Bits & Pieces

Liss v. TMS Int’l, LLC

United States District Court for the Southern District of Illinois

June 7, 2022, Decided; June 7, 2022, Filed

Case No. 3:19-cv-00810-GCS


2022 U.S. Dist. LEXIS 101786 *; 2022 WL 2046510


Prior History: Liss v. Tms Int’l, 2020 U.S. Dist. LEXIS 261485, 2020 WL 12880836 (S.D. Ill., Apr. 30, 2020)

Core Terms

training, employees, supervise, hazards, servant, courts, warn, injuries, catwalk, walking, coach, safe, workplace, workers’ compensation, hard hat, alleges, harming, cases, truck, third party, Joint Contribution Act, third-party, instruct, factors, summary judgment motion, delivery, players, wear, reasonably foreseeable, public policy

Counsel:  [*1] For Steven Liss, Plaintiff: Lanny H. Darr, II, LEAD ATTORNEY, Darr Law Offices, Ltd., Alton, IL.

For TMS International, LLC, Defendant, ThirdParty Plaintiff: Siobhan M. Murphy, LEAD ATTORNEY, Lewis Brisbois Bisgaard & Smith LLP – Chicago, Chicago, IL; Melissa A. Gardner, PRO HAC VICE, Abigail Care Horvat, Lewis Brisbois, et al. – Chicago, Chicago, IL; Danny Lane Worker, Lewis Brisbois Bisgaard & Smith LLP, Chicago, IL; Kara Elizabeth Angeletti, Greenberg Traurig, LLP, Chicago, IL.

For Supreme Trucking & Excavating, LLC, ThirdParty Defendant: John P. Cunningham, LEAD ATTORNEY, Daniel G. Hasenstab, Denise E. Baker-Seal, Brown & James, P.C. – Belleville, Belleville, IL.

For United Scrap Metal, Inc., ThirdParty Defendant: Rebecca A. Cary, LEAD ATTORNEY, Childress Alheim Cary LLC, St. Louis, MO; Mark Murray Hennelly, PRO HAC VICE, Childress Ahlheim Cary LLC, St. Louis, MO.

Judges: GILBERT C. SISON, United States Magistrate Judge.

Opinion by: GILBERT C. SISON



SISON, Magistrate Judge:

Plaintiff Stephen Liss filed suit against Defendant TMS International, LLC (“TMS”) on July 25, 2019. (Doc. 1). In his complaint, Plaintiff alleges that his employer, Third-Party Defendant Supreme Trucking & Excavating, [*2]  LLC (“Supreme”) directed him to deliver scrap metal from Third-Party Defendant United Scrap Metal, Inc.1 (“USM”) to TMS. (Doc. 22, p. 2). However, when Plaintiff arrived at TMS, its property was flooded. Id. When crossing the flooded portion of the property, Plaintiff turned his right ankle and fell to the ground, injuring his head. Id. at p. 3.2 Plaintiff therefore brings one count for common law negligence against TMS due to the unsafe conditions on its property. See generally, id.

On March 10, 2020, TMS filed a third-party complaint against USM and Supreme for contribution, should TMS be found liable for Plaintiff’s injuries. (Doc. 45). TMS alleges that Supreme negligently failed to supervise Plaintiff’s delivery and failed to train Plaintiff on proper safety gear and appropriate protocol when a delivery facility is closed. Id. at p. 3. Against USM, TMS brings one count for negligently hiring Supreme. Id. at p. 4. TMS brings both claims pursuant to 740 Ill. Comp. Stat. § 100/1, et seq. (the “Joint Contribution Act”). Id. at p. 4, 5. Now before the Court is Supreme’s motion for summary judgment against TMS. (Doc. 113). For the reasons delineated below, Defendant Supreme’s motion for summary judgment is DENIED.

Factual Background [*3] 

Prior to his injuries, Supreme employed Plaintiff as a truck driver for approximately eight years. (Doc. 113, p. 2). In this position, Plaintiff regularly transported scrap metal from one facility to another using a truck Supreme owned. Id. On February 7, 2019, Plaintiff picked up a load from a USM facility and drove it to a TMS facility in Granite City, Illinois. Id. Plaintiff had some familiarity with the TMS facility, as he had been to the facility “off and on” throughout his eight-year employment with Supreme. Id. Supreme maintained a policy of requiring truck drivers to wear hard hats whenever outside their vehicles at an unloading facility. (Doc. 113, p. 4).

Typically, when arriving at an unloading site, a driver would bring the truck onto the scale at the destination facility to weigh the scrap metal load. (Doc. 113, p. 2). However, when Plaintiff arrived at the facility on February 7th, heavy rain had flooded portions of the property, including the portion where Plaintiff would usually drive onto the scale. Id. A cone in front of the scale indicated to Plaintiff that he was prohibited from further driving onto the scale per custom in the industry. Id. He therefore exited his [*4]  truck and walked to TMS’s office to see if he could unload his shipment at the facility. Id. at p. 3. Plaintiff did not call Supreme, USM, or TMS for instructions prior to exiting his vehicle. (Doc. 123, p. 5).

Plaintiff kept a hard hat in the cab of his truck. (Doc. 113, p. 2-3). He also admits that he saw a sign at the TMS facility stating that hard hats were required at all times. Id. at p. 2. However, Plaintiff did not wear his hard hat when he exited his vehicle. Id. at p. 3.

Plaintiff approached the TMS office by walking under a catwalk structure, so as to avoid the deepest part of the floodwater. (Doc. 113, p. 3). Water under the catwalk also forced Plaintiff to walk closer to the building and under the diagonal supports of the structure. Id. Plaintiff could have alternatively accessed the office by walking around the building, through the parking lot, to the door on the opposite side. (Doc. 123, p. 6). This path would not have required walking under the catwalk structure. Id. Plaintiff is six feet and three inches tall; the horizontal iron crossbar of the catwalk is approximately five feet higher than the ground. (Doc. 123, p. 6). Plaintiff was therefore forced to “duck” under [*5]  the crossbar when going to and leaving from TMS’s office to his truck. Id.

When Plaintiff entered the office, he asked TMS employees whether he could unload his scrap metal; the employees told him he could not. (Doc. 113, p. 3). Plaintiff then returned to his truck using the same path by which he accessed the office. Id. This time, according to Plaintiff, Plaintiff twisted his foot on uneven ground under the floodwater and severely injured his leg. Id. He also struck his head on the catwalk support bars. (Doc. 123, p. 6).

Legal Standards

Summary judgment is proper when the pleadings and affidavits “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. Proc. 56(c); Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir. 1997)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). The movant bears the burden of establishing the absence of a genuine issue as to any material fact and entitlement to judgment as a matter of law. See Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997)(citing Celotex, 477 U.S. at 323). This Court must consider the entire record, drawing reasonable inferences and resolving factual disputes in favor of the non-movant. See Regensburger v. China Adoption Consultants, Ltd., 138 F.3d 1201, 1205 (7th Cir. 1998)(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). See also Smith v. Hope School, 560 F.3d 694, 699 (7th Cir. 2009)(stating that “we are not required to draw every conceivable inference from the record . . . we draw only reasonable inferences”) (internal [*6]  citations omitted). Summary judgment is also appropriate if a plaintiff cannot make a showing of an essential element of his claim. See Celotex, 477 U.S. at 322. While the Court may not “weigh evidence or engage in fact-finding[,]” it must determine if a genuine issue remains for trial. Lewis v. City of Chicago, 496 F.3d 645, 651 (7th Cir. 2007).

In response to a motion for summary judgment, the non-movant may not simply rest on the allegations in his pleadings; rather, he must show through specific evidence that an issue of fact remains on matters for which he bears the burden of proof at trial. See Walker v. Shansky, 28 F.3d 666, 670-671 (7th Cir. 1994), aff’d, 51 F.3d 276 (citing Celotex, 477 U.S. at 324). No issue remains for trial “unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party . . . if the evidence is merely colorable, or is not sufficiently probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-250 (citations omitted). Accord Starzenski v. City of Elkhart, 87 F.3d 872, 880 (7th Cir. 1996); Tolle v. Carroll Touch, Inc., 23 F.3d 174, 178 (7th Cir. 1994). In other words, “inferences relying on mere speculation or conjecture will not suffice.” Trade Fin. Partners, LLC v. AAR Corp., 573 F.3d 401, 407 (7th Cir. 2009) (internal citation omitted). See also Anderson, 477 U.S. at 252 (finding that “[t]he mere existence of a scintilla of evidence in support of the [non-movant’s] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]”). Instead, the non-moving party [*7]  must present “definite, competent evidence to rebut the [summary judgment] motion.” EEOC v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000) (internal citation omitted).


A Court sitting in diversity jurisdiction applies the substantive law of the state in which it resides. See Maroules v. Jumbo, Inc., 452 F.3d 639, 645 (7th Cir. 2006). TMS brings this claim pursuant to the Illinois Joint Contribution Act. (Doc. 45, p. 4). Both parties further agree that the issues in this case are a matter of state law. (Doc. 113, p. 5). When interpreting state law, a federal court must determine how the state’s highest court would rule. See Rodas v. Seidlin, 656 F.3d 610, 626 (7th Cir. 2011). If the state’s supreme court has not yet addressed the issue, the federal court should “consult and follow the decisions of intermediate appellate courts” to predict how the supreme court would act, unless “there is convincing reason to predict the state’s highest court would disagree.” ADT Sec. Servs., Inc. v. Lisle-Woodridge Fire Prot. Dist., 672 F.3d 492, 498 (7th Cir. 2012). Absent any authority from the relevant state courts, the federal court must examine the reasoning of courts in other jurisdictions addressing the same issue. See In re Zimmer, NexGen Knee Implant Products Liability Litigation, 884 F.3d 746, 751 (7th Cir. 2018)(citing Pisciotta v. Old Nat’l Bancorp, 499 F.3d 629, 635 (7th Cir. 2007)).

