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CORCORAN v. NEW YORK POWER AUTH. & WEDCO CORP.

July 29, 1996

CARRIE CORCORAN, as executrix of the estate of Eugene Corcoran, deceased, and CARRIE CORCORAN, Individually, Plaintiffs,
v.
NEW YORK POWER AUTHORITY and WEDCO CORP., Defendants. CARRIE CORCORAN, as executrix of the estate of Eugene Corcoran, deceased, and CARRIE CORCORAN, Individually, Plaintiffs, -v- WESTINGHOUSE ELECTRIC CORP., Defendant.



The opinion of the court was delivered by: COTE

 DENISE COTE, District Judge:

 Carrie Corcoran, on her own behalf and as Executrix of Eugene Corcoran's estate ("plaintiffs"), filed this action in state court on March 15, 1995. Defendants removed the action and now move to dismiss all of plaintiffs' claims. For the reasons set forth below, the motion is granted in part and denied in part.

 PROCEDURAL BACKGROUND

 Plaintiffs, then represented by counsel, filed a lawsuit in New York Supreme Court on March 15, 1995, against defendants New York Power Authority ("NYPA") and WEDCO Corporation ("WEDCO") (the "NYPA action"). Following counsel's withdrawal from the case, the plaintiffs proceeded pro se by serving the Summons and Complaint on June 30, 1995, on defendant NYPA and (although the legal sufficiency of service is contested by WEDCO, see infra) on WEDCO by delivery of said papers to Prentice-Hall, Westinghouse Electric Corporation's ("Westinghouse") registered agent. Defendants removed this action, pursuant to 42 U.S.C. § 2210, on July 18, 1995.

 Thereafter, NYPA and WEDCO moved, on August 14, 1995, to dismiss the entire NYPA action pursuant to Rule 12(b)(4), (5), and (6), Fed. R. Civ. P. In response, the plaintiffs filed a motion on September 5, 1995, "to estop defendant, New York Power Authority, from asserting an affirmative defense regarding the statute of limitations on the plaintiffs' notice of claim or plaintiffs' action" (the "Estoppel motion"). On September 21, 1995, plaintiffs filed an Amended Complaint in the NYPA action and filed a new and separate action against Westinghouse (the "Westinghouse action"). In response to the Estoppel motion, the NYPA cross-moved for summary judgment on September 25, 1995, arguing that plaintiffs' claims against NYPA are barred by the deceased's failure to file a timely notice of claim. *fn1" Plaintiffs responded to the Rule 12 motions on September 27, 1995, and also sought leave of Court to substitute Westinghouse for WEDCO or, in the alternative, an order consolidating the NYPA and Westinghouse actions. This Court entered an Order consolidating both actions on November 7, 1995. On December 1, 1995, NYPA, WEDCO, and Westinghouse (collectively, the "defendants") moved to dismiss the Amended Complaint and the Complaint in the Westinghouse action pursuant to Rule 12(b)(4), (5), and (6), Fed. R. Civ. P. On December 27, 1995, an Amended Complaint was filed in the Westinghouse action (the "Amended Westinghouse Complaint"). Plaintiffs also filed a Second Amended Complaint in the NYPA action on January 17, 1996. *fn2" Defendants filed the instant motion to dismiss the Second Amended Complaint and the Amended Westinghouse Complaint on January 11, 1996.

 FACTS

 The facts as alleged in the Second Amended Complaint and the Amended Westinghouse Complaint are assumed to be true for the purposes of the 12(b)(6) motion and are as follows. In June 1985, the deceased plaintiff, Eugene Corcoran, was employed by Westinghouse as a millwright. Between June and August 1985, Mr. Corcoran was assigned to do maintenance work at NYPA's Indian Point 3 nuclear power plant (hereinafter, "IP3"). His assignments included working on the steam turbine and associated steam supply system serving IP3, including an area called the "stop valve." Plaintiffs allege that at the time Mr. Corcoran worked near the stop valve, the steam generator tubes that carried radioactive water were defective and/or corroded, cracked, broken or split, thereby causing leakage of radioactive substances and particles that were deposited in the stop valve. Although NYPA and Westinghouse were aware that the area around the stop valve had been dangerously contaminated by radiation, they "failed to timely alert and warn" Mr. Corcoran. Mr. Corcoran wore no protective clothing and had no equipment to guard him against or alert him of the presence of radiation; consequently, he was exposed to the contaminated stop valve at radiation levels "in excess of applicable regulatory standards." After Mr. Corcoran had worked in the stop valve area "for some time," NYPA surveyed and detected the contamination yet still "failed to immediately barricade the area and post radiation warning signs to prevent unsuspecting persons from entering upon the area." Mr. Corcoran, therefore, was unaware of the contaminated state of the stop valve and continued to work near the stop valve and to be exposed to radiation after NYPA's discovery of the dangerous condition. Following his exposure to the contaminated stop valve, Mr. Corcoran fell ill in June 1985, suffering the effects of "acute radiation sickness." At the time, however, his symptoms were not diagnosed as resulting from radiation exposure, and Mr. Corcoran was unaware that his illness was caused by radiation. Although defendants were aware of the seriousness of the contamination, they made no efforts to provide Mr. Corcoran with medical treatment.

