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Moore v. Alcatel-Lucent USA, Inc.

United States District Court, W.D. North Carolina, Asheville Division

September 29, 2017

ALCATEL-LUCENT USA, INC., et al., Defendants.


          Martin Reidinger United States District Judge.

         THIS MATTER is before the Court on Alcatel-Lucent USA, Inc.'s Motion for Summary Judgment [Doc. 162].


         The Plaintiffs Howard Milton Moore, Jr. and Lena Moore filed this action on June 9, 2016, alleging that Mr. Moore developed mesothelioma as a result of exposure to asbestos during his work from 1965 to 1995 while employed as a cable installer by Western Electric and its subsidiary Bell Labs (collectively, “Western Electric”). [Doc. 1]. The Defendant Alcatel-Lucent USA, Inc. (“Alcatel-Lucent” or simply “Defendant”) appears in this case as successor to Western Electric. Alcatel-Lucent now moves for summary judgment, arguing that the North Carolina Workers' Compensation Act bars all of the Plaintiffs' claims. [Doc. 163]. The Plaintiffs oppose Alcatel-Lucent's motion, arguing that they have presented a question of fact as to whether their claims are excepted from the exclusivity bar pursuant to Woodson v. Rowland, 329 N.C. 330, 344, 407 S.E.2d 222, 230 (1991). [Doc. 168].

         Having been fully briefed, this matter is now ripe for disposition.


         Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A fact is “material” if it “might affect the outcome of the case.” News and Observer Pub. Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010). A “genuine dispute” exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         A party asserting that a fact cannot be genuinely disputed must support its assertion with citations to the record. Fed.R.Civ.P. 56(c)(1). “Regardless of whether he may ultimately be responsible for proof and persuasion, the party seeking summary judgment bears an initial burden of demonstrating the absence of a genuine issue of material fact.” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003). If this showing is made, the burden then shifts to the non-moving party who must convince the court that a triable issue exists. Id. Finally, in considering a party's summary judgment motion, the Court must view the pleadings and materials presented in the light most favorable to the non-moving party, and must draw all reasonable inferences in favor of the non-movant as well. Adams. v. Trustees of the Univ. of N.C. -Wilmington, 640 F.3d 550, 556 (4thCir. 2011).


         Section 97-9 of the North Carolina Workers' Compensation Act (the “Act”) provides that employers subject to the Act “shall only be liable to any employee for personal injury or death by accident to the extent and manner” specified in the Act. N.C. Gen. Stat. § 97-9. Section 97-10.1 provides that “the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death.” N.C. Gen. Stat. § 97-10.1. These exclusivity provisions “preclude an employee from seeking potentially larger damages awards in civil actions.” Southern ex rel. Estate of Southern v. Metromont Materials, LLC, 331 F.Supp.2d 386, 393-94 (W.D. N.C. 2004). “This exclusion of alternative remedies is balanced in the Act by other provisions which provide for an injured employee's certain and sure recovery without having to prove employer negligence or face affirmative defenses.” Id. (citation and internal quotation marks omitted).

         The North Carolina Supreme Court recognized an exception to the exclusivity provisions of the Act in Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991). In Woodson, an employee was working to dig a trench to lay sewer lines. 329 N.C. at 334, 407 S.E.2d at 225. The employer knew that the trench in which the employee was working was unstable and should have included a trench box for protection. Id. at 335, 407 S.E.2d at 225. Though a trench box was available on site, the employer made the conscious decision to direct its employees to dig the trench without using the trench box. Id. The trench collapsed, killing the employee. Id. at 336, 407 S.E.2d at 225-26. Following the employee's death, his wife filed a civil suit against, among others, her deceased spouse's employer. Id. at 336, 407 S.E.2d at 226.

         Based on the fact that the employer intentionally and expressly directed the employee to proceed with the work despite direct knowledge that the decedent was working in an unstable trench without protection, the North Carolina Supreme Court held as follows:

[W]hen an employer intentionally engages in misconduct knowing it is substantially certain to cause serious injury or death to employees and an employee is injured or killed by that misconduct, that employee, or the personal representative of the estate in case of death, may pursue a civil action against the employer. Such misconduct is tantamount to an intentional tort, ...

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