The Joint Contribution Act “is addressed only to the relative culpability of tortfeasors at fault in fact.” Sperl v. Henry, 2018 IL 123132, 429 Ill. Dec. 426, 124 N.E.3d 936, 943 (Ill. 2018)(quoting American National Bank & Trust Co. v. Columbus-Cuneo-Cabrini Medical Center, 154 Ill. 2d 347, 609 N.E.2d 285, 181 Ill. Dec. 917 (Ill. 1992)). In order for a third-party plaintiff to recover from a third-party defendant under the Joint [*8]  Contribution Act, “some basis for liability to the original plaintiff must exist.” Raab v. Frank, 2019 IL 124641, 441 Ill. Dec. 549, 157 N.E.3d 470, 478 (Ill. 2019)(citing Vroegh v. J & M Forklift, 165 Ill. 2d 523, 651 N.E.2d 121, 125, 209 Ill. Dec. 193 (Ill. 1995)). “Illinois law is clear that . . . [i]f a defendant is not a tortfeasor vis-à-vis the original plaintiff, it cannot be a joint tortfeasor vis-à-vis a codefendant and may not be held liable to that codefendant for contribution.” Rivers v. Central Illinois Arena Management, Inc., 129 F. Supp.3d 643, 654 (C.D. Ill. 2015)(quoting Vroegh, 651 N.E.2d at 125) (internal quotation marks omitted). Thus, if Supreme bears liability in contribution, that liability must be owed to Mr. Liss, regardless of the additional obligations Supreme may owe to TMS.

The ultimate question before the Court on this particular motion is whether Supreme owed Mr. Liss a duty to exercise reasonable care in training Mr. Liss for the performance of his job duties. See (Doc. 113, p. 6). Duty and liability are distinct concepts under Illinois law; both concepts must be considered separately. See Thompson v. Gordon, 241 Ill. 2d 428, 948 N.E.2d 39, 45, 349 Ill. Dec. 936 (Ill. 2011). Unless the defendant owes the plaintiff a duty of reasonable care, the defendant cannot be liable for the plaintiff’s injury. See Bell v. Hutsell, 2011 IL 110724, 955 N.E.2d 1099, 1104, 353 Ill. Dec. 288 (Ill. 2011). Establishing such a duty requires the plaintiff to demonstrate that the plaintiff and the defendant stood in relation to one another such that the law imposes on the defendant an obligation of reasonable conduct for the [*9]  benefit of the plaintiff. See Vancura v. Katris, 238 Ill. 2d 352, 939 N.E.2d 328, 347, 345 Ill. Dec. 485 (Ill. 2010).

Supreme initially alleges that it owed Mr. Liss no duty of reasonable care in training or supervising him, rendering TMS’s count for negligent training against Supreme misplaced. (Doc. 113, p. 6). It also asserts that finding such a duty under either Illinois common-law or the Occupational Health and Safety Act (“OSHA”) would circumvent public policy and the scope of the act respectively. Id. at p. 10, 13. In the alternative, Supreme claims that any legal duty that it owed to Mr. Liss did not extend to warning him about or protecting him against potential hazards on TMS’s premises of which Supreme had no notice. Id. at p. 8.

Because the parties are disputing the existence of a duty at common law, the Court must turn to jurisprudence from the Illinois Supreme Court. Absent jurisprudence from that source, the Court will have to predict what the Illinois Supreme Court would do by turning to the decisions of Illinois appellate courts or courts of neighboring jurisdictions. Within that framework, TMS contends that Supreme did owe Mr. Liss a duty, even if not explicitly stated in Illinois Supreme Court cases, because: (i) Illinois imposes a four-factor test [*10]  for determining whether a situation-specific duty exists, and those factors support finding a duty in the instant case, (Doc. 123, p. 8); (ii) analogous sections of the Restatement (Second) of Torts, Restatement (Second) of Agency, and OSHA support finding a duty, id. at p. 10; (iii) public policy considerations support finding the existence of a duty flowing from Supreme to Mr. Liss in these circumstances, id. at p. 15; and (iv) OSHA codifies common law obligations between an employer and an employee regarding the duty to train. Id. at p. 14. TMS also responds that training Mr. Liss to recognize and appropriately respond to potential hazards is well within the scope of that duty. Id. at p. 12.

The Court predicts that the Illinois Supreme Court would find that a duty to reasonably train an employee flows from the employer to the employee. Furthermore, while the contours of the scope of that duty are not presently defined in Illinois Supreme Court jurisprudence, the Court predicts that it would include training about common job-site hazards. Therefore, summary judgment is not appropriate in this case.

I. Whether Employers Owe Employees a Duty of Reasonable Training

Supreme’s argument against [*11]  the existence of a duty of reasonable training flowing from Supreme to Mr. Liss hinges on the interpretation of the term “harming party” in cases outlining the duty to reasonably supervise an employee for the benefit of third parties. (Doc. 113, p. 6). In Doe v. Coe, the Illinois Supreme Court highlighted the three elements of a claim for negligent supervision: (i) the employer has a duty to supervise the “harming party,” (ii) the employer negligently conducted that supervision, and (iii) that negligent supervision proximately caused the plaintiff’s injuries.3 2019 IL 123521, 434 Ill. Dec. 117, 135 N.E.3d 1, 5 (Ill. 2019) (internal citations omitted).4 Supreme alleges that the term “harming party” must necessarily refer to a party different than the plaintiff. (Doc. 113, p. 7).

Illinois courts do distinguish between duties to prevent workplace injury owed to third persons and those owed to an employee-plaintiff. Consider, for example, the more explicit Restatement (Second) of Torts § 411 and Restatement (Second) of Torts § 414. Section 411 contemplates a “danger of harm to third persons . . . .” Doe v. Boy Scouts of America, 2014 IL App (2d) 130121, 378 Ill. Dec. 667, 4 N.E.3d 550, 560 (Ill. App. Ct. 2014)(quoting Van Horne v. Muller, 185 Ill. 2d 299, 705 N.E.2d 898, 904, 235 Ill. Dec. 715 (Ill. 1998)). Section 414 concerns liability for “physical harm to others . . . .” Aguirre v. Turner Construction Co., 501 F.3d 825, 829 (7th Cir. 2007). Regarding the former section, the Illinois Supreme Court explicitly defined the term “third parties” so as [*12]  to exclude an employer’s employee. See Carney v. Union Pacific Railroad Co., 2016 IL 118984, 412 Ill. Dec. 833, 77 N.E.3d 1, 16 (Ill. 2016). As to the latter, the Illinois Supreme Court would likely interpret “others” consistently with the term “third parties.” However, the term “harming party” differs from the terms “third party” and “others” in one vital respect: the Doe Court’s use of the term “harming party” broadly refers to the party which committed the tort, and it does not exclude the plaintiff from the class of people who can sue by its definition.

Unlike the term “third party” and the term “others,” which exclude specific people from the class of those who are able to sue by definition, the term “harming party” merely connotes a tortfeasor. Doe v. Coe was the first Illinois Supreme Court case to synthesize the differing factors numerous appellate courts had employed in order to define the tort of negligent supervision. 135 N.E.3d at 5. The Court’s primary objective in Doe was to determine whether these factors included an employer’s notice of an employee’s particular unfitness for the job; the Court did not consider whether the term “harming party” included the employee to be supervised in the potential class of plaintiffs. Id. When lower courts used the term “harming party,” they did so to distinguish [*13]  between the defendant employer and the party who actually committed a tort: typically, the employee. See Doe v. Coe, 2018 IL App (2d) 170435, 422 Ill. Dec. 304, 103 N.E.3d 436, 452-453 (Ill. Ct. App. 2d 2018), rev’d 2019 IL 123521, 434 Ill. Dec. 117, 135 N.E.3d 1 (Ill. 2019). Though the employee is often the actor in negligent supervision cases, it does not stand to reason that the employee cannot also be the plaintiff. Indeed, the Doe Court itself alluded to this when it noted that an “employer’s duty to supervise . . . is general in nature.” 135 N.E.3d at 16.5 The general nature of the employer’s duty to supervise suggests that the duty of reasonable supervision extends not only to third-parties, but to anyone who might be harmed if the employer is not reasonable in that duty, including the employee themselves.

The Court’s research has not found any Illinois case specifically finding that an employer owes a duty of reasonable training to its employee. This is not surprising, however, given the existence of the Illinois Workers Compensation Act, 820 Ill. Comp. Stat. § 305/1, et seq. The Act provides the exclusive remedy for employees injured in the line of duty. See 820 Ill. Comp. Stat. § 305/5(a). As such, it prohibits an employee from bringing a “common law or statutory right to recover damages” against the employer for those injuries. Id. The prohibition of common law suits against an employer by an employee in exchange for no fault liability being imposed on [*14]  the employer was a “quid pro quo” designed to mitigate “the prospect of large damage verdicts.” Meerbrey v. Marshal Field and Co., Inc., 139 Ill. 2d 455, 151 Ill. Dec. 560, 564 N.E.2d 1222, 1225 (Ill. 1990).

