ROBERT E. CARSON, as Personal Representative of the Estate of RALPH E. CARSON, and DOROTHY CARSON, individually and as Surviving Spouse, Plaintiffs,
3M COMPANY, et al., Defendants.
County Superior Court
Plaintiff: John E. Deaton, Esq.
Defendant: Stephen J. Armato, Esq.; Lawrence G. Cetrulo,
Esq.; Andrew R. McConville, Esq.; Jonathan P. Michaud, Esq.
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
Facts and Travel
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.
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.
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.
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).
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.
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
Standard of Review
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 ...