Eden v. Joseph Car Transp.

• Docket Number: Civil Action 1:22-00236
• Decision Date: 01 September 2023
• Parties: MICHAEL EDEN and ELIZABETH A. EDEN, Plaintiffs, v. JOSEPH CAR TRANSPORT, LLC, et al., Defendants.
• Court: U.S. District Court — Southern District of West Virginia

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MICHAEL EDEN and ELIZABETH A. EDEN, Plaintiffs,
v.
JOSEPH CAR TRANSPORT, LLC, et al., Defendants.

Civil Action No. 1:22-00236

United States District Court, S.D. West Virginia, Bluefield

September 1, 2023

MEMORANDUM OPINION AND ORDER

David A. Faber Senior United States District Judge

Pending before the court is the defendant KGPCO, Inc.'s motion to dismiss. ECF No. 33. For the reasons explained below, the motion is DENIED.

I. Background^[1]

Plaintiff Michael Eden worked for defendant KGPCO, Inc. (“KGPCO”), a telecommunications network developer and supply chain company. See ECF No. 1 at ¶¶ 6, 8. KGPCO contracted with Frontier Communications^[2] (“Frontier”), a fiber optic internet

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service provider, for projects that required Mr. Eden to order, stock, and unload fiber-optic network development supplies at Frontier's Bluefield, West Virginia facility. See id. at ¶¶ 8, 23.

On June 18, 2020, Mr. Eden was on site at Frontier's Bluefield facility fielding shipments when an unexpected delivery of a 5,000-foot, 2,200-pound reel of innerduct for fiber optic cable conduits arrived on a flatbed trailer. See id. at ¶¶ 23-24. The delivery driver's shipment contract required him to schedule drop-offs beforehand, but he failed to do so on this occasion. See id. at ¶ 20. Mr. Eden had recently complained to his manager at KGPCO about this specific driver arriving without scheduling his deliveries. See id. at ¶ 21. Even so, Mr. Eden helped the driver unload the shipment because of a Frontier policy that required employees to accept shipments under any circumstances. See id. at ¶ 27.

Mr. Eden would have normally used Frontier's forklift to unload the large reel, but the forklift was under repair at the time. See id. at ¶ 25. Instead, at the driver's insistence, Mr. Eden stood beside the trailer and guided the reel along as the driver tried to roll it down a ramp connected to the trailer. See id. at ¶ 29. The ramp, however, suddenly collapsed, causing the reel to fall and crush Mr. Eden under its significant weight. See id. As a result, he suffered serious,

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permanent injuries that required major surgeries. See id. at ¶¶ 31-32.

Mr. Eden alleges a deliberate intent claim against KGPCO under West Virginia Code § 23-4-2(d)(2)(B) (2023). He sued the delivery driver, the delivery driver's company, Frontier, and the transportation company that arranged the delivery, all for negligence.^[3] See id. at Counts I-III. His wife, Elizabeth Eden, alleges a related loss of consortium claim against the defendants. See id. at Count V.

In addition to the factual allegations recounted above, Mr. Eden's complaint incorporates by reference a verified statement of James D. McIntosh, an expert in workplace safety. See ECF No. 45, Ex. A. Within the verified statement, Mr. McIntosh explains, among other things, (1) that KGPCO knew that Frontier's forklift was out of order, (2) that KGPCO knew that Frontier would nonetheless require Mr. Eden to unload all deliveries, (3) that this created an unsafe working condition at Frontier's facility, and (4) that these circumstances violated a federal regulation requiring employers to instruct employees on risk avoidance. See id.

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KGPCO asks this court to dismiss Mr. Eden's deliberate intent claim against it because the claim “recites only a formulaic recitation of West Virginia's deliberate intent statute” and, therefore, fails to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 34 at 1.

II. Legal Standard

“The purpose of a Rule 12(b)(6) motion is to test the [legal] sufficiency of a complaint; importantly, [a Rule 12(b)(6) motion] does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999) (citations and internal quotation marks omitted). A Rule 12(b)(6) defense asserts that even if all the factual allegations in a complaint are true, they remain insufficient to establish a cause of action. This court is also mindful that “[w]hether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract.” Jones v. Bock, 549 U.S. 199, 215 (2007).

