Ellison v. Caddell Constr. Co., Civil Action No. 6:09-3093-JMC-JDA

• Decision Date: 12 August 2011
• Docket Number: Civil Action No. 6:09-3093-JMC-JDA
• Citation: Ellison v. Caddell Constr. Co., Civil Action No. 6:09-3093-JMC-JDA (D. S.C. Aug 12, 2011)
• Parties: Ted Miles Ellison Plaintiff, v. Caddell Construction Co., Inc., Defendant.
• Court: U.S. District Court — District of South Carolina

Ted Miles EllisonPlaintiff,

v.Caddell Construction Co., Inc., Defendant.

Civil Action No. 6:09-3093-JMC-JDA

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA GREENVILLE DIVISION

August 12, 2011

REPORT AND RECOMMENDATION

OF MAGISTRATE JUDGE

This matter is before the Court on Defendant's motion for summary judgment[Doc. 66] pursuant to Rule 56 of the Federal Rules of Civil Procedure.Specifically, Defendant alleges the Defense Base Act ("DBA"), 42 U.S.C. §§ 1651-1654, provides the exclusive remedy for Plaintiff's allegations of injury.Further, Defendants argue Plaintiff has failed to establish the requisite elements for his claims of assault and battery, conspiracy, and gross negligence.Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B)andLocalRule 73.02(B)(2)(e), D.S.C., this magistrate judge is authorized to review all pretrial proceedings in pro se actions and submit findings and recommendations to the District Court.

BACKGROUND

Plaintiff's Complaint alleges he resides in Laurens, South Carolina, and DefendantCaddell Construction Company, Inc.("Caddell") is a company located in Montgomery, Alabama.[Doc. 1at 2.]Plaintiff, a former employee of Caddell, contends he was injured while working at a construction site of the U.S. Consulate, located in Juarez, Mexico.[Doc. 1at 3.]Plaintiff alleges Caddell employees Shane Stokes¹("Stokes") and Marco Diaz("Diaz"), acting in "an official capacity representing Caddell," conspired to and didcause additional bodily harm to Plaintiff after he was initially injured on the job.[Id. at 3.]Plaintiff specifically asserts that, while he was under physical and mental duress from job-related injuries, a substance was injected into Plaintiff's body by Diaz, causing Plaintiff bodily harm.[Id.]Plaintiff alleges that this injection was given by Diaz for the purpose of masking Plaintiff's job related injuries.[Id.]

Plaintiff asserts a claim of gross negligence against Caddell between the dates of August 25, 2007 and September 14, 2007 for its failure to obtain proper medical care for his job injuries as well as for injuries caused by the injection.²[Id.]Plaintiff also alleges claims for assault and battery against Diaz³, and claims of conspiracy to conceal a work place injury against Diaz and Stokes⁴.[Id. at 6.]Plaintiff seeks to have "all the people involved to be prosecuted to the fullest extent of the law."[Id. at 8.]Plaintiff also seeks past and future medical damages, damages for loss of earning capacity⁵, and punitive damages in "the amount listed on Caddell's tax return listed as profit for the year of 2007."[Doc. 13.]

APPLICABLE LAW

Liberal Construction of Pro Se Complaint

Plaintiff brought this action pro se, which requires the Court to liberally construe his pleadings.Estelle v. Gamble, 429 U.S.97, 106(1976);Haines v. Kerner, 404 U.S. 519, 520(1972);Loe v. Armistead, 582 F.2d 1291, 1295(4th Cir.1978);Gordon v. Leeke, 574 F.2d 1147, 1151(4th Cir.1978).Pro se pleadings are held to a less stringent standard than those drafted by attorneys.Haines, 404 U.S. at 520.Even under this less stringent standard, however, the pro se complaint is still subject to summary dismissal.Id. at 520-21.The mandated liberal construction means only that if the court can reasonably read the pleadings to state a valid claim on which the petitioner could prevail, it should do so.Barnett v. Hargett, 174 F.3d 1128, 1133(10th Cir.1999).A court may not construct the plaintiff's legal arguments for him.Small v. Endicott, 998 F.2d 411, 417-18(7th Cir.1993).Nor should a court"conjure up questions never squarely presented."Beaudett v. City of Hampton, 775 F.2d 1274, 1278(4th Cir.1985).

Summary Judgment Standard

Rule 56 states, as to a party who has moved for summary judgment:

The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a).A fact is "material" if proof of its existence or non-existence would affect disposition of the case under applicable law.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248(1986).An issue of material fact is "genuine" if the evidence offered is such

that a reasonable jury might return a verdict for the non-movant.Id. at 257.When determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party.United States v. Diebold, Inc., 369 U.S. 654, 655(1962).

