Canty v. A. BOTTACCHI, SA de NAVEGACION

• Decision Date: 13 April 1994
• Docket Number: No. 91-0308-CIV,91-1625-CIV.,91-0308-CIV
• Citation: 1994 AMC 2152,849 F. Supp. 1552
• Parties: Ellis CANTY and Wanda Canty, his wife, Plaintiffs, v. A. BOTTACCHI, S.A. de NAVEGACION, and Seaport Crane Service, Inc., Defendants. Wilfred BURNETT and Monica Burnett, his wife, Plaintiffs, v. A. BOTTACCHI, S.A. de NAVEGACION, and Seaport Crane Service, Inc., Defendants.
• Court: U.S. District Court — Southern District of Florida

849 F. Supp. 1552

1994 AMC 2152

Ellis CANTY and Wanda Canty, his wife, Plaintiffs, v. A. BOTTACCHI, S.A. de NAVEGACION, and Seaport Crane Service, Inc., Defendants.

Wilfred BURNETT and Monica Burnett, his wife, Plaintiffs, v. A. BOTTACCHI, S.A. de NAVEGACION, and Seaport Crane Service, Inc., Defendants.

Nos. 91-0308-CIV, 91-1625-CIV.

United States District Court, S.D. Florida.

April 13, 1994.

COPYRIGHT MATERIAL OMITTED

Hyman Hillenbrand, Kroll & Tract, Allan R. Kelley, Fowler, White, Burnett, Burley, Banick & Strickroot, P.A., Miami, FL, for defendants.

Arthur Roth, Melvin C. Alldredge, P.A., Miami, FL, for plaintiffs.

MEMORANDUM OPINION

HIGHSMITH, District Judge.

This cause came before the Court upon Defendant Seaport Crane Service, Inc.'s ("Seaport") Motion for Summary Judgment, filed August 26, 1993. For the reasons stated below, the Court denies Seaport's motion for summary judgment.

INTRODUCTION

This is a consolidated action for damages, governed by the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 901 et seq., for personal injuries sustained by two longshoremen as a result of an accident aboard a vessel. The plaintiffs and their spouses have brought this action against the vessel owner, Defendant A. Bottacchi, S.A. de Navegacion ("Bottacchi"), and the owner of a crane involved in the accident, Seaport. The plaintiffs allege they sustained injuries due to the negligence of Bottacchi and Seaport in the unloading of pipes off Bottacchi's vessel. Specifically, the plaintiffs assert that they were injured when the sling attached to Seaport's crane, and used to lift the pipes out of the cargo-hold, broke, causing a load of pipes to fall onto the plaintiffs. Seaport seeks summary judgment, holding that it is not liable for the plaintiffs' injuries. In this regard, Seaport asserts that the operators of the crane are borrowed servants of the plaintiffs' employer and, as such, Seaport, as lessor of the crane and its operators, shares the workers compensation immunity of the plaintiffs' employer.

STANDARD OF REVIEW

In deciding a summary judgment motion, the Court must apply the standard set forth in Fed.R.Civ.P. 56(c), which states in relevant part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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.

The United States Supreme Court has addressed the standard for summary judgment, as set forth in Rule 56(c), as follows:

A party seeking summary judgment always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

After the moving party has met this initial burden, "the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Fed.R.Civ.P. 56(e), however, does not permit the nonmoving party to avoid summary judgment by resting on the pleadings, but "requires the nonmoving party to go beyond the pleadings and by his own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. at 2553. Moreover, the mere existence of a scintilla of evidence in support of the non-movant's position is insufficient; there must be evidence on which the jury could reasonably find for the non-movant. Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2511-12.

UNDISPUTED MATERIAL FACTS

The following undisputed facts are relevant to the disposition of Seaport's motion for summary judgment:

1. The plaintiffs were longshoremen employed by S.E.L. Maduro Florida, Inc. ("Maduro"), a stevedore company experienced in the unloading of vessels and in stevedoring operations. Maduro was engaged by Bottacchi to unload pipes from the hold of Bottacchi's vessel, the Puenta Malvinas, at the Port of Miami, Florida.

2. Seaport is an independent contractor in the business of renting cranes to all of the stevedoring companies in the Port of Miami. Maduro contracted with Seaport for the furnishing of a crane and two crane operators to assist in the unloading of the Puenta Malvinas. Maduro paid Seaport a lump sum per hour for the furnished crane, and Seaport paid the crane operators.

