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Upton v. BNFL, Inc.

United States District Court, E.D. Tennessee

June 12, 2015

CHRIS UPTON et al., Plaintiffs,
v.
BNFL, INC. et al., Defendants.

MEMORANDUM

CURTIS L. COLLIER, District Judge.

Before the Court is a motion for summary judgment filed by Defendant BNFL, Inc. ("BNFL") (Court File No. 56). Plaintiffs Leslie Darnell Jones, Jeffrey Lynn Keylon, James David Parten, Timothy Edwards Robbins, and Paul David Vance (collectively "Plaintiffs")[1] responded (Court File No. 62) and BNFL replied (Court File No. 63). The Court heard argument on the motion on Wednesday June 3, 2015. For the following reasons, the Court will GRANT Defendant's motion for summary judgment (Court File No. 56).

I. BACKGROUND

A. Factual Background

Plaintiffs are five former subcontractors of Defendant R&R Electric who claim they were exposed to hazardous materials including asbestos during their work on R&R Electric's worksite ("R&R Worksite") at the Department of Energy's ("DOE") Oak Ridge Reservation. In 1997 BNFL entered into a contract with the DOE to decontaminate, decommission, and recycle three uranium processing buildings. As part of this demolition, BNFL was required to remove eight synchronous condensers. These condensers had been built in the 1950s and were used to control the flow of electricity around the facility.[2]

As part of the demolition process, BNFL entered into sales agreements with companies seeking to buy and repurpose this electrical equipment. One of these companies was American Technologies Inc. ("ATI"), whose local project manager was David Miller. As part of their relationship, the parties executed an agreement known for the purposes of this litigation as the "Electrical Enterprise Agreement." ATI had its own arrangement with another company called R&R Electric to help recycle and resell some of this equipment. R&R performed its work on its own worksite apart from the BNFL worksite. BNFL had no contractual relationship with R&R.

The agreement between BNFL and ATI was memorialized in a series of letters. In the Purchase Order, the parties agreed that "any hazardous materials (asbestos, PCB, etc) discovered in the disassembly would be returned to BNFL." (Court File No. 56-1). ATI acknowledged that BNFL was selling the equipment "as is" and that BNFL made no warranties as to the conditions of the components. ATI agreed that it would "exercise reasonable and prudent oversight of its subcontractors, vendors, and others dispositioning electrical enterprise materials on behalf of ATI." ( Id. )

In February 2000, BNFL and ATI entered into the Enhanced Work Plan ("EWP") to define the process for removing the condensers from the switchyard. The EWP detailed the procedures for removing the shell and the components, placing them on railcars to be moved to R&R's worksite. It included specific safety precautions related to specific hazards. One of these hazards was the presence of asbestos. The EWP set out the following procedure if asbestos was found:

Stop work on that condenser. Personnel who contacted potential ACM will not leave work area until checked by abatement subcontractor. Notify the supervisor or foreman who will arrange for Performance Abatement [BNFL's abatement contractor] to remove the hazard.

(Court File No. 56-1, p. 54). Before work began on the removal of the condensers, another one of BNFL's subcontractors, Coy, who was working on an analogous set of condensers, alerted BNFL to the presence of asbestos in the Condenser exciters. BNFL stopped all work related to the condenser removal, abated the hazard, and then notified ATI that it could resume work. David Miller of ATI admitted that he knew about all the steps in this process (Court File No. 56-1, p. 96, Miller Dep. 101-02). Gerald Reese, the now-deceased president of R&R also testified that he was concerned that the presence of asbestos in one place in the condenser might mean presence throughout (Court File No. 56-1, p. 103, Reese Dep. 114-15). ATI successfully removed and transported the condensers to R&Rs worksite.

R&R workers, including Plaintiffs, worked to disassemble the condensers over the course of the summer of 2000. Workers did not work pursuant to any general safety plan, were largely unsupervised, and none of the Plaintiffs wore respirators or protective clothing during the disassembly. In August, Coy notified BNFL that it had discovered asbestos in another condenser component. BNFL relayed that information to ATI and R&R who relayed that information to Plaintiffs. One of the Plaintiffs filed an employee concern with the DOE based on possible employee exposure to asbestos. But the DOE determined that because the work was neither performed at a DOE worksite nor was it performed pursuant to a DOE contract, the work was the responsibility of the contractor.

B. Procedural Background

In November 2001 R&R sued BNFL in state court in an action that was later removed to this Court. Coy also sued BNFL directly in this Court. R&R alleged that BNFL had made negligent misrepresentations regarding the presence of asbestos in the condensers through the statements in the EWP as well as alleged verbal statements made by BNFL's project manager to Reese. In March 2004, Judge Phillips granted summary judgment in favor of BNFL finding that any alleged reliance on misrepresentations was not reasonable (Court File No. 56-1, Ex. H). He reasoned that, because the EWP was negotiated and drafted before any party was aware of asbestos and all of the parties subsequently became aware that the condensers contained asbestos, it was unreasonable to assume that the EWP constituted a guarantee that the condensers would not contain asbestos. Judge Phillips also looked to the relevant expertise of the parties and held that it would be unreasonable for Reese, who had 20 years of experience in the industry, to rely on such an alleged misrepresentation. The Coy lawsuit also resulted in a favorable determination for BNFL with all but two claims being dismissed before trial. The Sixth Circuit reversed on one point, but in a way that was favorable to BNFL. See Coy/Superior Team v. BNFL, Inc., 174 F.Appx. 901, 903 (6th Cir. 2006).

Plaintiffs brought suit in 2003 against the United States, the DOE, BNFL, ATI, and R&R. Because these claims were related to asbestos exposure at a facility under DOE oversight they were transferred to an MDL in the Eastern District of Pennsylvania. The United States and the DOE were dismissed from the case pursuant to an agreement with the Plaintiffs in 2005. The case sat dormant until 2009, when the MDL Court severed this action. The action was remanded to the Eastern District of Tennessee in 2011. Judge Phillips dismissed the action without ...


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