American Bar Association
Media Alerts
Media Alerts - Hoschar v. Appalachian Power Companies and Industrial Contractors, Inc. - Fourth Circuit
Decrease font size
Increase font size
April 3, 2014
  Hoschar v. Appalachian Power Companies and Industrial Contractors, Inc. - Fourth Circuit
Headline: Just Because It's on the Internet Does Not Mean It's Legally Significant

Area of Law: Labor and Employment/Civil Procedure

Issues Presented: Whether the posting of a study on a government website provides a company with adequate notice of potential threats to employees' health. Whether, for the purpose of removal to federal court, the company's nerve center should be found at the location that a company calls its headquarters or at the location where the majority of major decisions are made.

Brief Summary: After removing bird droppings from an Appalachian Power Companies (APCO) facility, Roger Hoschar was diagnosed with the lung disease histoplasmosis. At the time this happened, an Occupational Safety and Health Administration's (OSHA) webpage noted that histoplasmosis could be caused by coming into contact with bird droppings. Hoschar sued APCO in state court alleging that APCO should have protected him from the disease. The case was removed to federal court because of diversity jurisdiction. On appeal, the Fourth Circuit held that the case was properly removed to federal court - Hoschar was from West Virginia and APCO's headquarters were in Ohio, even though the company's website said their headquarters were in West Virginia. Moreover, the court held that APCO did not owe a duty to Hoschar to protect him from histoplasmosis because APCO, despite the OSHA webpage, did not have actual or constructive knowledge that histoplasmosis could be caused by contact with bird droppings.

Extended Summary: Roger Hoschar was diagnosed with the lung disease histoplasmosis after cleaning a significant amount of bird droppings off of equipment at an Appalachian Power Companies' (APCO) power plant. The droppings had to be removed so that the ducts could be fixed. Hoschar wore a respirator over his face while removing debris and welding. While Hoschar was working, an Occupational Safety and Health Administration's webpage referenced a National Institute for Occupational Safety and Health study that stated that histoplasma capsulatum, a fungus, can infect accumulations of bird droppings and cause histoplasmosis if the spores are inhaled. The district court denied Horschar's motion to remand the action to state court and granted APCO's motion for summary judgment, holding that APCO did not owe a duty to Horschar.

On appeal, the United States Court of Appeals for the Fourth Circuit concluded that (1) APCO did not have actual knowledge that the fungus was associated with bird droppings and (2) although the study was disseminated via various means and generally available, APCO had no reason to be aware of the study and could not be charged with constructive knowledge. Without actual or constructive knowledge, under West Virginia law, no duty was owed to Hoschar.

The case was removed to federal court as a matter of diversity jurisdiction. Hoschar was a resident of West Virginia. Consequently, diversity jurisdiction would only be appropriate if APCO was something other than a West Virginia company. In deciding the issue, the Fourth Circuit articulated the Supreme Court's sentiment in Hertz Corp. v. Friend, where it said a corporation's nerve center "should normally be the place where the corporation maintains its headquarters -- provided that the headquarters is the actual center of direction, control, and coordination." 559 U.S. 77, 92-93 (2010). The Horschar court, concluded that although APCO's website identified Charleston, West Virginia as APCO's headquarters, Ohio was in fact APCO's nerve center. The majority of APCO's board was located in Ohio and the bulk of business decisions were made there. Therefore, the case was properly removed from West Virginia to federal court.

Panel: Judges Gregory, Davis, and Thacker

Argument Date: 11/062013

Argument Location: University of Maryland Carey School of Law, Baltimore, MD

Date of Issued Opinion: 01/07/2014

Docket Number: No. 12-2482

Decided: Affirmed

Case Alert Author: Phillip Chalker

Counsel: ARGUED: Alexander Deane McLaughlin, THE CALWELL PRACTICE, PLLC, Charleston, West Virginia, for Appellants. Daniel Rhys Michelmore, JACKSON KELLY PLLC, Pittsburgh, Pennsylvania, for Appellee. ON BRIEF: John Skaggs, THE CALWELL PRACTICE, PLLC, Charleston, West Virginia, for Appellants. Brian R. Swiger, Michael P. Leahey, JACKSON KELLY PLLC, Charleston, West Virginia, for Appellee.

Author of Opinion: Judge Thacker

Case Alert Circuit Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 04/03/2014 04:24 PM     4th Circuit  

FuseTalk Enterprise Edition - © 1999-2018 FuseTalk Inc. All rights reserved.

Discussion Board Usage Agreement

Back to Top