Claudio v. US

• Decision Date: 16 November 1995
• Docket Number: No. CV-94-5220.,CV-94-5220.
• Citation: 907 F. Supp. 581
• Parties: Edward CLAUDIO and Edna Claudio Plaintiffs, v. UNITED STATES of America and Ken's Marine Service, Inc. in personam, and T/B NATHAN BERMAN, et al. Defendants.
• Court: U.S. District Court — Eastern District of New York

907 F. Supp. 581

Edward CLAUDIO and Edna Claudio Plaintiffs, v. UNITED STATES of America and Ken's Marine Service, Inc. in personam, and T/B NATHAN BERMAN, et al. Defendants.

No. CV-94-5220.

United States District Court, E.D. New York.

November 16, 1995.

COPYRIGHT MATERIAL OMITTED

John P. James, Friedman, Biondi & James, New York City, for plaintiffs.

Joseph Donat, Herzfeld & Rubin, New York City, for Ken's Marine.

Janis G. Schulmeisters, Zachary W. Carter, Frank W. Hunger, and United States Department of Justice, Torts Branch, Civil Division, New York City, for the U.S.

MEMORANDUM AND ORDER

GLASSER, District Judge:

BACKGROUND

This is an action by plaintiffs Edward Claudio and Edna Claudio seeking damages for personal injuries sustained by Edward Claudio ("Claudio") on October 1, 1993, when he fell into the hold of the tank barge Nathan Berman. Defendant Ken's Marine Service Inc. ("KMS") was performing cleanup tasks on the Nathan Berman on that date pursuant to a contract with the United States Coast Guard for the removal of the hazardous substance. On June 3, 1993, the United States Coast Guard issued to the owner and operator of the Nathan Berman a Notice of Federal Assumption for a Hazardous Substance Incident, and entered into a contract with KMS for cleanup of the barge on the same day.

Defendant United States has cross-claimed against defendant KMS alleging that under the terms of their contract, KMS is obligated to indemnify the United States for any loss, damage, or injury arising from the work it undertook to perform, and for all or part of any verdict or judgment a plaintiff may recover against the United States. The United States also alleges that any damages sustained by Claudio were caused by the negligence of KMS and that the United States would therefore be entitled to contribution from KMS based upon apportionment of fault.

Claudio has received workers' compensation benefits from Ken's Marine and Oil Service, Inc. ("KMOS") for the above-mentioned injury. However, he brings this suit against defendant KMS, alleging that KMS was not his employer on the date he was injured; Claudio asserts that only KMOS employed him on that date.¹ KMS asserts that Claudio was working jointly for KMS and KMOS on the date in question, that both KMS and KMOS were involved in removing the hazardous materials on the Nathan Berman pursuant to a contract with the Coast Guard, and that KMS and KMOS were engaged in a joint venture.

Based on its theory that the defendant was employed jointly by KMS and KMOS, defendant KMS has moved for an order pursuant to Rule 12(b)(6) and/or rule 56 Federal Rules of Civil Procedure granting summary judgment dismissing plaintiffs' complaint and all cross claims against it. KMS asserts that this action is barred by section 905 of the Longshore and Harborworkers Compensation Act, 33 U.S.C. § 901 et seq. ("LHWCA"), under which an employer who provides his employee with the insurance benefits required by statute has no other liability toward the employee for injuries. 33 U.S.C. §§ 904, 905(a). KMS also asserts that the United States was the owner pro hac vice of the Nathan Berman at the time of the accident, that the plaintiffs' action against the United States is for negligence in that capacity and that accordingly, the United States' cross claims against KMS are barred by 33 U.S.C. § 905(b).

DISCUSSION

Summary Judgment

Summary judgment "shall be rendered forthwith if ... there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In order for the moving party to be successful, it must "point out to the district court ... that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1985). In opposing a properly supported summary judgment motion, "an adverse party may not rest upon the mere allegations or denials of its pleading, but its response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e) (emphasis added).

In deciding a summary judgment motion, the court need not resolve disputed issues of fact, but need only determine whether there is any genuine issue to be tried. Eastman Mach. Co., Inc. v. United States, 841 F.2d 469, 473 (2d Cir.1988). A genuine factual issue exists if there is sufficient evidence favoring the nonmovant such that a jury could return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The nonmoving party, therefore, must come forward with facts, and not doubts as to the veracity of the moving party's allegations: "Rule 56(e) ... requires the nonmoving party to go beyond the pleadings and by her 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. "The mere existence of factual issues pertaining to immaterial facts will not suffice to defeat a motion for summary judgment." Quarles v. General Motors Corp., 758 F.2d 839, 840 (2d Cir.1985). The nonmovant "must do more that simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986).