Against this backdrop, there are Illinois decisions where the plaintiff has alleged a failure to train, but those claims only survive if the plaintiff alleges an intentional tort. For example, in Wells v. IFR Engineering Co., the plaintiff alleged, among other things, that the employer “failed to train the decedent on how to safely use the chemicals in a closed and unventilated area[.]” 247 Ill. App. 3d 43, 617 N.E.2d 204, 205, 186 Ill. Dec. 965 (Ill. App. Ct. 1993). However, because the Illinois workers compensation statute required that all claims for recklessness or negligence between an employee and an employer be resolved pursuant to that statute, the Court held that the plaintiff’s claim could not survive unless it stated an intentional tort. Id. See also Bercaw v. Domino’s Pizza, Inc., 258 Ill. App. 3d 211, 630 N.E.2d 166, 168, 196 Ill. Dec. 469 (Ill. App. Ct. 1994)(noting that in case involving delivery driver who was assaulted by a third party that the plaintiff had made various allegations against the employer, including failing to train in prescribed safety regulations, but finding that the plaintiff had failed to state a claim because the plaintiff did not allege that the defendant acted intentionally); Daniels v. Venta Corporation, No. 2-21-0244, 2022 IL App (2d) 210244, 2022 WL 1115179, at *5 (Ill. App. Ct. Apr. 14, 2022)(holding that circuit court erred in dismissing claim because [*15]  the plaintiff’s complaint alleged that the defendant intentionally chose not to provide the plaintiff with the information, instruction, and equipment necessary to ensure he could protect himself from asbestos). This is because there are certain exceptions to the exclusive remedy provisions of the Act, and one of those exceptions is where the injuries are not compensable under the Act. See Collier v. Wagner Castings Co., 81 Ill. 2d 229, 408 N.E.2d 198, 202, 41 Ill. Dec. 776 (Ill. 1980)

Clearly, the Workers Compensation Act serves to preempt any claims of failure to train sounding in negligence. Thus, the Court did not expect to find cases between an employer and employee where those claims survived. The lack of any such cases, however, does not mean there is no legal duty flowing from the employer to the employee regarding training. Though a negligence claim might be preempted, the duty underlying that claim still exists. Indeed, the Illinois Supreme Court recognized this when it interpreted the Joint Contribution Act in Doyle v. Rhodes, 101 Ill. 2d 1, 461 N.E.2d 382, 77 Ill. Dec. 759 (Ill. 1984). In Doyle, the Illinois Supreme Court addressed the issue of whether a third-party defendant’s statutory immunity under the Workers Compensation Act also immunized it from claims under the Joint Contribution Act. Id. at 384. Under the Joint Contribution Act, there is a right [*16]  of contribution “where 2 or more persons are subject to liability in tort arising out of the same injury . . . .” 740 Ill. Comp. Stat. § 100/2(a) (emphasis added). In Doyle, the third-party defendants argued that it could not be subjected to a right of contribution because it was not “subject to liability in tort” due to the Workers Compensation Act. Id. at 386. The Court, however, rejected that contention, noting that liability in tort was “determined at the time of the injury out of which the right to contribution arises, and not at the time the action is brought.” Id. at 387 (quoting Stephens v. McBride, 97 Ill. 2d 515, 455 N.E.2d 54, 74 Ill. Dec. 24 (Ill. 1983)). The Court reasoned that the exclusive remedy provisions of the Workers Compensation Act was in the nature of an affirmative defense which could be asserted by the employer against any action sounding in tort. Id. at 386. Thus, such a defense could be waived if not asserted by the employer in the trial court. Id. In such a situation, the plaintiff could recover a tort judgment against an employer for a work-related injury. Id. And, the Court envisioned situations where it could be advantageous for the employer not to assert the defense if the determination was made that the employee could not “prove negligence to a jury’s satisfaction.” Id. at 387. Therefore, the Court concluded [*17]  that at the time of the employee’s injury, the employer was subject to liability in tort to his employee, even though “that liability can be defeated depending on the response [the employer] chooses to make to his employee’s claim in the event the employee decides to sue in tort.” Id. See also Sompo v. Japan Ins., Inc. v. Nippon Cargo Airlines Co., Ltd., 522 F.3d 776, 783 (7th Cir. 2008)(finding that liability in tort for purposes of the Joint Contribution act is construed broadly to include “potential” tort liability and such liability is determined at the time of the injury to the plaintiff)(quoting Doyle, 461 N.E.2d at 387).

As Doyle makes clear, under the Joint Contribution Act, an employer is potentially subject to liability in tort for actions sounding in negligence at the time of the employee’s injury. It is only after the employer asserts the affirmative defense of the Workers Compensation Act that the claim is precluded. But, the Court here is tasked with determining whether Supreme can be held liable in contribution under the Joint Contribution Act. Indeed, Supreme acknowledges that the Illinois Workers Compensation Act does not prohibit an employer’s liability in contribution to a joint tortfeasor for negligently causing an employee’s injury. (Doc. 113, p. 8, n. 1)(citing Virginia Sur. Co., Inc. v. Northern Ins. Co. of New York, 224 Ill. 2d 550, 866 N.E.2d 149, 310 Ill. Dec. 338 (Ill. 2007)). Thus, in the Illinois [*18]  cases cited above involving allegations of a failure to train sounding in negligence, even though such claims were precluded by the Workers Compensation Act, the employers were potentially liable for such claims at the time of the employees’ injury for purposes of the Joint Contribution Act. Furthermore, by recognizing that an employee could bring a claim involving allegations of an intentional failure to train, those courts have implicitly recognized a duty on the part of an employer to train their employees.

Though there is no case in the employer-employee context finding a duty to train on the part of the employer, one Illinois court did discuss a duty to train in an analogous situation involving a master and a servant. For example, consider the relationship between a sports team’s head coach and the head coach’s subordinate coaches or between a coach and their players; this situation entails a superior’s general duty to supervise or train his or her subordinates for the safety of such subordinates. See Hills v. Bridgeview Little League Ass’n, 195 Ill. 2d 210, 745 N.E.2d 1166, 1180-1181, 253 Ill. Dec. 632 (Ill. 2000)(considering a head coach’s liability for assistant coaches’ brawl during a little league match). The aforementioned situation is analogous to that between an employer and an employee. [*19]  See, e.g., Douglas Damer, Larry L. Vam & Amy M. Dorsey, 4 Pattern Discovery Tort Actions § 52:2(a) (Jun. 2021)(stating that the relationship between a coach and his or her team is analogous to that between an employer and an employee for consideration of negligent training). In Williams v. Board of Educ. of City of Chicago, the plaintiff was a high school football player who sued the Board of Education after he became paralyzed when he conducted an unsafe “spearheading” maneuver during a game. 222 Ill. App. 3d 559, 584 N.E.2d 257, 259, 165 Ill. Dec. 78 (Ill. App. Ct. 1991). At issue before the Court was whether the plaintiff’s amended complaint related back to the original complaint so as to not be time barred under the Illinois Code of Civil Procedure. Id. at 260-261. The Court concluded that the amended complaint did relate back because the Board was previously placed on notice of the facts which formed the basis of the plaintiff’s amended complaint, i.e., “claims of inadequate weight training and instruction as to the dangers of spearing[.]” The Court further noted the following:

The duty of adequate supervision of a scrimmage therefore includes the duty to exercise reasonable care in the selection of those who will participate in the scrimmage. That duty may be breached [*20]  if those who supervise the scrimmage, such as the coaches, field players who lack adequate physical training or adequate instruction in the rules of safe play.

Id. at 262 (emphasis added). See also Maria N. Macconce, Football Helmet Injury Litigation, 130 AMJUR Trials 447, § 10 (2013, May 2022 update)(noting that the failure to train football players during practice constitutes negligent training). Thus, even though the existence of the duty was not directly at issue, in this master-servant relationship, the court recognized that a coach could be held liable for failing to ensure that his or her players received adequate training to avoid on-field injuries. The aforementioned case therefore illustrates that a master’s duty to supervise does extend to providing a servant with adequate training or instruction on the rules governing safe operation of the servant’s job. As the employer-employee relationship is analogous in nature to a coach and his or her players, it is not a stretch to conclude that a similar duty exists between an employer and an employee.

Supreme alternatively argues that if any duty flows from it to Mr. Liss, that duty is to provide its employees with a reasonably safe workspace. [*21]  (Doc. 113, p. 8). It does not include the more specific duty to provide training to one’s employees. Id. Supreme further asserts that this general duty does not extend beyond the master’s own workplace to include hazards about which the master does not and cannot have advanced knowledge. Id. at p. 8-9. Supreme relies on two sources as support: (i) Iseberg v. Gross, 227 Ill. 2d 78, 879 N.E.2d 278, 316 Ill. Dec. 211 (Ill. 2007); and (ii) Restatement (Second) of Agency § 471. However, neither Iseberg nor § 471 are applicable to this case.

As an initial matter, Iseberg cannot support finding that Supreme’s only relevant duty in this case was to warn Mr. Liss as to hazards on Supreme’s own premises. The plaintiff in Iseberg was an attorney who worked as an agent and co-adventurer on a joint venture with the defendants; unfortunately, the joint venture was not successful, and the parties lost significant investments. 879 N.E.2d at 282-283. One of the joint venturers focused his ire on the plaintiff and discussed his plans to assault the plaintiff with the defendant. Id. at 283. The defendant failed to warn the plaintiff about the impending assault. Id. The trial court initially dismissed the plaintiff’s complaint, and the appellate court upheld the dismissal, finding that there was no general affirmative duty for one to protect another against a criminal attack [*22]  by third-persons. Id. However, one appellate judge dissented in part, stating that the complaint established the elements necessary for the application of the principal and agent exception to the general rule. Id. The Illinois Supreme Court considered the application of this exception on further appeal.

The plaintiff in Iseberg relied on Restatement (Second) of Agency § 471 to argue that defendants, as the principal, had an affirmative duty to warn plaintiff, as the agent, of the potential assault. 879 N.E.2d at 286. The Illinois Supreme Court noted that courts finding a duty to warn based on § 471 have generally treated the duty as an extension of “an employer’s general obligation to provide a safe workplace for his employees.” Id. The Court further indicated that this section applies to agents; the primary purpose for this section was to “permit the agent to make an informed decision about whether he wishes to continue to maintain the agency relationship and assume the risks that it entails.” Id. at 286 n.5 (emphasis added). While it considered and appeared to approve of § 471, the Court declined to apply it to the case. Id. at 287-288. The Court reasoned that the risk of harm as alleged in the plaintiff’s complaint did not “arise from the particular nature” of the plaintiff’s [*23]  alleged agency relationship with the defendants. Id. at 288. Simply put, the plaintiff was not injured while performing any tasks for the defendants. Id. at 287. As such, the duty to warn did not arise because the situation did not pertain to an “unreasonable risk of harm involved in the employment” as is required for § 471 to apply. Restatement (Second) of Agency § 471.

