Hernandez et al v. Dedicated TCS, LLC, et al, No. 2:2016cv03621 - Document 113 (E.D. La. 2017)
Court Description: ORDER AND REASONS granting 94 Motion to Dismiss for Failure to State a Claim. The Stack Plaintiffs' claims against Defendant Dedicated TCS, LLC are DISMISSED WITH PREJUDICE. Signed by Judge Susie Morgan on 7/5/2017. (clc)
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Hernandez et al v. Dedicated TCS, LLC, et al Doc. 113 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A J OEN D EL H ERN AN D EZ, ET AL. Plain tiffs CIVIL ACTION VERSU S N O. 16 -3 6 2 1 D ED ICATED TCS, L.L.C., ET AL. D e fe n d an ts SECTION : “E”( 5) ORD ER AN D REAS ON S Before the Court is Defendant Dedicated TCS, LLC’s (“DTCS”) Rule 12(b)(6) Motion to Dism iss the am ended com plaint filed by Dem ond Stack, Arm ond Burnett, Iesha Burnett, Pam ela Burnett, Nakita Stack, and Shenita Stack, individually and on behalf of the Estate of Arm ond Stack (“Stack Plaintiffs”). 1 The Stack Plaintiffs oppose this m otion. 2 For the following reasons, DTCS’ m otion to dism iss is GRAN TED . BACKGROU N D On October 6, 20 16, the Stack Plaintiffs filed their initial com plaint against DTCS, RST Insurance Com pany, Bulk Louisiana, UVW Insurance Com pany, Arkem a, Inc. and XYZ Insurance Com pany in the Civil District Court for the Parish of Orleans, State of Louisiana. 3 DTCS filed a notice of rem oval in this district. 4 On April 4, 20 17, the Court granted DTCS’ ex parte m otion to consolidate Stack Plaintiffs’ action with Hernandez v. Dedicated TCS, LLC. 5 On April 11, 20 17, the Stack Plaintiffs filed their First Supplem ental and Am ended Com plaint. 6 1 R. Doc. 94. R. Doc. 95. 3 Case No. 17-cv-46, R. Doc. 1. 4 Id. 5 R. Doc. 72. 6 R. Doc. 81. 2 1 Dockets.Justia.com The consolidated actions arise out of an incident occurring on or about October 8, 20 15. On that date, J oendel Hernandez, Anthony Duckworth and Arm ond Stack, em ployees of DTCS, were assigned to clean an Arkem a tank car at the facility operated by DTCS at the Port of New Orleans. Plaintiffs allege that, although the tank car to be cleaned contained hazardous and toxic chem ical vapors, they were ordered to enter the tank car without the protective equipm ent needed to ensure their ability to breathe. The com plaints allege that J oendel Hernandez, Anthony Duckworth and Arm ond Stack im m ediately lost consciousness, and that Arm ond Stack eventually lost his life, as a direct result of their exposure to hazardous vapors and their lack of oxygen in the tank car. The Stack Plaintiffs specifically allege that the Occupational Safety and Health Adm inistration conducted an exhaustive investigation of the incident and concluded that the incident was caused by the intentional acts of DTCS. 7 The Stack Plaintiffs allege that as a result of the incident, Arm ond Stack lost his life and that the cause of death was identified as asphyxia due to an oxygen deficient environm ent. 8 On March 3, 20 17, the Court issued its Order and Reasons granting Defendant DTCS’ Federal Rule of Civil Procedure 12(b)(6) m otion to dism iss the claim s brought against it by J oendel Hernandez and Anthony Duckworth (“Hernandez Plaintiffs”) after finding that the Hernandez Plaintiffs’ claim s against DTCS were barred by the Louisiana Workers’ Com pensation Act (“LWCA”). 9 On May 30 , 20 17, Defendant DTCS filed a sim ilar m otion to dism iss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure arguing that the Stack Plaintiffs’ 7 Case No. 17-cv-46, R. Doc. 1-8 at 4. Id. at 3-4. 9 R. Doc. 58. 8 2 claim s against it are also barred by the LWCA. 10 On J une 6, 20 17, the Stack Plaintiffs filed their opposition to DTCS’ m otion to dism iss. 11 LEGAL STAN D ARD Pursuant to Federal Rule of Civil Procedure 12(b)(6), a district court m ay dism iss a com plaint, or any part of it, for failure to state a claim upon which relief m ay be granted if the plaintiff has not set forth factual allegations in support of his claim that would entitle him to relief. 12 “To survive a m otion to dism iss, a com plaint m ust contain sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”13 “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct alleged.” 14 The court, however, does not accept as true legal conclusions or m ere conclusory statem ents, and “conclusory allegations or legal conclusions m asquerading as factual conclusions will not suffice to prevent a m otion to dism iss.” 15 “[T]hreadbare recitals of elem ents of a cause of action, supported by m ere con clusory statem ents” or “naked assertion[s] devoid of further factual enhancem ent” are not sufficient. 