Richmond v. Indalex Inc.

• Decision Date: 09 March 2004
• Docket Number: No. 1:02 CV 01036.,1:02 CV 01036.
• Citation: 308 F.Supp.2d 648
• Court: U.S. District Court — Middle District of North Carolina
• Parties: Terry RICHMOND, Administrator of the Estate of Timothy Richmond, Deceased, Plaintiff, v. INDALEX INC., Novar Inc., and Novar PLC, Defendants.

308 F.Supp.2d 648

Terry RICHMOND, Administrator of the Estate of Timothy Richmond, Deceased, Plaintiff, v. INDALEX INC., Novar Inc., and Novar PLC, Defendants.

No. 1:02 CV 01036.

United States District Court, M.D. North Carolina.

March 9, 2004.

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Octavis White, Jr., George E. Hunt, Hunt & White, Graham, NC, Thomas F. Ramer, Ganly Ramer & Strom, Asheville, NC, for Plaintiff.

Richard T. Rice, Reid Calwell Adams, Jr., Bradley Owen Wood, Womble Carlyle Sandridge & Rice, Winston-Salem, NC, for Defendant.

MEMORANDUM OPINION

BEATY, District Judge.

Plaintiff Terry Richmond ("Plaintiff" or "Administrator"), administrator of the estate of Timothy Richmond ("Richmond"), brings wrongful-death claims against Defendant Indalex Inc. ("Indalex") and Defendants Novar Inc. and Novar plc (collectively "Novar" or the "Novar Defendants") arising out of the on-the-job death of Timothy Richmond. Specifically, Plaintiffs Complaint [Document # 1], viewed in the light most favorable to Plaintiff, claims that Indalex knowingly engaged in activities that were substantially certain to cause severe injury or death and these activities in fact caused the death of its employee Richmond. Plaintiff thus contends that it may bring a civil claim against Indalex based on the Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991), exception to the exclusivity provisions of the North Carolina Workers Compensation Act. Plaintiff further claims that the Novar Defendants are parent companies of Indalex and are derivatively liable for Indalex's wrongful actions or alternatively that, if not derivatively liable, Novar is independently liable for its own negligent acts that resulted in Richmond's death. Defendants have filed several motions in response to Plaintiffs claims. Currently before the Court are Novar's Motion to Dismiss [Document # 18], Indalex and Novar's (collectively "Defendants") Motion for Summary Judgment [Document # 38], and Defendants' Motion to Strike Plaintiff's Response to Indalex's Suggestion of Subsequently Decided Authority and Addendum to Plaintiffs Brief in Opposition (hereinafter "Motion to Strike") [Document # 54].

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

As it must in the context of a Rule 56 Motion for Summary Judgment, the Court views the evidence in the light most favorable to Plaintiff, granting Plaintiff the benefit of all reasonable inferences. The Court will therefore restate the facts of this case in accordance with this standard.¹ The evidence thus shows that Decedent Timothy Richmond was employed at Defendant Indalex's Burlington, North Carolina, facility as a tail stretcher on Press No. 1, which is an aluminum extrusion machine. Press No. 1 extrudes lengths of aluminum flat bar onto a material handling system. This flat bar is approximately 120' long by 4" wide by ½" thick and weighs approximately 120 pounds. The material handling system on Press No. 1 consists of a hot side (also known as the "cooling table"), on which the aluminum is extruded and cooled. Once cooled, the material handling system is designed to automatically use a series of belts and walking arms to move the extruded aluminum product to the stretcher. The aluminum product is then clamped into the head stretcher and tail stretcher where it is stretched. Once the stretching process is complete, the material handling system is designed to automatically release the stretched metal bar on the cold side (also known as the "transfer table" or "saw batch table"), with another series of belts moving the aluminum to the saw in-feed table. Then the system is designed so that one long conveyor belt moves the aluminum product to a saw, where it is cut to customer specifications.

When functioning properly, employees would not have to touch or manually move the aluminum while it was on the transfer table. However, both before and at the time of Richmond's accident, the material handling system was not functioning properly. Therefore, employees would use shepherd's hooks and even their hands to keep the aluminum moving through the machine. To manually move the aluminum through the machine, the employees had to stand next to unguarded parts of the machine where, if the machine had

been functioning properly, they would not have been permitted to stand. Indalex supervisors informed management on numerous occasions about the possible dangers the problems with Press No. 1 and its material handling systems posed to Indalex employees. Further, the saw operator routinely placed a measuring tape on top of the foot pedal that controlled the rotating shaft on which Richmond's coat was caught, which allowed for continuous operation of the machine without the need for an employee to manually operate the foot pedal. However, without an employee continuously operating the foot pedal, it took longer to stop the machine.