Supreme appears to place great reliance on the “reasonably safe workspace” language in Iseberg to conclude that whatever duties are owed to Mr. Liss do not extend beyond Supreme’s own premises. It is true that the plaintiff in Iseberg was injured at his home away from the work premises, which would appear to support Supreme’s contentions. However, the Court’s rationale for not applying § 471 was not due to where the injury took place, but rather because the plaintiff suffered no injuries while he was performing any tasks for the defendants. Thus, Iseberg does not provide a basis to limit any applicable duties that an employer may owe to its employees to its own premises.

Turning to § 471 itself, Supreme also relied on this section to argue that it owed no duty to Mr. Liss to warn him of dangers that were present on TMS’s property. Section 471 notes that the duty to warn only arises for unreasonable risks involved in the [*24]  employment that the principal should realize exists. See Restatement (Second) of Agency § 471. As such, Supreme reasons that it cannot be held liable to Mr. Liss because it had no way to know of the conditions on TMS’s property. At the hearing on the motion for summary judgment, the Court expressed skepticism over whether § 471 was applicable because it did not appear to fit the facts of the instant case. Counsel for Supreme noted that this was the most analogous provision it could find. TMS also did not advance a competing restatement provision for the Court to analyze.

The Court, however, does not need to look any further than the commentaries to § 471 to find a more appropriate provision that squarely fits the facts of this case. The commentaries specifically reference other provisions of the Restatement, i.e., Section 495 and 510, for “the duties of a master to a servant with respect to warning and instructions[.]” Restatement (Second) of Agency § 471, cmt. c.6 A servant is simply “an agent employed by a master” and whose service is controlled or subject to the right to control by the master. Id. (citing Restatement (Second) of Agency § 2). See also Restatement (Second) of Agency § 470 (stating that principals are subject to the same liability as an agent, except that “a master has nondelegable duties of care with respect to the working conditions of [*25]  his servants”). As such, the terms “master-servant” and “employer-employee” have been used interchangeably because the relationship is “merely one type of principal-agent relationship.” Spiral Step Tool Co. v. Metal Removal Div., Civil Action No. 73 C 2731, 1974 U.S. Dist. LEXIS 8072, 1974 WL 20182, at *1 (N.D. Ill. Jun. 14, 1974). See also Moy v. County of Cook, 159 Ill. 2d 519, 640 N.E.2d 926, 927, 203 Ill. Dec. 776 (Ill. 1994)(stating that “[a]lthough the terms ‘principal’ and ‘agent,’ ‘master’ and servant,’ and ’employer’ and ’employee’ may have separate connotations for purposes of contract authority, such distinctions are immaterial for tort purposes“) (emphasis added).

Section 510 actually outlines a master’s duty to train their servants, in addition to the duty to maintain a reasonably safe workplace, stating that: the “master’s duty . . . includes a duty that care be used to give such instructions to servants employed by him as . . . is necessary to prevent unreasonable risk to him and other servants during the progress of the work . . . .” Restatement (Second) of Agency § 510. This includes the duty to instruct a servant as to safe methods of performing the work, as to the dangers of the work, as to specific risks known to the master but not the servant, and as to general dangers to which the servant will not be prepared to sufficiently anticipate. Id. at cmt. a. Moreover, the Restatement’s explanation of the duty to warn and instruct also includes [*26]  the responsibility to ensure that the servant fully understands the warning and instruction given to them.

The Illinois Supreme Court has already adopted § 471, and the commentaries to § 471 directs courts to § 510 when analyzing a master-servant relationship. This duty is analogous to the duty that TMS claims exists under Illinois law, i.e., an employer’s duty to adequately train its employees so that they are not at risk of injuring themselves or others. Section 510 is furthermore consistent with the analogous duty discussed previously involving a coach’s responsibility to ensure that his or her players are instructed on the safe practice of their sport in football games. This relationship has been characterized as one between a master and a servant and is akin to the relationship between an employer and an employee. Finally, the Illinois Supreme Court has regularly adopted other provisions of the Restatements when considering various circumstances. See, e.g., Iseberg, 879 N.E.2d at 286. See also Hutchison v. Fitzgerald Equip. Co., Inc., 910 F.3d 1016, 1023 (7th Cir. 2018)(citing Jakubowski v. Alden-Bennett Constr. Co., 327 Ill. App. 3d 627, 763 N.E.2d 790, 799, 261 Ill. Dec. 541 (Ill. App. Ct. 2002)); Carney v. Union Pacific Railroad Co., 2016 IL 118984, 412 Ill. Dec. 833, 77 N.E.3d 1, 7 (Ill. 2016)(citing generally Larson v. Commonwealth Edison Co., 33 Ill. 2d 316, 211 N.E.2d 247 (Ill. 1965)); Gomien v. Wear-Ever Aluminum, Inc., 50 Ill. 2d 19, 276 N.E.2d 336 (Ill. 1971)(adopting sections of the Restatement (Second) of Torts into the Illinois common law). Accordingly, the Court predicts that the Illinois Supreme Court would adopt § 510 and find that an employer does have a duty [*27]  to adequately train its employees to do their job so that such employees will not be an unreasonable risk of injury to either themselves or others.

Supreme next argues that placing the burden of reasonable training on it under the facts of this case would be a gross violation of public policy. (Doc. 113, p. 13). While the Court will address whether applying this burden to Supreme in this particular instance violates public policy when contemplating the scope of the duty to train in this case, as an initial matter, the Court also clarifies that imposing a general duty on employers to reasonably train their own employees does not contravene public policy. To the contrary, the history of labor organizing in Illinois and in the United States strongly supports finding the existence of such a duty. See Lorraine Schmall, Workplace Safety and the Union’s Duty after Leuck and Hechler, 28 U. Kan. L. Rev. 561, 562 (1990)(detailing a long history of labor organization in support of workplace safety leading up to the introduction of workers’ compensation statutes, with a focus on reducing the number, causes, and legal and economic impacts of workplace injuries). See also John Fabian Witt, Toward a New History of American Accident [*28]  Law: Classical Tort Law and the Cooperative First-Party Insurance Movement, 114 Harv. L Rev. 690, 835 (2001)(explaining that a key goal of the organized labor movement in the United States was to shift the incentive to avoid workplace accidents from employees to employers). Finding that employers owe their employees a duty of reasonable training to avoid workplace injuries is consistent with that history.7

II. The Scope of the Employer’s Duty to Reasonably Train its Employees

The question of whether employers owe their employees a duty of reasonable training does not answer the inquiry as to whether that duty is applicable under the specific facts of this case. Illinois courts have found that a “highly fact-specific” inquiry is necessary to determine whether that general duty extends to the circumstances of a particular case. See, e.g., Stearns v. Ridge Ambulance Service, Inc., 2015 IL App (2d) 140908, 392 Ill. Dec. 457, 32 N.E.3d 765, 769-770 (Ill. App. Ct. 2015)(considering the tests applicable to determining whether a duty exists under a specific set of facts and comparing Mulloy v. American Eagle Airlines, Inc., 358 Ill. App. 3d 706, 832 N.E.2d 205, 295 Ill. Dec. 54 (Ill. App. Ct. 2005), which concerned a motor-vehicle accident and in which a broader analysis of duty was sufficient, with Lance v. Senior, 36 Ill. 2d 516, 224 N.E.2d 231 (Ill. 1967), in which a young boy with hemophilia was permitted to play with a needle and a more fact-specific inquiry into duty was necessary). This is particularly [*29]  vital in negligent training cases, as the duty to properly train or supervise an employee “is a general one and the extent of supervision required depends on many factors . . . .” Dugar v. U.S. Bank National Association, No. 21 CV 4052, 2021 U.S. Dist. LEXIS 245225, 2021 WL 6063869, at *6 (N.D. Ill. Dec. 22, 2021). Accordingly, when considering an employer’s duty to train its employees for the benefit of third parties, the Illinois Supreme Court has found that the application of the duty is “best analyzed under principles generally applicable to negligence cases.” Vancura, 939 N.E.2d at 347 (applying general negligence principles to determine “whether and to what extent Kinko’s had a duty to train its notary employees” under the Notary Public Act applicable in that case). When considering whether an employer owes an employee or others a duty to train them against a particular hazard either to themselves or to third parties, Illinois courts consider: (i) the reasonable foreseeability of the injury, (ii) the likelihood of that injury, (iii) the magnitude of the burden of guarding against the injury, and (iv) the consequences of placing that burden on the defendant. See id. at 348. This test also assists courts in determining whether public policy supports finding that the defendant bears the burden of a specific duty to train their employees under the [*30]  particular facts of a case. See Simpkins v. CSX Transp., Inc., 2012 IL 110662, 965 N.E.2d 1092, 1097, 358 Ill. Dec. 613 (Ill. 2012).

Analysis of the four general negligence factors supports finding that Supreme owed Mr. Liss a duty to train him to wear protective gear and to avoid observable hazards on delivery sites. Supreme addresses all four of the negligence factors: (i) it was not reasonably foreseeable that TMS’s property would contain a hazard of which Mr. Liss would not be aware, (Doc. 113, p. 9); (ii) the likelihood of injury is equally low, as Supreme could assume that Mr. Liss would appreciate the risks of the hazard, id. at p. 14; (iii) the magnitude of guarding against this burden is significant, as Supreme would need to anticipate all conceivable hazards on someone else’s property, id. at p. 15; and (iv) imposing this duty would insult construction workers, as it assumes they are incapable of walking across a wet lot without guidance from their employers. Id. However, Supreme’s analysis assumes that the Court agrees with Supreme that (i) the duty to reasonably train employees is not owed to that employee, and, accordingly, (ii) the real concern before the Court is whether Supreme upheld its obligation to provide Mr. Liss with a reasonably safe workspace. In addition [*31]  to assuming that the Court agrees with Supreme’s earlier analysis, this framework also assumes that it is settled that Mr. Liss sustained his injury on uneven terrain, an assumption TMS vigorously contests.

