JEFFREY A. WARNER, Plaintiff,
COVESTRO LLC f/k/a BAYER MATERIALSCIENCE LLC et al., Defendants.
Defendant Covestro's Motion for Summary Judgment
Honorable Calvin L. Scott, Jr.
Jeffrey A. Warner cannot satisfy the summary judgment
Covestro was the premises owner or successor in interest to
one or more prior owners of Mobay Chemical Plant when
Plaintiff worked at Mobay between 1979 and 2014. In 1979
Plaintiff worked at Mobay for approximately six months as a
permit-hand iron worker employed by Dravo Corp., a third
party contractor. During this time period Plaintiff claims he
removed insulation from old equipment and piping. He
testified that he received instruction from Dravo supervisors
and Dravo supplied the equipment and materials. Plaintiff
claims that some insulation contained asbestos, but he did
not receive training in distinguishing non-asbestos versus
asbestos containing insulation until the 1990s. Plaintiff
also worked at Mobay in 1986 for two years as a contract
engineer for Midwest Tech. Plaintiff prepared designs and
recommended the purchase of equipment. Plaintiff stated that
he reported to two Mobay employees during this job, and he
claims that he removed insulation on adjacent lines in order
to determine valve capacity. Plaintiff was hired by Mobay in
1988 as a fulltime process Control Technician, and worked in
this capacity through November 2014.
argues that any claim for an injury after 1988 is barred
under West Virginia's worker-compensation statute.
Additionally, Defendant contends that Plaintiff provided no
credible or admissible evidence that the insulation contained
asbestos. The parties stipulated that Covestro is entitled to
summary judgment on exposure after May 1988, and therefore
the rest of this motion is based on exposure before May 1988.
In response, Plaintiff's argue that at least eight
bankrupt manufacturers of asbestos containing products list
the Mobay facility as a "conceded site" for
purposes of claims against their estate. Plaintiffs contend
that this fact shows that "[c]learly, a significant
amount of asbestos was present on site."
beyond Mr. Warner's belief that the products he worked on
contained asbestos, the record is void of evidence that a
jury could infer Mr. Warner worked with asbestos insulation.
Plaintiffs contend that Mr. Warner received training in the
1990s, and "[t]here is no reason that Mr. Warner could
not apply subsequently learned knowledge to retroactively
alternative, Defendant argues that even if the Court finds
that Plaintiff presented sufficient evidence to create a
genuine issue of fact regarding asbestos exposure,
Plaintiff's claims are barred under West Virginia law.
Under West Virginia law "the occupier of premises
employing an independent contractor has the duty of providing
a reasonably safe place to work, " which includes
"the duty to warn of latent defects existing before the
work is started that are known to the employer, but are not
readily observable by the employee." Similarly,
"[t]he employer of an independent contractor will also
be liable to such contractor's employee if he retains
some control or supervision over the work which negligently
injures the employee, " or the injury was "caused
by the negligence of the employer." Defendant argues
that there is no evidence in the record to show that Covestro
was negligent or otherwise in control over the work.
Plaintiff argues that evidence of asbestos exposure alone
creates a genuine issue of fact as to a negligence claim
against Covestro. Under West Virginia law, "a property
owner only has a duty to turn over a reasonably safe
workplace to an independent contractor; the property owner
generally cannot be held liable for any hazards created by
the independent contractor." When "determining
whether a workman is an employee or an independent
contractor, the controlling factor is whether the hiring
party retains the right to control and supervise the work to
be done." Here, Plaintiff worked for a third party
at the plant, and received instruction from third party.
Based on the evidence before the Court, there is no evidence
Defendant engaged in negligent conduct to be held liable for
for the aforementioned reasons, Defendant's Motion for
Summary Judgment is hereby GRANTED.
IT IS SO ORDERED.
 Super. Ct. Civ. R. 56; Smith v.
Advanced Auto Parts, Inc., 2013 WL 6920864, at *3 (Del.
Super. Dec. 30, 2013); see Moore v. Sizemore, 405
A.2d 679, 680 (Del. 1979); Nutt v. A.C. & S.,
Inc., 517 A.2d 690, 692 (Del. Super. Ct. 1986); In
re Asbestos Litigation (Helm), 2012 WL 3264925 (Del.
Aug. 13, 2012).
 Pasquale v. Ohio Power Co.,
418 S.E.2d 738, 750-51 (W.Va. 1992).
 Id. at 751.
France v. Southern Equiptment
Co., 689 S.E.2d 1, 11 (W.Va. ...