Hoschar v. Appalachian Power Co., No. 12-2482
The case below: Appellants, Roger Hoschar and Judy Hoschar, filed a civil action alleging
negligence against Appellee, Appalachian Power Company (APCo) and Industrial
Contractors,Inc. (ICI)1, its parent company and Mr. Hoschar’s employer, in the Circuit Court of
Mason County West Virginia. APCo and ICI removed the action to the United States District
Court for the Southern District of West Virginia on the basis of diversity, contending that their
principal places of business were in Columbus, Ohio. The district court granted the motion.
Brief summary of facts: Mr. Hoschar's job at ICI required him to sweep out bird droppings and
fly ash that accumulated on steel beams in the plant where he worked. He alleged that exposure
to these materials caused him to contract histoplasmosis, a fungal infection, on his lung. Surgery
to remove the mass on his lung left him with a permanent respiratory impairment. He and his
wife contend that APCO and ICI were negligent in exposing him to the source of the infection.
Issues on appeal and relevant lower court rulings: The first issue on appeal is whether the
district court properly denied the Hoschars’ Motion for Remand for Lack of Subject Matter
Jurisdiction. The Hoschars argue that denial was improper because APCo’s principal place of
business is in Charleston, West Virginia, eliminating diversity of citizenship between the parties.
This issue turns on whether the district court properly applied the “nerve center” test for
determining a corporation’s principal place of business as set forth by the Supreme Court in
Hertz Corp. v Friend, 559 U.S.77 (2010). The second issue on appeal is whether there existed a
dispute of material fact regarding APCo's negligence that would render the district court’s grant
of summary judgment improper. The Hoschars alleged that APCo breached the duty of
reasonable care it owed Mr. Hoschar by virtue of its ownership and operation of the plant where
Mr. Hoschar claims he contracted histoplasmosis. The district court granted summary judgment
as a matter of law in favor of APCo finding that the histoplasmosis hazard posed by the bird
droppings and fly ash was not foreseeable to APCo. The Hoschars argue that there is a dispute of
material fact about whether APCo should have known of the risk in light of a publication
available on the website of the Occupational Safety and Health Administration (OSHA), which
warned that the disease could be contracted from contaminated bird droppings. APCo claims
that summary judgment was proper because it was not obligated to read the OSHA publication
and should not be charged with knowledge of the risk.
1
While this appeal was pending, the Hoschars resolved their case against ICI and moved to
dismiss them from the suit. Accordingly, ICI is no longer a party to this appeal.