During the hearing on the motion for summary judgment, Defendant TMS mentioned that its expert witness, Dr. Levitan-DiDomenico, testified that the placement of Plaintiff’s injuries indicated that he first hit his unprotected head on the catwalk structure, which caused him to fall and hit his leg. Mr. Liss did not wear his hard hat when walking to and from TMS’s main office, making this sequence of events plausible. (Doc. 123, Exh. A, 41:6-8). He also chose to walk under a horizontal and diagonal metal bar which forced him to duck. Id. at 39:11-23. These facts introduce a genuine dispute of material fact as to whether the cause of Mr. Liss’s injury was his failure to wear a hard hat or the uneven terrain on TMS’s property. As this question remains properly before a jury, and as the Court has determined that Supreme owed Mr. Liss a duty of reasonable training, the proper consideration currently before the Court is not whether Supreme should have anticipated conditions on TMS’s property [*32]  of which Mr. Liss was apparently unaware, but whether Supreme owed Mr. Liss a specific duty to train him to take proper safety measures when making deliveries.

TMS argues that it is both reasonably foreseeable that Mr. Liss would encounter flooding hazards when making deliveries, and that Mr. Liss would encounter hazards which would endanger his head. (Doc. 123, p. 13-14). Accordingly, TMS asserts that Supreme was negligent in failing to train Mr. Liss to recognize hazards and to call Supreme when he encountered such hazards, and in failing to train Mr. Liss to consistently wear his hard hat. The Supreme Court of Illinois recognizes that head injuries are reasonably foreseeable on construction sites, notwithstanding any premises hazard, which makes such an injury more likely. For example, in Deibert v. Bauer Bros. Const. Co., Inc., the plaintiff stepped out of a portable toilet into a large rut in the ground while looking up to watch for falling debris. 141 Ill. 2d 430, 566 N.E.2d 239, 245, 152 Ill. Dec. 552 (Ill. 1990). In applying the distraction exception to the open and obvious doctrine, the Court noted that the plaintiff was forced to decide between two equally foreseeable hazards: the potential for a rut, and the potential for a head injury on [*33]  a construction site. Id. See also Bucheleres v. Chicago Park Dist., 171 Ill. 2d 435, 665 N.E.2d 826, 834, 216 Ill. Dec. 568 (Ill. 1996)(citing cases and noting that a more obvious danger is more reasonably foreseeable and more easily warned against, though injury from such a danger is also less likely). It is readily foreseeable that proceeding under scaffolding would cause an injury. For example, co-owner of Supreme, Garland Zimmerman, testified that the need to avoid walking under scaffolding is “common sense.” (Doc. 123, Exh. E, 51:14-16).

Supreme has a stronger argument that the likelihood of injury from either the uneven terrain or as a derivative result of an initial head injury is low. Though Supreme does not explicitly argue that the risk of injury to Mr. Liss was due to an open and obvious danger, the characterization of the risk as “common sense” indicates that the risk is readily apparent to the average person. The more apparent a potential risk, the less likely it is that the risk will cause injury to a person because it is assumed that the person will notice and appreciate the risk. See Bucheleres, 665 N.E.2d at 833-834. However, this does not impact the remaining factors in the analysis: the magnitude of guarding against the burden and the consequences of doing so. Id. If both of these remaining factors [*34]  weigh in favor of imposing a duty on the defendant, Illinois courts will do so, regardless of the relatively low likelihood of injury. Id.

Contrary to Supreme’s assessment, the magnitude of training Mr. Liss explicitly to wear his hard hat and to appreciate potential hazards from a catwalk is low. The consequences of requiring Supreme to do so are also low. Mr. Garland testified that, despite regular training meetings, he did not instruct employees on avoiding hazardous structures like catwalks. (Doc. 123, Exh. E, 51:10-11)(stating “I don’t instruct them. However they figure they can get into the job safely and easily” when asked whether he would instruct Mr. Liss to walk under a catwalk). Training at Supreme regularly consists of encouraging workers to use “common sense” without more explicit instruction; for instance, there is no written protocol available to drivers describing what to do if a delivery is not possible. Id. at 64:14-19. Employers, however, are required to provide formal instruction, practical training and demonstrations, and an evaluation of an employee’s performance in the workplace under OSHA. 29 C.F.R. § 1910.178(l)(2)(i)(B)(ii). Relying on an employee’s “common sense” and experience thus is not a [*35]  sufficient substitute for such instruction. See Danis-Shook Joint Venture XXV v. Secretary of Labor, 319 F.3d 805, 811 (6th Cir. 2003). Although OSHA cannot enlarge a common-law duty, and the question of whether Supreme violated any OSHA regulation is not before the Court, the regulations provide an example of the burden Supreme would face in implementing such training programs. Because Supreme is already required to provide formal and practical training greater than the reliance on common sense under OSHA, it would be of little burden to implement that same training to avoid common-law negligence as well.

Supreme argues that Mr. Liss injured himself on uneven terrain. However, because that is a genuine question of material fact, the Court cannot foreclose the possibility that Mr. Liss injured himself by hitting his unprotected head on a catwalk on TMS’s property. The reasonable foreseeability that Mr. Liss would be injured due to a hazard such as a catwalk, and when walking on a construction site without a hard hat is high, while the magnitude and consequences of guarding against such a risk are low. Though the likelihood of injury is low, this factor alone does not indicate that public policy would weigh against imposing a duty of reasonable training on Supreme in [*36]  this situation. As Supreme does not argue that it’s training is sufficient to uphold this duty or that the lack of training did not proximately cause Mr. Liss’s injury, this finding is sufficient to foreclose summary judgment on this motion.


For the above-stated reasons, Defendant Supreme’s motion for summary judgment (Doc. 113) is DENIED.


DATED: June 7, 2022.

/s/ Gilbert C. Sison


United States Magistrate Judge

End of Document

USM is the general contractor responsible for hiring Supreme.

There is a dispute between the parties as to the sequence of events directly preceding Plaintiff’s injury. Plaintiff asserts that he twisted his ankle on uneven terrain, causing him to fall and hit his head on the catwalk. TMS alleges that Plaintiff first hit his unprotected head on the catwalk, causing him to fall onto his leg.

Supreme does not argue that it reasonably trained Mr. Liss or that its negligent training did not proximately cause Mr. Liss’s injuries. Of the three prongs of the negligent supervision test, Supreme focuses only on prong (i), whether an employer has a duty to supervise the harming party. Accordingly, the Court finds no need to analyze whether Supreme negligently trained Mr. Liss, prong (ii), or whether that negligent training caused Mr. Liss’s injuries, prong (iii).

Illinois courts apply the same elements considered in a negligent supervision claim to claims for negligent training. See, e.g., Van Horne v. Muller, 294 Ill. App. 3d 649, 691 N.E.2d 74, 79, 229 Ill. Dec. 138 (Ill. App. Ct. 1998), rev’d in part on other grounds, 185 Ill. 2d 299, 705 N.E.2d 898, 235 Ill. Dec. 715 (Ill. 1999)(applying the negligent supervision factors to a negligent training case); Vancura v. Katris, 391 Ill. App. 3d 350, 907 N.E.2d 814, 826-827, 330 Ill. Dec. 1 (Ill. App. Ct. 2008), rev’d, 238 Ill. 2d 352, 939 N.E.2d 328, 345 Ill. Dec. 485 (Ill. 2010)(noting that the same considerations applied in a case regarding negligent training as with a case regarding negligent supervision). The Illinois Supreme Court overturned Vancura on narrow grounds, instead finding that the defendant bore a duty to train its public notary employees consistently with and no more than was required under the Illinois Public Notary Act, 5 ILL. COMP. STAT. § 312/1-102(b) (1996). 939 N.E.2d at 348. Federal courts in Illinois also treat negligent supervision claims and negligent training claims as if they share a common set of elements. See Kreher v. Polaris Industries, Inc., Case no. 20-cv-126-DWD, 2020 U.S. Dist. LEXIS 231810, 2020 WL 7263285, at *2 (S.D. Ill. Dec. 10, 2020); Glickman v. Main-Niles Association of Special Recreation, 440 F. Supp.3d 946, 955 (N.D. Ill. 2020). Cf. Doe, 135 N.E.3d at 15 (holding that negligent supervision is a distinct cause of action from negligent hiring or retention, but not commenting on negligent training).

The Doe Court also declined to limit a cause of action for negligent supervision to those which demonstrate that the employer had prior notice of the harming party’s potentially tortious conduct, instead requiring only general foreseeability. 135 N.E.3d at 16. This decision indicates an overall inclination towards keeping the cause of negligent supervision open to a broader scope of potential plaintiffs.

Section 495 requires that an employer conduct business in the light of knowledge as to conditions likely to harm employees, where such employees are considered to have special knowledge of the business and subject matter. This section applies to discrete instances of unsafe conditions of which an employer has knowledge, but the employee may not even with such training, such as when a job requires interaction with dangerous gasses. See Restatement (Second) of Agency § 495, cmt. a, Illustration 1. This section therefore presumes that the employees already have the basic requisite training to obtain special knowledge of the business and subject matter. It is therefore not applicable to this case, because the issue here is whether any such basic training occurred in the first place.

