he had not yet been served at the time Alusuisse filed these papers.Brierly had attempted to serve Ellison in Shelby County early in the proceedings but had been unsuccessful because Ellison had already left the state for Wisconsin.The district court noted that Brierly had obtained the new business address of Ellison from Alusuisse in August 1994, but could not effect service upon him until late October 1995 because the district court had ordered a stay of proceedings in the case until it resolved the motion to remand.On November 10, 1995, Brierly filed an amended complaint and effected service upon Ellison.On November 30, 1995, within 30 days of being served, Ellison filed a notice of removal on the basis of diversity, and Alusuisse filed a notice of its consent to Ellison's removal on the same day.On January 30, 1996, the district court denied Brierly's motion to remand, taking judicial notice of Ellison's...