Carmelo Ayala v. Lockheed Martin Corporation, individually and as successor-in-interest to Martin Marietta Corporation; Martin Marietta Aluminum, Inc., and Martin Marietta Aluminum Properties, Inc.; Martin Marietta Corporation individually and as successor-in-interest to Martin Marietta Aluminum, Inc.; and Martin Marietta Aluminum Properties, Inc.; Martin Marietta Aluminum, Inc.; Martin Marietta Aluminum Properties, Inc.; and General Engineering Corporation

• Court: Superior Court of The Virgin Islands
• Decided: March 3, 2020
• Docket: SX-08-CV-296
• Status: Published

Opinion

FOR OFFICIAL PUBLICATION

SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST CROIX

CARMELO AYALA ) CASE NO SX 08 CV 296 I Plaintiff ] COMPLEX LITIGATION DIVISION I v ) at: a: a: ) Coordinated Under In re Alumina LOCKHEED MARTIN CORPORATION ) Dust Claims Master Case No SX 09 individually and as successor in interest ) MC 031 to MARTIN MARIETTA CORPORATION ) MARTIN MARIETTA ALUMINUM INC and ) MARTIN MARIETTA ALUMINUM ] PROPERTIES INC MARTIN MARIETTA ) CORPORATION individually and as ) successor in interest to MARTIN ) MARIETTA ALUMINUM INC and MARTIN ) MARIETTA ALUMINUM PROPERTIES INC ) MARTIN MARIETTA ALUMINUM INC ) MARTIN MARIETTA ALUMINUM ) PROPERTIES INC and GENERAL ] ENGINEERING CORPORATION ) I Defendants ) ) Cite as 2020 VI Super 32

Appearances

THOMAS ALKON ESQ Law Office ofThomas Alkon P C Christiansted VI 00820 For Mama/T

KOREYA NELSON ESQ Bums Charest LLP New Orleans LA 70130 For Fianna}?c

WARREN T BURNS ESQ DANIEL H CHAREST ESQ Burns Charest LLP Dallas TX 75202 For Plazntsz Ayala v Lockheed Martin Corp 2020 Vi Super 32 sx 08 CV 296 MEMORANDUM OPINION Page 2 of 10

I RUSSELLB FATE ESQ The Pate Law Firm St Thomas VI 00804 For Plaintiff

KEVlNA RAMES ESQ SEMAII JOHNSON ESQ KA Rames P C Christiansted V100820 For Lockheed Martin Corporation

GREGORY K WU ESQ (pro hac Vice) Shook, Hardy & Bacon Kansas City MO 64108 For Lockheed Martin Corporation

EUGENIO WA GEIGEL SIMOUNET ESQ GS Law Offices P C Gallows Bay V] 00824 For General Engineering Corporation

MEMORANDUM OPINION MOLLOY judge 1l1 BEFORE THE COURT is a motion filed by Lockheed Martin Corporation [ LMC) for summary judgment based on the exclusive remedy provision of the Virgin Islands Workers Compensation Act (VIWCA ) LMC contends that it is immune from suit because one of its predecessors Martin Marietta Corporation [ MMC ] acquired two of its own subsidiaries Martin Marietta Aluminum Inc (MMA) and Martin Marietta Aluminum Properties, Inc (MMAP) (collectively Martin Marietta entities or Martin Marietta Defendants D, who paid workers compensation premiums and employed Carmelo Ayala [ Plaintiff or Ayala ) LMC contends that it inherited the Martin Marietta entities coverage and their immunity from suit and therefore judgment should be entered in its favor Ayala concedes that he worked for MMA and MMAP and that his claims against them are barred, but he counters that his claims against MMC should still proceed and opposes LMC s 'inheritance argument Both parties failed to tailor their arguments to the evidence they submitted however Even though this case was designated as the lead case for purposes of deciding whether workers compensation insurance coverage can be inherited by a Ayala v Lockheed Martin Corp 2020 v1 Super 32 3x 08 CV 296 MEMORANDUM OPINION Page 3 of 10