Because of the Court’s findings with respect to an employer’s duty to train its employees for the benefit of such employees, the Court need not address whether the sections of the Restatement (Second) of Torts, Restatement (Second) of Agency, and OSHA, cited by TMS, are applicable analogies. See (Doc. 123, p. 12). However, it seems unlikely that they are. For example, Restatement (Second) of Torts § 314A concerns the duty to give aid, see cmt. d; § 414 concerns workplace injuries broadly, rather than a duty to provide training specifically; Restatement (Second) of Agency § 495 applies to a master’s duty to maintain safe equipment and operations in light of general expertise in the industry, see cmt. a; and OSHA is inapplicable when a court is considering the existence, rather than the scope, of a duty. See Sobczak v. Flaska, 302 Ill. App. 3d 916, 706 N.E.2d 990, 1000, 236 Ill. Dec. 116 (Ill. App. Ct. 1998).

Wesco Ins. Co. v. Brad Ingram Constr.

United States District Court for the Northern District of California

June 15, 2022, Decided; June 15, 2022, Filed

Case No. 21-cv-05682-WHO


2022 U.S. Dist. LEXIS 111041 *; __ F.Supp.3d __


Core Terms

dust, pollutant, pollution exclusion, debris, asbestos, insured, truck, summary judgment, loaded, duty to defend, contaminant, layperson, exposure, allegations, pesticides, cleanup, spread, coverage, irritant, environmental pollution, chemicals, hazardous, ceiling, dispersal, airborne, apartment building, Merriam-Webster, scraping, parties, Courts

Counsel:  [*1] For Wesco Insurance Company, a Delaware corporation, Plaintiff: Daniel N Katibah, LEAD ATTORNEY, Nielsen Katibah LLP, San Rafael, CA USA; James Christian Nielsen, Nielsen Katibah LLP, San Rafael, CA USA; Megan Winter Wendell, Nielsen Katibah LLP, San Rafael, CA USA.

For Brad Ingram Construction, doing business as Brad Ingram Construction, Inc., Defendant: SAMUEL Fayette BARNUM, LEAD ATTORNEY, Law Offices of Samuel F. Barnum APC, San Rafael, CA USA.

Judges: William H. Orrick, United States District Judge.

Opinion by: William H. Orrick



Re: Dkt. Nos. 20, 22

Before me are cross-motions for summary judgment on a single issue: whether plaintiff Wesco Insurance Company (“Wesco”) owes a duty to defend Brad Ingram Construction (“Ingram”) against a lawsuit arising from the cleanup of the 2018 Camp Fire. The central question is the applicability of the pollution exclusion provision in Ingram’s insurance policy. The toxic dust left behind by the wildfire falls within the policy’s definition of “pollutant.” It was released when workers loaded and unloaded debris into the truck that hauled it out of the burn zone. Given the heavy regulation of the [*2]  cleanup effort evidenced by the hazardous materials gear worn by those involved, a reasonable layperson would consider the release of toxic dust in this context to be environmental pollution. The underlying matter thus falls within the pollution exclusion provision, meaning that Wesco does not owe a duty to defend. Wesco’s motion for summary judgment is GRANTED; Ingram’s is DENIED.



The events giving rise to this litigation trace back to the devastating Camp Fire that destroyed the city of Paradise, California, killing dozens of people and razing thousands of buildings in its path. The fire left behind millions of pounds of toxic debris, prompting the state of California to embark on a massive cleanup effort. See Wesco Mot. for Summ. J. (“Wesco MSJ”) [Dkt. No. 20] 1:23-25. The California Department of Resources, Recycling, and Recovery (“CalRecycle”) hired Ceres Environmental Services (“Ceres”) as one of three prime contractors coordinating the cleanup of unincorporated areas outside of Paradise. See id. at 5:4-9. In turn, Ceres hired different subcontractors to carry out the work, including Garlow Transport (“Garlow”), a trucking company. Id. at 1:26-27. [*3]  A Garlow employee named Richard Vargas worked on the project during the summer of 2019, driving “hundreds of loads of debris from work sites to hazardous waste dumps.” Id. at 1:27-2:1.

Vargas alleges that “because the debris was known to be a health hazard,” CalRecycle “recognized that the nature of the material being handled at the cleanup required added emphasis on safety.” See Stipulation (“Stip.”) [Dkt. No. 21], Ex. B (“Vargas Compl.”) ¶ 15.1 Specifically, Vargas contends that CalRecycle recognized “the potential that toxins could become airborne during debris removal.” Id. ¶ 16. As a result, CalRecycle conducted safety daily meetings, required decontamination zones where workers suited on and off, and set up air monitoring stations to monitor for airborne toxins. Id. ¶¶ 15-16. It also “had an expectation that on-site crews would wear the proper safety equipment.” Id. ¶ 15.

Over the summer, Vargas drove to the site, where workers loaded debris into his truck, stirring up clouds of dust that entered the vehicle through its ventilation system. Id. ¶ 22. Once the truck was loaded, Vargas stepped into the dust in order to tarp the load before driving it to the designated waste facility. [*4]  Id. ¶ 23. Once there, Vargas would get out of the truck, remove the tarp, and dump the load, again exposing him to the dust. Id. Although the on-site workers who loaded Vargas’s truck wore hazardous material suits and respirators, Vargas was not provided nor told that he needed “any type of respiratory protection.” Id. ¶ 22.

Over the course of the summer, Vargas became ill. In the fall of 2019, he was “unexpectedly diagnosed with sarcoidosis, a disabling immune disease linked to exposure to environmental toxics.” See id. ¶ 3. Before this diagnosis, Vargas “had never previously had any similar type of health problem.” Id. ¶ 25.

Vargas sued Ceres and CalRecycle in August 2020, alleging that they did not protect him from the “clouds of toxic dust” during the loading and unloading of his truck in part by failing to provide any respiratory protection, take steps to suppress the dust, or warn of the need to avoid such exposure. See id. ¶¶ 32, 40, 50. As a result, Vargas alleges, he was exposed to harmful levels of toxic dust that caused his sarcoidosis. Id. ¶¶ 33, 41, 53.

On September 30, 2020, Ceres filed a cross-complaint against Garlow and another subcontractor, Ingram, seeking indemnity [*5]  for the damages sought by Vargas. See Stip., Ex. C ¶ 8. The cross-complaint did not raise new allegations; rather, it relied on those made in Vargas’s initial complaint, which it attached as an exhibit. See id. ¶ 9.

On December 8, 2020, Ingram tendered the cross-complaint to Wesco, its insurer. See Stip., Ex. D. On January 15, 2021, Wesco sent Ingram a letter disclaiming its duty to defend, in part asserting that the matter fell within the policy’s “total pollution exclusion endorsement.” Stip., Ex. F. Ingram challenged the disclaimer, which Wesco later affirmed. Stip., Exs. G, H.


Wesco issued a commercial general liability insurance policy to Ingram, effective from April 1, 2019, through April 1, 2020. Stip., Ex. A (“Policy”) at 161.2 The provisions relevant to the motions at hand are as follows:

Coverage A states that Wesco

will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. [Wesco] will have the right and duty to defend the insured against any “suit” seeking those damages. However, [Wesco] will have no duty to defend the insured against any “suit” seeking damages [*6]  for “bodily injury” or “property damage” to which this insurance does not apply.

Id. at 043.

The policy defines “bodily injury” as “bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.” Id. at 055.3 But the policy excludes coverage of

“[b]odily injury” or “property damage” which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of “pollutants” at any time.

Id. at 081 (modifying the standard pollution exclusion language at 045).4 It defines “pollutants” as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.” Id. at 057.


Wesco filed this lawsuit on July 23, 2021, seeking declaratory judgment that it owed no duty to defend or indemnify Ingram against the cross-complaint. See Dkt. No. 1. The parties agree that the sole issue presented in the litigation was “whether Wesco’s pollution exclusion bars coverage, and thus exempts Wesco from a duty to defend the Vargas [*7]  lawsuit.” See Wesco MSJ at 8:1-3 (citing Dkt. No. 12); Ingram MSJ at 7:6-7.

In April and May of 2022, the parties filed cross-motions for summary judgment on this question. See Dkt. Nos. 20, 22. I heard arguments from the parties on June 8, 2022.


Summary judgment on a claim or defense is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In order to prevail, a party moving for summary judgment must show the absence of a genuine issue of material fact with respect to an essential element of the non-moving party’s claim, or to a defense on which the non-moving party will bear the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). Once the movant has made this showing, the burden then shifts to the party opposing summary judgment to identify “specific facts showing there is a genuine issue for trial.” Id. at 324. The party opposing summary judgment must then present affirmative evidence from which a jury could return a verdict in that party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

On summary judgment, the court draws all reasonable factual inferences in favor of the non-movant. Id. at 255. In deciding a motion for summary judgment, “[c]redibility [*8]  determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” Id. However, conclusory and speculative testimony does not raise genuine issues of fact and is insufficient to defeat summary judgment. See Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).


An insurer’s duty to defend is “broader than the duty to indemnify”; it “may owe a duty to defend its insured in an action in which no damages ultimately are awarded.” Montrose Chem. Corp. v. Superior Court, 6 Cal. 4th 287, 295, 24 Cal. Rptr. 2d 467, 861 P.2d 1153 (1993) (citation omitted). Whether an insured owes such a duty is “assessed at the very outset of the case” by comparing the complaint’s allegations and the policy’s terms. See Hartford Cas. Ins. Co. v. Swift Distrib., Inc., 59 Cal. 4th 277, 287, 172 Cal. Rptr. 3d 653, 326 P.3d 253 (2014). The duty also exists “where extrinsic facts known to the insurer suggest that the claim may be covered.” Id. (citation omitted). “[T]he existence of a duty to defend turns not upon the ultimate adjudication of coverage under its policy . . . but upon those facts known by the insurer at the inception of a third-party lawsuit. Hence, the duty may exist even where coverage is in doubt and ultimately does not develop.” Montrose, 6 Cal. 4th at 295 (citation and quotation marks omitted).

