DELAWARE — Defendant Covestro was the premises owner or successor in interest to one or more prior owners of Mobay Chemical Plant. The plaintiff worked at Mobay for six months in 1979 and was employed by Dravo Corporation, a third party contractor. The plaintiff testified that he removed insulation from pipes and other equipment; he received instruction and equipment from Dravo supervisors. The plaintiff also worked at Mobay from 1986-88 as a contract engineer for Midwest Tech and testified that he reported to two Mobay employees and removed insulation on valves. The plaintiff was hired full-time by Mobay in 1988 and remained there until 2014.
The parties stipulated that any injury sustained after 1988 was barred under West Virginia’s worker-compensation statute. Covestro argued that the plaintiff provided no credible or admissible evidence that the insulation the plaintiff allegedly handled prior to 1988 contained asbestos. The plaintiff countered that at least eight bankrupt manufacturers of asbestos-containing products list Mobay as a “conceded site” for purposes of claims against their estate.
Covestro further argued that even if the court found the plaintiff presented sufficient evidence to create a genuine issue of fact regarding asbestos exposure, the plaintiff’s claims were barred under West Virginia law. Under West Virgina law, the “occupier of premises employing an independent contractor has the duty of providing a reasonably safe place to work,” which includes the “duty to warn of latent defects existing before the work is started that are known to the employer, but are not readily observable by the employee.” The law also states that “the employer of an independent contractor will also be liable to such contractor’s employee if he retains some control or supervision over the work which negligently injures the employee” or when the injury was “caused by the negligence of the employer.” Covestro argued that there was no evidence in the record to show that it was negligent or otherwise in control over the work. The plaintiff argued that evidence of asbestos exposure alone creates a genuine issue of material fact as to the negligence claim against Covestro.
When “determining whether a workman is an employee or an independent contractor, the controlling factor is whether the hiring party retains the right to control and supervise the work to be done.” The court granted Covestro’s Motion for Summary Judgment, holding that since the plaintiff worked for a third party at the plant prior to becoming a full-time employee and received instruction from the third party, there was no evidence that Covestro engaged in negligent conduct to be held liable for the plaintiff’s injuries.