Geris v. Disilva Taunton Express, Inc.

• Decision Date: 25 July 2013
• Docket Number: 07-CV-376-JTC
• Parties: LORNA GERIS, Individually, and as Personal Representative of the Estate of FRED GERIS, and as Parent and Natural Guardian of CHRISTOPHER, MATTHEW, and KRISTINE GERIS; and, THE WORKPLACE SAFETY & INSURANCE BOARD OF ONTARIO, as Subrogee, Plaintiffs, v. DiSILVA TAUNTON EXPRESS, INC., and JOSE L. MARTE, Defendants.
• Court: U.S. District Court — Western District of New York

LORNA GERIS, Individually, and as Personal Representative of the Estate of FRED GERIS,and as Parent and Natural Guardian of CHRISTOPHER, MATTHEW, and KRISTINE GERIS;and, THE WORKPLACE SAFETY & INSURANCE BOARD OF ONTARIO, as Subrogee, Plaintiffs,

v.DiSILVA TAUNTON EXPRESS, INC., and JOSE L. MARTE, Defendants.

07-CV-376-JTC

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

Dated: July 25, 2013

In this action, originally filed in New York State Supreme Court, Erie County, and removed to this court pursuant to 28 U.S.C. §§ 1446 and 1332 on the basis of complete diversity of the citizenship of the parties, plaintiffs seek damages for wrongful death arising out of a motor vehicle accident which occurred on the New York State Thruway on February 22, 2006, resulting in the death of plaintiffs' decedent, Fred Geris.

Defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, seeking dismissal of the entire action or, alternatively, certain claims (Item 67), and plaintiffs have filed a cross-motion for partial summary judgment on liability (Item 72). For the reasons that follow, defendants' motion and plaintiff's cross-motion are both denied.

BACKGROUND

The following factual and procedural background is derived from the pleadings, affidavits, declarations, exhibits, discovery materials, and other submissions on file (including the parties' respective Statements of Facts on Motion for Summary Judgment pursuant to Rule 56(a) of the Local Rules of Civil Procedure for the Western District of New York (Items 67-24 and 72-2)).

I. The Parties

A. The Plaintiffs: Lorna Geris and the WSIB

Plaintiff Lorna Geris brings this action on her own behalf and on behalf of her minor children as representative of the estate of her husband, Fred Geris. Ms. Geris was born on January 10, 1970, and grew up in the Philippines. In the early 1990's, soon after she immigrated to Canada, she met Fred Geris while they were working at the same hotel bar in Toronto. They later married, and at the time of the events at issue here, they lived in Etobicoke, Ontario (a Toronto suburb) with their three minor children-Christopher (then age 11), Matthew (then age 9), and Kristine (then age 6). See Item 72-2, ¶¶ 2, 1-13.

Fred Geris was born on December 25, 1953, in London, Ontario. Following his retirement from a 25-year career in active duty and civilian service for the Canadian Armed Forces, Mr. Geris obtained his Commercial Driver's License ("CDL") in 1995 upon completion of a commercial driver training program at Humber College's Transportation Training Centre. He worked for Schneider's Trucking Company for several years, and then for two other small trucking companies, before he was hired by Brian Kurtz Trucking, Ltd. ("Kurtz Trucking") in December 2004. See Item 72-2, ¶¶ 2-10.

The Workplace Safety and Insurance Board of Ontario, Canada ("WSIB"), is also a plaintiff in this action. The WSIB was created under Ontario law to operate as the insurance carrier and administrative body for processing worker's compensation claims by or against Ontario domiciliaries, pursuant to the authority of the Workplace Safety and Insurance Act ("WSIA"), S.O. 1997, C.16 (Can.). The WSIB brings this action against defendants DTE and Mr. Marte as "subrogee," having paid workers' compensation benefits to Ms. Geris in accordance with her election of remedies under the WSIA (as explained at further length below).

B. The Defendants: Jose Marte and DiSilva Taunton Express

Defendant Jose Marte was born on January 22, 1982, in the Dominican Republic. He moved to the United States in 1995, and currently resides in Providence, Rhode Island. He was 23 years old when he received his CDL in December 2005, following completion of a five-month training course at New England Tractor-Trailer School ("NETTS"). Soon thereafter, in January 2006, he went to work as a truck driver for defendant DiSilva Taunton Express, Inc. ("DTE"). See Item 67-19, pp. 27-30; Item 67-21, pp. 1-17.

DTE was one of a series of companies operated by Christopher DiSilva and his family. DTE was established in 2005, and operated from its principal business location in Taunton, Massachusetts transporting groceries and foodstuffs for retailers. DTE is no longer in business, having ceased operations in February 2010. While it was in operation, DTE was staffed by a combination of its own employees and drivers employed by independent vehicle owners who contracted with DTE to provide vehicles and services necessary to fulfill customer requirements. One such independent contractor was thehusband and wife team of Lillian and Amilcar Silva (not related to the DiSilva family), who owned the vehicle involved in the accident giving rise to this action, and hired defendant Marte as a driver. See Item 72-2, ¶¶ 42-47.

