Feraci v. Grundy Marine Const. Co.
| Citation | 315 F.Supp.2d 1197 |
| Decision Date | 11 March 2004 |
| Docket Number | No. 3:02-CV-525/MCR.,3:02-CV-525/MCR. |
| Parties | Dominic FERACI, individually and on behalf of his minor children, Nicolas Anthony Feraci and Kristen Nicole Feraci, Plaintiffs, v. GRUNDY MARINE CONSTRUCTION COMPANY; P & S Construction Services, Inc.; Total Leasing Company, Inc.; Ronnie Resmondo; Paul Waynick; and Ledr Group, Inc., d/b/a TMG Staffing Services, Inc., Defendants. |
| Court | U.S. District Court — Northern District of Florida |
Ronnie G. Penton, Ronnie G. Penton PA, Bogalusa, LA, for Plaintiff.
Charles Thomas Wiggins, Beggs & Lane, Yancey Frank Langston, Moore Hill & Westmoreland PA, Charles Phillip Young, Emmanuel Sheppard & Condon, Pensacola, FL, for Defendants.
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
Pending before the court are five motions for summary judgment (see docs. 199, 205, 207, 213, and 215) and documents in support thereof (see docs. 200-01, 206, 208-09, 213-16, 243, 257-58, and 261), which were filed by the following five Defendants: (1) GRUNDY MARINE CONSTRUCTION COMPANY; (2) P & S CONSTRUCTION SERVICES, INC.; (3) TOTAL LEASING COMPANY, INC.; (4) RONNIE RESMONDO; and (5) LEDR GROUP, INC., d/b/a TMG STAFFING SERVICES, INC. Plaintiff DOMINIC FERACI timely filed memoranda and evidentiary materials in opposition to each motion. (Docs.223-27, 232-35). The court has taken the motions under advisement (Doc. 256) and is now prepared to rule on Defendants' motions. Because of an entitlement to workers' compensation immunity, the following Defendants' motions for summary judgment are GRANTED: (1) GRUNDY MARINE CONSTRUCTION COMPANY; (2) P & S CONSTRUCTION SERVICES, INC.; (3) RONNIE RESMONDO; and (4) LEDR GROUP, INC., d/b/a TMG STAFFING SERVICES, INC. Even though TOTAL LEASING COMPANY, INC., is not entitled to workers' compensation immunity, the company's motion for summary judgment is GRANTED, because Plaintiffs failed to demonstrate a cause of action against the company.
On December 23, 2002, Plaintiffs filed the current action in this Court based on diversity jurisdiction.1 (Doc. 1). Plaintiffs later filed an amended complaint (see doc. 55), to which all Defendants filed timely answers . On April 30, 2003, Plaintiffs filed a motion to dismiss Defendant PAUL WAYNICK without prejudice from the case (see doc. 118), and on May 14, 2003, the Court granted Plaintiffs' motion (see doc. 123). The following three causes of action are common to all remaining Defendants: (1) unspecified intentional torts; (2) negligence; and (3) gross negligence. (Doc. 55).2 Beginning in mid-August 2002, the five remaining Defendants each filed a motion for summary judgment along with supporting documentation. (Docs.199-201, 205-209, 213, 215-216, 243, 257-258). Plaintiffs timely filed materials in opposition to each motion. (Docs.223-27, 232-35). On January 26, 2004, the Court entered an Order and Notice notifying the parties that summary judgment would be taken under advisement beginning on February 2, 2004 (Doc. 256).
For purposes of ruling on Defendants' motions for summary judgment, the following facts are either undisputed or viewed in the light most favorable to Plaintiffs.3 This is a personal injury case for damages arising out of an injury to Plaintiff DOMINIC FERACI ("Feraci"), which occurred on October 19, 2001, while he was working at a construction site. At the time of the accident, Defendant GRUNDY MARINE CONSTRUCTION COMPANY ("Grundy") was a prime contractor with the United States Army Corps of Engineers who had entered into a contract to perform construction operations at Hurlburt Field Air Force Base in Okaloosa County, Florida ("the project"). (Docs. 209, ¶ 1; 214, ¶ 1). Grundy subcontracted with Defendant P & S CONSTRUCTION SERVICES, INC. ("P & S"), to perform underground utility work on the project, including the installation of concrete and PVC pipe. (Docs. 209, ¶ 2; 214, ¶ 2). Pursuant to the terms of the subcontract between Grundy and P & S, P & S was obligated to secure and maintain worker's compensation coverage for the project personnel who were under P & S's direction and control. (Doc. 209, ¶ 3).