“While the duty to defend is broad, it is not unlimited; it is measured by the nature and kinds of risks [*9]  covered by the policy.” Swift, 59 Cal. 4th at 288 (citing Waller v. Truck Ins. Exch., Inc., 11 Cal. 4th 1, 19, 44 Cal. Rptr. 2d 370, 900 P.2d 619 (1995)). An insurer and insured have different burdens when seeking declaratory relief regarding a duty to defend. Id. As the California Supreme Court has stated:

To prevail, the insured must prove the existence of a potential for coverage, while the insurer must establish the absence of any such potential. In other words, the insured need only show that the underlying claim may fall within policy coverage; the insurer must prove it cannot.

Montrose, 6 Cal. 4th at 300 (emphasis in original).

“Interpretation of an insurance policy is a question of law and follows the general rules of contract interpretation.” MacKinnon v. Truck Ins. Exch., 31 Cal 4th 635, 647, 3 Cal. Rptr. 3d 228, 73 P.3d 1205 (2003) (citing Waller, 11 Cal. 4th at 18). Under California law, the parties’ mutual intention at the time the contract is formed governs interpretation. See Cal. Civ. Code § 1636. To determine this intent, “[t]he rules governing policy interpretation require us to look first to the language of the contract in order to ascertain its plain meaning or the meaning a layperson would ordinarily attach to it.” Waller, 11 Cal. 4th at 18. Courts consider the “clear and explicit meaning of these provisions, interpreted in their ordinary and popular sense, unless used by the parties in a technical sense or a special meaning is given to them by usage.” Swift, 59 Cal. 4th at 288 (citation and [*10]  quotation marks omitted). Courts “must also interpret the language in context, with regard to its intended function in the policy.” Id. (citation omitted).

Courts have grappled with pollution exclusions similar, if not identical, to the one at hand. The California Supreme Court thoroughly explained the history and varying interpretations of such exclusions in one of the state’s seminal cases on the issue, MacKinnon. See 31 Cal. 4th at 643-47. Courts in California have considered pollution exclusions in the context of pesticides sprayed at apartment buildings, silica dust created during sandblasting operations, asbestos disturbed during the scraping of “popcorn” ceilings, dirt and rocks placed in creek beds, and chemicals that seeped into groundwater. See, e.g., id. at 639; Garamendi v. Golden Eagle Ins. Co., 127 Cal. App. 4th 480, 483, 25 Cal. Rptr. 3d 642 (2005); The Villa Los Alamos Homeowners Ass’n v. State Farm Gen. Ins. Co. (“Villa Los Alamos”), 198 Cal. App. 4th 522, 527 (2011); Ortega Rock Quarry v. Golden Eagle Ins. Co., 141 Cal. App. 4th 969, 979-80, 46 Cal. Rptr. 3d 517 (2006); California v. Allstate Ins. Co., 45 Cal. 4th 1008, 1016, 90 Cal. Rptr. 3d 1, 201 P.3d 1147 (2009).

The parties have not pointed me toward any case law interpreting such an exclusion’s applicability to injuries allegedly arising from toxic matter left behind by a wildfire. But the law that does exist points to three primary issues. First, is the toxic dust that allegedly caused Vargas’s sarcoidosis a “pollutant” as defined by the policy? Second, was his injury caused by the pollutant’s “release” or “dispersal”? Third, do the allegations amount [*11]  to an “act of pollution,” which is covered by the exclusion, or an “ordinary act[] of negligence involving toxic chemicals,” which is not. See MacKinnon, 31 Cal. 4th at 639, 654. I address each in turn.


Vargas alleges that he was exposed to “clouds of toxic dust” during the loading and unloading of the debris that he hauled away from the Camp Fire site, and that he developed sarcoidosis from that exposure. See, e.g., Vargas Complaint ¶¶ 32-33, 41.5 The first question is whether that toxic dust is a “pollutant” as defined by the insurance policy.

The policy defines a “pollutant” as “any solid . . . irritant or contaminant, including . . . waste.” Wesco MSJ at 9:9-14. Wesco asserts that toxic dust is undeniably a pollutant.

Ingram contends that “waste” means sewage, pointing to the California Court of Appeal’s interpretation of the term used in an identical pollution exclusion in Griffin Dewatering Corporation v. Northern Insurance Company of New York, 176 Cal. App. 4th 172, 204, 97 Cal. Rptr. 3d 568 (2009). See Ingram MSJ at 19:7-12. Moreover, it argues that the final sentence of the definition—”Waste includes materials to be recycled, reconditioned or reclaimed”—signals that “‘waste’ refers to ‘industrial byproducts,’ not organic matter that might have caused contamination,” such as dust and debris created by a natural event Id. [*12]  at 19:14-20.

But the toxic dust need not be “waste” to be a pollutant. The policy defines “pollutants” as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” Policy at 057 (emphasis added). “Any” is ordinarily understood to be an expansive term; the Merriam-Webster dictionary defines it as “one or some indiscriminately of whatever kind” or “unmeasured or unlimited in amount, number, or extent.” Any, Merriam-Webster, https://www.merriam-webster.com/dictionary/any (last visited June 14, 2022). And the word “including” does not limit pollutants to “waste”—or any other matter on the list. “Including” is generally not understood to be a limiting term, nor is it defined as one. Merriam-Webster defines “include” as “to take in or comprise as part of a whole or group.” Include, Merriam-Webster, https://www.merriam-webster.com/dictionary/include (last visited June 14, 2022). In this context, a layperson would understand the word as indicating some (but not all) examples of pollutants—a non-exhaustive list of solid, liquid, gaseous or thermal irritants or contaminants. Importantly, she would understand, based [*13]  on the word “including,” that the list did not exclude other matters—for example, dust.

MacKinnon cautions courts not to be held hostage by the dictionary definitions of key terms in the pollution exclusion, however. See 31 Cal. 4th at 649 (“Although examination of various dictionary definitions of a word will no doubt be useful, such examination does not necessarily yield the ‘ordinary and popular’ sense of the word if it disregards the policy’s context.”). It instructs the court to “put itself in the position of a layperson and understand how he or she might reasonably interpret the exclusionary language.” Id.

A layperson would interpret “toxic dust” to be an irritant or contaminant. Dust on its own can irritate a person or contaminate an area; allegedly toxic dust even more so. This reading is supported by other California courts that also recognized dust as a pollutant as defined by pollution exclusions. See, e.g., Cold Creek Compost, Inc. v. State Farm Fire & Cas. Co., 156 Cal. App. 4th 1469, 1486, 68 Cal. Rptr. 3d 216 (2007) (holding that dust from a compost facility that spread to area homes was a pollutant); Garamendi, 127 Cal. App. 4th at 485-86 (holding that silica dust fell within the “broad definition of ‘any solid, liquid, gaseous, or thermal irritant or contaminant'” and was identified in federal regulations as an air contaminant).

Considering the [*14]  policy exclusion’s expansive language, the general understanding of dust as an irritant or contaminant, and other courts’ interpretation of dust as a pollutant, in this context a layperson would understand toxic dust to be a pollutant as defined by the policy.6


The next question is whether Vargas’s injury was caused by the “actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape” of that toxic dust. See Policy at 081. The parties focus on two of those actions: “release” and “dispersal.” See Wesco MSJ at 9:15-16; Ingram MSJ at 16:4-9.

Two cases are particularly helpful here. MacKinnon examined “release” in the context of pesticides sprayed at an apartment building. 31 Cal. 4th at 639-40. The court first turned to the Webster’s Dictionary definition: “the act of liberating or freeing: discharge from restraint.” Id. at 650. It determined that the word “release” (and “escape,” which was also at issue) “connote some sort of freedom from containment” and that it “would be unusual to speak of the normal, intentional application of pesticides as a ‘release’ or ‘escape’ of pesticides.” Id. at 651.

In Villa Los Alamos, the question was whether asbestos was “released” during the scraping [*15]  of acoustical “popcorn” ceilings in an apartment building. 198 Cal. App. 4th at 527. The Court of Appeal held that it was, writing that a reasonable insured would understand a release to occur when “the scraping of acoustical ceiling material freed asbestos from containment” and the asbestos “became airborne and spread” throughout the building and onto its exterior grounds. Id. at 540. The court noted that widespread dispersal was not necessary for a release to occur, as there was “no safe level of exposure to asbestos.” Id.

Ingram’s overarching argument is that in order for a pollutant to be released, it must move from a contained to uncontained state under MacKinnon, and because the toxic dust was never contained, it could not be released. See Ingram MSJ at 19:23-20:15. It points to various dictionary entries defining “contain” as to “confine” or “have within,” and “containment” as “the act of containing: restraint, constraint, control.” Ingram Reply [Dkt. No. 26] 2:1-3:5. According to Ingram, there was no such restraint, constraint, or control of the toxic dust, as it was “freestanding on open ground” until the removal work began. See Ingram MSJ at 16:4-7.

Wesco points to Villa Los Alamos to argue that the toxic dust was released [*16]  because it was disturbed during the cleanup operation. See Wesco MSJ at 9:21-10:1. According to Wesco, the toxic debris “was going nowhere absent massive cleanup operations.” See Wesco Reply [Dkt. No. 25] 8:1-4. It then argues that the dust was a byproduct of that debris “and thus by definition had been contained within the mountains of removed debris.” Id. at 8:4-7.

The underlying allegations mirror the release of the asbestos in Villa Los Alamos. Vargas contends that as workers loaded debris into his truck, “they stirred up clouds of dust, which then came into [his] truck through its ventilation system.” Vargas Compl. ¶ 22; see also ¶ 24 (describing “the dust clouds created during the loading of [his] truck”). Moving the debris is akin to scraping the ceiling; both caused the pollutant at issue to become airborne and spread. In Villa Los Alamos, the asbestos spread inside and around the apartment building. 198 Cal. App. 4th at 540. At the work site, the toxic dust spread around and inside Vargas’s truck. Vargas Compl. ¶ 23. Moreover, like the asbestos in Villa Los Alamos, the allegations in Vargas’s complaint indicate that there was no safe level of exposure to the toxic dust, as shown by the protective [*17]  gear that workers wore and air monitoring stations located around the worksite. See id. ¶¶ 15-16.

