Opinion
C.A. No. 02C-12-091 HDR.
Submitted: July 8, 2004.
Decided: August 13, 2004.
UPON DEFENDANTS' MOTIONS FOR REARGUMENT GRANTED IN PART AND DENIED IN PART.
Robert Jacobs, Esq. and David A. Arndt, Esq., Jacobs Crumplar, P.A., Wilmington, Delaware, for Plaintiffs.
Matthew P. Donelson, Esq. and Joel M. Doner, Esq., Wilbraham, Lawler Buba, P.C., Wilmington, Delaware for Defendant Airco, Inc.
James W. Semple, Esq., Morris, James, Hitchens Williams, LLP, Wilmington, Delaware for Defendant Air Products Chemicals, Inc.
Albert Manwaring, IV, Esq. and Joseph S. Naylor, Esq., Pepper Hamilton, LLP, Wilmington, Delaware for Defendant Allied Signal, Inc.
John L. Reed, Esq. and Gary W. Lipkin, Esq., Duane Morris, Wilmington, Delaware for Defendants American Chemistry Council, B.F. Goodrich Corp., Conoco Inc., The Dow Chemical Company, Epec Polymers Inc., ICI Americas, Inc., PPG Industries, Inc., Pactiv Corp., PolyOne Corporation, Shell Oil Co., Tenneco Inc., Tenneco Automotive, Inc., Union Carbide Corp., Uniroyal Inc. and Zeneca, Inc.
Michael P. Kelly, Esq., McCarter English, LLP, Wilmington, Delaware for Defendant Bayer CropScience Inc.
Randall E. Robbins, Esq., Ashby Geddes, Wilmington, Delaware for Defendant Borden Chemical, Inc.
Adam C. Balick, Esq., Balick Balick, Wilmington, Delaware for Defendant Bridgestone/Firestone, Inc.
John D. Balaguer, Esq. and William L. Doerler, Esq., White Williams, Wilmington, Delaware for Defendants Chevron USA Inc., Gulf Oil Corp. and Monsanto Company.
Frederick L. Cottrell, II, Esq. and Alyssa Schwartz, Esq., Richards, Layton Finger P.A., Wilmington, Delaware for Defendant Occidental Oxychem.
Jeffrey L. Moyer, Esq. and Anne Shea Gaza, Esq., Richards, Layton Finger P.A., Wilmington, Delaware for Defendant Formosa Plastics Corporation.
Somers S. Price, Jr., Esq. and W. Harding Drane, Jr., Esq., Potter, Anderson Corroon LLP, Wilmington, Delaware for Defendant Gencorp and Olin Corp.
Donald E. Reid, Esq., Morris, Nichols, Arsht Tunnell, Wilmington, Delaware for Defendant Georgia-Pacific Corp.
Kevin J. Connors, Esq., Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, Delaware for Defendant The Goodyear Tire Rubber Company.
James P. Hall, Esq., Phillips, Goldman Spence, Wilmington, Delaware for Defendant Society of Plastics Industry, Inc.
Richard D. Allen, Esq., Morris, Nichols, Arsht Tunnell, for Defendant Westlake Vinyls Inc.
David C. Malatesta, Jr., Esq., Kent and McBride, P.C., Wilmington, Delaware, for Defendant Whittaker Corporation.
OPINION
Defendant Georgia-Pacific Corporation and Consolidated Defendants have filed motions for reargument, seeking reconsideration of a decision of this Court dated June 30, 2004, which denied in part and granted in part several motions to dismiss ("June 30 Opinion"). Georgia-Pacific seeks dismissal of all counts in the complaint, claiming that its lack of affiliation with Georgia Gulf precludes the imposition of liability. But because this new fact does not alter the outcome of the June 30 Opinion, the motion is denied. Separately, Consolidated Defendants claim the Court erred in allowing Plaintiffs Richard V. and Sherri R. Anderson's conspiracy claim to proceed where the sole underlying tort sounds in negligence, and by failing to hold that the Occupational Safety and Health Act of 1970 ("OSHA") preempts the Andersons' state-law claims. As to the preemption issue, Consolidated Defendants raise no new contentions for decision. That motion is therefore denied. The conspiracy argument, however, is one of first impression in Delaware. Reargument is therefore granted to determine whether negligence may underlie a claim of civil conspiracy.
