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Heather Henry v. CMBB, LLC ( 2020 )


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  •                        NOT RECOMMENDED FOR PUBLICATION
    File Name: 20a0019n.06
    Case No. 19-5296
    UNITED STATES COURT OF APPEALS
    FOR THE SIXTH CIRCUIT
    FILED
    Jan 14, 2020
    HEATHER HENRY & SHAWN HENRY,                           )                DEBORAH S. HUNT, Clerk
    )
    Plaintiffs-Appellants,                          )
    )        ON APPEAL FROM THE
    v.                                                     )        UNITED STATES DISTRICT
    )        COURT FOR THE WESTERN
    CMBB, LLC,                                             )        DISTRICT OF TENNESSEE
    )
    Defendant-Appellee.                             )
    OPINION
    BEFORE: McKEAGUE, BUSH, and NALBANDIAN, Circuit Judges.
    McKEAGUE, Circuit Judge. If you’re injured on the job, then workers’ compensation is
    usually your only remedy. That’s the case in Tennessee. But there is an exception: you can sue
    your employer in tort if the employer actually intended to injure you. Heather Henry tried to invoke
    this exception. In a tragic workplace accident, her arms were crushed by a 200-ton Bliss press.
    Henry alleged that her employer noticed that a safety mechanism in the press was not working,
    ordered replacement parts, but still sent her to work the machine. The district court dismissed her
    complaint, finding that she had not plausibly alleged that her employer actually intended to injure
    her. We agree. Noticing a defect and ordering replacement parts, while suggesting an awareness
    of the potential for injury, does not make it plausible that Ms. Henry’s employer actually intended
    to injure her. We AFFIRM.
    Case No. 19-5296, Henry et al. v. CMBB, LLC
    I. Background
    We recite the facts as they are alleged in the complaint. Back in November 2017, Heather
    Henry was working for a temp agency called Personnel Placements, LLC. Personnel Placements
    brought her to Chicago Metallic, a manufacturer located in Humboldt, Tennessee and owned by
    the defendant, CMBB, LLC.
    In her job at Chicago Metallic, Ms. Henry operated a 200-ton piece of industrial equipment
    called a Bliss press. She put pieces of metal into the press, and the press used hydraulic pressure
    to shape the metal. Of course, such a powerful machine presents safety risks for its operators. To
    prevent injuries, the Bliss press contains a safety mechanism known as a light curtain. A
    functioning light curtain will detect operators inside the press and prevent it from cycling while
    operators are reaching inside.
    Prior to Ms. Henry suffering her injuries, while a different operator was working with the
    Bliss press, CMBB’s employees noticed that the press’s light curtain was not functioning properly.
    So CMBB took that operator off the press and put a more experienced operator on the job. CMBB
    also ordered new light curtains. It did not, however, take the Bliss press out of operation.
    Two weeks later, on November 15, 2017, Ms. Henry was operating the Bliss press, but the
    new light curtains had not yet arrived. Disaster struck. The press cycled while Ms. Henry was
    placing aluminum parts into it. The 200-ton machine crushed her arms, which were amputated
    above the elbow.
    Ms. Henry and her husband Shawn then sued in Tennessee state court, Ms. Henry for her
    injuries and Mr. Henry for his loss of consortium. CMBB removed the case to the United States
    District Court for the Western District of Tennessee, invoking the court’s diversity jurisdiction
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    Case No. 19-5296, Henry et al. v. CMBB, LLC
    under 28 U.S.C. § 1332. The district court then dismissed the complaint for failure to state a claim
    because it was barred by the Tennessee Workers’ Compensation Act. The Henrys then appealed.
    II. Standard of Review
    We review the district court’s grant of a motion to dismiss de novo. Linkletter v. W. & S.
    Fin. Grp., Inc., 
    851 F.3d 632
    , 637 (6th Cir. 2017). Under Federal Rule of Civil Procedure 12(b)(6),
    a complaint can be dismissed for “failure to state a claim upon which relief can be granted.” When
    reviewing a motion to dismiss under Rule 12(b)(6), the court should disregard the complaint’s
    legal conclusions, assume that the pleaded facts are true, and determine whether the complaint
    contains “sufficient factual matter” to state a claim that is “plausible on its face.” Ashcroft v. Iqbal,
    
    556 U.S. 662
    , 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 
    550 U.S. 544
    , 570 (2007)). “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 misconduct alleged.” 