successor company see generally Ayala v Lockheed Martin Corp 67 VI 290 (Super Ct 2017), the Court does not have to resolve that issue for this case because the evidence shows that Ayala only worked for MMAP for less than a year and at the end of the time period when he claims he was exposed to bauxite and other industrial dusts Thus LMC s immunity defense may not apply The record may support entering summary judgment on another ground however because the evidence also shows that Ayala worked at the St Croix alumina refinery for less than a year and that may be insufficient as a matter of law to recover damages from LMC So the Court gives notice that it is considering granting summary judgment on its own, on grounds not raised by the parties Cf. VI R Civ P 56(f][2) (3) I FACTUAL AND PROCEDURAL BACKGROUND 1i2 Ayala commenced this civil action on June 9 2008 claiming continuous[] expos[ure] to bauxite dust containing silica, alumina dust and asbestos dust and fibers [d]uring [his] employment (Compl 1i 3 ) Ayala alleges that he was employed at the alumina processing plant on St Croix U 8 Virgin islands [b]etween 1972 1985 Id 11 1 He also alleges that he developed pneumoconiosis and has an increased risk of developing [an] even more serious and/or fatal disease or illness as a proximate result ofhis exposure Id 1i 5 And he seeks damages, including punitive damages from LMC [individually and as successor in interest to MMC, MMA and MMAP) and General Engineering Corporation ( GEC ) He also named MMC individually and as successor in interest to MMA and MMAP as well as MMA and MMAP individually all ofwhom no longer exist Cf. In re Alumina Dust Claims 2019 VI Super 139 1i 21 ( Alumina Dust II ) (noting that MMAP MMA and MMC did not exist when the Plaintiffs filed their complaints ) 113 LMC appeared and filed an answer on its own behalf and on behalf of the Martin Marietta [See Def Lockheed Martin Corp 3 Answer 1i 4 ( Lockheed Martin admits that it is successor in interest to Martin Marietta Corporation Martin Marietta Aluminum Inc and Martin Marietta Aluminum Properties Inc )] GEC also appeared and filed an answer but was later dismissed by stipulation in April 2012 In the interim, Ayala 3 case was grouped with several other cases under a master case, In re Alumina Dust Claims Master Case No 5X 09 MC 031, all involving former alumina plant employees claiming damages from alleged exposure to toxic dusts during their employment Ayala v Lockheed Martin Corp 2020 Vi Super 32 SX 08 CV 296 MEMORANDUM OPINION Page 4 of 10

at the former alumina refinery on St Croix Alumina Dust II 2019 VI Super 139 at if 6 (quoting In re Alumina Dust Claims 67Vl 172 175 (Super Ct 2017)) 114 After the cases were grouped together and assigned to the same judge LMC filed identical motions for summary judgment in every case asserting the workers compensation bar as a defense The Court (Willocks, I ) heard argument on the inheritability of workers compensation insurance and gave the parties leave to file supplemental briefing Cf Daniel v Bonnquen Insulation Co SX 98 CV 192 et al 2017 V] LEXIS 117 (VI Super Ct july 28 2017) The Court later designated this case as the lead case to address that issue And once the Alumina Dust cases were transferred to the Complex Litigation Division and reassigned to the undersigned Judicial officer, this Court questioned after considering a stipulation filed in the master case by some but not all Plaintiffs, attempting to dismiss some but not all Martin Marietta entities and not the same entities from each case whether all Martin Marietta defendants should be dismissed See generally Alumina Dust II 2019 VI Super 139 The Plaintiffs responded and agreed to dismissing the Martin Marietta defendants LMC was given additional time to respond to the Plaintiffs supplemental brief concerning successor liability but ultimately did not file a reSponse ll LEGAL STANDARD 115 The legal standard for summary judgment is well established Greene v V] Water & PowerAuth 65 VI 67 72 (Super Ct 2016) aff’d on othergrouna’s 67Vl 727 (2017) Motions are governed by Rule 56 of the Virgin Islands Rules of Civil Procedure Hawkins v Gremer 66 V1 112 116 (Super Ct 2017) Rule 56 requires the Court to grant summary judgment ifthe movant shows that there is no genuine dispute as to any material fact Id (quoting V l R Civ P 56(a)) (citing Walters v Walters 60 VI 768 794 (2014)) ‘A fact is material if it can affect the outcome of the case Bard v Antilles Yachting Servs Inc, 57 VI 354, 360 (2012) And [a] factual dispute is deemed genuine if a reasonable jury could return a verdict for the nonmoving party Hawkins 66 V I at 116 (quoting Greene 65 V l at 73) 116 To carry its burden the moving party must identify where the pleadings, the discovery and disclosure materials on file and any affidavits show that there is no genuine issue as to any material fact that must be decided by a jury United Corp v Hamed 64 VI 297 309 (2016) (quoting Williams v United Corp , 50 V I 191, 194 (2008)) The moving party 5 initial burden may also be met Ayala v Lockheed Martin Corp 2020 VI Super 32 5X 08 CV 296 MEMORANDUM OPINION Page 5 of 10