16 In sum m ary, “[f]actual allegations m ust be enough to raise a right to relief above the speculative level.”17 “[W]here the well-pleaded facts do not perm it the court to infer m ore than the m ere possibility of m isconduct, the com plaint has alleged—but it has not 10 R. Doc. 94. Doc. 95. 12 Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 555 (20 0 7); Cuvillier v. Tay lor, 50 3 F.3d 397, 40 1 (5th Cir. 20 0 7). 13 Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quotin g Tw om bly , 550 U.S. at 570 ). 14 Id. 15 S. Christian Leadership Conference v. Suprem e Court of the State of La., 252 F.3d 781, 786 (5th Cir. 20 0 1) (citing Fernandez-M ontes v. Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993)). 16 Iqbal, 556 U.S. at 663, 678 (citations om itted). 17 Tw om bly , 550 U.S. at 555. 11 R. 3 show[n]’—that the pleader is entitled to relief.” 18 “Dism issal is appropriate when the com plaint ‘on its face show[s] a bar to relief.’”19 LAW AN D AN ALYSIS I. Plaintiffs Have Not Alleged a Claim Under The Intentional Act Exception to the LWCA Under Louisiana law, the exclusive rem edy for an em ployee who is injured while in the course and scope of his em ploym ent is the LWCA, unless the em ployee can prove that the injury is the result of the em ployer’s “intentional act.”20 The Louisiana Suprem e Court has held that “intentional act” in this context m eans “intentional tort.”21 As the Louisiana Suprem e Court explained in Bazely , “The m eaning of intent in this context is that the defen dant either desired to bring about the physical results of his act or believed that they were substantially certain to follow from what he did.” 22 Stated differently, “Intent is not, however, lim ited to con sequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result.”23 The Stack Plaintiffs argue the Court’s reasoning in its March 3, 20 17 Order an d Reasons does not apply equally to their com plaint because they, unlike the Hernan dez Plaintiffs, have asserted facts dem onstrating DTCS knew that the incident at issue was substantially certain to follow from its conduct because DTCS had engaged in a pattern of violating the sam e safety regulations and practices which led to Arm ond Stack’s death. 24 The Stack Plaintiffs allege that DTCS (1) failed to ensure that its em ployees were provided 18 Id. (quotin g Fed. R. Civ. P. 8(a)(2)). Cutrer v. McMillan, 30 8 F. App’x 819, 8 20 (5th Cir. 20 0 9) (per curiam ) (quotation s om itted). 20 See La. Rev. Stat. §§ 23:10 32(A), (B) (1990 ). 21 Bazely v. Tortorich, 397 So. 2d. 475, 482 (La. 1981). 22 Bazely , 397 So. 2d at 48 2. 23 Id. (citations om itted). 24 R. Doc. 95 at 4. 19 4 respiratory protection equipm ent necessary to protect the health of each em ployee; (2) failed to ensure that em ployees received a m edical evaluation prior to im plem enting respiratory protection for em ployees; (3) failed to ensure that em ployees had received a fit test prior to initial respirator use; (4) failed to im plem ent a written confined perm it space entry program ; (5) failed to evaluate perm it space conditions when entry operations were conducted by testing conditions in the perm it space to determ ine if acceptable entry conditions existed before entry was authorized to begin; (6) failed to ensure that the prospective rescue service was able to respon d to the facility in a tim ely m anner; (7) failed to ensure that the prospective rescue service had been evaluated to determ ine their ability to provide rescue from perm it spaces m aintained on site; (8) failed to prepare an entry perm it prior to an em ployee entering the railcar; (9) failed to ensure that an entry supervisor verified the entry perm it for a railcar before entry was allowed; and (10 ) allowed em ployees to enter a perm it space within a rail car without ensuring that they were attached to a retrieval device or fixed point outside the railcar. 25 The Stack Plaintiffs also allege that DTCS: [I]ntentionally caused injuries to plaintiff, Arm ond Stack, by engaging in a deliberate pattern of conduct wherein, based upon a long history of prior sim ilar incidents for which [DTCS] had been cited by investigating authorities, and as a result of this prior history, [DTCS] knew that the resulting injuries to its em ployee was substantially certain to follow from its conduct in this m atter[.] 26 Specifically, the Stack Plaintiffs allege that DTCS’ was aware, based on violations of the pertinent OSHA requirem ents, “that the subject incident was substantially certain to follow from its conduct.”27 25 Case No. 17-cv-46, R. Doc. 1-8 at 4. R. Doc. 81 at 6. 27 Id. at 16. 