UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JAMES R. ALDRIDGE, SR.; MARGARET
ALDRIDGE; HARRY W. ATKINSON;
LOIS V. ATKINSON; WESLEY B.
BARTLETT; ANNA M. BARTLETT;
LEONARD BEARD, SR.; THERESA BEARD;
CARROLL E. BROADWATER; MARLENE
BROADWATER; THOMAS HENRY BROWN;
BETTY LOU BROWN; ESTON C. CHAMP;
ELSIE CHAMP; PAUL H. CORDIAL;
EARLENE L. CORDIAL; STANLEY W.
CORLEY; C. LOUISE CORLEY;
DONALD A. D'ATRI; SHIRLEY D'ATRI;
RICHARD H. GLASS; JEAN C. GLASS;
RAYMOND L. HAINES; MARY CATHERINE
HAINES; ERNEST M. HOLT;
ANNA MYRTLE HOLT; JUNIOR A. HOTT;
                                       No. 97-1522
ROXALYN HOTT; ROBERT C. HUFFMAN;
CAROL G. HUFFMAN; ROBERT M. ISER;
WANDA L. ISER; DONALD JOHNSON;
MARY ELLEN JOHNSON; DONALD LARKE;
JUDY LARKE; IRVIN E. LOWERY; ADA L.
LOWERY; WILLIAM R. MCCOY;
LOUISE T. MCCOY; GEORGE V.
MCKENZIE; DOROTHY E. MCKENZIE;
WILLIAM J. MCKENZIE; MARTHA
MCKENZIE; JAMES B. MILLS;
ANN LOUISE MILLS; ROBERT MITTER;
MARY LOUISE MITTER; JOHN E.
MONAHAN; M. CAROLYN MONAHAN;
RUSSELL C. MORGAN; LOUISE MORGAN;
ARTHUR L. NEDER; JUNE E. NEDER;
EDITH G. NORRIS, individually and in
her capacity as personal representative
of the estate of the deceased, David P.
Norris; JACK E. RITCHEY; HELEN J.
RITCHEY; PAUL A. SHOOK;
GENEVIEVE E. SHOOK; GERALD D.
SIMMONS; BARBARA SIMMONS;
WILLIAM R. SPENCER; ELVA P. SPENCER;
JOSEPH R. TAYLOR; ANNA K. TAYLOR;
RICHARD F. WEESE; HAZEL M. WEESE;
RAYMOND E. VINCI; SHIRLEY R. VINCI;
EARL A. WINTERS; BETTY M. WINTERS;
WILLIAM P. ZIMMERMAN; PHYLLIS
ZIMMERMAN; ROBERT W. HAISLIP;
NELLIE MAE MILLER; BARBARA A.
FRIDINGER, in her capacity as personal
representative of the estate of the
deceased, Percy R. Miller; RONALD E.
PORTER; RUTH M. DAY; PHYLLIS R.
FROST, in her capacity as personal
representative of the estate of Frank C.
Day, deceased; MARY S. LANGHAM,
individually and in her capacity as
personal representative of the estate of
George E. Langham, deceased;
ELMER L. KROLL; DORIS R. KROLL;
PRISCILLA TETER, individually and in
her capacity as personal representative
of the deceased, Brook Teter;
MURIEL R. SCHRAMM, individually and
in her capacity as personal
representative of the estate of Alvin C.
Schramm; JESSIE SIMMONS, individually
and in her capacity as personal
representative of the estate of the
deceased, Leonard T. Simmons;
KATHLEEN S. SIRBAUGH, in her capacity

                2
as personal representative of the estate
of Arlan Eugene Sirbaugh, deceased;
JACOB LOAR; SARAH J. LOAR; HARRY F.
PIPER; GENEVIEVE PIPER; LEROY
ROBERTSON; ETHEL H. ROBERTSON;
ALBERT D. STEWART; BETTY STEWART;
LOIS SCHADT; MILFORD G. WILSON;
DOROTHY M. WILSON; EVELYN V.
BUSER, individually and in her capacity
as personal representative of the estate
of Theodore U. Buser, deceased;
VIOLET G. GRAY, individually and in
her capacity as personal representative
of the estate of Richard R. Gray,
deceased; YOLAND T. TACCINO;
THOMAS RODGER TACCINO, personal
representative of the estate of Edmund
Joseph Taccino, deceased; ANNA M.
COLE, personal representative of the
estate of Charles B. Cole, deceased;
MARY KATHLEEN JENKINS, individually
and in her capacity as personal
representative of the estate of Richard
Toll Jenkins, deceased; JEREMY
EDWARD, surviving minor grandchild of
Richard Toll Jenkins, deceased to the
use of Mary Kathleen Jenkins,
surviving spouse of Richard Toll
Jenkins, deceased; DONALD J. FOLK;
ARTHUR C. TICHNELL; CARRIE A.
TICHNELL; WANEDA C. BRIDGES,
individually and in her capacity as
personal representative of the estate of
Nevin H. Bridges, deceased;

