938-40. Professor Larson was an outspoken critic of the "dual capacity" doctrine but argued that "an employer may become a third person, vulnerable to tort suit by an employee, if -- and only if -- he possesses a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person." 2A Arthur Larson & Lex K. Larson, The Law of Workmen's Compensation § 72.81, at 14-290.88 (1995). "The question," Larson noted, "is not one of activity, or relationship -- it is one of identity." Id. at 72.81(a), at 14-290.91. Larson cautioned that "if the dual persona doctrine is to apply it must be possible to say that the duty arose solely from the nonemployer persona." Id. at 72.81(c), at 14-290.109. He agreed, however, that this criterion was met in Billy and approved of the analysis and the result in that case and other cases in which the allegedly liable third party had merged with the employer. Id. at § 72.81(b) and nn.13-14, at 14-290.94 - 14.290.100.
Other cases that have allowed actions to proceed have followed similar rationales. In Gurry, the plaintiffs' decedent Kevin Gurry was killed in January 1985 while operating a "sanding buggy" on a cranberry bog in the course of his employment. 550 N.E.2d. at 616-17. Gurry had been hired in March 1984 by United Cranberry Growers Associates, Inc. ("United"), which then owned the bog in which Gurry was eventually killed. The sanding buggy had been built for United in 1983 at the direction and with the assistance of an officer of Cumberland Farms Dairy, Inc. ("Dairy"). It was owned by United. Id. at 618. Dairy provided administrative and managerial services to United for a regularly billed fee. United, Dairy, and other corporations were wholly-owned subsidiaries of Delaware Food Store, Inc. Id. at 617-18. In September 1984, United and Dairy merged with Delaware Food Store, which then merged with the defendant Cumberland Farms. Id. at 617-18. Thus, at the time of his death, Gurry was employed by Cumberland Farms. He had never worked for Dairy. Id. at 618.
The plaintiffs sued Cumberland Farms, alleging in part that Curry's injuries had been caused by the negligence of United and Dairy in the design, manufacture, and maintenance of the buggy. Id. at 131. Cumberland Farms argued that, as Curry's employer at the time of his death and as the successor to United, it was immune to the action under the exclusivity provision of Massachusetts's worker's compensation law. Id. at 130. The Supreme Judicial Court of Massachusetts held that the plaintiffs could proceed with their action against Cumberland Farms as the successor to Dairy. It expressly adopted the dual persona theory and observed that to bar suit "would subvert the important aims of both the workers' compensation system and the business corporation statute." Id. at 131. However, the court held, the plaintiffs could not continue against Cumberland Farms in its capacity as the successor to United because, as to that portion of the plaintiffs' claims, Cumberland Farms had also succeeded to United's immunity as Gurry's employer. Id.
In Thomas, the plaintiff was injured while working for the defendant Tyson Foods in May 1987. He alleged that his injuries were caused by the condition of a truck trailer that was owned by and had been modified by the defendant Valmac Industries. Valmac merged with Tyson in May 1988. 812 S.W.2d at 673. Thomas sued Valmac and named Tyson as the successor to Valmac's liabilities. The Arkansas Supreme Court adopted the dual persona doctrine and reversed the trial court's dismissal of the action. In so doing, the court cited to Billy and to Professor Larson's work. Id. at 675-76. It stated that the argument for application of the doctrine was stronger on the facts before it than in Billy, as the Valmac-Tyson merger did not occur until one year after the accident. Id. at 676. "Thomas," the court noted, "clearly had a third-party claim against Valmac at the time he sustained his injury." Id.
This Court predicts that, consistent with these cases, the Supreme Court of Pennsylvania would adopt the dual persona doctrine and hold that where, as here, a person alleges that he or she has been injured in the course of his employment through the negligence of a third party and the third party has merged with the employer subsequent to the injury, an injured employee may proceed with an action against his employer in its personality of successor to the third party. The Pennsylvania Supreme Court has repeatedly noted in the context of awards of benefits that the WCA is remedial in nature and is intended to benefit workers. Martin v. Workmen's Compensation Appeal Board, 539 Pa. 442, 652 A.2d 1301, 1303 (Pa. 1995); Lehigh County Vo-Tech School v. Workmen's Compensation Appeal Board, 539 Pa. 322, 652 A.2d 797, 799 (Pa. 1995). The WCA involves a trade-off:
[The WCA] substitutes a relatively quick and inexpensive scheme to provide certain compensation for lost earnings, in place of the common law process under which any damages would be recoverable only after a suit against the appropriate parties, subject to available defenses and, of course, any expenses and delays inherent in the system. Under this scheme, employees are able to obtain compensation without regard to fault -- either their own, that of a third party, or even the lack of fault on the part of the employer -- while employers are subject to the payment of benefits at a set rate, receive immunity from being otherwise subjected to liability for damages, and have a right of subrogation to the extent of compensation paid in the event that a third party is held responsible for the injury.