Consolidated Defendants include the American Chemistry Council, Conoco, Inc., B.F. Goodrich Company, ICI Americas, Inc., PolyOne Corporation, PPG Industries, Inc., Shell Oil Company, Uniroyal, Inc., and Zeneca, Inc. All other defendants named in the complaint, including Georgia-Pacific, have filed joinders with the exception of Sasol North America, Inc., Condea Vista Company, and Pantasote, Inc., which remain unrepresented.
Anderson v. Airco, Inc., 2004 Del. Super. LEXIS 210. Because a full recitation of the facts is set forth in that opinion, the Court will not repeat them here.
Both Georgia-Pacific and Consolidated Defendants have moved to include several unnamed parties in the June 30 Opinion. This issue will be addressed in a separate Order.
I. STANDARD OF REVIEW
Under Superior Court Civil Rule 59, parties may make a motion for reargument within five days of the filing of the Court's decision. When considering whether to reopen an issue previously decided, the Court must consider whether it overlooked a precedent or legal principle that would have controlling effect, or that it is has misapprehended the law or facts such as would affect the outcome of the decision. A motion for reargument "properly seeks only a reexamination of the facts in record at the time of decision or the law as it applies to those facts." It is not intended, however, "to rehash the arguments already decided."II. GEORGIA-PACIFIC'S MOTION
Georgia-Pacific claims that it is entitled to dismissal of all counts against it because, contrary to the June 30 Opinion's assumptions, Georgia-Pacific was never parent company to Georgia Gulf. Instead, Georgia-Pacific claims it sold the plant and vinyl chloride business in issue to Georgia Gulf outright. According to Georgia-Pacific, the Andersons' claims of control are insufficiently pled.Georgia-Pacific urgently points out that it never, despite language in the complaint and Georgia-Pacific's pleadings to the contrary, controlled any aspect of Georgia Gulf's operations, either as parent company or supplier. It argues that because the Andersons stated in the Complaint that Georgia-Pacific "spun off all its plants and facilities," their subsequent allegations of control render their pleading insufficient as a matter of law.
See, e.g., Pl. Compl., E-File ID No. 3029206, ¶ 19, at 13 ("Defendant Georgia[-] Pacific controlled the health and safety of Georgia Gulf through about 1986."); id. ¶ 20, at 14 ("Plaintiff was exposed to high levels of VCM as a result of the manufacturing facilities Georgia[-]Pacific designed and controlled and provided to Georgia Gulf. . . ."); Def. Georgia-Pacific's Mot. to Dismiss, E-File ID No. 3050400, ¶ 3, at 1 ("Count III of the complaint alleges that Georgia-Pacific owned the plant at which plaintiff was allegedly exposed to VCM at least through 1983 and that it thereafter controlled . . . the plant through 1986.") (no paragraph or page numbers in original); id., ¶ 4, at 1 ("[T]o the extent that Georgia-Pacific was or could be viewed as plaintiff's [sic] employer under the Delaware Worker's [sic] Compensation Act, the claims against it must be dismissed. See [sic] 19 Del. C. [sic] § 2304.") (no paragraph or page numbers in original); Def. Georgia-Pacific's Reply, E-File ID No. 3257404, ¶ 3-4, at 3 (noting that Georgia Gulf "acquired" the plant from Georgia-Pacific in 1984 and arguing that allegations against Georgia Gulf, in the context of defending Georgia-Pacific, are insufficiently pled).