    Id. III. Analysis
    The only issue in this appeal is whether the Henrys’ complaint is barred by the exclusive-
    remedy provision of the Tennessee Workers’ Compensation Act. The “rights and remedies” given
    to an employee under the statute “on account of personal injury or death by accident . . . shall
    exclude all other rights and remedies of the employee.” Tenn. Code Ann. § 50-6-108(a). Thus, the
    workers’ compensation statute “provides the exclusive remedy for an employee who is injured
    during the course and scope of his employment.” Valencia v. Freeland & Lemm Constr. Co., 
    108 S.W.3d 239
    , 242 (Tenn. 2003).
    Tennessee courts have recognized an exception to this exclusive-remedy provision,
    allowing employees to bring intentional-tort claims in which the employer actually intended to
    injure the employee. 
    Id. at 242–43.
    “The theoretical basis for that result is that the employer cannot
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    Case No. 19-5296, Henry et al. v. CMBB, LLC
    allege an accident when he has intentionally committed the act.” Cooper v. Queen, 
    586 S.W.2d 830
    , 833 (Tenn. Ct. App. 1979). In other words, it is the “actual intention to injure that robs the
    injury of accidental character.” King v. Ross Coal Co., 
    684 S.W.2d 617
    , 619 (Tenn. Ct. App. 1984)
    (quotation omitted); see also 
    Valencia, 108 S.W.3d at 242
    ; Gonzales v. Alman Constr. Co., 
    857 S.W.2d 42
    , 47 (Tenn. Ct. App. 1993); Mize v. Conagra, Inc., 
    734 S.W.2d 334
    , 336 (Tenn. Ct. App.
    1987). This theoretical justification tracks the statutory language, since by its terms the statute
    applies only to those injuries that occur “by accident.” Tenn. Code Ann. § 50-6-108(a).
    The intentional-tort exception is a narrow one. Rodgers v. GCA Servs. Grp., Inc., No.
    W2012–01173–COA–R3–CV, 
    2013 WL 543828
    , at *4 (Tenn. Ct. App. Feb. 13, 2013). It requires
    a heightened showing of intent, higher than the showing typically required in tort law. In Valencia,
    the Tennessee Supreme Court noted how, in the usual tort context, the “intent” element can be
    satisfied if the tortfeasor believes “that the consequences are substantially certain to result from
    [his] 
    actions.” 108 S.W.3d at 243
    . But “that definition is not applicable in workers’ compensation
    cases.” 
    Id. Instead, “the
    definition of actual intent is the actual intent to injure the employee.” 
    Id. Accordingly, it
    is not enough to show that the employer breached its duty to provide a safe
    workplace. 
    Gonzales, 857 S.W.2d at 47
    . Nor is it enough to show that the employer knowingly
    ordered the employee to perform an extremely dangerous job. 
    Id. at 48.
    The employer must have
    actually intended for the employee to be injured.
    The Tennessee Supreme Court’s application of this rule in Valencia demonstrates just how
    strictly it is construed. There, the employee was working in an open construction trench, a work
    environment that presents a rather obvious safety concern: collapse. 
    Valencia, 108 S.W.3d at 241
    .
    Under Tennessee’s safety regulations, construction companies like the defendant in Valencia are
    required to take steps to prevent collapse, either by sloping the sides of trenches or by using
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    Case No. 19-5296, Henry et al. v. CMBB, LLC
    “trench-boxes.” 
    Id. & n.3.
    The employer’s failure to take these steps was especially egregious for
    two reasons. First, it knew that its failure to reinforce the trenches was against the law: the
    employer had been cited twice for safety violations. 
    Id. Second, the
    employer had trench boxes on
    site at the time of the accident, suggesting that it could have fixed the safety issues relatively
    quickly. 
    Id. at 241
    n.2. And yet, that conduct still was not enough to show actual intent to injure
    and escape the exclusive-remedy provision of the workers’ compensation statute. 
    Id. at 243.