by merely pointing out to the court that there is an absence of evidence to support the non moving partys case Greene 65 VI at 73 (ellipsis and citation omitted) The party opposing summary judgment must present affirmative evidence from which a jury might reasonably return a verdict in his favor Chapman 58 VI at 436 see also Alexander v Alexander, 65 VI 372 378 (2016) ( Only if the movant meets this burden must the non moving party introduce some evidence showing a genuine issue for trial ") 1j7 The Court 3 role in deciding a motion for summary judgment is not to determine truth, but rather to determine whether a factual dispute exists that warrants trial on the merits Hawkins 66 V] at 116 Summary judgment is determined according to the substantive law Perez v Ritz Carlton (VI) Inc 59 VI 522 528 (citingSeaIey Christian v Sunny Isle Shopping Ctr Inc 52 VI 410 419 (2009)) Accordingly, all facts, and all reasonable inferences drawn from them, must be viewed in the light most favorable to the nonmoving party and the Court must take the non moving party 5 conflicting allegations as true if supported by proper proofs Greene 65 V I at 73 (brackets omitted) (quoting Brodhurst v Framer 57 VI 365, 368 69 (2012)) But even a single, non conclusory affidavit or witness s testimony when based on personal knowledge and directed at a material issue is sufficient to defeat summary judgment or judgment as a matter of law Bard 57 VI at 360 (citation omitted) III DISCUSSION 1i8 LMC contends that summary judgment should be entered in its favor because Ayala was an employee of Lockheed Martin 5 predecessors in interest during the time period for which Lockheed Martin s predecessors can he held liable for Plaintiff’s claims (Def Lockheed Martin Corp 5 Mot for Summ jgmt 1 filed july 15 2011 (hereinafter Mot ])LMC asserts that all ofits predecessors in interest none of which currently exist participated in the Virgin Islands Workmen 5 Compensation Fund Id Thus Ayala 5 claims are barred by the exclusive remedy provision of the Workmen 3 Compensation Act Id Consequently, LMC argues that summary judgment must be entered in its favor 1f9 Ayala does not dispute that the VIWCA provide[s] benefits to workers who are injured /disabled during the course of their employment ' (PI s Opp n to Movant’s Mot for Summ I 2, filed Aug 16 2011 (hereinafter Opp n ) ) In fact Ayala even concedes that he was an employee Ayala v Lockheed Martin Corp 2020 Vi Super 32 sx 08 CV 296 MEMORANDUM OPINION Page 6 of 10

