Michel v. Ford Motor Company, et al, No. 2:2018cv04738 - Document 228 (E.D. La. 2019)

Court Description: ORDER AND REASONS: For the foregoing reasons set forth in the document, defendant's 209 motion is DENIED, except as to plaintiffs' wrongful death employer liability claim, which is DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 5/23/2019. (mm)
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Michel v. Ford Motor Company, et al Doc. 228 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA VICTOR MICHEL CIVIL ACTION VERSUS NO. 18-4738 FORD MOTOR CO., ET AL. SECTION “R” (4) ORD ER AN D REASON S Before the Court is defendant Ford Motor Com pany’s m otion to dism iss plaintiffs’ wrongful death claim s. 1 Because plaintiffs m ay plead alternative claim s, the Court denies the m otion except to the extent that plaintiffs have alleged a wrongful death em ployer liability claim , which is barred. I. BACKGROU N D This case arises out of Victor Michel’s asbestos exposure during his work as a m echanic and generator service technician. 2 Michel contracted peritoneal m esotheliom a after a career that included perform ing work as a m echanic on engines and brakes. 3 He filed this action in state court on J uly 1 2 3 R. Doc. 20 9. R. Doc. 1-2 at 10 -12 ¶¶ 6, 10 ; R. Doc. 134 at 15. Id. Dockets.Justia.com 28, 20 17 against Ford Motor Com pany and m any other asbestos suppliers, claim ing negligence and that defendants’ products were unreasonably dangerous. 4 Defendants rem oved the case to federal court on May 8, 20 18. 5 On J une 12, 20 18, Michel died. 6 The Court substituted his survivors as plaintiffs on J uly 10 , 20 18. 7 As of J anuary 25, 20 19, the only defendant rem aining in the case was Ford. On February 20 , 20 19, the Court granted plaintiffs leave to am end their complaint. 8 Plaintiffs filed an am ended com plaint on the sam e day. 9 Ford has now filed a m otion to dism iss plaintiffs’ wrongful death claim s as alleged in the am ended com plaint. 10 Plaintiffs oppose the m otion. 11 II. LEGAL STAN D ARD To survive a Rule 12(b)(6) m otion, a party m ust plead “sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. 4 5 6 7 8 9 10 11 R. Doc. 1-2 at 13-14 ¶ 14. R. Doc. 1. R. Doc. 21. Id. R. Doc. 20 3. R. Doc. 20 4. R. Doc. 20 9. R. Doc. 214. 2 v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). A claim is facially plausible when the party pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the m isconduct alleged.” Id. at 678. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the nonm oving party. See Lorm and v. US Unw ired, Inc., 565 F.3d 228, 232 (5th Cir. 20 0 9). A legally sufficient com plaint m ust establish m ore than a “sheer possibility” that the party’s claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it m ust go beyond labels, legal conclusions, or form ulaic recitations of the elem ents of a cause of action. Id. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal relevant evidence of each elem ent of the party’s claim . Lorm and, 565 F.3d at 257. The claim m ust be dism issed if there are insufficient factual allegations to raise a right to relief above the speculative level, Tw om bly , 550 U.S. at 555, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (20 0 7). 3 III. D ISCU SSION In their amended com plaint, plaintiffs have alleged claim s against Ford for: (1) general negligence under Louisiana Civil Code article 2315; (2) em ployer liability in Ford’s capacity as Victor Michel’s em ployer under Louisiana Revised Statute 23:13; (3) garde or prem ises liability in Ford’s capacity as the owner of the prem ises on which Michel worked while em ployed at Crescent Ford under Louisiana Civil Code article 2317; and (4) product liability claim s sounding in negligence and strict liability in Ford’s capacity as the manufacturer of asbestos containing products. 12 For each of these claim s, plaintiffs seek to recover under a survival cause of action as codified in Louisiana Civil Code, Article 2315.1, and under a wrongful death cause of action as codified in Louisiana Civil Code, Article 1215.2. 13 In a survival action, plaintiffs can recover as surviving beneficiaries for losses suffered by Michel before his death, such as medical expenses and his pain and suffering. La. Civ. Code, art 2315.1; 18 La. Civ. L. Treatise, Civ. J ury Instr. § 18:13 (3d ed. 20 18). In a wrongful death action, plaintiffs can recover for their own losses suffered as a result of Michel’s death, such as damages for loss of love, affection, and com panionship, and damages for grief and 12 13 See R. Doc. 1-2; R. Doc. 20 4. Id. at 6 ¶ 20 (a). 