Coffey v. Derby Steel Co., Inc.

• Citation: 434 A.2d 564,291 Md. 241
• Decision Date: 11 September 1981
• Docket Number: No. 107,107
• Parties: Gary J. COFFEY et al. v. DERBY STEEL COMPANY, INC., et al.
• Court: Court of Appeals of Maryland

Page 241

291 Md. 241

434 A.2d 564

Gary J. COFFEY et al. v. DERBY STEEL COMPANY, INC., et al.

No. 107.

Court of Appeals of Maryland.

Sept. 11, 1981.

John T. Enoch, Baltimore, and H. Patrick Donohue Rockville, for appellants.

David M. Buffington, Baltimore (Semmes, Bowen & Semmes, Baltimore, on the brief), for appellee, The Derby Steel Co., Inc.

Sidney Blum, Baltimore, for appellee Schafer Testing Laboratories, Inc. Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ. SMITH, Judge.

Two questions are presented in this case: (1) Whether appellee Derby Steel Company, Inc., is a statutory employer under Maryland Code (1957) Art. 101, § 62 and thus immune from any liability to appellant Gary J. Coffey other than for workman's compensation, and (2) whether Coffey et al. established any liability to them on the part of appellee Philip E. Schafer Testing Laboratories, Inc. We shall hold that Derby is a statutory employer and that Schafer's liability was not established.

i The background

Coffey was injured on the job at the construction site of the Careers Center Building at Anne Arundel County Community College on June 8, 1972. He was employed as a steel erector by The Prosser Company. Compensation under the Workmen's Compensation Act was paid to Coffey by Prosser's insurer. Derby held a subcontract to furnish and erect the structural steel for the building. It contracted with Prosser to do the actual erection.

Coffey and his wife sued Derby; R.T.K.L. Associates, Inc., the architect; and Schafer. The declaration alleged, among other things, that Derby was "engaged in the design, manufacture and sale of structural steel used in buildings such as the one under construction at Anne Arundel Community College," Coffey's fall by which he was injured, and that this fall "was caused by the carelessness, recklessness, negligence and wanton disregard of the rights of (Coffey) by (Derby), through its agents, servants and/or employees" in a number of regards. It was alleged that the architect failed "to use proper care in the design of steel beams," etc. The declaration said that Schafer "was engaged (in) and undertook to perform inspection and testing work which included the responsibility to inspect and test the design and manufacture of all steel beams used in said construction by structural iron workers such as ... Coffey () so that said steel beams would be free from defects and irregularities that made their use unsafe and unfit for incorporation into the building under construction," and that Coffey's fall "was caused by the carelessness, recklessness and negligence and wanton disregard of the rights of (Coffey) by ... Schafer () through its agents, servants and/or employees" in a number of regards. Mrs. Coffey joined in a count to recover for a loss of consortium.

The Circuit Court for Anne Arundel County granted Derby's motion for summary judgment. The trial judge made the finding required by Maryland Rule 605 a which permitted an appeal prior to the end of the whole case. The Court of Special Appeals affirmed in an unreported opinion. The case reached us in Honaker v. W.C. & A.N. Miller Dev. Co., 285 Md. 216, 401 A.2d 1013 (1979) (Honaker II ), being consolidated for purposes of argument and opinion with the case of Dallas A. Honaker et ux. v. W.C. & A.N. Miller Development Company. We reversed and remanded for trial. We concluded the opinion by stating:

The sum total of that which was before the trial judge on the motion for summary judgment is susceptible of an inference that Derby is no longer engaged in "the trade, business or occupation" of steel erection. Accordingly, the matter should be tried so that a finding of fact may be made as to whether Derby is in the steel erection business. (d. at 232-33, 401 A.2d 1013.)

The case was fully tried. A directed verdict was entered in favor of the architect from which no appeal has been entered. The case was submitted to the jury on issues. A substantial verdict was returned against Derby and Schafer. The trial judge entered judgment n.o.v. in favor of Derby and Schafer against Coffey on the ground that Coffey was contributorily negligent and as to Derby on the additional ground that Derby was Coffey's statutory employer. Coffey appealed to the Court of Special Appeals. Because there seemed to be some misunderstanding relative to our earlier opinion, we granted Coffey's petition for the writ of certiorari prior to the time the case was heard in the Court of Special Appeals. We shall not place our decision here as to Schafer on the ground of contributory negligence. In the course of our discussion we shall develop such additional facts as may be requisite. As we shall develop, that which was before the trial judge on the motion for judgment n.o.v. was not a carbon copy of that which he considered on the motion for summary judgment.

ii The law

We have here essentially two cases, the one against Derby and the one against Schafer. Two principles of law are applicable to both cases.