On September 30, 2001, Plaintiff DOMINIC FERACI ("Feraci") was hired as a laborer to work for P & S at the Hurlburt Field project. (Doc. 55, ¶ 6B). Feraci was employed by Defendants P & S and LEDR GROUP, INC. d/b/a TMG STAFFING SERVICES, INC. ("TMG"). (Doc. 214, ¶ 4).4 TMG is an employee leasing company who leased Feraci to P & S to work on the project. (Doc. 214, ¶ 3). Pursuant to the February 1, 2001, contract between P & S and TMG, TMG was responsible for the "back office" and administrative tasks relevant to its leased personnel, including payment of worker's compensation premiums and payroll. (Doc. 209, ¶ 6). Thus, TMG acquired and maintained worker's compensation coverage for Feraci. (Docs. 201, ¶ 8; 209, ¶ 7). Throughout the course of the project, TMG did not interfere with P & S's day-to-day operations. (Doc. 209, ¶ 9). Pursuant to the terms of the P & S/TMG contract, TMG retained various rights related to safety and risk management; however, P & S was responsible for the direct supervision of the leased employees and for compliance with any relevant safety regulations. (Doc. 209, ¶ 10).
On the morning of the accident, Hugh Noa ("Noa"), one of Grundy's superintendents, ordered P & S to move four 48-inch elliptical concrete pipes from one location at the project site to another. (Docs. 209, ¶ 17; 214, ¶ 13). Noa did not give P & S any specific instructions as to the methods or procedures to be employed in moving the pipes. (Doc. 209, ¶ 18). P & S's foreman, Defendant RONNIE RESMONDO ("Resmondo") ordered Feraci and two co-workers, Paul Waynick ("Waynick") and Kenneth Melvin ("Melvin"), to move the four pipes using a Caterpillar excavator, commonly referred to as a "trac-hoe."5 (Docs. 209, ¶¶ 12, 19; 216, ¶¶ 2-4).6 The pipes were to be hoisted using a steel cable attached to the trachoe's bucket. (Doc. 209, ¶ 13).7 Throughout his time on the project, Feraci had assisted crews using the same hoisting method with smaller pipes. (Docs. 209, ¶ 15; 216, ¶¶ 6-7).8 Waynick operated the trac-hoe while Feraci and Melvin worked as the ground personnel. (Doc. 209, ¶ 20). The men moved one of the concrete pipes without incident; however, while moving the second pipe, Feraci suffered injury. (Docs.209, ¶¶ 21-22, 214, ¶ 13). Feraci and Melvin had been standing away from the trac-hoe but somehow Feraci became crushed between the second concrete pipe and either the trac-hoe or the hoist cable. (Docs. 209, ¶ 22; 214, ¶¶ 13-14).9 As a result of the accident, CNA Insurance, TMG's worker's compensation carrier, voluntarily paid workers' compensation benefits to Feraci. (Docs. 209, ¶ 25; 214, ¶¶ 6-7; 216, ¶ 20).
In Plaintiffs' amended complaint, Plaintiffs aver that the causes of Feraci's injuries were due to the Defendants'"willful and wanton disregard" for Feraci's safety, as well as the following "grossly negligent acts and omissions:"
(1) Inadequate supervision over the operations, work environment, and personnel[;]
(2) Too many employees unaware of each other's movement and activity[;]
(3) Very congested area requiring additional oversight, traffic management, and safety monitoring[;]
(4) Inadequately trained operator concerning the safety aspect of ground personnel[;]
(5) Inexperienced and/or inadequately trained laborers[;]
(6) No established procedures or policies for visual contact at all times with ground personnel assigned to the operator[;] (7) Improperly adjusted mirrors on the trackhoe equipment to allow visual contact with ground personnel[;]
(8) Limited visibility of equipment operator with ground personnel and structures[;]
(9) No safety meeting was held before this operation addressing the relevant safety precautions of the job[;]
(10) Toolbox safety meetings were not conducted regularly or documented at the worksite[;]
(11) Inadequate hazard identification of operations, work tasks, personnel assignments, and the worksite[;]
(12) Failure to perform equipment safety inspections of equipment and worksites[;]
(13) Failure to provide ground spotters to eliminate blind equipment operations[;]
(14) Failure to maintain the working environment, equipment, machinery, supplies, and training for their employees to meet all state and federal OSHA standards[;]
(15) Failure to inspect, review, test, and approve safety procedures prior to commencing the subject operation[;]
(16) Failure to provide proper supervision and safety monitoring of the task[;]
(17) Failure to provide safe work practices and use of protective equipment imposed by controlling federal, state and local government, and for all applicable laws, ordinances, and regulations related to environmental, equipment, machinery, and all other matters which affected the assigned employee's safety[;]
(18) Failure to provide a safe work environment involving heavy equipment, human beings, and construction materials and facilities[;]
(19) Failure to implement safety policies and procedures[;]
(20) Inadequate risk protection and prevention[;]
(21) Inadequate training, generally[;]
(22) Failure to provide a competent worksite superintendent.
(Doc. 55, ¶ 7A). In addition, Plaintiffs also generally refer to Defendants' knowing and reckless conduct, but they are not specific as to what and whose conduct demonstrates knowledge and recklessness.10
Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any, show that no genuine issue of material fact exists and that the party moving is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The...
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