Clutts v. Manchester Energy, et al. CV-96-193-M 06/02/98 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

James Clutts, Plaintiff

v. Civil No. 96-193-M

Manchester Energy, Inc., a/k/a Manchester Energy Group, Inc., Zahren Alternative Power Corp., Zapco Energy Tactics Corp., and Energy Tactics, Inc. Defendant(s)

O R D E R

Plaintiff, James Clutts, brings claims of negligence, strict

product liability, and breach of warranty, arising from a

workplace accident in which he was injured. Defendant, Energy

Tactics, Inc., Clutts's employer at the time of the accident,

moves for summary judgment on grounds that New Hampshire's

workers' compensation law bars plaintiff's claims. In response,

plaintiff contends that Energy Tactics is liable under applicable

exceptions to an employer's immunity, either under a "dual

capacity" theory or because the circumstances of the accident

constitute an intentional tort.

___________________ STANDARD OF REVIEW

Summary judgment is appropriate if the "pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P.

56(c). The moving party first must show the absence of a genuine

issue of material fact for trial. Anderson v. Liberty Lobby,

Inc.,

(1986). If that burden is met, the

opposing party can avoid summary judgment on issues that it must

prove at trial only by providing properly supported evidence of

disputed material facts that would reguire trial. Celotex Corp.

v. Catrett,

(1986) . The court interprets the

record in the light most favorable to the nonmoving party and

resolves all inferences in its favor. Saenger Organization v.

Nationwide Ins. Assoc.,

(1st Cir. 1997) . Summary

judgment will be granted if the record shows no trialworthy

factual issue and if the moving party is entitled to judgment as

a matter of law. EEOC v. Green,

(1st Cir. 1996) .

No factual dispute exists for purposes of the present

summary judgment motion. Plaintiff's response to defendant's

motion, titled "Answer and Objection to Defendant Energy Tactics,

Inc.'s Motion for Summary Judgment," does not comply with the

local rules of this court. An objection to summary judgment

"shall be accompanied by a memorandum," LR 7.1(a)(2), and the

memorandum:

shall incorporate a short and concise statement of material facts, supported by appropriate record citations, as to which the adverse party contends a genuine dispute exists so as to reguire trial. All properly supported material facts set forth in the moving party's factual statement shall be deemed admitted unless properly opposed by the adverse party.

2 LR 7.2(b)(2). Plaintiff's "Answer and Objection" is not

accompanied by a memorandum of law, and, to the extent the

pleading itself was intended to serve as a memorandum, it does

not incorporate a statement of material facts nor does it include

appropriate record citations. Plaintiff's "Answer" in which

plaintiff "admits the first three sentences of paragraph 1 of

Defendant's . . . motion for summary judgment" and "denies" the

remainder is entirely ineffective as an objection to a motion for

summary judgment. Accordingly, the properly supported factual

statements in defendant's memorandum are deemed admitted for

purposes of the present motion.

BACKGROUND

At the time of plaintiff's accident. Energy Tactics, Inc.

was in the business of recovering landfill gas and using it to

produce electrical power. In January 1990, James Clutts began

working as supervisor of an Energy Tactics site on Dunbarton Road

in Manchester. The Dunbarton Road site was operated by Energy

Tactics for Manchester Energy Group, Inc., with machinery

designed and manufactured by Energy Tactics and owned by

Manchester Energy.

On April 17, 1993, Clutts responded to an after-hours alarm

at the Dunbarton Road site. He found the energy generating

machinery shut down and a reverse power problem. (Reverse power

occurs when the electrical generator begins to use rather than

generate power.) Clutts first called his off-site supervisor and

3 then began to investigate the problem. When Clutts opened the

door and entered the high voltage electrical components area of

the generator machinery, electricity arced, causing an explosion

that threw Clutts out of the area. Clutts remembers standing

outside of the generator machinery, burned and bleeding. He

managed to call 911 and was taken to Catholic Medical Center

where he was admitted for nine days of treatment.

