Baskin v. Hawley
| Citation | 807 F.2d 1120 |
| Decision Date | 18 December 1986 |
| Docket Number | 1378,1331,D,Nos. 1330,s. 1330 |
| Parties | 124 L.R.R.M. (BNA) 2152, 105 Lab.Cas. P 12,116 Joseph BASKIN, * as administrator of the Estate of James Baskin, Plaintiff- Appellant, Cross-Appellee, v. Paul H. HAWLEY, Marvin B. Morganbesser, Gregory S. Oneglia, Howard G. Weiss, Dominick Lopreato, Ermin Nobili, Anthony Barbero, Trustees of the Connecticut Laborers Pension Fund; the Laborers International Union of North America; the Connecticut District Council of Laborers, Local 449 of the Laborers International Union of North America; Louis R. Mazza, Frank Martinelli, Arnold Vacca, Joseph DeLuca, J. Cappocci, J. Copeland, A. Catugno, W. Buzzeo, W. Balzavini, S. DeLuca, S. Mazzola, A. Panichella, Z. Forshaw, Arthur J. Kelly, James R. Spearman, Arthur C. Coia, Albert Guarino, Julius Nobili, Dominic J. Russo, Charles R. Scalaro, John L. Silva, Joseph Vercelli, Ronald Divicino, Harry J. Russo, Robert R. Blakeslea, the Estate of Edward N. Dew, and the Estate of Michael R. Balesano, Stright Sewage Disposal Company, Defendants, Appeal of LOCAL 449 OF the LABORERS INTERNATIONAL UNION OF NORTH AMERICA, Defendant-Appellee, Cross-Appellant. Appeal of STRIGHT SEWAGE DISPOSAL COMPANY, Defendant-Appellee. ockets 86-7010, -7012, -7014. |
| Court | United States Courts of Appeals. United States Court of Appeals (2nd Circuit) |
Joseph A. Moniz and Daniel L. Fitzmaurice (Day, Berry & Howard, Hartford, Conn., Marilyn Ford, Bridgeport, Conn., on the brief), for plaintiff-appellant, cross-appellee Joseph Baskin, administrator of the estate of James Baskin.
Peter W. Benner, Hartford, Conn. (Alan E. Lieberman, John C. Cvarch, Shipman & Goodwin, Hartford Conn., on the brief), for defendant-appellee, cross-appellant Local 449 of the Laborers International Union of North America.
Albert A. Garofalo, Fairfield, Conn., for defendant-appellee Stright Sewage Disposal Company.
David W. Elbaor, Washington, D.C. (Linda Lipsett, Connerton, Bernstein & Katz, Washington, D.C.), filed a brief for Laborers' International Union of North America, AFL-CIO as amicus-curiae on Behalf of defendant-appellee, cross-appellant.
Before FEINBERG, Chief Judge, NEWMAN, and KEARSE, Circuit Judges.
Plaintiff Joseph Baskin, as administrator of the estate of the original plaintiff James Baskin ("Baskin") who died on March 30, 1986, appeals from so much of a judgment of the United States District Court for the District of Connecticut, Ellen Bree Burns, Judge, as (1) summarily dismissed, on statute-of-limitations grounds, Baskin's claim against defendant Stright Sewage Disposal Company ("Stright") for breach of its obligation to contribute to a union pension fund on Baskin's behalf, and (2) set aside a jury award in favor of Baskin against defendant Local 449 of the Laborers International Union of North America ("Local 449" or "Union") of $650,000 in damages for emotional distress resulting from the Union's breach of its duty to Baskin of fair representation under 29 U.S.C. Sec. 159(b) (1982). Plaintiff contends that the dismissal of Baskin's claim against Stright was error because the statute of limitations had been tolled by fraudulent concealment; he contends that the court should not have set aside the jury's award of damages for emotional distress because Local 449 failed to move for a directed verdict on this claim and because, in any event, the issue was properly submitted to the jury.
Local 449 cross-appeals from so much of the judgment as ordered it to pay Baskin $22,784.16, representing lost pension benefits and prejudgment interest, and to pay him $88 per month, commencing June 1, 1985, for the remainder of his life. The Union contends that it was entitled to judgment notwithstanding the verdict ("n.o.v.") principally because the evidence was insufficient as a matter of law to establish that it owed Baskin a duty of fair representation or that the statute of limitations had been tolled by fraudulent concealment.
For the reasons below, we affirm so much of the judgment as awarded Baskin $22,784.16 against the Union and ordered it to pay him $88 per month for the remainder of his life; we agree with the district court's decision to set aside the verdict of $650,000 for emotional distress but, concluding that the court should have ordered a new trial on this claim rather than granting the Union judgment n.o.v., we vacate the judgment in favor of the Union and remand for retrial of this claim before a properly instructed jury; and we vacate the judgment dismissing the claim against Stright and remand for trial of that claim.