    The
    court held that an employee cannot recover in tort for a workplace injury even if the employer’s
    “conduct made injury substantially certain.” Id.1
    Other states have reached similar results when applying the exclusive-remedy provisions
    of their workers’ compensation laws to bar claims. For example, in one Maryland case, the
    employer was cited for a “serious violation” of state safety regulations for keeping dangerous and
    defective electrical connections to a sump pump. Johnson v. Montaire Farms of Delmarva, Inc.,
    
    503 A.2d 708
    , 709 (Md. 1986). After the citation, the employer reported back to the workplace
    safety administration that the violation had been corrected—only that wasn’t true. 
    Id. And two
    months later, a sixteen-year-old employee was electrocuted to death while using the exact same
    defective sump pump. 
    Id. But the
    Maryland Court of Appeals barred his estate’s wrongful-death
    claim because the alleged facts did not show that the employer had “deliberate intent” to injure the
    employee, so the exclusive-remedy provision of the workers’ compensation statute applied. 
    Id. at 712.
    For another example, one New York case involved an allegation that the employer
    deliberately removed the safety guards from the machine the plaintiff was operating. But even that
    1
    For other examples of employer conduct that did not amount to an actual intent to injure, see 
    Gonzales, 857 S.W.2d at 43
    –44 (allowing a construction crew to use dynamite even though the crewmembers were not registered, accredited,
    or licensed to do so); 
    Mize, 734 S.W.2d at 335
    –36 (inadequately ventilating the facility and allowing grain dust to
    accumulate “in a grossly negligent manner,” leading to an explosion); and 
    King, 684 S.W.2d at 618
    (ignoring multiple
    warnings and “the obvious danger to the workers” from a highwall in a strip-mining operation).
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    Case No. 19-5296, Henry et al. v. CMBB, LLC
    was not enough to escape the exclusive-remedy provision of the workers’ compensation statute,
    because the employer intended only to increase profits, not injure the plaintiff. Santiago v. Brill
    Monfort Co., 
    205 N.Y.S.2d 919
    (N.Y. App. Div. 1960), rev’g 
    201 N.Y.S.2d 167
    (N.Y. Sup. Ct.
    1960), aff’d 
    176 N.E.2d 835
    (N.Y. 1961). These states aren’t outliers; requiring an actual intent to
    injure remains the majority rule. See 9 Larson’s Workers’ Compensation Law § 103.03 (2019). In
    short, in Tennessee and elsewhere, it’s difficult to escape the exclusive-remedy provisions of
    workers’ compensation statutes.
    Against this backdrop, the question is whether the facts of this case, as alleged in the
    complaint, give rise to a reasonable inference of an actual intent to injure.2 The Henrys argue that
    their case does give rise to such an inference. They argue that CMBB knew the press would injure
    Ms. Henry. Because CMBB noticed the defective light curtains and ordered replacements, so the
    argument goes, it knew that eventually the press would injure Ms. Henry.
    But this does not amount to an actual intent to injure. If CMBB truly intended to injure Ms.
    Henry, why even order replacement light curtains? Why not simply let her use the press and wait
    for an accident to happen? It is not reasonable to infer that because an employer ordered
    replacement safety parts—designed to prevent workplace injuries—the employer actually
    intended for one of its employees to be injured before the replacement parts arrived. True, ordering
    new light curtains does show that CMBB acknowledged the potential for injuries. But it is not
    enough under Tennessee law that the employer knows there is a risk of injury—it’s not even
    2
    The parties agree that Mr. Henry’s loss-of-consortium claim is derivative of his wife’s, so his claim rises and falls
    with hers.
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    Case No. 19-5296, Henry et al. v. CMBB, LLC
    enough that the employer is “substantially certain” that an injury will occur. 
    Valencia, 108 S.W.3d at 243
    . The employer must actually intend to injure the employee. Id.3
    The Henrys’ complaint thus does not plausibly allege an actual intent to injure. Ms. Henry’s
    injury is a tragic one, but not one that is compensable in tort. We hold that the Henrys’ complaint
    is barred by the exclusive-remedy provision of the Tennessee Workers’ Compensation Act, Tenn.