Clutts obtained workers' compensation benefits for his work-

related injuries. He brought suit against Energy Tactics and

Manchester Energy (and Manchester Energy's alleged successor

corporations), based on Energy Tactics's design, manufacture,

and sale of the generating machinery involved in the accident.

DISCUSSION

Energy Tactics contends that New Hampshire's workers'

compensation law provides the exclusive remedy for Clutts's

workplace injuries and bars all of Clutts's claims against it,

his employer. Clutts acknowledges the immunity provided by the

statute to employers, but argues that intentional torts as well

as acts by an employer performed in a separate capacity are not

protected by that immunity.

A. Intentional Tort

4 To the extent Clutts has alleged an intentional tort1 by

Energy Tactics, that theory does not provide an escape from the

exclusivity of the workers' compensation remedy. While the

workers' compensation statute excepts intentional torts committed

by those acting on the employer's behalf, it bars all common-law

causes of action, including claims based on intentional torts,

against an employer.

-A:8; Miller v.

CBC Companies, Inc.,

(D.N.H. 1995).

Thus, Clutts's intentional tort claims are barred by the

exclusivity provisions of the workers' compensation statute.

B. Dual Capacity Doctrine

Clutts next argues that in its independent capacity as

product manufacturer. Energy Tactics owed him different duties,

i.e. duties not arising from his employment relationship. As

product manufacturer, Clutts contends. Energy Tactics is liable

for injuries caused by its allegedly defective product. The

theory that an exception to workers' compensation immunity exists

when an employer operates in a capacity separate and distinct

from the employment context is known as the "dual capacity"

doctrine. See Michael A. DiSabatino, Anno.: Modern Status: "Dual

Capacity Doctrine" as Basis for Employee's Recovery from Employer

in Tort,

, § 2 (1983) .

1"To constitute an intentional tort, the tortfeasor must have known that his conduct was substantially certain to result in injury." Thompson v. Forest,

(1992) .

5 While New Hampshire recognizes the dual capacity doctrine,

the New Hampshire Supreme Court has yet to find factual

circumstances warranting its application. See Ryan v. Hiller,

(1994). To maintain a product liability

claim against an employer under the dual capacity doctrine, an

employee must at least have been injured by a product designed

and manufactured by the employer and then sold to the public.

See Quinn v. National Gypsum, Co.,

(1984);

Robbins v. Seekamp,

(1982); DePaolo v.

Spaulding Fibre Company, Inc.,

(1979). More

recently, the New Hampshire Supreme Court has focused on the

actual relationship between the employer and employee at the time

of the accident to determine whether dual capacity existed.

Ryan,

. In Ryan, the court concluded that because

the "dominant relationship" at the time of the accident was

employment, the employer was not acting in a separate capacity

when driving his employees from one office to another.

Few other jurisdictions recognize as broad a dual capacity

doctrine as might be suggested by the early New Hampshire cases.

See 6 Arthur Larson, Larson's Workers' Compensation §§ 72.81 and

72.83 at 14-290.124 (1993) (citing cases); see also Henning v.

General Motors Assembly Div.,

(Wis. 1988)

