United States District Court, W.D. North Carolina, Asheville Division
HOWARD MILTON MOORE, JR. and LENA MOORE, Plaintiffs,
ALCATEL-LUCENT USA, INC., et al., Defendants.
MEMORANDUM OF DECISION AND ORDER
Reidinger United States District Judge.
MATTER is before the Court on Alcatel-Lucent USA,
Inc.'s Motion for Summary Judgment [Doc. 162].
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).
been fully briefed, this matter is now ripe for disposition.
STANDARD OF REVIEW
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).
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).
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).
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
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
[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, ...