The Complaint states that Georgia-Pacific controlled the Georgia Gulf plant's health and safety, management, and medical disclosure procedures through 1986, a period that covers Mr. Anderson's apparently exclusive employment with Georgia Gulf. Although the Court made the "mistaken assumption" that Georgia-Pacific was Georgia Gulf's parent company, the allegations in the Complaint are not affected by the particular proprietary arrangement between the companies. The Court's analysis of the uncertain nature of the control Georgia-Pacific exercised over Georgia Gulf applies equally to interpreting the sufficiency of the language set forth in the Complaint.
Def. Georgia-Pacific's Mot. for Reargument, E-File ID No. ___, at 3.
Whether Georgia-Pacific was a parent company to Georgia Gulf may have implications for any workers' compensation defense, but it does not alter the reasoning behind denying Georgia-Pacific's motion to dismiss. In its Opinion, the Court stated:
Georgia-Pacific correctly notes that, while it employed Mr. Anderson directly, Delaware's workers' compensation law bars any claim stemming from Georgia-Pacific's alleged negligence. See 19 Del. C. § 2304. But because the Complaint implicates a broader time period, Count Three in its entirety cannot be dismissed on this ground.
The Andersons contend that Georgia-Pacific controlled the operations, including the safety protocols, of the plant in which Mr. Anderson worked. When taken in the context of the Complaint's broad allegations of negligence against the Supplier Defendants, Count Three inculpates Georgia-Pacific, as owner and controller of Georgia Gulf, in the negligent failure of the Supplier Defendants to provide a safe working environment.
Anderson v. Airco, 2004 Del. Super. LEXIS 210, at *43-44.
Anderson v. Airco, 2004 Del. Super. LEXIS 210, at *43-44.
Georgia-Pacific argues, in essence, that if the word owner were removed from the above passage, the Andersons would fail to plead a cause of action. This argument, however, improperly equates ownership and control.
That the Court need not "blindly accept" conclusory allegations in resolving a motion to dismiss is well-settled. Whether the allegations here in fact are conclusory, and, according to Georgia-Pacific, "nonsensical," cannot be determined at this stage.
Id. at 4.
As the Court stated in its Opinion, ". . . the Complaint serves only a notice function, [and] in this context, the Andersons need not prove their case within it." That Georgia-Pacific did not own Georgia Gulf in the relevant time period removes the applicability of the Neal test of control. It does not warrant depriving the Andersons of an opportunity to pursue their allegations, stated explicitly in the Complaint, that Georgia-Pacific controlled the safety protocols of Georgia Gulf. The Court cannot, and need not in deciding a motion to dismiss, divine how Georgia-Pacific exercised control over Georgia Gulf. Taking the Andersons' allegations in Count Three as true, they have, for the purposes of notice pleading, stated a claim cognizable in theory under Delaware law. At this stage of the litigation, they need not do more. Accordingly, Georgia-Pacific's motion for reargument is denied.
Anderson, 2004 Del. Super. LEXIS 210, at *45.
See id. at *42 (citing Lester C. Newton Trucking Co. v. Neal, 204 A.2d 393, 395 (Del. 1964)).
III. CONSOLIDATED DEFENDANTS' MOTION
Consolidated Defendants also urge the Court to reconsider its determination that federal law does not preempt the Andersons' state-law tort claims. First, Consolidated Defendants assert that because tort damage awards operate on a similar remedial plane to the strictures of OSHA, Congress's intent to address the communication of workplace hazards fully encompasses any state-based recovery. Second, they argue that OSHA's savings clause is inapplicable to the parties here, insisting that the legislation covers only workers' compensation claims and employers and employees. Finally, Consolidated Defendants claim that the District Court's remand order is not dispositive of the preemption issue because it was solely considering the question of whether the issues involved conferred exclusive jurisdiction on the federal judiciary.
