Peters, et al. v. Texas Instruments Inc.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND
FOR NEW CASTLE COUNTY
CHRISTOPHER PETERS, by his
father and next friend GRADY
PETERS, and GRADY PETERS and
ROSETTA PETERS, individually,
Plaintiffs,
v.
TEXAS INSTRUMENTS
INCORPORATED,
Defendant.
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C.A. No. 10C-06-043 JRJ
ORDER
AND NOW, this day 7th of May, 2012, the Court having duly considered
Plaintiffs’ Motion for Reargument, and Defendant’s opposition thereto, IT
APPEARS THAT:
1. On September 30, 2011, the Court granted Texas Instruments
Incorporated’s (“T.I.”) Motion to Dismiss. 1
On October 7, 2011,
Plaintiffs filed a Motion for Reargument pursuant to Superior Court Civil
Rule 59(e). 2 For the following reasons, Plaintiffs’ Motion is DENIED.
2. Plaintiffs’ Motion for Reargument must be denied because Plaintiffs
revisit arguments already decided and present new arguments not
1
2
Peters v. Texas Instruments, Inc., 2011 WL 4686518 (Del. Super.).
Plaintiffs’ Motion for Reargument (“Mot. for Reargument”) (Trans. ID.No. 40260820).
1
previously raised. The Court will only grant a motion for reargument
when it “has overlooked a controlling precedent or legal principles, or the
Court has misapprehended the law or facts such as would have changed
the outcome of the underlying decision.” 3 It is well settled that a motion
for reargument is not an opportunity for a party to revisit arguments
already decided by the Court or to present new arguments not previously
raised. 4
3. Plaintiffs’ Motion begins by claiming that the Court “overlooked
important matters that would have changed the outcome of its decision,
and that Christopher Peters should not be left without a remedy.” 5
However, Plaintiffs quickly acknowledge that they “failed to provide
certain favorable authority” to the Court. 6 The Court did not overlook or
misinterpret the law or facts, rather, as Plaintiffs readily admit, they did
not provide what they deem to be “favorable authority” until after the
Court granted T.I.’s Motion to Dismiss. And even if the Court were to
consider Plaintiffs’ new “favorable authority,” contrary to Plaintiffs’
contention, it would not change the outcome. Plaintiffs’ reliance on
3
State Farm Fire and Cas. Co. v. Middleby Corp., 2011 WL 2462661, at *2 (Del. Super.) (citing Kennedy v.
Invacare Corp., 2006 WL 488590, at *1 (Del. Super.)).
4
Id. (citing Plummer v. Sherman, 2004 WL 63414, at *2 & n. 7 (Del. Super.)); see also Hennegan v. Cardiology
Consultants, P.A.., 2008 WL 4512678, at *1 (Del. Super.) (other citations omitted)).
5
Mot. for Reargument at 1.
6
Id.
2
Witty v. Am. Gen. Capital Distrib., Inc. 7 is misplaced.
In Witty, a
pregnant plaintiff tripped and fell over a cord which allegedly fatally
injured her unborn child. 8 The plaintiff brought claims individually and
in her representative capacity for her unborn child’s physical pain and
mental anguish, and individual claims for her own mental anguish,
property damage, and loss of companionship.9 The defendant moved for
summary judgment, arguing that: (1) the plaintiff applied for and
received worker’s compensation benefits; and (2) the plaintiff’s baby was
not alive at the time of its birth, and thus, the plaintiff did not have a valid
cause of action in Texas. 10
The trial court granted the defendant’s
motion, but the Court of Appeals reversed. 11
Plaintiffs rely on the
following dictum as “favorable authority” under Texas law:
We have not been referred to any case involving the precise
issue presented here, i.e., whether the Workers’ Compensation
Act bars an employee’s common law action for emotional
distress and a statutory recovery for loss of society and
companionship and for mental anguish, resulting from an injury
to a third party victim. Certainly, the act would not constitute a
bar to a claim asserted by the third party victim, even though
both the employee and the victim were injured together as the
result of the same negligent act in a single transaction. 12
7
697 S.W.2d 636 (Tex. App. 1985), rev’d in part, 727 S.W.2d 503 (Tex. 1987).
Id. at 638.
9
Id.
10
Id.
11
Id. at 640. (holding that the plaintiff’s injuries did not “derive from the injuries that she, herself, sustained in the
fall, but instead, those claims relate entirely to the injury and loss of her child.”).
12
Id. at 641. (emphasis added).
8
3
The Texas Supreme Court reversed the Court of Appeals’ decision,
holding that the mother’s claims for mental anguish were inextricably
entwined with her own injuries, and thus barred by the Texas Workers’
Compensation Act.