Hankee v. Wilkes-Barre/Scranton International Airport, 532 Pa. 494, 616 A.2d 614, 617 (Pa. 1992). Third parties are not part of this exchange. The WCA preserves the right of an injured worker to bring an action at law against a third party who would ordinarily be legally responsible for the worker's injuries. Heckendorn v. Consolidated Rail Corp., 502 Pa. 101, 465 A.2d 609, 613 (Pa. 1983).
The extension of the immunity of § 481(a) to preclude this action would be contrary to the remedial purpose of the WCA. It would give an acquiring employer in the position of RPI an additional benefit beyond those intended by the legislature. At the same time, it would deny the employee his legislatively recognized right to recover fully from a liable third party.
RPI is not immune from this action. Thomeier was injured on October 14, 1993. As of that date, Specialty had a corporate existence separate from that of RPI. Thomeier alleges that Specialty was the possessor of the land in Oil City and that Specialty breached the duty that it owed to him as a business invitee. Subsequent to the accident -- and subsequent even to Thomeier's filing of this action -- Specialty and RPI merged, and Specialty ceased to exist. Were RPI to be immune under these circumstances, Thomeier would be denied all access to potential benefits that the legislature intended him to have.
The courts in other states that have barred an employee's action have relied on several different rationales. In Hatch, the plaintiff was injured when fumes from an underground gas tank at his workplace leaked and caused an explosion. The tank had been installed by a previous occupant, which had subsequently merged into the plaintiff's employer. The plaintiff sued his employer as the successor to the previous occupant. 609 A.2d at 1156. Although it recognized a potential conflict with the law of other jurisdictions, the Supreme Judicial Court of Maine refused to allow the action to proceed. It observed that the duty that the predecessor was alleged to have breached -- the duty to provide a safe workplace -- was identical to the employer's duty under the workers compensation act. Id. at 1157. Absent some difference between the duty owed by the third party and the duty owed by the employer, the court held, the plaintiff had not alleged a separate persona and could not be allowed to proceed. Id.
The Caraccioli court, whose decision predated that of the Florida District Court of Appeal in Percy by seven weeks, briefly considered application of the dual persona doctrine but rejected it because no state court had yet accepted it. 761 F. Supp. at 122.
The Davis court, like the Hatch court, recognized that its decision was contrary to that of several other courts. 704 S.W.2d at 414-15. It pointed to the voluntary nature of Texas's worker's compensation system
and the exclusive nature of the remedy once the system is accepted and reasoned that adherence to the exclusivity provision was reinforced by Texas's rejection of the "dual capacity" doctrine. Id. at 415. The court concluded "that the corporate merger statutes were not intended to be used to circumvent the clear public policy expressed in the Workers' Compensation Act." Id.
The "dual persona" doctrine, as identified by Professor Larson and in Billy and its progeny, offers the better-reasoned approach. In contrast to the plaintiff in Hatch, Thomeier has alleged that Specialty breached a duty that it owed him independently of any duty owed him by RPI as his employer. Furthermore, unlike the Davis court, this Court believes that the interest in preserving the exclusivity of the remedy provided by the WCA is outweighed in this situation by the remedial nature of the WCA and the clear intent of the legislature that injured workers should be able to recover fully for their injuries from liable third parties. Moreover, the justification for allowing this action to proceed is stronger than was the justification in Billy, where the relevant mergers predated the employee's injury. See Thomas, 812 S.W.2d at 676.
Therefore, the motion to dismiss will be denied.
An appropriate order will follow.
MC LAUGHLIN, J.
AND NOW, this 5th day of June, 1996, for the reasons stated in the accompanying Memorandum, IT IS HEREBY ORDERED that Defendant's Motion to Dismiss Complaint [Doc. 5] is DENIED.
Sean J. McLaughlin
United States District Judge