The events leading to this lawsuit, summarized briefly from the trial evidence taken in the light most favorable to Baskin, included the following. From at least 1952 to 1973, Baskin, a laborer, was a dues-paying member of Local 449. He worked union jobs continuously from 1949 to 1958, and in the spring of 1958 he was assigned by Local 449 to work with Stright, a septic tank installation and repair contractor. Baskin worked for Stright from 1958 until he retired in December 1970.
The collective bargaining agreements negotiated by Local 449 for the period 1958 through 1972 required the contracting employers to, inter alia, make contributions on behalf of each union-member employee to Local 449's Health & Welfare Fund (the "Welfare Fund"). Beginning in 1963, such employers were also contractually required to make contributions to the then-new Connecticut Laborers Pension Fund (the "Pension Fund" or "Fund").
In 1971, shortly after he retired, Baskin, assisted by the Union's business agent Joseph DeLuca, applied to the Trustees of the Pension Fund for a pension. After a series of inquiries by the Fund, Stright and Local 449 informed the Fund that Stright had not been a party to a collective bargaining agreement prior to 1968. Baskin was thus denied a pension in May 1972 on two grounds: (1) that his employment with Stright from 1963 through 1967 constituted a disqualifying break in service, and (2) that he had not worked in "covered" employment for the number of years needed to entitle him to a pension.
A. The Lawsuit and the Statute-of-Limitations Rulings
After several years of trying to obtain his pension through administrative channels, Baskin commenced the present suit in 1980. The initial complaint named the Trustees of the Pension Fund and others not involved in these appeals; Local 449 and Stright were added as defendants in 1981. Baskin alleged that Stright had breached its collective bargaining agreement when, after it became a union employer in 1967, it failed to make required contributions to the Pension Fund. He claimed that the Union had breached its fiduciary duties and its duty of fair representation by sending him to Stright as a nonunion employer for a period of time, 1958 to 1967, which rendered him ineligible for a pension.
Throughout the proceedings, Local 449 and Stright maintained that Stright had not been bound to a collective bargaining agreement prior to 1968. In his deposition in April 1982, DeLuca testified in part as follows:
Q How would you find out whether the contractor is union or nonunion?
A If any contributions are being paid into the funds.
Q Would that be welfare funds and pension funds?
Consistent with their position that Stright was not party to a contract with Local 449 prior to 1968, Local 449, in sworn answers to interrogatories, stated that Stright had not made any contributions to the Union's Welfare Fund prior to 1968. The Union also stated that its records as to any pre-1968 contributions had been destroyed.
In July 1982, Baskin's attorneys discovered documents in the files of the Fund indicating that in fact Stright had made contributions on Baskin's behalf to Local 449's Welfare Fund annually from 1958 to 1970. On the strength of this discovery Baskin promptly moved for and eventually received permission to file another amended complaint (the "Eighth Amended Complaint"). To the extent pertinent to the present appeals, this complaint alleged that Stright had been a union employer covered by a collective bargaining agreement from 1958 to 1970; that Stright had breached its obligation to make pension contributions on Baskin's behalf from 1963, when the Pension Fund for Local 449 members was formed, until 1970, when Baskin retired; and that Local 449 had breached its duty of fair representation by failing to compel Stright to make such contributions. Baskin also alleged that until 1982 Local 449 and Stright had fraudulently concealed from him Stright's payments to the Welfare Fund. Baskin sought, inter alia, an award of his past and future pension benefits in an amount based on his years of service from 1949 through 1970 and computed from the date of his initial pension application, plus $500,000 in damages "against Local 449 to compensate him for the damages, including severe emotional suffering, distress, anxiety and grief inflicted upon him by the acts and omissions of Local 449, such acts and omissions having been intentional and without cause and without regard for the contractual and fiduciary obligations owed to" Baskin.
Prior to the filing of the Eighth Amended Complaint, all defendants had moved for summary judgment dismissing the action on the ground, inter alia, that the statute of limitations had run on Baskin's claims. Baskin opposed the motions on the ground that the statute had been tolled by the concealment of material information from him until 1982. The district court granted these motions in part and denied them in part. To the extent pertinent here, the court, which had before it the newly discovered information (which led it to permit the filing of the Eighth Amended Complaint), granted Stright's motion on the ground that Baskin had learned in 1972 that Stright had been bound by a collective bargaining agreement since 1968 and had failed to make contributions to the Pension Fund on...
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