Roney v. Gencorp, Civil Action No. 3:05-0788.

Citation431 F.Supp.2d 622
Decision Date09 May 2006
Docket NumberNo. Civil Action No. 3:05-0788.,Civil Action No. 3:05-0788.
PartiesChester RONEY, Individually and as Executor of the Estate of Henry Clay Roney, Jr., Plaintiff, v. GENCORP, et al., Defendants.
CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia

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431 F.Supp.2d 622
Chester RONEY, Individually and as Executor of the Estate of Henry Clay Roney, Jr., Plaintiff,
v.
GENCORP, et al., Defendants.
No. Civil Action No. 3:05-0788.
United States District Court, S.D. West Virginia, Huntington Division.
May 9, 2006.

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COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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Andrew S. Lipton, Lipton Law, Toledo, OH, Herschel L. Hobson, Randall D. Collins, Law Offices of Herschel L. Hobson, Beaumont, TX, Kelly Elswick-Hall, Larry L. Rowe Attorneys at Law, Charleston, WV, Ronald L. Simon, Law Offices of Simon & Associates, Washington, DC, for Plaintiffs.

Jace H. Goins, Richard L. Lewis, II, Steptoe & Johnson, Diana Leigh Johnson, Charles M. Love, III, Bowles Rice Mcdavid Graff & Love, David K. Hendrickson, H. Jerome Sparks, Kathy A. Brown, Hendrickson & Long, Charleston, WV, William Gorenc, Jr., Marco Marco & Bailey, Medina, OH, Michael B. Victorson, Jackson Kelly, Clarksburg, WV, Thorne D. Harris, III, Metairie, LA, Andrea B. Daloia, Laura Bancroft Nemer, Thomas L. Feher, Timothy J. Coughlin, Thompson Hine, Cleveland, OH, Matthew A. Kelly, Michael J. Farrell, Farrell Farrell & Farrell, Marc E. Williams, Huddleston Bolen Beatty Porter & Copen, Huntington, WV, William E. Padgett, Barnes & Thornburg, Indianapolis, IN, Robert W. Barton, Taylor, Porter, Brooks & Phillips, John E. Heinrich, Kean, Miller, Hawthorne, D'Armond, Mccowan & Jarman, Baton Rouge, LA, John D. Epps, Hunton & Williams, Richmond, VA, Gail C. Ford. Vorys, Sater, Seymour and Pease,

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Columbus, OH, Jerry Kevin Roneecker, Husch & Eppenberger, St. Louis, MO, Richard J. Lorenz, Houston, TX, M. Kevin Powell, Law Office Of Kevin Powell, Lake Charles, LA, Erica Cline Blackledge, Glen R. Stuart, Morgan, Lewis & Bockius, Philadelphia, PA, Carmen R. Toledo, W. Ray Persons, King & Spalding, Atlanta, GA, for Defendants.

MEMORANDUM OPINION AND ORDER

CHAMBERS, District Judge.


This matter is before the Court on the motion to dismiss of Defendants American Chemistry Council, Goodrich Corporation, PPG Industries, Inc., Shell Oil Company, and Zeneca, Inc., which seeks to dismiss Counts III-VIII of the complaint (Doc. 49). The other Defendants, Goodyear Tire & Rubber Company (Doc. 64), Rhone-Poulenc, Inc. (Doc. 51), Air Products & Chemicals, Inc. (Doc. 65), Ethyl Corporation (Doc. 66), Olin Corporation (Doc. 67), Pactiv Corporation (Doc. 68), Dow Chemical Company (Doc. 53), Union Carbide Corporation (Doc. 53), Honeywell International, Inc. (Doc. 53), Tenneco Automotives, Inc. (Doc. 63), Georgia Pacific Corporation (Doc. 60), Chevron U.S.A. Inc. (Doc. 54), Pharmacia Corporation (Doc. 58), Hexion Specialty Chemicals, Inc. (Doc. 52), Uniroyal, Inc. (Doc. 99), and Polyone Corporation (Doc. 149), have separately joined in this motion to dismiss. In addition, Gencorp, Inc. filed a separate motion to dismiss Counts I-IV (Doc. 55). For the following reasons, the Court DENIES in part, and GRANTS in part the motion to dismiss of Defendants American Chemistry Council, et al. and its joinder motions, and DENIES Gencorp's motion to dismiss.

I. FACTUAL BACKGROUND

The Plaintiff, Chester Roney as individually and as executor of the estate of Henry Clay Roney, Jr., filed this action on September 23, 2005. The Plaintiffs complaint lists three categories of Defendants: (1) Gencorp as Henry Roney's remaining employer; (2) Manufacturer/Supplier Defendants; and (3) Conspiracy Defendants. The complaint contains eight counts: (1) employer intentional tort claim; (2) fraud claim against the employer; (3) civil conspiracy to commit tortious conduct by all Defendants; (4) aiding and abetting of Manufacturer/Supplier Defendants and Conspiracy Defendants of the employer's intentional torts; (5) breach of duty to warn by Manufacturer/Supplier Defendants; (6) strict liability in tort of Manufacturer/Supplier Defendants; (7) fraud by Manufacturer/Supplier Defendants; (8) punitive damages against all Defendants.