(citing cases); R. Carol Terry, Anno.: Workmen's Compensation Act

As Furnishing Exclusive Remedy For Employee Injured By Product

Manufactured, Sold, or Distributed By Employer, 9 ALR4th 873 §§ 4

and 5 (Supp. 1997). Since the New Hampshire Supreme Court

6 decided Robbins v. Seekamp, in which it relied on cases from

other jurisdictions in describing the elements of dual capacity

for purposes of product liability claims, state law in those

jurisdictions has limited the dual capacity doctrine either by

statute or common law development. See, e.g., Grahn v. Tosco

Corp.,

(Cal. C t . Ap p . 1997) (limited by

statute); Snyder v. Pocono Medical Center,

(Pa. 1997) (dual capacity doctrine not applicable when employee

performing work-related task); Hyman v. Sipi Metals, Corp.,

(111. App. 1987) (employer's separate capacity

must also be a legally distinct persona of the employer). Thus,

the current trend in other jurisdictions is to reject the dual

capacity doctrine entirely, or to limit it -- reguiring either

dual employer persona or circumstances in which an employee's use

of the employer's product was not predominantly related to the

employee's work. See, e.g., Caraccioli v. RFC Mfg. Corp.,

(M.D. Fla. 1991); Hesse v. Champ Serv. Line,

(La. App. 1998); Sormani v. Orange County

Community College,

(Sup.Ct. 1997); Hedglin

v. Stahl Specialty Co.,

(Mo.Ct.App. 1995);

Ritchie v. Bridgestone/Firestone,

(Ala. 1993);

Estate of Coates v. Pacific Engineering,

(Haw. 19 90).

The New Hampshire Supreme Court has also limited the

applicability of the dual capacity doctrine to circumstances in

which the employee's injury is not work related, or the fact of

7 employment is not the dominant relationship between the injured

employee and his employer. See Ryan,

; Mello v.

Gouin's Plumbing & Heating,

(1993) . Because

the dual capacity theories in Ryan and Mello did not involve the

employer's product or a product liability claim, those decisions

are not necessarily controlling precedent in this case. See

Mello,

("it is an open question whether an

employee who has received workers' compensation may be able to

maintain a products liability suit against the employer").

The question appears to still be open. Nevertheless, given

the consistent development of the law in other jurisdictions and

the combined effect of the New Hampshire dual capacity cases, the

course the New Hampshire Supreme Court would likely take, if it

were now presented with a dual capacity issue in the context of a

product liability claim, is reasonably clear. See VanHaaren v.

State Farm Mut. Auto. Ins. Co.,

(1st Cir. 1993)

(federal court may predict development of state law if course is

reasonably clear). To impose liability on an employer under a

dual capacity theory, the New Hampshire Supreme Court would

likely require both that the employer's product be in public

commerce and that the employee's injury, caused by the employer's

product, not be primarily work-related. Put another way, the

dual capacity doctrine may circumvent an employer's statutory

immunity under New Hampshire law only if the employer's role as

product manufacturer, as opposed to its role as employer. predominates in the circumstances surrounding the employee's

inj ury.

Since applicability of the dual capacity doctrine

necessarily depends on an employer's role and relationship to an

employee's injury caused by its product, circumstances

surrounding the injury will determine potential liability. The

more closely related the injury is to an employee's work, the

more the employer's role as employer will predominate, immunizing

the employer from liability. At the other end of the spectrum,

to the extent an employee is using or is exposed to the

employer's product as any other member of the public might be,

and not because of circumstances or reguirements of employment,

the employer's predominant relationship to the injury is more

likely to be cast as product manufacturer rather than as

employer.

When an accident involving an employer's product occurs

outside of the course or scope of an employee's work, workers'

compensation is not applicable and, accordingly, immunity would

not protect the manufacturer-employer. For example, if during a

family trip unrelated to work, a Firestone Tire Company employee

is involved in a car accident caused by defective Firestone

tires, his employer (Firestone) would be liable as product

manufacturer and would not be protected by workers' compensation

immunity. In that circumstance, the employer is obligated only

as product manufacturer, having no relationship to the injury as

employer. An employer's relationship to an injury, as employer, is

closer when the employer's product causes injury to an employee

during the course of employment, but under circumstances

unrelated to the employment itself. In that case, an employer

acts both as employer, protected by workers' compensation

immunity, and as manufacturer of a defective product, not

protected by immunity. When an employer acts in dual capacities,

it may be liable only if under the circumstances surrounding the

particular injury, its role as product manufacturer predominates

over its role as employer -- that is, if an employee's product-

related injury is only incidental or coincidental to employment,

the employer is more likely to be found to be acting in a

separate capacity.