4 anguish. La. Civ. Code, art. 2315.2; 18 La. Civ. L. Treatise, Civ. J ury Instr. § 18:14 (3d ed. 20 18). To recover dam ages under either theory—survival or wrongful death—plaintiffs first m ust prove Ford’s liability on one of the underlying claim s. The types of actions that plaintiffs have chosen to bring dictate the types of dam ages that they can receive if liability is shown. Relying on plaintiffs’ allegations in the am ended com plaint that Ford was Michel’s em ployer, Ford argues that all of plaintiffs’ wrongful death claim s—for negligence, em ployer liability, prem ises liability, and products liability—are barred by the Louisiana Worker’s Com pensation Act (LWCA), La. R.S. § 23:10 31, et seq. 14 Ford’s argum ent is valid only to the extent that Michel was Ford’s em ployee. This follows because if Michel were not Ford’s em ployee, the LWCA would not apply to his or plaintiffs’ claim s. In that case, plaintiffs could assert viable wrongful death claim s against Ford as the m anufacturer of asbestos-containing products, or as the owner of the prem ises in which Michel worked. And the LWCA would never bar plaintiffs’ em ployer liability claim based on a survival cause of action, because this claim arose before the LWCA covered Mesotheliom a. The LWCA provides the exclusive remedy for an em ployee injured by the negligent acts of his em ployer when those injuries arise out of and in the 14 See R. Doc. 20 9. 5 course of em ployment. See La. R.S. 23:10 31 and 23:10 32 (“[T]he rights and remedies herein granted to an em ployee or his dependent on account of an injury, or com pensable sickness or disease for which he is entitled to com pensation under this Chapter, shall be exclusive of all other rights, remedies, and claim s for damages . . . .”); Vallery v. S. Baptist Hosp., 630 So. 2d 861, 863 (La. App. 4 Cir. 1995); Duncan v. W al-Mart La., L.L.C., 863 F.3d 40 6, 40 8 n.1 (5th Cir. 20 17). Therefore, the LWCA provides a statutory defense to tort claim s from employees injured on the job. But, in Louisiana asbestos cases, the Court m ust apply the law in effect at the tim e that plaintiffs’ tort claim s arose. Cole v. Celotex Corp., 599 So. 2d 10 58, 10 66-68 (La. 1992). Plaintiffs’ claim s under a survival cause of action arose when Michel was allegedly exposed to asbestos, which plaintiffs assert was in the late 1960 s. Tay lor v. Giddens, 618 So. 2d 834, 840 (La. 1993) (“The survival action com es into existence sim ultaneously with the existence of the tort . . . .”). Conversely, plaintiffs’ wrongful death claim s arose upon Michel’s death, which occurred on J une 12, 20 18. Id. (“A wrongful death action does not arise until the victim dies.”). Thus, plaintiffs’ survival action and their wrongful death action are governed by two different versions of the LWCA. Mesotheliom a has been a covered disease under the LWCA since 1975, so m esotheliom a-related tort claim s arising from 6 an em ploym ent relationship after 1975 are barred. See Austin v. Abney Mills, Inc., 824 So. 2d 1137, 1140 (La. 20 0 2). This bar applies to all claim s, other than for intentional acts, that arise in the context of an em ployment relationship. See La. R.S. 23:10 32. If Michel was in an em ploym ent relationship with Ford, then any tort claim s that arose after 1975—nam ely, plaintiffs’ wrongful death claim s—are barred by the Act. W alls, 740 So. 2d at 1274-75 (holding that a wrongful death action is governed by the version of the LWCA in effect at the tim e of death, rather than the law in effect at the tim e of the conduct that eventually caused the death, because it “is not a derivative cause of action”). In the am ended com plaint, plaintiffs refer to Ford as the “Em ployer/ Prem ise Defendant” m ultiple tim es. 15 Plaintiffs also include the following allegation: The Em ployer/ Prem ise Defendant, Ford Motor Com pany, is liable to Plaintiffs under Louisiana Civil Code article 2317 in effect during Victor Michel’s em ployment at Crescent Ford Truck for its care, custody, and control of the asbestos-containing products installed, rem oved, sold and/ or supplied, and otherwise m anipulated by Victor Michel or in his presence. 16 A fair reading of this language indicates that plaintiffs have alleged Michel’s em ployer status as an alternative theory. Plaintiffs have alleged both em ployer liability and prem ises liability claim s, depending on whether 15 16 See R. Doc. 20 4 at 1 ¶ 1, 2 ¶ 14, 5 ¶ 16. Id. at 5 ¶ 16. 