                 3
GILBERT L. ZIMMERMAN; REBECCA
ZIMMERMAN; LEROY E. GROSS;
CAROL M. GROSS; LEONARD D. WHITE;
GLADYS FAY WHITE; EUGENE L.
ZIMMERMAN, JR.; PHYLLIS M.
ZIMMERMAN; WEBSTER BRUCE LONG, III;
LEONA PHARES LONG; LOUIS E. SCHADT,
JR.,
Plaintiffs-Appellants,
and

DAVID P. NORRIS; PERCY MILLER,
Plaintiffs,

v.

GOODYEAR TIRE & RUBBER CO., an
Ohio Corporation,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, District Judge.
(CA-90-140-H, CA-90-141-S, CA-90-142-K, CA-90-143-HAR,
CA-90-145, CA-90-146, CA-90-147-S, CA-90-148-HAR,
CA-90-149-MJG, CA-90-150, CA-90-151-MJG, CA-90-152-H,
CA-90-153-S, CA-90-154-S, CA-90-155-HAR, CA-90-156-MJG,
CA-90-157, CA-90-158-S, CA-90-159-S, CA-90-160-HAR,
CA-90-161-HAR, CA-90-162-S, CA-90-163, CA-90-164-H,
CA-90-165-S, CA-90-166-K, CA-90-167-HAR, CA-90-168-MJG,
CA-90-169, CA-90-170, CA-90-171-S, CA-90-172-HAR,
CA-90-173-MJG, CA-90-174, CA-90-175-S, CA-90-176-H,
CA-90-177-S, CA-90-178-K, CA-90-179-MJG, CA-90-180-MJG,
CA-90-181-S, CA-90-182-K, CA-90-809, CA-90-887-MJG,
CA-90-2331-WN, CA-90-2339-WN, CA-91-953-HAR,
CA-91-3369, CA-91-3370, CA-91-3371, CA-91-3372, CA-91-3373,
CA-91-3374, CA-91-3375, CA-91-3376, CA-91-3377, CA-91-3378,
CA-91-3379, CA-92-3679, CA-92-3680, CA-92-3681, CA-92-3682,
CA-95-1910-MJG, CA-95-1988, CA-95-1989, CA-95-1990)

                 4
Argued: March 4, 1998

Decided: May 11, 1998

Before LUTTIG and MICHAEL, Circuit Judges, and
HILTON, Chief United States District Judge for the
Eastern District of Virginia, sitting by designation.

_________________________________________________________________

Vacated and remanded by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Guerdon Macy Nelson, LAW OFFICE OF G. MACY
NELSON, Towson, Maryland, for Appellants. Kenneth C. Bass, III,
VENABLE, BAETJER, HOWARD & CIVILETTI, L.L.P., Washing-
ton, D.C., for Appellee. ON BRIEF: James K. Archibald, VEN-
ABLE, BAETJER, HOWARD & CIVILETTI, L.L.P., Washington,
D.C., for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Kelly-Springfield Tire Company (Kelly) operated a tire factory in
Cumberland, Maryland, from the time of its incorporation in 1935
until 1987. Kelly was a wholly owned subsidiary of defendant-
appellee, Goodyear Tire & Rubber Company (Goodyear). Goodyear
has acknowledged that while Kelly's Cumberland plant was in opera-
tion, Kelly operated as an autonomous, separate entity from Good-
year. For example, Kelly maintained its own bank accounts and

                    5
books, Kelly's own officers ran the company, and Kelly negotiated a
separate labor contract with the United Rubber Workers. Over the
years, however, Goodyear did sell Kelly certain chemicals for use at
the Cumberland plant, and Goodyear also provided Kelly with assis-
tance and advice on workplace health and safety, including the han-
dling of toxic chemicals.

The plaintiffs (appellants) in this case against Goodyear are former
Kelly employees who worked at the Cumberland plant at various
times between 1940 and 1987. They allege that they developed vari-
ous diseases from contact with chemicals used at the plant. Their
claims against Goodyear include a claim (under the Restatement (Sec-
ond) of Torts § 324A) that Goodyear was negligent in advising Kelly
with respect to the handling of those chemicals.