The "Manufacturer/Supplier Defendants" are: Borden Chemical, Inc., Dow Chemical Company, Ethyl Corporation, Georgia Pacific, Inc., Goodrich Corporation, Honeywell International, Inc., Pharmacia Corporation, Pactiv Corporation, PPG Industries, Inc., Shell Oil Company, Tenneco Automotives, Inc., Union Carbide Corporation, and Uniroyal, Inc. The "Conspiring Defendants" are: Air Products & Chemicals, Inc., The American Chemistry Council, Hexion Specialty Chemicals, Inc., Dow Chemical Company, Ethyl Corporation, Georgia Pacific Corporation, Honeywell International, Inc., Goodyear Tire & Rubber Company, Chevron U.S.A., Inc., Olin Corporation, PolyOne Corporation, Rhone-Poulenc, Inc., and Zeneca, Inc.

Mr. Roney was employed by Pantasote, Inc. at its Point Pleasant, West Virginia plant in 1965, and worked at that plant until 1982. In 1973, Gencorp became an owner of the plant, and an employer of Mr. Roney. Compl. at ¶ 16. While an employee at the plant, Mr. Roney worked as a reactor cleaner and operator, cleaning tanks, vessels and vats, handling raw materials, operating machinery and otherwise

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performing tasks, all of which involved working with and begin exposed to vapor, steam and fumes containing vinyl chloride monomer (VCM). Id. at ¶ 17. During the course of his employment, Mr. Roney was exposed to VCM, and could often smell the VCM while he was working. Id. The Plaintiff alleges that the exposure of Mr. Roney to VCM was the direct and proximate cause of his developing cancer of the liver known as hepatic angiosarcoma. Id. at ¶ 19. Mr. Roney developed symptoms of this cancer on September 30, 2003, and died on October 4, 2003. Plaintiff alleges that his death was the direct and proximate result of the misconduct of the Defendants.

II. DISCUSSION

A. Gencorp's Motion to Dismiss Counts I-IV

In Count I, Plaintiff asserts an intentional tort claim against Gencorp as Plaintiff s decedent's remaining employer for its intentionally exposing him to VCM which caused his death.1 In its motion to dismiss, Gencorp argues that this count should be dismissed because Plaintiff failed to file a workers' compensation claim as a prerequisite to filing the employer intentional tort lawsuit. In response, Plaintiff argues that he did not need to file under the workers' compensation system because the applicable statute specifically provides an exception to employer "deliberate intention" actions, and therefore, he can file a civil action directly.

The West Virginia Workers' Compensation Statute provides, immunity to employers from lawsuits brought by employees to recover damages for their injury or death sustained at the workplace. See W. VA. CODE § 23-2-6 (2005). The immunity afforded employers is not easily lost. "When an employer subscribes to and pays premiums into the Fund, and complies with all other requirements of the Act, the employer is entitled to immunity for any injury occurring to an employee and shall not be liable to respond in damages at common law or by statute." State ex rel Frazier v. Hrko, 203 W.Va. 652, 510 S.E.2d 486, 493 (1998). Such immunity can only be lost in one of two ways: "(1) by defaulting in payments required by the Act or otherwise failing to comply with the provisions of the Act, or (2) by deliberately intending to produce injury or death to the employee." Smith v. Monsanto Co., 822 F.Supp. 327 (S.D.W.Va.1992);, Bell v. Vecellio & Grogan, Inc., 197 W.Va. 138, 475 S.E.2d 138, 141 (1996).

It is the exception based upon the deliberate intention of the employer that is at issue in this case. See W. VA. CODE § 23-4-2(c). Under this exception, an employee can recover excess damages over the amount received under the workers' compensation scheme. Mayles v. Shoney's, Inc., 185 W.Va. 88, 405 S.E.2d 15, 18 (1990). In 1978, the West Virginia Supreme Court of Appeals interpreted the deliberate intention portion of § 23-4-2 rather broadly to mean that: "an employer loses immunity from common law actions where such employer's conduct constitutes an intentional tort or willful, wanton, and reckless misconduct." Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695, 246 S.E.2d 907, 910-911 (1978). In response to this ruling, the West Virginia Legislature amended § 23-4-2 in 1983 to make it more

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difficult for an employer to lose the immunity provided by the compensation laws. Bell, 475 S.E.2d at 143. In effect, the amendment removed from the statute the common law definition of deliberate intention as established in Mandolidis, and specifically set out statutory requirements for recovery in a deliberate intent action. Id. In order to meet the statutory requirements, a plaintiff must prove:

(A) That a specific unsafe working condition existed in the workplace which presented a high degree of risk and a strong probability of serious injury or death;

(B) That the employer, prior to the injury, had actual knowledge of the existence of the specific unsafe working condition and of the high degree of risk and the strong probability of serious injury or death presented by the specific unsafe working condition;

(C) That the specific unsafe working condition was a violation of a state or federal safety statute, rule or regulation, whether cited or not, or of a commonly accepted and wellknown safety standard within the industry or business of the employer, as demonstrated by competent evidence of written standards or guidelines which reflect a consensus safety standard in the industry or business, which statute, rule, regulation or standard was specifically applicable to the particular work and working condition involved, as contrasted with a statute, rule, regulation or standard generally requiring safe workplaces, equipment or working conditions;

(D) That notwithstanding the existence of the facts set forth in subparagraphs (A) through (C), inclusive, of this paragraph, the employer nevertheless intentionally thereafter exposed an employee to the specific unsafe working...

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