Ingram looks to MacKinnon, but the dictionary definitions that Ingram offers are not dispositive. Whether the dust was contained within the debris or sitting on top of it is a distinction without a difference—moving the debris (and thereby causing the dust to become airborne and spread) allegedly caused Vargas’s injury, as did scraping the ceiling (and thereby causing the asbestos to become airborne and spread) in Villa Los Alamos. Accordingly, a layperson would consider the toxic dust “released” as alleged in Vargas’s complaint.7


The critical question set forth in MacKinnon is whether the alleged injury arises from an event “commonly thought of as pollution”—i.e., “environmental pollution” or an “act of pollution.” See 31 Cal. 4th at 653-54. The MacKinnon court drew a distinction between injuries resulting from environmental pollution, which fall within pollution exclusions, and “ordinary acts of negligence involving toxic chemicals,” which do not. See id. at 639. Otherwise, the court held, the literal reading of pollution exclusions could yield absurd and unreasonable results. See id. at 650. It offered some examples:

The application [*18]  of iodine onto a cut through an eyedropper may be literally characterized as a discharge or release of an irritant. . . . A child’s accidental ingestion of a pesticide or other toxic substance negligently left in an empty soft drink bottle would be barred. Yet few if any would think of these injuries as arising from “pollution” in any recognizable sense of that term.

Id. The court further noted that the terms “discharge, dispersal, release or escape,” when used alongside “pollutant,” “commonly refer to the sort of conventional environmental pollution at which the pollution exclusion was primarily targeted.” Id. at 653. In order to determine whether a pollution exclusion applies—whether the injury arose from environmental pollution or an ordinary act of negligence involving a harmful substance—the court “must attempt to put itself in the position of a layperson and understand how he or she might reasonably interpret the exclusionary language.” See id. at 649.

MacKinnon acknowledged that “terms such as ‘commonly thought of as pollution,’ or ‘environmental pollution,’ are not paragons of precision, and further clarification may be required.” Id. at 654. In evaluating the case at hand, the court admitted that “pesticides may [*19]  be pollutants under some circumstances.” See id. However, it ultimately concluded that the pollution exception did not apply, as a reasonable policyholder would not think that the “normal application of pesticides around an apartment building in order to kill yellow jackets,” although negligent, was an act of pollution. See id.

In Villa Los Alamos, the Court of Appeal held that releasing asbestos by scraping ceilings was not akin to an “ordinary” act of spraying pesticides. 198 Cal. App. 4th at 537. Several factors played into the court’s decision. First, it cited the awareness of both the homeowners’ association and contractor that the ceiling contained asbestos. See id. Next, given the strict regulation of “renovation or demolition activity which disturbs asbestos-containing constructional materials,” the court noted that it was “highly unlikely that a homeowner, on his or her own, could remove acoustical ‘popcorn’ ceiling containing asbestos without violating a myriad of laws.” See id. at 538. Conversely, a homeowner could, on her own, purchase and apply pesticides at her home to kill insects. See id. at 537-38. In addition, the court considered the spread of the asbestos—which “instantly became a health hazard” upon release—throughout [*20]  the building and surrounding grounds, parking lots, and street. Id. at 540. Taken together, the court held, “the release of asbestos here would comport with the common understanding of the word ‘pollute.'” Id.

Again, the matter at hand parallels Villa Los Alamos. Vargas alleges that CalRecycle and the contractors, including Ceres, knew that the debris was hazardous and that airborne toxins were a concern, as indicated by the decontamination zones, air monitoring stations, and workers who wore protective equipment. See Vargas Compl. ¶¶ 15-16, 18. That last detail is particularly important. Since workers were provided protective equipment and required to wear it while handling the debris to avoid exposure to any dust, a reasonable layperson would consider the activities that released that dust as hazardous.

Vargas’s complaint also alleges that the cleanup effort was subject to “regulations to ensure appropriate worker protections,” including one aimed at preventing “atmospheric contamination.” See Vargas Compl. ¶ 30 (citing Cal. Code Regs. tit. 8, § 5144). Moreover, like the asbestos in Villa Los Alamos, the efforts to prevent workers’ exposure to the dust—again, as shown by the protective equipment and air monitoring stations—indicates [*21]  that there was no safe level of exposure to the toxic dust. Id. ¶¶ 15-16; see also 198 Cal. App. 4th at 540. And, as I have already explained, the workers’ actions spread the dust—not only in and around Vargas’s truck at the work site, but also to the disposal location. See Vargas Compl. ¶ 23.

Taking all of this into account, a reasonable layperson would understand that the release of toxic dust clouds during the removal of debris left behind by a wildfire was an act of pollution rather than an ordinary act of negligence involving toxic chemicals. Releasing toxic dust during a massive cleanup effort is not the same as spraying pesticides around an apartment building to kill yellow jackets. It is more akin to the silica dust that was an “incidental byproduct” of the industrial operation in Garamendi, the dust and odor that spread to other properties in Cold Creek, and the asbestos that was released in Villa Los Alamos—all of which were deemed acts of pollution falling within pollution exclusions. See Garamendi, 127 Cal. App. 4th at 486; Cold Creek, 156 Cal. App. 4th at 1471; Villa Los Alamos, 198 Cal. App. 4th at 540.

Ingram makes two additional arguments that merit brief attention. First, it contends that the pollution exclusion does not apply to toxic exposure in the workplace. See Ingram MSJ at 16:10-17:17. Garamendi appears to foreclose this. [*22]  Although the procedural posture differed in Garamendi—it focused on applications for orders to show cause why the insurance claims should not be allowed, not summary judgment—the court took no issue with the alleged injuries arising from the underlying plaintiffs’ exposure to silica dust “at and throughout their employment.” See 127 Cal. App. 4th at 483-84. Ingram cites no California authority countering Garamendi.

Next, Ingram argues that the pollution exclusion does not apply to toxic exposure that occurs during the remediation of hazardous substances. Ingram MSJ at 17:19-18:20. It relies solely on a case from Louisiana in making this point. See id. But Ingram overreads that decision as it relates to the pollution exclusion. The court held that because the plaintiff was injured “by entering the area” where chemicals were contained, and because those chemicals had not been discharged, dispersed, or released, or otherwise escaped, a pollution exclusion did not apply. See Sandbom v. BASF Wyandotte, Corp., 674 So. 2d 349, 363-64 (La. Ct. App. 1996). It did not, as Ingram asserts, declare that pollution exclusions did not apply to cleanup efforts. And in any case, a state court decision from Louisiana is not binding here.

Wesco has shown that the underlying claim cannot fall within the policy coverage because [*23]  the alleged acts giving rise to Vargas’s injury—the release of toxic dust—constitute environmental pollution under MacKinnon and its progeny. Ingram has failed to show a potential for coverage—i.e., that this was an ordinary act of negligence. Under Montrose, Wesco has met its burden. See 6 Cal. 4th at 300. Ingram has not.

Wesco’s motion for summary judgment is GRANTED and Ingram’s is DENIED. The toxic dust is a pollutant as defined by the policy and was released when the workers loaded the debris into Vargas’s truck. Beyond dictionary definitions and the case law, a reasonable layperson would understand that the release of toxic dust during the removal of debris left behind by a wildfire was environmental pollution. The pollution exclusion therefore applies. Wesco does not owe Ingram a duty to defend in the underlying action.


Judgment shall be entered in favor of Wesco and against Ingram in accordance with this Order.


Dated: June 15, 2022

/s/ William H. Orrick

William H. Orrick

United States District Judge

End of Document

Wesco and Ingram stipulated to the admissibility, authenticity, and foundation of several documents for the purposes of determining their cross-motions for summary judgment, including the insurance policy at issue, Vargas’s complaint, Ceres’s cross-complaint, and correspondence between Ingram and Wesco regarding the Vargas lawsuit. See Dkt. No. 21.

The page numbers reference the Bates numbers.

The parties agree that, as alleged, Vargas suffered a “bodily injury” implicating Coverage A. See Wesco MSJ at 8:21-23; Ingram Mot. for Summ. J. (“Ingram MSJ”) [Dkt. No. 22] 3:8-10.

I will refer to this as “the pollution exclusion.”

The parties do not dispute that because Ceres’s cross-complaint included no new allegations and instead attached Vargas’s complaint as an exhibit, the allegations within Vargas’s complaint are relevant to the motions at hand. See Wesco MSJ at 7:2-11; Ingram MSJ at 5:24-6:2.

Ingram also argues that the pollution exclusion does not apply because sarcoidosis may be caused by factors other than chemical exposure, such as bacteria, viruses, or genetics. See Ingram MSJ at 13:1-14:12 (citing Barnum Decl., Ex. A). But an insured “may not trigger the duty to defend by speculating about extraneous ‘facts’ regarding potential liability.” Gunderson v. Fire Ins. Exch., 37 Cal. App. 4th 1106, 1114, 44 Cal. Rptr. 2d 272 (1995). As alleged, Vargas was in “excellent health” before he worked on the cleanup project, and developed sarcoidosis as a result of the dust exposure. See Vargas Compl. ¶¶ 3, 33, 41. Ingram cannot speculate otherwise. Even if the dust exposure only partially caused Vargas’s sarcoidosis, the pollution exclusion applies to bodily injury “which would have not occurred in whole or part but for” the alleged “discharge, dispersal, seepage, migration, release or escape” of a pollutant. See Policy at 081.

Because the dust was released as required to trigger the pollution exclusion, I need not determine whether it was also dispersed. The exclusion requires only one of the causal mechanisms be present. See Policy at 081 (listing the “actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants’ at any time”) (emphasis added).

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