3. Seaport told its crane operators where to report for work and at what time. Maduro determined hours of operation, including overtime. Once on the job site, the crane was under the care, custody, and control of Maduro.

4. At the job site, Maduro was solely responsible for directing the unloading operations of the vessel. Maduro determined the position of the crane and of the longshoremen, and how to unload the vessel. Maduro determined what equipment (i.e., cable; sling configuration) to use, how many pipes to load onto the sling, and how fast to take the pipes out of the hold. Maduro positioned "flagmen" at key points to instruct the crane operator, via hand signals, when to lower and raise the boom and when to lift the cargo.

5. Maduro was solely responsible for inspecting the condition of the cable used during the unloading operation, and for ensuring that any cable in poor condition was not used or was replaced. Maduro was also responsible for ensuring that the pipes were properly secured in the sling, and that the sling was not overloaded. The crane operator had no responsibility whatsoever with regards to the selection, use, and condition of the cables.

6. Within the cab of the crane is a scale that indicates the weight of each load being lifted. During the course of the day, the crane operators would inform the flagmen of the weight of each load as it was lifted. The lifting capacity of a cable, however, is determined by the configuration of the sling. From their position in the crane, the crane operators could not tell whether the sling used was adequate for the job until the load was lifted out of the hold. At the time of the accident, the weight of the load which fell had not registered yet on the crane's scale.

7. On February 1, 1990, the plaintiffs were injured when a sling owned by Maduro broke while lifting pipes out of the hold of the vessel. Maduro was responsible for investigating the cause of the accident. However, the broken sling was lost while in Maduro's custody, so that a determination of why the sling broke was never made. Maduro's investigator did opine, however, that the crane's operations did not contribute to the accident. Moreover, none of the parties or witnesses recall the crane operations being anything other than smooth. At the time the sling broke, the load had not cleared the top of the cargo hold area.¹

8. Maduro was responsible for providing a safe work environment for its employees, and for ensuring that the unloading of the vessel was performed in a secure and safe manner.

9. The crane operators' supervisor at Seaport would occasionally stop by various job sites where Seaport had rented its cranes to see how the work was progressing. The crane operators on the Maduro job verbally reported the accident to him.

10. The plaintiffs received workers compensation benefits from Maduro pursuant to the Longshore and Harbor Workers Compensation Act.

DISCUSSION

The Longshore and Harbor Workers Compensation Act ("the LHWCA") provides that every employer subject to the LHWCA shall be liable to its employees for workers compensation. 33 U.S.C. § 904. Such liability is exclusive and in place of all other liability, and extends to fellow servants. 33 U.S.C. §§ 905(a), 933(i); Perron v. Bell Maintenance & Fabricators, Inc., 970 F.2d 1409, 1410 (5th Cir.1992), cert. denied, ___ U.S. ___, 113 S.Ct. 1264, 122 L.Ed.2d 660 (1993). When a party other than the employer is liable for damages, the claimant need not elect his remedies. 33 U.S.C. § 933(a). Thus, the claimant may receive workers compensation benefits from his employer and still bring an action against a third party. Potomac Elec. Power Co. v. Wynn, 343 F.2d 295, 297 (D.C.Cir.1965). The issue before the Court is whether the crane operators provided by Seaport were the "borrowed servants" of Maduro during the unloading operation. Generally, this issue is a matter of law. Gaudet v. Exxon Corp., 562 F.2d 351, 357-58 (5th Cir.1977) (King, J., sitting by designation), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 414 (1978). Moreover, because the issue is essentially one of determining the extent of coverage under the LHWCA, federal law applies. Id. at 357.²

1. The Borrowed Servant Doctrine.

The borrowed servant doctrine was originally addressed by the United States Supreme Court in Standard Oil v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480 (1909).³ There, the Court held that, under the borrowed servant doctrine, "an employer will be liable through respondeat superior for negligence of an employee he has `borrowed,' that is, one who does his work under his supervision and control." Gaudet, 562 F.2d at 355 (analyzing Standard Oil). In Standard Oil, a shipper contracted with a stevedore to load cargo onto a vessel. The cargo was loaded with the use of a steam winch provided by the shipper and operated by a winchman in the shipper's employ. The shipper received an agreed compensation from the stevedore for doing the hoisting itself. The stevedore provided all other equipment and labor. During the loading process, a longshoreman in the stevedore's employ was injured when the...