Plaintiffs rely on Witty because Texas Supreme
Court opted not to address the Court of Appeals’ statement that a third
party victim’s claim, i.e. a child, would not be barred. 13 What Plaintiffs
overlook, however, is that it was not necessary for the Texas Supreme
Court to do so. In Witty, the child was stillborn, and the Texas Supreme
Court reaffirmed that under Texas law a stillborn fetus does not have a
cause of action. 14
Plaintiffs also fail to appreciate that the Court of
Appeals’ statement with respect to a “third party victim” reaffirms this
Court’s September 30, 2011 holding.15 Similar to the cases discussed by
this Court in that opinion, the child in Witty was in utero. Christopher
Peters was not. His injuries are legally dependent on his father’s injuries.
In other words, Christopher’s claim requires him to establish that his
father, Grady Peters, suffered an injury, insult, or damage to his sperm. 16
Plaintiffs attempt to couch their argument as a new argument using
dictum from Witty, but it is the same argument the Court has already
13
See Witty, 727 S.W.2d 503, at 506.
Id. at 505-06.
15
See Peters, 2011 WL 4686518 (Del. Super).
16
If, hypothetically, Christopher’s mother worked at T.I. while pregnant with Christopher, because Christopher was
physically present at T.I., he would have potentially had a cause of action outside of the Texas Workers’
Compensation Act.
14
4
considered and rejected. 17
Either way, the Court will not revisit
arguments previously raised or hear new arguments. 18
4. Plaintiffs argue that Grady Peters does not have a compensable injury,
and thus, the Texas Workers’ Compensation bar does not apply. 19 This
argument fails for two reasons. First, this is the first time Plaintiffs have
raised this argument despite full briefing and oral argument. Second,
under Texas law, the primary purpose of the Workers’ Compensation Act
is to “relieve employees injured on the job of the burden of proving their
employer’s negligence and to provide them prompt remuneration for
their on-the-job injuries.” 20 That said, the Texas Courts have “liberally
construed the Act in the employee’s favor.” 21 Injuries that occur “in the
course and scope of employment” are compensable under the Act. 22 To
be “compensable”, a workplace injury must cause “impairment,
17
Plaintiffs also attempt to recast their Complaint in their Motion for Reargument. Plaintiffs attached the affidavit
of Cynthia F. Bearer, M.D., Ph.D., who allegedly states that “plaintiffs do not allege injury to the structures of Mr.
Peters’ body. Rather, the alleged sperm damage is damage it a discrete entity, which survives and functions outside
of and independently of Mr. Peters’ body. From a scientific perspective, this is a direct injury to the child, and not
derivative of an injury to his father.” Mot. for Reargument at 3. Even when the Court reviews a complaint in a light
most favorable to the non-moving party, in this case Plaintiffs, and draws all reasonable inferences in their favor, the
Court cannot ignore the plain words of Plaintiffs Complaint. Plaintiffs state in their First Amended Complaint:
“Grady Peters sustained an insult to his reproductive system as a result of his employment at TI that caused injuries
to Plaintiff Christopher Peters.” Plaintiffs’ First Amended Complaint (“Pl.’s Am. Comp.”) (Trans. ID. No.
33786387) at ¶ 27. If this allegation is inaccurate, Plaintiffs should have raised that argument when they responded
to T.I.’s Motion to Dismiss. Plaintiffs should have moved to amend their complaint – again – earlier in the process.
It is simply too late to raise this argument now. Also, the Court will not consider affidavits when reviewing a
Motion for Reargument. See n. 34 and 35 infra.
18
State Farm Fire and Cas. Co., 2011 WL 2462661, at *2. (citing Plummer, 2004 WL 63414, at *2 & n. 7); see
also Hennegan 2008 WL 4512678, at *1 (other citations omitted)).
19
Mot. for Reargument at 2.
20
Payne v. Galen Hosp. Corp., 28 S.W.3d 15, 17 (Tex. 2000).
21
Id. (citing Albertson’s Inc. v. Sinclair, 984 S.W.2d 958, 961 (Tex. 1999); Lujan v. Houston Gen. Ins. Co., 756
S.W.2d 295, 297 (Tex. 1988)).
22
Id. (citing TEX. LAB.CODE § 401.011(10)).
5
disability, illness, or death . . . .” 23 Injury is defined as “damage or harm
to the physical structure of the body and a disease or infection naturally
resulting from the damage or harm.”24 The phrase “physical structure of
the body” refers to the entire body. 25 A two-pronged test determines
which injuries are compensable.
The Court determines whether the
injury: “(1) occurred in the course and scope of employment; and (2)
arose from employment.” 26 Thus, contrary to Plaintiffs’ argument that
the Texas Workers’ Compensation Act only compensates for lost earning
capacity, 27 Grady Peters’ injuries are within the Texas Workers’
Compensation Act. Furthermore, the Act does not specifically mention
incapacity as a requirement to recover for injuries sustained during the
course of employment. 28
23
Barnes v. United Parcel Serv., Inc., 2012 WL 112252, at *3 (App. Ct. 2012) (other citations omitted).