At approximately 2:00 a.m. on November 13, 2000, Richmond was standing between the cooling table and the transfer table. At the time, he was wearing a long, loose-fitting, unzipped coat, in violation of Indalex's safety policies. The area where Richmond was standing when he fell was covered with oil and other debris, making it very slippery. While reaching to push the aluminum, Richmond slipped and fell into an unprotected rotating shaft with a V-shaped notch that was caused by a chip in the flange of one of the couplings on the drive shaft. The spinning shaft tightened Richmond's jacket around Richmond, fracturing several of his ribs and asphyxiating him.

After the accident, the North Carolina Department of Labor, Division of Occupational Safety and Health ("NC OSHA"), investigated the circumstances surrounding Richmond's death. NC OSHA found numerous violations of state and federal law with respect to Indalex's operation of Press No. 1 and its material handling system. Accordingly, NC OSHA fined Indalex $55,225 for these violations. In addition to this fine, NC OSHA had previously fined Indalex for other safety violations at the same facility and also for violations at its facility in Winton, North Carolina, but had not previously fined Indalex for safety problems with Press No. 1 and its material handling system.

As a result of Richmond's death, on November 12, 2002, Terry Richmond, the administrator of Richmond's estate, filed a wrongful-death action in the Superior Court of Alamance County against Indalex and the Novar Defendants. (Compl.) Pursuant to 28 U.S.C. §§ 1441(a) and 1446, Defendants removed the matter to this Court on the basis of diversity jurisdiction because Plaintiff is a resident of North Carolina, Indalex is incorporated in Delaware and has its principal place of business in Illinois, Novar Inc. is incorporated in Delaware and has its principal place of business in Texas, and Novar plc is incorporated in the United Kingdom and has its principal place of business in Great Britain. (Notice Removal [Document # 1] at 1.) Because there is diversity of citizenship and the amount in controversy, exclusive of interest and costs, is greater than $75,000, this matter is properly before this Court. See 28 U.S.C. § 1332(a).

II. DEFENDANTS' MOTION TO STRIKE

The Court will first consider Defendants' Motion to Strike, since it bears on what will comprise the record which the Court may look to in ruling on Novar's Motion to Dismiss and Defendants' Motion for Summary Judgment. Defendants' Motion to Strike moves this Court to strike Plaintiff's Response to Defendant Indalex's Suggestion of Subsequently Decided Authority and Addendum to Plaintiff's Brief in Opposition (hereinafter "Response to Defendants' Suggestion of Subsequently Decided Authority") [Document # 53]. Defendants also move this Court to award them fees and costs incurred in filing the Motion to Strike. (Mot. Strike at 3.) The Court notes that on November 7, 2003, the North Carolina Supreme Court issued its opinion in the case of Whitaker v. Town of Scotland Neck, 357 N.C. 552, ___ S.E.2d ___ (2003), which, as discussed more fully in Section IV.B below, is directly relevant to Plaintiff's Woodson claim. Therefore, on November 12, 2003, Defendants, pursuant to Local Rule 7.3(i), submitted a Suggestion of Subsequently Decided Authority [Document # 52] notifying the Court of the Whitaker decision. On November 20, 2003, Plaintiff responded by filing his Response to Defendants' Suggestion of Subsequently Decided Authority.

Defendants move this Court to strike Plaintiff's Response to Defendants' Suggestion of Subsequently Decided Authority because it is not permitted by the Federal Rules of Civil Procedure or by the Local Rules of this district. The Court notes that Local Rule 7.3(i) governs the manner in which parties may alert the Court to relevant new case law that affects the matter before the Court. Local Rule 7.3(i) states that "a suggestion of subsequently decided controlling authority, without argument, may be filed at any time prior to the court's ruling and shall contain only the citation to the case relied upon, if published, or a copy of the opinion if the case is unpublished." Defendants contend that Plaintiff's Response to Defendants' Suggestion of Subsequently Decided Authority violates this rule because "Local Rule 7.3(i) contains no provision whatsoever permitting a response of any kind to a suggestion of subsequently decided authority." (Mot. Strike at 2.) Defendants further contend that Plaintiffs filing violates Local Rule 56.1(d), which the Court notes governs the form and number of briefs parties may file in connection with a summary judgment motion. (Id.) As this Court has recently held in Gallimore v Newman Machine Co., 301 F.Supp.2d 431 (M.D.N.C.2004), Local Rule 56.1(d) only permits the filing of three briefs with respect to a motion for summary judgment: (1) a brief in support of the motion for summary judgment, (2) a brief in opposition to the motion for summary judgment, and (3) a reply to the...