For example, if a Firestone Tire Company sales person is

injured during a business sales trip in an accident caused by a

defective Firestone tire on her rental car (or someone else's

car) , the fact that the defective tire was manufactured by

Firestone, rather than Goodyear or Michelin, would be merely

coincidental to her employment. The employee's injury would have

occurred under circumstances that could as easily have involved

any other member of the public. Firestone's relationship to the

injury would be predominantly that of tire manufacturer, not

employer, and Firestone would likely be liable as product

manufacturer rather than immune as employer, even though its

employee was injured in the course of her employment. If,

however. Firestone were to designate an employee to service

10 Firestone tires that have been sold to rental car companies, and

that employee were injured while testing such defective Firestone

tires as part of her job, the fact that the defective tire was

made and sold by Firestone would be central, not incidental, to

her employment. As Firestone's relationship to her in the

context of her injury would predominantly be as employer.

Firestone would be immune.

In this case, it is undisputed that plaintiff was injured in

the course of his employment - at the Dunbarton Road site that he

supervised as part of his job. The generator that caused his

injury was manufactured by his employer. Energy Tactics, and had

been sold to Manchester Energy. Thus, Energy Tactics at least

facially meets the first test of dual capacity - it manufactured

a product that caused injury and was sold to the public.2

However, based on the undisputed facts presented for summary

judgment, the circumstances surrounding the accident and Clutts's

injury were not divorced from or independent of his employment,

nor were they only incidentally related, but instead were

directly tied to and intertwined with his employment with Energy

Tactics.

2The sale of the generator to Manchester Energy seems to involve something different from a typical sale into public commerce, since Energy Tactics continued to operate and service the sold generator with its own employees. The situation presented here seems more analogous to the employer's own generator having malfunctioned and injured the employee in the employer's own work environment. See, e.g., DePaolo,

.

11 Clutts's job with Energy Tactics was to operate the

previously sold generator to produce electrical power for

Manchester Energy. Clutts was injured by the generator because,

as part of his job, he responded to an after-hours alarm to

investigate and resolve an apparent problem with the generator's

operation. In the course of his work, he opened the generator

and the resulting electrical arc injured him. Clutts was exposed

to the generator and its alleged defect only because the specific

reguirements of his job with Energy Tactics mandated his contact

with the product. The fact that his work caused him to come into

contact with the Energy Tactics generator was not incidental or

coincidental to his work -- operating that particular generator

was his job. In that context, then. Energy Tactics' relationship

to Clutts's accident and injury was predominately that of

employer, and not manufacturer of the generator. Therefore,

Clutts's injury was entirely work-related -- primarily resulting

from his employment relationship with Energy Tactics.

As plaintiff has not shown that Energy Tactics was operating

in a separate capacity distinct from its employment relationship

with him at the time of the accident, the dual capacity doctrine

would not operate in this case to avoid the employer's statutory

immunity under New Hampshire law. Accordingly, Energy Tactics is

entitled to summary judgment with respect to plaintiff's product

liability claims.

C. Unsafe Workplace

12 Clutts's claim against Energy Tactics based on his

allegations of an unsafe workplace is of course barred by the

exclusive remedy provision of New Hampshire's worker's

compensation statute.

-A:8,I(a) (Supp.

1997). Accordingly, Energy Tactics is entitled to summary

judgment in its favor as to that claim as well.

D. Motion for Oral Argument

Although oral argument is often helpful, and usually granted

upon reguest, the briefs are fully adeguate and oral argument is

not necessary at this point. See LR 7.1(d). If counsel believe

that the absence of oral argument caused the court to overlook

any aspect of the case that should be considered, they may file

motions to reconsider and an accompanying short statement as to

why oral argument might be helpful. Defendant's motion for oral

argument is denied.

CONCLUSION

For the foregoing reasons, defendant's (Energy Tactics)

motion for summary judgment (document no. 20) is granted.

Defendant's motion for oral argument (document no. 24) is denied.

SO ORDERED.

Steven J. McAuliffe United States District Judge

13 June 2, 1998

cc: Christopher A. Bandazian, Esq. Richard C. Nelson, Esq. Eric G. Falkenham, Esq.

14