 For several years following his work at the IP3 stop valve, Mr. Corcoran "continued to suffer from debilitating illnesses of unexplained etiology and was hospitalized." On March 16, 1992, Mr. Corcoran was admitted to Mid Island Hospital in Bethpage, New York. He was subsequently diagnosed as having "acute/chronic myeloid leukemia, a fatal disease of the body's blood and immune systems which is brought on by excessive exposure to nuclear radiation." Mr. Corcoran died on September 25, 1993. To date, plaintiffs are unaware of the degree of Mr. Corcoran's actual exposure to radiation.

 The following undisputed facts are derived from documents beyond the pleadings and shall be considered with respect to the motions to dismiss WEDCO as a defendant in this litigation. In their first Rule 12 motion, defendants attached the affidavit of Cheryl M. Hays, a Westinghouse Manager, who attests that WEDCO was incorporated in the State of Delaware and at all times was a wholly-owned subsidiary of Westinghouse until it was dissolved on May 2, 1978. Hays attests that "at no time has any, court entered an order extending WEDCO's capacity to be sued under Delaware Code Annotated 278, 279 or any other provision of law." Hays further attests that "all of the assets of WEDCO were distributed on or about the time of its dissolution and no assets remain undistributed."

 RULES 12(b)(6) AND 56 STANDARDS

 The Court may dismiss an action pursuant to Rule 12(b)(6), Fed. R. Civ. P., only if "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). In considering the motion, the Court must take "as true the facts alleged in the complaint and draw[] all reasonable inferences in the plaintiff's favor." Jackson National Life Insurance Co. v. Merrill Lynch & Co., 32 F.3d 697, 699-700 (2d Cir. 1994). The Court can dismiss the claim only if, assuming all facts alleged to be true, plaintiff still fails to plead the basic elements of a cause of action. Finally, a pro se complaint such as this one is held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972); Branham v. Meachum, 77 F.3d 626, 628-29 (2d Cir. 1996).

 
"The essential inquiry is whether the [party] should reasonably have recognized the possibility that the motion might be converted into one for summary judgment or was taken by surprise and deprived of a reasonable opportunity to meet facts outside the pleadings."

 Groden, 61 F.3d at 1052-53 (quoting In re G. & A. Books, Inc., 770 F.2d at 295). However, "notice is particularly important when a party is proceeding pro se and may be unaware of the consequences of his failure to offer evidence bearing on triable issues." Beacon Enterprises, Inc. v. Menzies, 715 F.2d 757, 767 (2d Cir. 1983) (citing cases). Plaintiffs were served with defendants' first Rule 12 motion, which included the Hays affidavit, in August 1995. In response, plaintiffs sought in their September 27, 1995, reply memorandum to substitute Westinghouse for WEDCO, pursuant to Rule 15, Fed. R. Civ. P. Plaintiffs renewed their application through their memorandum of law opposing the instant motion to dismiss. Thus, plaintiffs have had ample notice and a "'reasonable opportunity to meet facts outside the pleadings.'" Groden, 61 F.3d at 1052-53. Therefore, converting the motion into one for summary judgment is appropriate.

 Summary judgment is appropriate only when the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed. R. Civ. P. When deciding a motion for summary judgment, the Court must "view the evidence in a light most favorable to the non-moving party and draw all reasonable inferences in its favor." American Casualty Co. of Reading Pennsylvania v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994). In addition, because plaintiff is acting pro se, the Court must "read [plaintiff's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994); accord Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995).