26 5 The Court finds that, even accepting the allegations in the Stack Plaintiffs’ Com plaint and Supplem ental and Am ending Com plaint as true, the Stack Plaintiffs have not sufficiently alleged a viable cause of action against DTCS under the intentional act exception to the LWCA. “The standard for prevailing on a claim of intentional tort under Louisiana law is extrem ely high.” 28 As the Louisiana Suprem e Court explained in Reeves v. Structural Preservation Sy stem s, Louisiana courts of appeal have “narrowly construed the intentional act exception according to its legislative intent and have alm ost universally held that em ployers are not liable under the intentional act exception for violations of safety standards or for failing to provide safety equipm ent.”29 As explained in Reeves, “Believing that som eone m ay, or even probably will, eventually get hurt if a workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ com pensation.”30 Establishing that a workplace in jury resulted from an intentional act under the LWCA requires eviden ce that the em ployer either (1) consciously desired the physical result of his act, whatever the likelihood of that result happening from his conduct, or (2) knew that result was substantially certain to follow from his conduct, whatever his desire m ay have been as to the result. 31 Louisiana courts have explained that “[t]he phrase substantially certain to follow m eans m ore than a reasonable probability that an in jury will occur.”32 Other Louisiana courts have interpreted that “substantial certainty” is the 28 Roux v. Pinnacle Poly m ers, L.L.C., 20 14 WL 129815, at *3 (E.D. La. J an. 14, 20 14). 731 So. 2d 20 8, 211-12 (La. 1999) (collecting cases). 30 Id. at 212. 31 See Moreau v. Moreau’s M aterial Yard, L.L.C., 98 So. 3d 297 (La. 20 12). 32 See Gardner v. Graft, 137 So. 3d 69, 75 (La.App. 2 Cir.20 14) (internal quotations and citations om itted). 29 6 “equivalent to inevitable, virtually sure and incapable of failing.” 33 As the court in Gardner explain ed: Believing that som eone m ay, or even probably will eventually get hurt if workplace practice is continued does not rise to the level of an intentional act, but instead falls within the range of negligent acts that are covered by workers’ com pensation. Neither knowledge and appreciation of a risk nor reckless or wanton conduct by an em ployer constitutes an intentional wrongdoing. Further, even if the alleged con duct goes beyond aggravated negligence, and includes such elem ents as knowingly perm itting a hazardous work condition to exist, knowingly ordering a claim ant to perform an extrem ely dangerous job, or willfully failing to furnish a safe place to work, this still falls short of the actual intention to injure that robs the injury of accidental character. 34 The Stack Plaintiffs do not allege that DTCS consciously desired that Arm ond Stack sustain his injuries. Instead they argue DTCS knew that the injuries were substantially certain to follow from its conduct. The Stack Plaintiffs argue that over the course of three years preceding this incident, DTCS and its m anagers were repeatedly reprim anded an d fined by OSHA for the very sam e confined-space entry violations that were violated here and led to Arm ond Stack’s death. 35 The Stack Plaintiffs argue these continued violations “all suggest that [DTCS] knew that the likelihood of injury was at the level of inevitability required to establish an intentional tort.”36 Although the Stack Plaintiffs do allege that DTCS “knew that the subject incident was substantially certain to follow from its conduct,” the court finds that this allegation is insufficient for the Court to draw the reasonable inference that Arm ond Stack’s death was inevitable, virtually sure, and incapable of failing to occur as a result of DTCS’ actions or actions. 33 Roux, 20 14 WL 129815, at *3 (quotin g King v. Schuly kill Metals Corp., 581 So. 2d 30 0 , 30 2 (La.App. 1st Cir.1991)). 34 Gardner, 137 So. 3d at 75 (citations om itted). 35 R. Doc. 95 at 7. 36 Id. at 8. 7 Even accepting the allegations in their com plaint as true, the Court finds the Stack Plaintiffs have not sufficiently alleged a claim that falls under the intentional tort exception to the LWCA. Instead, the Stack Plaintiff’s com plaint and am ended com plaint include allegations of the kind Louisiana courts have found to be insufficient to establish intentional tort liability under the LWCA. DTCS’ 12(b)(6) m otion to dism iss for failure to state a claim under the intentional act exception to the LWCA is granted. CON CLU SION For the abovem entioned reasons, IT IS ORD ERED that Defendant Dedicated TCS, LLC’s Rule 12(b)(6) Motion to Dism iss 37 is GRAN TED . The Stack Plaintiffs’ claims against Defen dant Dedicated TCS, LLC are D ISMISSED W ITH PREJU D ICE. N e w Orle a n s , Lo u is ian a, th is 5th d ay o f Ju ly, 2 0 17. ________________________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 37 R. Doc. 94. 8
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