of MMA and MMAP and, therefore does not oppose granting summary judgment to them See Id at 1 ( Through discovery it is clear that at the times Plaintiff has alleged tortious acts by Martin Marietta Aluminum inc and Martin Marietta [Aluminum] Properties Inc he was an employee of the entities and they were insured employers’ and Plaintiff does not oppose dismissal of these named Defendants )) But Ayala argues that even though he worked at the Alumina Processing Plant facility on St Croix [Ayala Aff 1i 2 attached as Ex A to Pl 5 Undisputed Facts filed Aug 16 2011) he was never an employee of [MMC] Id 1i 4 And therefore, he opposes granting summary judgment to MMC and by extension, to LMC ‘fl10 The problem here is that the evidence the parties submitted does not support their claims or defenses First Ayala alleged in his complaint that at all relative times [he] was employed at the alumina processing plant on St Croix [b]etween 1972 1985 [Comp] 1T 1, filed lune 9 2008) There is no factual dispute that the Martin Marietta entities operated the St Croix alumina refinery plant between 1972 and 1985 (See P] s Resp to Movant s Undisputed Facts 1i 8 filed Aug 16 2011 ( Plaintiffdoes not dispute the plant ceased operations on May 12 1985 )) Thus the relevant time period for this case is from 1972 to 1985 But the record does not show that Ayala worked on St Croix at the alumina refinery for one or more Martin Marietta entities from 1972 to 1985 Instead the record shows that he worked for MMAP in 1985 and possibly for MMA in 1981 1111 Because LMC as the movant has the burden the Court begins with the evidence it submitted In addition to submitting evidence regarding the corporate history of the Martin Marietta entities LMC also attached as Exhibit E to its summary judgment motion a CD ROM containing a 458 page PDF document ofspreadsheets dating back to 1972 with names and salaries ofemployees ofMartin Marietta entities including social security numbers and other information of the employees From this 458 page document LMC identifies two pages that support its 'inherited' immunity defense documents numbered St Croix LKHM 000497 and St Croix LKl-lM 000613 Document 000497 is page 113 ofan October 22 1981 spreadsheet with no names listed on it while document 000613 is page 112 of a spreadsheet dated November 20 1981, also with no names listed on it Neither document shows that Ayala worked for any Martin Marietta entity and LMC failed to identify any other portion of the 458 page document in support of its motion Contra Chapman, 58 VI 431 at Ayala v Lockheed Martin Corp 2020 VI Super 32 5X 08 CV 296 MEMORANDUM OPINION Page 7 of 10

[ The moving party must identify those portions of the record that demonstrate the absence of a genuine issue of material fact ] 1112 Nonetheless, even though courts do not have an obligation to scour their records to determine whether material facts are in dispute cf Vanterpool v Gov t ofthe VI 63 VI 563 588 n 14 (2015) ( declin[ing] to scour through the record to determine whether any disputed issues of material fact may exist so as to preclude summary judgment ] the Court converted Exhibit E to a searchable document and searched for AYALA and also reviewed those spreadsheets listing MMA employees on St Croix Document number St Croix LKHM 000313 lists an M C Ayala as an employee of MMA as of July 22 1980 who worked in the Special Metals division But no geographic location is listed for the Special Metals division and the spreadsheets do Show employees at other Martin Marietta locations such as Torrance California Lewisport Kentucky and the Dalles Oregon More importantly however, the social security numberlisted for M C Ayala is not the same as the social security number shown for Plaintiffon an itemized statement ofearnings from the Social Security Administration which Ayala attached as Exhibit B to his response in opposition 1 Therefore the Court finds that M C Ayala is not Plaintiff Two other documents numbered St Croix LKHM 000495 and St Croix LKHM 000611 list a C Ayala as an employee of MMA working on St Croix as of October 22 1981 and November 20 1981 respectively However these spreadsheets do not show employee social security numbers Clock number 055581 is listed for C Ayala' on both sheets The Court found no other results for Ayala or his social security number or the 055581 clock number in the 458 pages From this evidence the Court cannot find it undisputed that C Ayala is the Plaintiffand worked for MMA in October and November in 1981 1113 But Ayala did work for MMAP in 1985 Ayala s itemized statement ofearnings shows that he worked for CA Lewisport, LLC [ CA Lewisport ) from 1972 to 1984 and also for the Department of the Army between 1977 and 1979 And then in 1985 he worked MMAP This fact is not in dispute And the parties also agree that the Martin Marietta entities ceased all refinery operations on St Croix in May 1985 Although the record does not reflect when Ayala started working for MMAP, the longest he could have worked for MMAP was five months assuming he was hired in the beginning