The plaintiffs here are the third group to sue Goodyear on these
claims. The first group of Kelly employees filed an action against
Goodyear in 1980 in the District of Maryland, with Judge Miller pre-
siding. Goodyear moved to dismiss, arguing that public policy
encouraged a parent company to share information with its subsidiary.
Judge Miller held that, notwithstanding the public policy consider-
ation, "parent corporations cannot expect to receive the benefits of the
corporate veil without subjecting themselves to liability in tort for
their own negligent conduct." See Heinrich v. Goodyear Tire & Rub-
ber Co., 532 F. Supp. 1348, 1356 (D. Md. 1982). Because Goodyear
was a separate legal entity from Kelly, Judge Miller permitted the
Kelly employees to pursue their claims against Goodyear for its inde-
pendent negligence. This first case later settled.

A second group of former Kelly employees sued Goodyear in 1987
in the District of Maryland on the same theories, and this time the
case went to Judge Smalkin. Judge Smalkin concluded that the
employees had failed to forecast sufficient evidence to establish that
Goodyear's actions caused their injuries, and he granted summary
judgment to Goodyear. See McClelland v. Goodyear Tire & Rubber
Co., 735 F. Supp. 172 (D. Md. 1990). In dicta Judge Smalkin sug-
gested that the claims against Goodyear would have been barred by
Maryland's workers' compensation law, which grants employers
immunity from tort suits by employees. Judge Smalkin believed that
"Goodyear was acting as plaintiffs' employer, not as an outsider who

                    6
assumed extra duties, when it performed the traditional employer's
tasks associated with workplace safety and health in its `captive
plant.'" Id. at 175 (citation omitted).

Finally, in 1990 a third group of plaintiffs filed this action in the
District of Maryland making the same claims, including the claim
under § 324A of the Restatement. After the case was transferred to
the District of Pennsylvania and transferred back to Maryland, it was
assigned to Judge Smalkin. In granting summary judgment to Good-
year on March 5, 1997, Judge Smalkin followed his earlier dicta in
McClelland and said that Goodyear and Kelly"were essentially indis-
tinguishable in terms of real management and control of matters per-
taining to chemical usage and industrial hygiene within the [Kelly]
plant." Aldridge v. Goodyear Tire & Rubber Co., Civ. No. H90-140,
slip op. at 7 (D. Md. Mar. 5, 1997). As a result, Goodyear (as Kelly's
parent) could be regarded as an employer of the Kelly employees.
Since Maryland workers' compensation law immunizes employers
from tort liability against their employees, Judge Smalkin held that
Goodyear was immune from liability to the plaintiffs in this action.
See id. at 9-10.

Shortly after the plaintiffs appealed Judge Smalkin's summary
judgment order, the Court of Appeals of Maryland considered the
issue of when a parent corporation is entitled to immunity from tort
suits by the injured employees of its subsidiary. See Great Atlantic &
Pacific Tea Co. v. Imbraguglio, 697 A.2d 885 (Md. 1997). In
Imbraguglio the Court of Appeals of Maryland explicitly rejected the
dicta in McClelland. See id. at 895-96. The Maryland court held that
"[i]mmunity will flow to the parent [only] to the extent that it func-
tions as the injured employee's employer." Id. at 896. The court said
that the established five-factor test used to determine whether there is
an "employer/employee relationship" also determines whether a par-
ent company functions as the employer of its subsidiary's employees.
The five factors include:

          (1) the power to select and hire the employee, (2) the pay-
          ment of wages, (3) the power to discharge, (4) the power to
          control the employee's conduct, and (5) whether the work is
          part of the regular business of the employer.

                    7
Id. at 893-94 (quoting Whitehead v. Safway Steel Products, 497 A.2d
803, 808-09 (Md. 1985)).

The district court's analysis of whether Goodyear was the plain-
tiffs' employer fell short of what is required under the Imbraguglio
test. Indeed, Goodyear concedes that the order awarding it summary
judgment must be reconsidered in light of this new decision. See
Appellee's Br. at 10-11. Accordingly, the judgment of the district
court is vacated, and the case is remanded for further proceedings in
light of Imbraguglio.*

VACATED AND REMANDED
_________________________________________________________________
*The plaintiffs claim that the chief judge of the District of Maryland
(who recused himself from the outset), Judge Smalkin, and the active
judges of that district meeting en banc (without the chief judge and Judge
Smalkin) all acted improperly to arrange the assignment of this case to
Judge Smalkin. The plaintiffs ask that we direct that the case be reas-
signed to a different district judge. We are quite firm in our judgment
that there was nothing improper, or even suggesting an appearance of
impropriety, in the assignment of this case to Judge Smalkin. We there-
fore refuse to order a reassignment.

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