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Awalt v. Allied Security

January 17, 2006


The opinion of the court was delivered by: Murphy, Chief District Judge


This matter is before the Court on a motion for summary judgment filed by the two remaining Defendants Remedial Construction Services, L.P. ("Recon") and Preston White. The Court held a hearing on the motion on December 5, 2005 (see Doc. 165). At the hearing, the Court granted Awalt additional time, up to and including December 9, 2005, to file a supplemental opposition to the motion. Awalt supplemented his response as ordered (see Doc. 166), and Recon and White filed a supplemental reply on December 16, 2005 (see Doc. 167). The Court has now reviewed all of the materials before it, and, for the following reasons, the motion for summary judgment is granted.

Jurisdiction is premised upon diversity of citizenship, 28 U.S.C. § 1332(c). According to the second amended notice of removal and various affidavits (see Doc. 37), Plaintiff Awalt is a citizen of Illinois. Defendant Allied Security, LLC, is a limited liability company with three members: William Whitmore, a citizen of Pennsylvania, William Torzolini, a citizen of Pennsylvania, and Bruce Gelting, a citizen of Pennsylvania. Defendant Remedial Construction Services, L.P., is a limited partnership with one general partner, Thutmose, LLC,*fn1 and three limited partners, The Steven Rush Family Limited Partnership, The Brad Alan Family Limited Partnership, and The Birdwell Family Limited Partnership. All partners in each of these three partnerships are citizens of Texas. (See Exhibits 6-8 to Doc. 37.) Defendant ConocoPhillips Company is a Delaware corporation with its principal place of business in Texas. Defendant Preston White is a citizen of Texas.

Although the complaint only seeks damages in excess of fifty thousand dollars in accordance with state practice, the affidavit of Steven R. Birdwell attests that at the time of the alleged incident in the complaint, Awalt was being paid a gross yearly wage of $80,100 for a 50 week year. Because the complaint seeks damages for tortious interference with Awalt's employment, including substantial lost wages, as well as personal physical injuries, the Court finds that the amount in controversy requirement of $75,000, exclusive of interest and costs, has been met.


This action was removed by Defendant ConocoPhillips Company from the Circuit Court for Madison County, Illinois, on February 25, 2004. The second amended complaint seeks recovery against Allied Security, Recon, ConocoPhillips Company, and Preston White under theories of libel, slander, false light, right of privacy, and tortious inference with an employment contract. (See Doc. 67.) The Court notes that Awalt conceded motions for summary judgment filed against him by ConocoPhillips and Allied Security. (See Docs. 138, 165.)

The facts are as follows: David Awalt and a man named Robert Lucas worked for Recon in April 2003.*fn2 Recon's business involved environmental cleanup of property located in Roxana, Illinois, commonly known as the Shell Refinery. This environmental cleanup was mandated by the Illinois Environmental Protection Agency. Through a series of transactions, acquisitions, and mergers, ConocoPhillips acquired ownership of the land, although Shell retained responsibility for pre-existing environmental liabilities. Recon contracted with Shell to work on the environmental remediation project on an area known as "Site 15".

Awalt and Lucas were members of the Operating Engineers Union Local No. 520 and were hired for their jobs by Recon out of the union hall located in Wood River, Illinois. David Awalt worked as a foreman.

Defendant White was the health and safety officer for Recon. His primary responsibility was to supervise Recon employees concerning health and safety requirements of the environmental cleanup project and to help the employees perform their duties safely. Recon employees were told that there was an "exclusion zone" on Site 15 where all of the contaminated materials were located. Materials in the exclusion zone could not be removed from the job site because they had hazardous waste on them. Recon employees were also told that anything inside the exclusion zone had to stay there. Part of Recon's job also involved decontaminating equipment that had been used in the exclusion zone. Recon employees wore fire retardant clothing, including a raincoat with a rain hood, safety glasses, goggles, and a face shield, when working with hazardous materials.

The contract between Recon and Shell required that a pass system was to be in effect at the gate entrance to Site 15. This pass system provided that the gate guard maintain a list of all authorized signatures of individuals going into or out of the gate. Standard procedures for entering and exiting Site 15 dictated that every individual had to stop at the guard shack and sign in or out. The guard was also required to check each individual's badge and search his vehicle each time anyone came into or exited out of Site 15. After these procedures were completed, the guard would then physically move the gate to let the individual in or out. Occasionally, however, the gates were left open when trucks were hauling loads of dirt in and out. Loads of dirt were being hauled in and out of the facility during the time in question.

Most employees entered onto Site 15 in company vans after parking their personal cars in an area off-site. Awalt was an exception to this rule, however, because of his duties as a mechanic. He was allowed to drive his personal vehicle (a grey Ford F-150 with a "999" sticker on the back right window) onto Site 15.

On April 23, 2003,White filed a report stating that Awalt and an individual named Frank Duich were riding in one of the Recon trucks and had a dock platform in the back of the truck. White testified that he had seen Awalt and Duich in a Recon truck on April 23 with a contaminated boat dock described as an aluminum platform approximately ten feet by ten feet and referred to by some as a floating dock. White testified that numerous employees were interested in taking the dock home with them, but Art Moore, the health and safety liaison for ConocoPhillips, specified that the dock and its components were contaminated and were to remain on site and be buried. It is undisputed that the dock had been in contaminated water and was classified as contaminated material.

On April 23, the dock was moved outside of the exclusion zone where the contaminated materials were located and placed adjacent to the Recon trailers. This is where Awalt normally parked his personal truck.

On April 24, Awalt and Lucas were working for Recon on Site 15 doing decontamination washing. Defendant White was their supervisor. On that day, the gate guard, Herbert Clemons, observed Awalt's truck entering the site containing nothing in the truck bed. Later in the day, the same guard observed the same truck being driven off Site 15 with something in the truck bed. Clemons noted that the item was covered with contaminated hazardous material, and he ...

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