7 Michel was Ford’s em ployee and/ or whether Ford owned the building where Michel worked. Plaintiffs m ay plead both claim s even if they are inconsistent or perm it or deny different relief. It is well established that the Federal Rules of Civil Procedure allow a plaintiff to plead alternative theories of recovery, even if those theories are inconsistent or are based on inconsistent allegations of fact. Fed. R. Civ. P. 8(d)(3) (“A party m ay state as m any separate claim s or defenses as it has, regardless of consistency.”). See also Vasquez v. Bridgestone/ Firestone, Inc., 325 F.3d 665, 674 (5th Cir. 20 0 3) (“Plaintiffs are perm itted to plead in the alternative.”); Wright & Miller, 5 Fed. Prac. & Proc. § 1283 (3d ed. 20 19) (“The present practice under Rule 8(d)(2) perm its a party to seek inconsistent remedies in a claim for relief without being required to elect between them at the pleading stage of the litigation.”). “Until an action has actually reached the point of entering a judgm ent, Rule 8 allows a plaintiff to explore alternative, m utually exclusive theories.” Laurence v. Atzenhoffer Chevrolet, 281 F. Supp. 2d 898, 90 0 (S.D. Tex. 20 0 3). Otherwise, plaintiffs would have to guess at whether Michel was Ford’s em ployee before obtaining all of the facts relevant to this determ ination. If their initial guess as to his em ploym ent status were incorrect, they could lose their right to assert valid claim s. See Wright & Miller, 5 Fed. Prac. & Proc. § 1283 (3d ed. 20 19) 8 (explaining that Rule 8 was drafted to avoid situations in which “valid claim s by a pleader who was legitim ately uncertain as to the relevant facts or the governing principles of law were sacrificed on the altar of technical consistency.”). Given that plaintiffs have alleged their em ployer liability claim in the alternative, the only claim s that are subject to dism issal are any wrongful death claim s against Ford in its capacity as Michel’s em ployer. Ford’s argument that plaintiffs are asserting only em ploym ent based claims does not com port with the allegations in the com plaint. Plaintiffs’ use of a forward slash between the term s “em ployer” and “prem ises” in the am ended com plaint can reasonably be read to assert alternative claim s of em ploym ent or prem ises liability. Thus, to the extent that plaintiffs have alleged an em ployer liability wrongful death claim , this claim is barred and m ust be dism issed. A prem ises liability wrongful death claim is not subject to dism issal. Ford argues that plaintiffs’ references to Ford as Michel’s em ployer do not constitute alternative claim s because “nothing in Plaintiffs’ Am ended Com plaint indicat[es] that their allegation that Ford was Mr. Michel’s em ployer is plead [sic] in the alternative.”17 This argum ent is unavailing 17 R. Doc. 218 at 1. 9 because a plaintiff “‘need not use particular words to plead in the alternative’ as long as ‘it can be reasonably inferred that this is what [it was] doing.’” GI Holdings, Inc. v. Baron & Budd, 238 F. Supp. 2d 521, 536 (S.D.N.Y. 20 0 2) (quoting Holm an v. Indiana, 211 F.3d 399, 40 7 (7th Cir. 20 0 0 )); see also Colem an v. Standard Life Ins. Co., 288 F. Supp. 2d 1116, 1119-20 (E.D. Cal. 20 0 3) (“[T]hat the com plaint in this case does not explicitly designate the ERISA and contract law actions as having been plead in the alternative is not dispositive.”). Plaintiffs have alleged that Ford is an “Em ployer/ Prem ises” defendant. 18 These are two separate grounds for liability that do not both require proof that Ford was Michel’s em ployer. Plaintiffs m ay recover under a prem ises wrongful death claim if Ford was not Michel’s em ployer, but they cannot recover tort dam ages for wrongful death at all if Ford was his em ployer. 19 The Court therefore reads the com plaint as pleading either or both claim s depending on the facts disclosed during discovery. See Pair-ADice Acquisition Partners, Inc. v. Bd. of Trs. of Galveston W harves, 185 F. Supp. 2d 70 3, 70 8 n.6 (S.D. Tex. 20 0 2) (assum ing an intent to plead an alternative theory of recovery based on the nature of the allegations when plaintiff did not specifically identify the claim by nam e or state an intention 18 R. Doc. 20 4 at 1 ¶ 1. Michel’s employment status does not affect plaintiffs’ separate survival claim s for employer and prem ise liability. 10 19 to plead it in the alternative). If, as Ford argues, plaintiffs intended to allege that Ford’s only status was as Michel’s em ployer, there would be no need to m ake a prem ises claim . Plaintiffs’ allegation that Ford is an “em ployer/ prem ises” defendant m ust be read as evincing an intent to plead alternative claim s. Therefore, Ford’s m otion is granted only to the extent that plaintiffs assert wrongful death claim s against Ford as Michel’s employer. IV. CON CLU SION For the foregoing reasons, defendant’s m otion is DENIED, except as to plaintiffs’ wrongful death em ployer liability claim , which is DISMISSED WITH PREJ UDICE. New Orleans, Louisiana, this _ 23rd _ _ _ _ day of May, 20 19. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 11