The first such principle is the standard for appellate review of a judgment n.o.v. We consider the evidence and the reasonable inferences to be drawn from it in the light most favorable to the party opposing the motion here, Coffey. Wesko v. G.E.M., Inc., 272 Md. 192, 200, 321 A.2d 529 (1974), and Lusby v. First Nat'l Bank, 263 Md. 492, 499, 283 A.2d 570 (1971). This has its limitations, as pointed out by Chief Judge Prescott for the Court in Gatling v. Sampson, 242 Md. 173, 218 A.2d 202 (1966):

The principle that the evidence and proper inferences therefrom must be considered in a light most favorable to the plaintiff when determining whether to take a case from the jury on the ground of no proof of primary negligence does not require the taking of isolated sentences, or parts of sentences, in the testimony, and construing them out of context, without any regard to the rest of a witness's testimony. The testimony to establish primary negligence must be credible; and that which is incredible should be disregarded. Cocco v. Lissau, 202 Md. 196 (, 95 A.2d 857 (1953)); York Motor Express Co. v. State, 195 Md. 525 (, 74 A.2d 12 (1950)); Olney v. Carmichael, 202 Md. 226 (, 96 A.2d 37 (1953)). Cf. So. Md. Electric v. Blanchard, 239 Md. 481 (, 212 A.2d 301 (1965)). (Id. at 182, 218 A.2d 202.)

In reviewing the granting or denial of a motion for summary judgment, all inferences also must be resolved against the moving party. If the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law, then the judgment sought shall be rendered forthwith. Maryland Rule 610 d 1. In Honaker II, 285 Md. at 231, 401 A.2d 1013, we pointed this out and said that there all inferences were required to be considered in a light most favorable to Coffey. The fact that the inferences there were required to be so resolved does not make the review here of the granting of judgment n.o.v. precisely the same as the review of the granting of summary judgment, however. It is true that we said in Porter v. General Boiler Casing Co., 284 Md. 402, 396 A.2d 1090 (1979):

The function of the trial judge on such a motion is said to be much the same as that which he performs at the close of all the evidence in a jury trial when motions for a directed verdict or requests for peremptory instructions require him to determine whether an issue requires resolution by a jury or is to be decided by the court as a matter of law. Washington Homes (v. Inter. Land Dev., 281 Md. 712,) 716 (, 382 A.2d 555 (1978)); Lynx, Inc. v. Ordnance Products, 273 Md. 1, 8, 327 A.2d 502 (1974); and Salisbury Beauty Schools v. St. Bd., 268 Md. 32, 41, 300 A.2d 367 (1973). Moreover, "even where the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact." Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138, 265 A.2d 256 (1970), and cases there cited. It follows, accordingly, that if there is a conflict between the inferences which may be drawn from that before the court, summary judgment is not proper. (Id. at 413, 396 A.2d 1090.)

However, as we pointed out in Berkey v. Delia, 287 Md. 302, 326, 413 A.2d 170 (1980), quoting the opinion for the Court by Judge Emory H. Niles in Tellez v. Canton R. R., 212 Md. 423, 430, 129 A.2d 809 (1957), "the function of the summary judgment procedure is not to try the case or to decide issues of fact. It is merely to determine whether there is an issue of fact to be tried, and if there is none, to cause judgment to be rendered accordingly." Such procedure is not a substitute for trial. Also, as Judge Digges pointed out for the Court in Metropolitan Mtg. Fd. v. Basiliko, 288 Md. 25, 28, 415 A.2d 582 (1980), a trial court "ordinarily, does possess discretion to refuse to pass upon, as well as discretion affirmatively to deny, a summary judgment request in favor of a full hearing on the merits; and this discretion exists even though the technical requirements for the entry of such a judgment have been met." For somewhat similar discussion, see Smith v. Blackledge, 451 F.2d 1201, 1202 n.1 (4th Cir.1971) and Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir.), cert. denied, Ford Motor Co. v. Pierce, 342 U.S. 887, 72 S.Ct. 178, 96 L.Ed. 666 (1951).

Credibility is not an issue to be determined on summary judgment. In granting or denying a motion for summary judgment, a judge makes no findings of fact. Such is not the purpose of summary judgment. It is sharply contrasted with a motion for a directed verdict or a motion for judgment n.o.v., both of which test the legal sufficiency of the evidence adduced. See the discussion and cases cited by Judge Orth for the Court in...