1 The records provided are for Carmelo Ayalo not Carmelo Ayala Either the complaint misspelled the Plaintiff's last name the Social Security Administration inserted the wrong name or the records provided are for a different person The parties did not raise an issue Therefore the Court assumes the employment records ofCarmelo Ayalo are Plaintiff’s Ayala v Lockheed Martin Corp 2020 VI Super 32 SX 08 CV 296 MEMORANDUM OPINION Page 8 of 10

ofIanuary 1985 and worked through the end of May 1985 Viewing the evidence in the light most favorable to Ayala the majority of time Ayala claims he exposed to industrial dusts from 1972 to 1985 occurred before he was employed by MMAP 1H4 If Ayala worked for a predecessor to LMC for six months or less, then LMC 3 workers compensation defense may be a red herring and summary judgment might be improper 2 The parties did not review the evidence however Instead they assumed that Ayala like other Alumina Dust Plaintiffs 3 worked for LMC s predecessors throughout the duration of the time he claims he was exposed to bauxite and other industrial dusts Because of this the parties did not address how the Virgin Islands should approach the situation where a third party who is not immune from an employee 5 suit, later becomes that employee 3 employer Cf Stayton v Clariant Corp 10 A 3d 597 601 (Del 2010) ( The dual persona doctrine as used in workers compensation jurisprudence provides that an employer may become a third person, vulnerable to tort suit by an employee if and only if it possesses a second persona so completely independent from and unrelated to its

2 LMC is correct that employers generally are immune from suits by their employees See 24 V I C §284(a) [ When an employer is insured under this chapter the right herein established to obtain compensation shall be the only remedy against the employer[] ) But LMC failed to carry its burden here to show that the Martin Marietta Defendants were insured [A] Certificate of Government Insurance Coverage constitutes prime fame evidence that an employer is insuied under the VIWCA Island We & Marble LLC v Bertrand 57 V I 596 624 [2012) (citing 24 VIC § 273(d]) But even the certificates themselves only establish[] a rebuttal presumption that an employer is insured under the VIWCA Id at 625 And LMC did not submit such pnmafacre evidence here Instead LMC submitted an affidavit from Eddie L Gaut a former employee of Martin Marietta who stated that he reviewed documents from the Department of Finance from 1974 to 1980 and 1986 to 1989 [which] reflect payments to the Workmen 5 Compensation Insurance Fund by [MMA and MMAP] (Gaut Aff fl 23 filed July 15 2011 ] And Gaut concludes that MMA and MMAP never experienced a lapse in workmen s compensation insurance coverage during the time periods when those entities owned and/0r operated the St Croix Alumina Plant Id 11 24 Ayala for the most part disputes Gaut s assertion because LMC failed to submit evidence from the Director of the Government Insurance Fund [Pl 5 Resp to Movant s Undisputed Facts 1] 10 filed Aug 16 2011) And Ayala wants to depose Gaut to test his recollection Thus it is not clear an employers compliance with the VIWCA can be resolved on summary judgment particularly when prime fame evidence is not submitted Cf Der Weerv Hess 011 VI Corp SK 2005 cv 274 2014 VI LEXIS 51 *11 12 (VI Super Ct Mar 4 2014] Whether the Martin Marietta entities were insured under the VIWCA is material and remains in dispute even if LMC can "inherit" its predecessors immunity from suit,

3 Presumably for the same reason Gaut s affidavit and LMC s arguments refer to exhibits filed in and concessions made by counsel in THE ERWIN LA BAST CASE [Def Lockheed Martin Corp 5 Stmt of Undisputed Facts in Support of Mot for Summ lgmt 1T 14 filed July 15 2011 ) Ayala is not a plaintiff in La Bast v Lockheed Martin Corporation et a] Case No SX 07 CV 502 Cf Arno v Hess Corp 2019 VI Super 140 11 20 ( All too often counsel conflate each other with their clients Cases belong to the parties not the attorneys (brackets ellipsis and citation omitted)) Whatever facts La Bast agreed with or failed to dispute cannot be attributed to Ayala See id fl 39 (explaining that arguments or concessions of an attorney in one case cannot be attributed to another party just because that party is represented by the same attorney) Ayala v Lockheed Martin Corp 2020 VI Super 32 SX 08 CV 296 MEMORANDUM OPINION Page 9 of 10