Accordingly, 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

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relief.'” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (citing Fed.R.Civ.P. 8(a)(2)). The purpose of Rule 8(a)(2) is to ensure that “the defendant [receives] fair notice of what the . . . claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). A plaintiff must allege “enough facts to state a claim to relief that is plausible on its face” and “raise a right to relief above the speculative level.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599, 615 n.26 (4th Cir. 2009).

The United States Supreme Court has maintained that “[w]hile a complaint . . . does not need detailed factual allegations, . . . a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555550 (2007) (citations and internal quotation marks omitted). The court need not “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” E. Shore Mkts., Inc. v. J.D. Assocs. Ltd P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Courts must also take care to avoid confusing the veracity or even accuracy underlying the allegations that a plaintiff has leveled against a defendant with the allegations' likelihood of success. While “the pleading must contain something more . . . than . . . a statement of facts that merely

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creates a suspicion [of] a legally cognizable right of action,” 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004), “assum[ing]” of course “that all the allegations in the complaint are true (even if doubtful in fact),” Twombly, 550 U.S. at 555, it is also the case that “Rule 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations.” Neitzke v. Williams, 490 U.S. 319, 327 (1989). Therefore, courts must allow a well-pleaded complaint to proceed even if it is obvious “that a recovery is very remote and unlikely.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974).

III. Discussion

In this case, KGPCO undisputedly maintained workers' compensation insurance that covered workplace injuries incurred by its employees, including Mr. Eden. Generally, if an employer maintains workers' compensation insurance, the employer is immune from civil liability related to death or injury to covered employees:

Any employer subject to this chapter who procures and continuously maintains workers' compensation insurance as required by this chapter or who elects to make direct payments of compensation as provided in this section is not liable to respond in damages at common law or by statute for the injury or death of any employee, however occurring, after so subscribing or electing, and during any period in which the employer is not in

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default and has complied fully with all other provisions of this chapter ....

W.Va. Code § 23-2-6 (2022). West Virginia adopted its deliberate intent scheme “to remove from the common law tort system all disputes between or among employers and employees regarding the compensation to be received for injury or death to an employee.” Hunt v. Brooks Run Min. Co., LLC, 51 F.Supp.3d 627, 630 (S.D. W.Va. 2014) (citing W.Va. Code § 23-4-2(d)(1) (2005)). But, an employer loses the benefit of workers' compensation immunity if “the employer or person against whom liability is asserted acted with ‘deliberate intention.'” Edwards v. Stark, 880 S.E.2d 881, 886 (W.Va. 2022) (quoting W.Va. Code § 23-4-2 (2015)) (cleaned up). If an employee establishes a valid deliberate intent claim, the employee may “recover excess damages over the amount received under the workers' compensation scheme.” Hunt, 51 F.Supp.3d at 630 (citing Mayles v. Shoney's, Inc., 405 S.E.2d 15, 18 (W.Va. 1990)). The workers' compensation statute allows for two distinct types of deliberate intent claims: (1) a “heightened” deliberate intent claim, which requires the employee to prove that the employer intentionally harmed him or (2) a “five-factor” deliberate intent claim, as plaintiffs allege in this case. See id.

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For Mr. Eden's complaint to satisfy the pleading standard, he must plausibly allege that (1) a specific unsafe working condition existed which presented a high degree of risk and a strong probability of serious injury or death, (2) KGPCO had actual knowledge of the specific unsafe working condition and the high degree of risk and strong probability of serious injury or death it presented, (3) the specific unsafe working condition violated a safety statute, rule, or regulation or a commonly accepted and well-known safety standard within the industry, (4) KGPCO knowingly and intentionally exposed Mr. Eden to the specific condition, and (5) that it caused Mr. Eden serious injury or death. See W.Va. Code § 23-4-2 (d)(2)(B).

The court addresses the sufficiency of Mr. Eden's allegations as to each of these elements individually. See, e.g., Black Bear, LLP v. Halsey, Nos. 16-0232 & 16-0249, 2016 WL 7210151, at *5 (W.Va. Dec. 12, 2016) (memorandum opinion) (“[T]he express language of West Virginia Code § 23-4-2(d)(2)(ii)(D) plainly shows that the legislature intended that each and every one of the five elements be proven individually.”).

a. Unsafe Working Condition

Mr. Eden alleges that an unsafe working condition existed at Frontier's...