    Code Ann. § 50-6-108(a). Accordingly, we AFFIRM.
    3
    The dissent contends that Valencia does not control here because it does not address a scenario in which the employer
    takes affirmative steps to acknowledge the unsafe working condition. True, but the question is not simply whether the
    facts of this case are different from the facts of Valencia or other Tennessee cases. The question is whether the facts
    of this case give rise to a reasonable inference of an actual intent to injure—the standard announced by those Tennessee
    cases. And for the reasons discussed above, this case does not give rise to such an inference.
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    Case No. 19-5296, Henry et al. v. CMBB, LLC
    JOHN K. BUSH, Circuit Judge, dissenting. The facts alleged by Heather Henry in her
    complaint are horrific. A 200-ton aluminum press crushed both of her arms when the safety
    mechanism malfunctioned. Both of Henry’s arms were amputated. She alleges that her employer,
    CMBB, LLC, knew before her injury that the safety mechanism on the aluminum press was not
    functioning, and that the malfunction would result in a user’s arms being crushed, because CMBB
    had ordered the new part to fix it. Nevertheless, CMBB directed Henry to operate the press. She
    alleges it was no accident that CMBB placed her in harm’s way.
    Henry brought suit for battery in Tennessee state court, alleging in her complaint that
    CMBB wrongfully caused her injuries.         The majority holds that the Tennessee Workers’
    Compensation Act provides her exclusive relief. Because I do not believe that the Tennessee
    Supreme Court decision on which the majority relies addresses the type of factual scenario that
    Henry alleges, I would certify to the Supreme Court of Tennessee the question whether the
    workers’ compensation remedies are exclusive here.
    As the majority recognizes, the Tennessee Workers’ Compensation Act generally provides
    the only remedies for workplace injuries. It contains an exclusivity provision, which provides:
    Right to compensation exclusive.—(a) The rights and remedies herein granted to
    an employee subject to the Workers' Compensation Law on account of personal
    injury or death by accident, including a minor whether lawfully or unlawfully
    employed, shall exclude all other rights and remedies of such employee, such
    employee's personal representative, dependents or next of kin, at common law or
    otherwise, on account of such injury or death.
    Tenn. Code Ann. § 50–6–108(a) (emphasis added). The scope of this provision turns on the
    meaning of the two words emphasized above—“by accident.” See Brown Shoe Co. v. Reed, 
    350 S.W.2d 65
    , 69 (Tenn. 1961) (noting that the appropriate inquiry is to “see whether or not under
    the factual situation herein if this injury was an accident as is used in the Workmen’s Compensation
    Law”). If the employee’s injury or death was “by accident,” then the Workers’ Compensation Act
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    Case No. 19-5296, Henry et al. v. CMBB, LLC
    provides the exclusive remedies. If the injury or death occurred for a reason other than “by
    accident,” then other remedies beyond the relief provided by the Act may be available.
    We have some guidance from the Supreme Court of Tennessee as to which types of injuries
    are not “by accident.” In Valencia v. Freeland and Lemm Const. Co., 
    108 S.W.3d 239
    (Tenn.
    2003), the court determined that if the employer has “actual intent” to injure the employee, the
    injury is not “by accident.” See 
    id. at 242.
    The court in Valencia noted, however, that “actual
    intent” requires more than simply proof that the employer’s acts were substantially certain to cause
    injury. 
    Id. at 243.
    Indeed, “actual intent” requires a high level of scienter, above even gross or
    criminal negligence. See 
    id. (citing Gonzales
    v. Alman Constr. Co., 
    857 S.W.2d 42
    , 45 (Tenn. Ct.
    App. 1993).
    The majority concludes that Valencia forecloses Henry’s claim. I respectfully disagree.