status as an employer that by established standards the law recognizes that persona as a separate legal person (footnoted citation omitted)) see also Billy v Consolidated Machine Tool Corp 412 N E 2d 934 940 (N Y 1980) ( Inasmuch as plaintiffs action represents essentially an attempt to recover from third party manufacturers through a suit against their corporate successor, plaintiff should be permitted to maintain the action notwithstanding that the successor corporation is also an employer ) 11 15 But Ayala s own evidence does raise another concern Even when the facts are viewed in his favor Ayala's earnings statement may undermine his claim that he worked on St Croix at the alumina refinery from 1972 to 1985 because his employer from 1972 to 1984 was CA Lewisport LMC has not alleged that that CA Lewisport was a direct or indirect subsidiary ofa Martin Marietta entity But cf In re Alerts Intl Inc No 09 10478 (BLS) 2010 Bankr LEXIS 2997 *1 8; n 1 (Bankr D Del May 3 2010) (listing CA Lewisport LLC as an affiliated debtor ofAleris International Inc) In fact neither Ayala nor LMC explained who CA Lewisport was and whether it was a contractor at the St Croix alumina refinery lfCA Lewisport was a contractor at the alumina refinery on St Croix then that might further undermine [MC 5 workers compensation defense even if the Court concluded that successor corporations could inherit immunity from suit If CA Lewisport was not a contractor at the St Croix alumina plant then Ayala s evidence shows that he only worked on St Croix for six months or less Summary judgment might not be proper under the VlWCA but on another ground[] not raised by LMC V I R Civ P 56(f)(2) namely that the length of Ayala 5 exposure on St Croix is insufficient as a matter of law to state a claim against LMC Cf Holcomb v Ga Pac LLC 289 P 3d 188 197 (Nev 2012) (contrasting cases from otherjurisdictions holding that any amount of exposure is recoverable) see also Betz v Pneumo Abex LLC 44 A 3d 27 49 n 25 (Pa 2012) (collecting authorities) 1i16 This case was designated as the lead case for purposes of addressing LMCs inherited workers compensation defense But designating a lead case is counterproductive if the case the parties recommend is not sufficiently similar to the other cases The employment histories of the Alumina Dust Plaintiffs will not be identical But Ayala 5 employment history appears to be too different to allow for a consistent decision to be made, without the prospect for inconsistent rulings Ayala 67 VI at 309 (emphasis and citation omitted) A different case will have to be Ayala v Lockheed Martin Corp 2020 Vi Super 32 5X 08 CV 296 MEMORANDUM OPINION Page 10 of 10

designated as the lead case particularly if summary judgment must be entered in this case on grounds different than those LMC raised [V CONCLUSION 11 17 For the reasons stated above the Court will deny LMC s motion for summary judgment LMC failed to carry its burden to Show that Ayala worked for LMC s successors during the relevant time period The undisputed evidence shows only that Ayala worked for MMAP a grandchild of LM C, for six months at the end of Ayala s alleged exposure period Even ifsuch a short period of time is sufficient to allow an employer to claim immunity for the years when an employer was a third party and even if the Court were to hold that a successor corporation can inherit its predecessor s immunity from suit LMC further failed to show there is no dispute of material facts regarding the Martin Marietta entities insurance coverage However because the undisputed evidence shows only that Ayala worked on St Croix for six months summary Judgment may be proper on other grounds and notice is given by this Opinion Cf V l R Civ P 56(f](2] [3) ( After giving notice and a reasonable time to respond the court may grant the motion on grounds not raised by a party or consider summary judgment on its own after identifying for the parties material facts that may not be genuinely in dispute ) (m) 7

Date March 3 2020 a / ” e /t/ ROB TA M OY ATTEST Judge of the Superior Court TAMARA CHARLES Clerk ofthe Court

4/? é: Court Cl Dated W