GTE Southwest, Inc. v. Bruce, 998 S.W.2d 605, 609 (Tex. 1999) (citing TEX. LAB.CODE § 401.011(26)).
25
Id. at 610. (other citations omitted).
26
Id. at *2. (citing State Office of Risk Mgmt. v. Martinez, 300 S.W.3d 9, 12 n. 6 (Tex.App. 2009)).
27
Mot. for Reargument at 2.
28
See Texas Labor Code §§ 406.031, 406.032 which state:
24
406.031. LIABILITY FOR COMPENSATION.
(a) An insurance carrier is liable for compensation for an employee’s injury without regard to fault or
negligence if:
(1) at the time of injury, the employee is subject to this subtitle; and
(2) the injury arises out of and in the course and scope of employment.
(b) If an injury is an occupational disease, the employer in whose employ the employee was last injuriously
exposed to the hazards of the disease is considered to be the employer of the employee under this
subtitle.
6
5. Next, Plaintiffs argue that they adequately pled intentional acts on the
part of T.I., which are outside of the Act, and thus their claim must
withstand T.I.’s Motion to Dismiss. 29
According to Plaintiffs, T.I.
assumed a duty by intentionally misleading T.I. employees to believe
their unborn children would not be harmed by the chemicals used at
T.I., 30 and T.I.’s “affirmative conduct” creates a duty that otherwise is
not recognized under Texas law (preconception tort liability). 31 As the
Court noted in its September 30, 2011 Opinion, Texas law does not
recognize preconception tort liability in this context. 32 Any changes to
n. 28 continued . . .
406.032. EXCEPTIONS.
An insurance carrier is not liable for compensation if:
(1) the injury:
(A) occurred while the employee was in a state of intoxication;
(B) was caused by the employee's wilful attempt to injure himself or to unlawfully injure another
person;
(C) arose out of an act of a third person intended to injure the employee because of a personal
reason and not directed at the employee as an employee or because of the employment;
(D) arose out of voluntary participation in an off-duty recreational, social, or athletic activity that
did not constitute part of the employee's work-related duties, unless the activity is a reasonable
expectancy of or is expressly or impliedly required by the employment; or
(E) arose out of an act of God, unless the employment exposes the employee to a greater risk of
injury from an act of God than ordinarily applies to the general public; or
(2) the employee's horseplay was a producing cause of the injury.
29
Id. at 3.
Mot. for Reargument at 4.
31
Id. Plaintiffs use the terms “Good Samaritan” and assumption of risk/duty interchangeably. Plaintiffs’ Letter
Responding to the Court’s Questions (“Pl.’s Letter”) (Trans. ID. No. 41773528) at 10.
32
Peters, 2011 WL 4686518, at *6-7.
30
7
Texas law appropriately lie within the province of the Texas Legislature,
not this Court.
6. Plaintiffs argue that they have “discovered that TI had the obligation to
obtain from Grady Peters a knowing waiver of his statutory right to opt
out of the Act in order to pursue common law remedies.” 33 Plaintiffs
failed to raise this argument earlier, admitting that “[p]rior to this motion,
Plaintiffs did not address the issue of whether Mr. Peters was given the
option to waive coverage under Workers Compensation . . . .” 34 The
Court will not consider Plaintiffs’ new argument. 35
7. Finally, the Court notes that “a motion for reargument properly seeks
only a re-examination of the facts at the time of the decision,” 36 and
therefore, “affidavits may not be submitted in support of a motion for
reargument.” 37 Accordingly, the Court will not consider the affidavits
submitted by Plaintiffs in support of their Motion for Reargument.
WHEREFORE, Plaintiffs’ Motion for Reargument is DENIED.
33
Mot. for Reargument at 4.
Pl.’s Letter at 7.
35
Assuming arguendo the Court were to entertain Plaintiffs’ new argument, the outcome would be the same.
“Texas state courts have uniformly ruled that workers' compensation coverage and the exclusivity provision under
the law as amended do not hinge on whether notice has been provided to the employee.” Graham v. AMS Const.
Co., Inc., 2009 WL 1058728, at *2-3 (Tex. App. 2009) (other citations omitted). Consequently, Plaintiffs argument
lacks merit.
36
Pevar Co. v. Hawthorne, 2010 WL 1367755, at *2 (Del. Super.) (citing Maldonado v. Flynn, 1980 WL 272822, at
*3 (Del.Ch.)).
37
Id. (citing Santora, Starr & Baffone, P.A. v. Lewis, 1995 WL 562158, at *2 (Del.Super.) (Rule 59(e) “does not
provide for new evidence in the form of affidavits not before the Court in the original motion.”) (citing Miles, Inc. v.
Cookson America, Inc., 677 A.2d 505, 506 (Del.Ch.1995))).
34
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IT IS SO ORDERED.
____________________
Jan R. Jurden, Judge
9
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