The party seeking summary judgment shoulders the initial burden of demonstrating to the court that there is no genuine issue of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 323(1986).Once the movant has made this threshold demonstration, the non-moving party, to survive the motion for summary judgment, may not rest on the allegations averred in his pleadings.Id. at 324.Rather, the non-moving party must demonstrate specific, material facts exist that give rise to a genuine issue.Id.Under this

standard, the existence of a mere scintilla of evidence in support of the non-movant's

position is insufficient to withstand the summary judgment motion.Anderson, 477 U.S. at 252.Likewise, conclusory allegations or denials, without more, are insufficient to preclude granting the summary judgment motion.Ross v. Commc'ns Satellite Corp., 759 F.2d 355, 365(4th Cir.1985)."Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.Factual disputes that are irrelevant or unnecessary will not be counted."Anderson, 477 U.S. at 248.Further, Rule 56 provides in pertinent part:

A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:

(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or

(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.

Fed. R. Civ. P. 56(c)(1).Accordingly, when Rule 56(c) has shifted the burden of proof to the non-movant, he must produce existence of a factual dispute on every element essential to his action that he bears the burden of adducing at a trial on the merits.

DISCUSSION

Caddell argues it is entitled to summary judgment because the DBA is Plaintiff's exclusive remedy, barring Plaintiff's tort claims.In the alternative, Caddell argues it is entitled to summary judgment on Plaintiff's tort claims because Plaintiff has failed to establish the elements for his assault and battery cause of action, his conspiracy cause of action, and his gross negligence cause of action.Finally, Caddell argues Plaintiff has failed to prove proximate cause as to any alleged damages.

Exclusivity Under the Defense Base Act

Congress enacted the DBA, 42 U.S.C. § 1651, et seq., in 1941.The DBA incorporates the Longshore and Harbor Workers' Compensation Act("LHWCA"), 33 U.S.C. § 901, et seq., and its scheme of uniform workers' compensation coverage.42 U.S.C. § 1651(a).Like the LHWCA, the DBA contains an exclusivity provision:

The liability of an employer, contractor (or any subcontractor or subordinate subcontractor with respect to the contract of such contractor) under this chapter shall be exclusive and in place of all other liability of such employer, contractor, subcontractor, or subordinate contractor to his employees (and their dependents) coming within the purview of this chapter, under the workmen's compensation law of any State, Territory, or other jurisdiction, irrespective of the place where the contract of hire of any such employee may have been made or entered into.

42 U.S.C. § 1651(c).Accordingly, the DBA affords the sole remedy for injured employees and contractors working on overseas military bases or land used for military purposes.SeeLadd v. Research Triangle Inst., 335 F. App'x 285, 287, 289(4th Cir.2009);Flying Tiger Lines, Inc. v. Landy, 370 F.2d 46, 52(9th Cir.1966);Makris v. Spensieri Painting, LLC, 669 F. Supp. 2d 201, 206(D.P.R.2009).

Thus, the exclusivity provision of the DBA requires that, if Plaintiff's injuries fall within the scope of the DBA, he cannot pursue common law claims against Caddell arising outof his injuries.Plaintiff does not challenge that the DBA provides an exclusive remedy for a covered injury.Instead, he argues his injuries do not fall within the scope of the DBA.The DBA does not define injury, so the Court must look to the definition of injury in the LHWCA.The LHWCA defines injury as an

accidental injury or death arising out of and in the course of employment, and such occupational disease or infection as arises naturally out of such employment or as naturally or unavoidably results from such accidental injury, and includes an injury caused by the willful act of a third person directed against an employee because of his employment.

33 U.S.C. § 902(2).Accordingly, for Plaintiff's injuries to fall within the scope of the LHWCA, and thus the DBA, they must be accidental injuries arising out of and in the course of employment.⁶

Accidental

"Accidental" is left undefined by the LHWCA and the DBA.As discussed in Taylor v. Kellogg Brown & Root, Inc., No. H-10-2043, 2011 WL 2446429, at *5(S.D. Tex.May 20, 2011), courts have taken two divergent analytical approaches to determining whether an injury was accidental.This Court has previously adopted the approach outlined in Fisher v. Halliburton, 703 F. Supp. 2d 639(S.D. Tex.2010).SeeEllison v. Caddell Constr. Co., No. 6:09-3093, 2010 WL 5125338, at *3(D.S.C.Nov. 10, 2010)(Report and Recommendation recommending...