Although an award of tort damages may serve to deter activities already regulated by federal law, only when such awards encroach on a specific federal policy, supported by congressional intent, does the latter preempt the former. Consolidated Defendants' equivalency argument is premised on the assumption that Congress intended OSHA to eliminate all state claims, an argument that was raised and rejected in the June 30 Opinion.
See San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236, 247 (1959) ("[S]ince remedies form an ingredient of any integrated scheme of regulation, to allow the State to grant a remedy here which [is functionally similar to a federal remedy] only accentuates the danger of conflict.").
Anderson, 2004 Del. Super. LEXIS 210, at *16 ("By directing that OSHA shall not be construed to enlarge or diminish the common law rights, duties, or liabilities of employers and employees, Congress signaled an intent to leave state law tort actions intact.") (citation omitted).
Consolidated Defendants contend that OSHA's savings clause is inapplicable because Mr. Anderson is neither seeking workers' compensation, nor employed by Consolidated Defendants. Various courts, as noted by Consolidated Defendants, have interpreted the savings clause to preclude employees from circumventing, through a private action in federal court, state workers' compensation laws. It is equally established, however, that the savings clause operates to preserve state tort claims.
OSHA's savings clause provides:
[N]othing in this Act shall be construed to supersede or in any manner affect any workmen's compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.29 U.S.C. § 653(b)(4).
See, e.g., Pratico v. Portland Terminal Co., 783 F.2d 255, 266 (1st. Cir. 1985), ("[I]t is highly unlikely that Congress considered the interaction of OSHA regulations with other common-law and statutory schemes other than workers' compensation."), questioned on other grounds by Elliott v. S.D. Warren, 134 F.3d 1 (1st. Cir. 1998); United Steelworkers of America v. Marshall, 647 F.2d 1189, 1235 (D.C. Cir. 1981), cert. denied, 453 U.S. 913 (1981); Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323, 1323 (4th Cir. 1974); Russell v. Bartley, 494 F.2d 334, 336 (6th Cir. 1974); Ben Robinson Co. v. Texas Workers' Compensation Comm'n, 934 S.W.2d 149, 157 (Tex.App. 1996) (citing proposition in dictum).
See, e.g., Pedraza v. Shell Oil Co., 942 F.2d 48, 53 (1st Cir. 1991) ("There is a solid consensus that [the savings clause] operates to save state tort rules from preemption."); National Solid Wastes Management Ass'n v. Killian, 918 F.2d 671, 680, n. 9 (7th Cir. 1990) (noting state criminal laws and tort liability rules are not preempted by savings clause). See also Atlas Roofing Co. v. Occupational Safety Comm'n, 430 U.S. 442, 445 (1976) (noting in dictum that "existing state statutory and common-law remedies for actual injury and death remain unaffected"); Chicago Magnet Wire Corp., 534 N.E.2d 962, 968 (Ill. 1989) ("Congress expressly stated that OSHA was not intended to preempt two bases of liability that, like criminal law, operate to regulate workplace conduct and implicitly set safety standards[: s]tate worker's compensation and tort law."). See generally Note, The Extent of OSHA Preemption of State Hazard Reporting Requirements, 88 COLUM. L. REV. 630, 641 (1988) (savings clause reveals "Congress' explicit recognition of the continued validity of state worker compensation and tort remedies. . . ."); Note, Getting Away With Murder: Federal OSHA Preemption of State Criminal Prosecutions for Industrial Accidents, 101 HARV. L. REV. 535, 543 (1987) ("Indeed, section 4(b)(4) saves from preemption two forms of liability that, like criminal law, regulate workplace conduct and set implicit standards — state workers' compensation and tort law.").
Consolidated Defendants' inapplicability argument is similar to one raised and rejected over a decade ago in the First Circuit Court of Appeals:
[The defendant] argues that only those state laws which are in the nature of workers' compensation laws come within the scope of the savings clause. Its argument implicitly assumes that though traditional private rights and remedies between employer and employee arising under state law are expressly saved from preemption by Section 4(b)(4), those private rights and remedies which have a much less direct connection with the workplace were meant, for some unarticulated reason, to be preempted.