 DISCUSSION

 A. Public Liability Actions Under the Price-Anderson Act

 1. Statutory and Regulatory Framework

 The parties agree that a "public liability action" ("PLA") pursuant to 42 U.S.C. § 2210(n)(2) of the 1988 amendments to the Price-Anderson Act is the plaintiffs' exclusive right of action. The principal issues are first, the extent to which a PLA preempts plaintiffs' personal injury and related state law claims and, as defendants contend, limits plaintiffs to one single cause of action, and second, the extent to which federal law determines the standard of care in plaintiffs' PLA claims.

 A brief historical account of the 1988 Price-Anderson Act Amendments is appropriate. Congressional regulation of nuclear power began with the Atomic Energy Act of 1946, 60 Stat. 755, which designated the nuclear industry a government monopoly. See In re TMI, 67 F.3d 1103, 1107 (3d Cir. 1995) ("TMI III"). The road was paved for private sector involvement, however, with the enactment of the Atomic Energy Act of 1954, 68 Stat. 919, which substituted complete federal control over the nuclear industry with more familiar regulatory means, such as licensing. Id. The danger of staggering liabilities associated with nuclear power accidents slowed the entrance into the nuclear energy field of private industry and convinced Congress of the need for further legislation, resulting in the Price-Anderson Act, 71 Stat. 576 (1957) (the "Act"). The Act provided federal funds to help pay damages caused by nuclear accidents, and it also limited the potential civil liability of nuclear plant operators. TMI III, 67 F.3d at 1107. The Act, therefore, "had a dual purpose: 'to protect the public and to encourage the development of the atomic energy industry.'" Lujan v. Regents of the University of California, 69 F.3d 1511, 1514 (10th Cir. 1995) (citing 71 Stat. at 576, codified at 42 U.S.C. § 2012(i)). The Act had three main features:

 
1) It "established a limit on the aggregate liability of those who wished to undertake activities involving the handling or use of radioactive materials"; 2) It channelled public liability resulting from nuclear incidents to the federal government; and 3) It established that all public liability claims above the amount of required private insurance "protection would be indemnified by the Federal Government, up to the aggregate limit on liability."

 O'Conner v. Commonwealth Edison Co., 13 F.3d 1090, 1095 (7th Cir. 1994) (quoting S.Rep. No. 218, 100th Cong., 1st Sess. 2 (1987), reprinted in 1988 U.S.C.C.A.N. 1424, 1476, 1477)).

 The Act has been amended three times. The 1966 Amendments, inter alia, provided for the transfer to federal district courts of all claims arising out of an "extraordinary nuclear occurrence" ("ENO") *fn3" See O'Conner, 13 F.3d at 1095. Concerned by the unsettled state of state tort law dealing with liability for nuclear incidents, and motivated by a desire to create greater uniformity, the 1966 Amendments also provided that those indemnified under the Act waive common law defenses in the event of an ENO, which essentially created a "strict liability" system for such disastrous events.

 The Act was most recently amended in 1988 to provide "a mechanism whereby the federal government can continue to encourage private sector participation in the beneficial uses of nuclear materials." TMI III, 67 F.3d at 1108 (quoting TMI Litigation Cases Consolidated II v. Babcock & Wilcox Co., Inc., 940 F.2d 832, 853 (3d Cir. 1991) ("TMI II")). Congress was satisfied that

 
the Price-Anderson System . . . provides persons seeking compensation for injuries as a result of a nuclear incident with significant advantages over the procedures and standards of recovery that might otherwise be applicable under State tort law.

 O'Conner, 13 F.3d at 1095 (quoting S.Rep. No. 218 at 4). To this end, federal district court jurisdiction was extended beyond ENOs to include all "nuclear incidents"; *fn4" the 1988 Amendments Act also provided for the removal of state court actions (including those pending in state court at the time of the passage of the 1988 Amendments Act), and allowed their consolidation into a single, federal court proceeding. See 42 U.S.C. § 2210(n)(2); § 2210(n)(3) (providing for the appointment of a special caseload management panel that, inter alia, has powers "to consolidate related or similar claims for hearing or trial"). In addition, a new federal right of action was created -- the PLA. Defined as "any suit asserting public liability," 42 U.S.C. § 2014(hh), a PLA encompasses (with exceptions not relevant to the instant action) "any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation." 42 U.S.C. § 2014(w) (defining "public liability"). Given the breadth of the PLA's definition,


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