II. The Accident

On the morning of February 22, 2006, Mr. Geris was traveling eastbound on the New York State Thruway (Interstate I-90), hauling a load of marine batteries for Kurtz Trucking in a 2003 Kenworth tractor-trailer. At the same time, Mr. Marte and his co-driver, Noel Columna, were traveling eastbound on the Thruway on their way back from Chicago, Illinois to DTE's facility in Taunton, Massachusetts, hauling a load of refrigerated eggs in a 2001 Freightliner tractor-trailer. Mr. Marte and Mr. Columna had stopped at the Angola service area, and had parked their tractor-trailer on the right shoulder of the deceleration (exit) ramp leading to the service area.

At approximately 7:55 a.m., as Mr. Geris's vehicle approached the Angola service area, Mr. Marte attempted to re-enter traffic by driving his vehicle across the deceleration ramp and into the right driving lane, directly in front of Mr. Geris. The passenger side of Mr. Geris's cab struck the rear driver's side of Mr. Marte's trailer, causing Mr. Geris' vehicle to travel onto the left shoulder, then back across both lanes, coming to rest against an embankment in a ditch on the right shoulder of the Thruway. At some point after impact, Mr. Geris-who was not wearing a seatbelt-was ejected from the cab. He did not survive the accident. Mr. Marte and Mr. Columna were not injured. See Item 67-24, ¶¶ 1-5; Item 72-2, ¶¶ 17-28.

On May 5, 2006, Investigator Kenneth Dubrinski and Trooper Glenn Walsh submitted a report to the New York State Police Troop "A" Collision Reconstruction Unit, containing the following reconstruction of the accident based upon an examination of the evidence and review of statements given relative to the case:

On February 22nd, at approximately 7:55 A.M., Vehicle 1, a tractor/semi-trailer combination vehicle operated by Jose L. Marte was stopped on the paved South shoulder of the New York State Thruway at the exit ramp for the Angola rest area. The operator of Vehicle 1 attempted to re-enter the eastbound lanes of travel by driving across the exit ramp and through the neutral area.

Vehicle 2, a tractor/semi-trailer combination vehicle operated by Fred Geris was traveling eastbound in the driving lane. The operator of Vehicle 2 observes Vehicle 1 enter his path traveling at a much slower speed. The operator of Vehicle 2 swerves to the left and applies the brakes in an attempt to avoid a collision.

The passenger side of Vehicle 2's cab impacted the driver side rear of Vehicle 1's semi-trailer. Vehicle 1 was driven forward and to the right as a result of the collision. Vehicle 1 left the short dual skid marks noted in the driving lane as a result of the crash. As Vehicle 1 pulled forward to a controlled final rest on the South shoulder it also left a single skid mark.

As a result of the collision, Vehicle 2's tractor unit began to rotate in a clockwise direction. Vehicle 2 swerved off the North shoulder before veering back onto the roadway. The unrestrained operator of Vehicle 2 was ejected out the passenger side of the cab, which was torn open at impact. The operator of Vehicle 2 was dragged across the driving lane and South shoulder before being released as the vehicle drove into the ditch off the South shoulder. As Vehicle 2's tractor traveled down into the ditch and was forced partially up the opposite bank, the forces involved caused the frame of the semi-trailer to break at the midpoint. The two halves of the trailer collapsed to the ground pinning the operator underneath.

Item 72-9, p. 7. The Reconstruction Report contained the following conclusion:

The primary causes of this collision are the actions of Vehicle 1's operator, Jose L. Marte. Failing to yield to traffic already on the highway before entering from a stopped position on the South shoulder is the primary cause in this case. Entering the highway in this manner was made worse by the large disparity in speed between Vehicle 1 and the other traffic on the highway that was traveling at or near the speed limit of 65 miles per hour.

The proper course of action would have been to pull onto the entrance ramp, proceed through the rest area and use the acceleration lane coming out of the rest area so that he could merge with traffic at speed.

The fact that this collision resulted in a fatality was the result of Vehicle 2's operator, Fred Geris' failure to wear a seatbelt. The mechanics of this crash are such that there was not a sufficient change in velocity that would have been experienced by Vehicle 2's operator to result in a fatality had he been secured in his seat.

Id.

Mr. Marte was ticketed at the scene of the accident for failing to yield the right of way, in violation of N.Y. Vehicle & Traffic Law § 1143, and for vehicle log book and equipment violations, and was convicted on a plea of guilty to those charges. See Item 72-2, ¶¶ 39-40.

III. "Election" Under the WSIA

The WSIA provides injured workers (and their surviving spouses and children) statutory entitlement to financial compensation, medical treatment, re-employment assistance, and help re-entering the labor market on a no-fault basis. With respect to the issues in this case, the WSIA...