Pedraza, 942 F.2d at 54 n. 6.
Pedraza, 942 F.2d at 54 n. 6.
Unable "to ascribe a plausible reason for such a result or to discern such a congressional intent," the Circuit Court rejected the proposed reading of OSHA's savings clause. Although speaking in the context of the employer-employee relationship, the Court went on to note that Congress "almost certainly did not intend to preempt, sub silentio, the right of an employee to bring an action for damages against a third-party supplier of products used in the workplace."
Id.
Id., citing McKinnon v. Skil Corp., 638 F.2d 270, 275 (1st Cir. 1981) (OSHA's "terms apply only to employers") (citations omitted).
While Mr. Anderson is not employed by Consolidated Defendants, he is nonetheless an "employee" with common-law "rights." He allegedly sustained injuries "arising out of, or in the course of, [his] employment." None of the decisions cited by Consolidated Defendants preclude, as a blanket policy, personal injury plaintiffs from bringing state-law actions. Therefore, Consolidated Defendants' inapplicability argument is without merit.
Lastly, Consolidated Defendants claim that the Court erred in relying in part on the language used in the District Court's remand order. In it, the District Court points out that Consolidated Defendants "cite to no case, and the court has found none, where any court has found that the regulations in controversy preempt state tort law, necessarily depriving workers of a right to recovery for injuries sustained at the workplace due to exposure to hazardous substances." Moreover, it expressly held that the "state tort laws at issue have not been preempted by the HazCom Standard or the VCM warning and labeling standard." The District Court remanded the case because there existed no federal issue for decision. This Court is not free to ignore that judgment. Accordingly, Consolidated Defendants jurisdictional contentions also must fail.
Anderson v. Airco, Inc., 2003 U.S. Dist. LEXIS 13765, at *7 (D. Del. 2003).
Id. at *6-7.
See Ben. Nat'l Bank v. Anderson, 539 U.S. 1, 8 (2003) ("When the federal statute completely preempts the state-law cause of action, a claim which comes within the scope of that cause of action, even if pleaded in terms of state law, is in reality based on federal law. This claim is then removable under 28 U.S.C. § 1441(b), which authorizes any claim that arises under federal law to be removed to federal court.") (punctuation altered).
The United States Supreme Court has long held that, under the Supremacy Clause, U.S. CONST. Art. IV, cl. 2, state courts must respect federal judgments. See, e.g., Stoll v. Gottlieb, 305 U.S. 165 (1938); Metcalf v. Watertown, 153 U.S. 671 (1894); Embry v. Palmer, 107 U.S. 3, 9 (1883); Dupasseur v. Rochereau, 88 U.S. (21 Wall.) 130, 134 (1874). Numerous other authorities concur. See In re Cook, 49 F.3d 263, 266 (7th Cir. 1995); Kern v. Hettinger, 303 F.2d 333 (2d Cir. 1962); RESTATEMENT (SECOND) OF JUDGMENTS § 87 (1982); Ronan E. Degnan, Federalized Res Judicata, 85 YALE L.J. 741, 755-73 (1976); 16A AM.JUR.2d Constitutional Law § 238.
IV. CONCLUSION
Because Georgia-Pacific and Consolidated Defendants have failed to show that the Court in its June 30 Opinion either "misapprehended the law or facts such as would affect the outcome of the decision," or "overlooked a precedent or legal principle that would have controlling effect," the motions for reargument, excepting the civil conspiracy issue, are DENIED. Reargument is GRANTED to determine whether negligence may underlie a claim of civil conspiracy. Plaintiff shall respond in writing to the motion within ten days and Consolidated Defendants may reply in writing within five days thereafter.
IT IS SO ORDERED.