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Carson v. 3M Co.

Superior Court of Rhode Island

October 22, 2018

ROBERT E. CARSON, as Personal Representative of the Estate of RALPH E. CARSON, and DOROTHY CARSON, individually and as Surviving Spouse, Plaintiffs,
v.
3M COMPANY, et al., Defendants.

         Providence County Superior Court

          For Plaintiff: John E. Deaton, Esq.

          For Defendant: Stephen J. Armato, Esq.; Lawrence G. Cetrulo, Esq.; Andrew R. McConville, Esq.; Jonathan P. Michaud, Esq.

          DECISION

          GIBNEY, P.J.

         Before this Court is a Motion for Summary Judgment, pursuant to Super. R. Civ. P. 56, brought by ExxonMobil Oil Corporation (ExxonMobil or Defendant) against Robert E. Carson, as Personal Representative of the Estate of Ralph E. Carson (Decedent), and Dorothy Carson, individually and as Surviving Spouse of Decedent (collectively Plaintiffs). Defendant submits that it is immune from civil suit by Plaintiffs under the exclusivity provision of Chapter 29 of Title 28, entitled Rhode Island Workers' Compensation Act (WCA). Plaintiffs object, arguing that a genuine issue of material fact exists as to whether workers' compensation benefits are the appropriate remedy. Jurisdiction is pursuant to G.L. 1956 § 8-2-14.

         I Facts and Travel

         Decedent was employed by ExxonMobil continuously between 1946 and 1971. Decedent worked as a "boiler maker" who "made, installed, and repaired boilers" at the Mobil Oil Refinery in East Providence, Rhode Island, which is no longer in operation. In 1971, Decedent voluntarily withdrew from his employment with ExxonMobil, and fully retired from the workforce in 1975. In 2008, Decedent was diagnosed with pleural mesothelioma. He died as a result of the disease in 2009 at the age of eighty-four (84) years old.

         Plaintiffs contend that Decedent was exposed to various asbestos-containing products between approximately 1942 and 1971, during most of which time Decedent was employed by ExxonMobil. Specifically, Plaintiffs maintain that Decedent was forced to breathe, inhale, or generally come into contact with asbestos particles or fibers during the course of his employment. Plaintiffs aver that the Decedent's exposure to asbestos caused him great pain and suffering, and proximately caused his death from mesothelioma.

         In 2011, Dorothy Carson brought this action against multiple defendants in her capacity as the surviving spouse of the Decedent. ExxonMobil was not included in the original complaint (Complaint), but was subsequently joined as a defendant. The Complaint included counts of failure to warn, negligence, strict product liability, breach of warranty, conspiracy, loss of consortium, and wrongful death. In 2012, Plaintiff amended her Complaint to join Robert Carson as an additional plaintiff, acting in his capacity as Personal Representative of Decedent's estate.

         ExxonMobil now moves for summary judgment, asserting it is immune from civil suit under the exclusivity provision of the WCA. Specifically, Defendant submits that mesothelioma is an occupational disease for the purpose of the WCA; Decedent contracted the disease while employed by Defendant; and, Decedent failed to preserve his common law right to sue ExxonMobil under G.L. 1956 §§ 28-29-17 and 28-29-19. As such, Defendant maintains that Plaintiffs' claims are barred by the exclusivity provision of the WCA, and that this Court must grant summary judgment, because Plaintiffs' sole remedy lies with the Workers' Compensation Commission (WCC).

         ExxonMobil additionally moves for summary judgment on Plaintiff Dorothy Carson's claim for loss of consortium. Defendant asserts that the viability of a derivative claim is dependent upon the success of the underlying claims, and must be dismissed when the claims upon which they are based fail as a matter of law. Defendant maintains that if this Court determines Plaintiffs have no right to sue due to the exclusivity provision of the WCA, the derivative claim must also be dismissed. Accordingly, ExxonMobil seeks summary judgment on Dorothy Carson's loss of consortium claim.

         In response, Plaintiffs agree that the Rhode Island Supreme Court has recognized mesothelioma as an occupational disease for the purpose of the WCA, and that Decedent was an employee of Defendant employer within the meaning of the statute. However, Plaintiffs assert that workers' compensation benefits are not the appropriate remedy in this action. Plaintiffs state that their suit is not barred because Decedent did not experience a loss of earning as a result of his disease, and applying the exclusivity provision to this case would be contrary to legislative intent. Accordingly, Plaintiffs object to Defendant's motion for summary judgment.

         II Standard of Review

         Pursuant to Super. R. Civ. P. 56, "[s]ummary judgment is appropriate when, viewing the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party, the [C]ourt determines that there are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Quest Diagnostics, LLC v. Pinnacle Consortium of Higher Educ., 93 A.3d 949, 951 (R.I. 2014) (internal quotation marks omitted) (alterations in original). '"The moving party bears the initial burden of establishing the absence of a genuine issue of fact."' McGovern v. Bank of Am., N.A., 91 A.3d 853, 858 (R.I. 2014) (quoting Robert B. Kent et al., Rhode Island Civil Procedure § 56:5, VII-28 (West 2006)). Once this burden is met, the burden shifts to the nonmoving party to prove by competent evidence the existence of a genuine issue of fact. Id. The nonmoving party may not rely on '"mere allegations or denials in the ...


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