    Neither Valencia nor the plethora of Tennessee Court of Appeals cases cited by the court in
    Valencia, address a fact pattern with a sequence of events like here, where the employer allegedly
    took deliberate affirmative action that recognized there was a safety problem before the injury
    occurred. In Valencia the employer had been “cited twice for violating . . . safety regulations,” 
    id. at 241,
    but there was no evidence that the employer had done anything to acknowledge a safety
    issue after receiving the citations. This inaction may have indicated that the employer did not
    consider that the condition that was the subject of the citations—construction trenches—actually
    needed to be changed to prevent worker injury. Based on Valencia, therefore, when an employer
    does nothing to correct an unsafe working condition, that fact alone does not make the injury non-
    accidental. But, Valencia does not address the scenario, as Henry alleges here, where an employer
    actually initiated action to do something to address the unsafe condition, but then nonetheless
    subjected the worker to that condition, and the consequent injury, before the corrective measure
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    Case No. 19-5296, Henry et al. v. CMBB, LLC
    was completed. These additional facts alleged by Henry may support a finding that the injury was
    not accidental. I am not aware of any Tennessee Supreme Court opinion that addresses a situation
    as Henry alleges. Therefore, I believe we should go the route of certification.
    The Tennessee Supreme Court will answer questions certified from a federal court when
    “there are questions of law of this state which will be determinative of the cause and as to which
    it appears to the certifying court there is no controlling precedent in the decisions of the Supreme
    Court of Tennessee.” Yardley v. Hosp. Housekeeping Sys., LLC, 
    470 S.W.3d 800
    , 803 (Tenn.
    2015) (quoting Tenn. Sup. Ct. R. 23, § 1). Rule 23 allows for the Supreme Court of Tennessee to
    review the question I believe we should certify because its resolution would be determinative of
    this appeal and, as noted, there appears to be no controlling precedent in the decisions of the
    Supreme Court of Tennessee. As to the latter point, although Valencia establishes that an
    employer’s mere knowledge of an unsafe working condition that is substantially probable to cause
    injury is not enough to establish “actual intent,” there is no controlling precedent to answer
    whether the additional facts alleged by Henry—the employer’s affirmative acknowledgment
    through its conduct that the condition is unsafe, yet subjection of the employee to the unsafe
    condition nonetheless—would permit a finding of non-accidental injury for which remedies
    outside the Workers’ Compensation Act may be available.
    Where, as here, a case before us presents a question of state law that is new and unsettled,
    certification may be appropriate. See, e.g., Transamerica Ins. Co. v. Duro Bag Mfg. Co., 
    50 F.3d 370
    , 372 (6th Cir. 1995). Although neither side asked either the district court or our court for
    certification, we have the power to certify questions sua sponte. See, e.g., Am. Booksellers Found.
    For Free Expression v. Strickland, 
    560 F.3d 443
    , 444 (6th Cir. 2009) (order). Also, by filing her
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    Case No. 19-5296, Henry et al. v. CMBB, LLC
    complaint in state court, Henry initially indicated her preference for state-court adjudication of the
    legal issue that I would certify.
    “Federal-to-state certification is a remarkable device: workable, efficient, and guaranteed
    to yield a doubt-free answer.” Doe v. Mckesson, 
    2019 WL 6837921
    , at *15 (5th Cir. Dec. 16,
    2019) (Willett, J., concurring in part and dissenting in part). Certification “save[s] time, energy,
    and resources and helps build a cooperative judicial federalism.” In re Amazon.com, Inc., 
    942 F.3d 297
    (6th Cir. 2019) (quoting Lehman Bros. v. Schein, 
    416 U.S. 386
    , 391 (1974)). Certification
    ensures that we, as federal judges “minimize the risk of unnecessary interference with the
    autonomy and independence of the states” in the development and exposition of their own laws.
    See Lindenberg v. Jackson Nat’l Life Ins. Co., 
    91 F.3d 992
    , 1002 (6th Cir. 2019) (Bush, J.,
    dissenting from denial of en banc rehearing). The Supreme Court of Tennessee, in particular, has
    emphasized that certification is valuable to preserve the sovereignty of the State of Tennessee,
    through its Supreme Court, to control the interpretation of Tennessee law. See Haley v. Univ. of
    Tenn.-Knoxville, 
    188 S.W.3d 518
    , 521 (Tenn. 2006).
    Because I do not agree with the majority that precedent from the Supreme Court of
    Tennessee squarely forecloses Henry’s claim, I would seek guidance from Tennessee’s highest
    court before ruling on the appeal of the district court’s dismissal of the complaint. Therefore, I
    respectfully dissent.
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