Applicability of the Longshoremen's Act

Defendant KMS argues for summary judgment based on the LHWCA, which provides:

(a) Except as otherwise provided in this section, compensation shall be payable under this Act in respect of disability or death of an employee, but only if the disability or death results from an injury occurring upon the navigable waters of the United States (including any adjoining pier, wharf, dry dock, terminal, building way, marine railway, or other adjoining area customarily used by an employer in loading, unloading, repairing, dismantling, or building a vessel).

33 U.S.C. § 903.

Under the LHWCA, the liability of an employer who provides his employee with the insurance benefits prescribed by statute is "exclusive and in place for all other liability of such employer to the employee, his legal representative, husband or wife ..." 33 U.S.C. § 905(a). "Employer" under this statute includes "an employer any of whose employees are employed in maritime employment, in whole or in part, upon the navigable waters of the United States." 33 U.S.C. § 902(4). "Employee" means "any person engaged in maritime employment, including any longshoreman or other person engaged in longshoring operations, and any harbor-worker including a ship repairman, shipbuilder, and ship-breaker." 33 U.S.C. § 902(3).

The work performed by Claudio on the Nathan Berman involved maritime employment upon the navigable waters of the United States. See generally Director, OWCP v. Perini North River Assoc., 459 U.S. 297, 103 S.Ct. 634, 74 L.Ed.2d 465 (1983). The LHWCA therefore bars any recovery by Claudio from his employer other than that provided under this statute.

KMS as Claudio's Employer

In support of its contention that KMS was Claudio's employer on the date of the accident, KMS has submitted a Daily Safety Meeting Attendance Sheet for the date of Claudio's accident in which Claudio wrote "KMS" under the heading "company." Supp.Donat Aff.Ex. C. KMS has also submitted evidence of two separate accident reports filed with the State of New Jersey, one listing plaintiff's employer as KMS and the other listing the employer as KMOS. KMS has submitted W2 forms issued to Claudio by KMS, and a photograph of Claudio in a KMS uniform. Neither the photograph nor the W2 forms, however, make reference to the date of the accident.

Claudio has not specifically denied that he was employed by KMS on the date in question. However, he has submitted an affidavit in support of his contention that he was an employee of KMOS at the time of the accident, based on the fact that "In 1989 or 1990, I and other employees of KMS were transferred to, and became employees of, Ken's Marine and Oil Service, Inc. ("KMOS"). Thereafter, and as far as I was concerned and understood, I was an employee of KMOS and retained that status through the date of my accident on October 1, 1993." Claudio Aff. ¶ 4. Although Claudio does not deny receiving checks and W-2 forms from KMS during the years in which he states he was employed by KMOS, he asserts that he does "not know the basis for the monies paid to me by KMS shown on the W-2 forms." Claudio Aff. ¶ 5. In addition, Claudio states that he does not know who employed his two immediate supervisors. Claudio Aff. ¶ 7. He also states that he did not wear any type of shirt containing an employer's logo. Claudio Aff. ¶ 9.

As is hereafter demonstrated, the unique relationship between KMS and KMOS requires that the protection afforded to KMOS as Claudio's employer under the LHWCA be extended to KMS as well.

The Joint Venture

Defendant KMS argues that a joint venture existed between KMS and KMOS and that the LHWCA therefore precludes Claudio's recovery from KMS. See generally Heavin v. Mobil Oil Exploration and Producing Southeast, Inc., 913 F.2d 178 (5th Cir.1990); Haas v. 653 Leasing Co., 425 F.Supp. 1305 (D.C.Pa.1977). In support of its position that KMS and KMOS were joint venturers, defendant KMS has submitted an affidavit by Kenneth Poesl, President and Treasurer of KMS. In his affidavit, Mr. Poesl states that while KMS and KMOS originally started as separate companies, they "have become commingled to a point that it is impossible to differentiate any distinction between" them; the companies shared the same corporate offices, had the same address, operated out of the same office, and have the same post office box, the same telephone number, and the same fax number. Poesl Aff. at...