Great Atlantic & Pacific Tea Co., Inc. v. Imbraguglio

• Decision Date: 01 September 1996
• Docket Number: No. 33,33
• Citation: Great Atlantic & Pacific Tea Co., Inc. v. Imbraguglio, 697 A.2d 885, 346 Md. 573 (Md. 1996)
• Parties: The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., et al., v. Ethel A. IMBRAGUGLIO, et al. ,
• Court: Maryland Court of Appeals

Page 573

346 Md. 573

697 A.2d 885

The GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., et al., v.Ethel A. IMBRAGUGLIO, et al.

No. 33, Sept. Term, 1996.

Court of Appeals of Maryland.

July 28, 1997.

Reconsideration Denied Sept. 5, 1997.

David A. Skomba(Rudolph L. Rose, Erin M. Masson, Semmes, Bowen & Semmes, on brief), Baltimore, for Petitioner.

Eugene A. Shapiro(Darren L. Kadish, Jeffrey R. Moffet, Shapiro & Dorman, P.A., on brief), Baltimore, for Respondents.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, RAKER and WILNER, JJ.

KARWACKI, Judge.

Under Maryland Code(1991 Repl.Vol., 1996 Supp.), § 9-509 of the Labor and Employment Article, ¹ colloquially dubbed the "exclusivity provisions" of Maryland's Workers' Compensation Act ("Workers' Compensation Act" or "the Act"), employers are immune, save for two exceptions, from suit by their employees for work-related injuries.Injured employees' sole recourse against their employers is ordinarily under the benefit provisions of the Workers' Compensation Act.Petitioners, the Great Atlantic and Pacific Tea Company, Inc.("A & P") and Super Fresh Markets of Maryland, Inc.("Super Fresh") have raised several issues in the instant case.A & P asks whether § 9-509 of the Act bars an injured employee from maintaining an action in tort against a workers' compensation insurer for injuring the employee by negligently maintaining real property that the insurer owns.We shall hold that § 9-509 does not bar such a suit.We shall also hold that the record does not conclusively establish as a matter of law that Super Fresh was the statutory employer of the injured employee and therefore immune from suit.For the reasons articulated below, we shall affirm the judgment of the Court of Special Appeals and remand the case for further proceedings consistent with this opinion.

I.

The undisputed facts are as follows.On April 21, 1992, Salvatore Imbraguglio, Respondent's husband, fell approximately fifteen to twenty feet while attempting to position some boxes in a warehouse with the assistance of a fellow employee and a "pallet jack."Mr. Imbraguglio died two days later from his injuries.At the time of the accident, the decedent was working as a forklift operator for Supermarket Distribution Services, Inc.("SDS"), a corporate entity distinct from, but wholly owned subsidiary of, A & P.The accident occurred in a warehouse owned by A & P, but managed by employees of Super Fresh, another corporate entity distinct from, but wholly owned subsidiary of, A & P.The record reveals that in Maryland, Super Fresh operates supermarkets on A & P's behalf, while SDS provides warehousing and distribution services for those markets.A & P is self-insured for workers' compensation purposes and is also the workers' compensation insurer for both SDS and Super Fresh.

As the result of the accident, Respondent filed a Dependant's claim with Maryland's Workers' Compensation Commission("the Commission").Following a hearing, the Commission concluded that Salvatore Imbraguglio sustained an injury arising out of and in the course of his employment that ultimately resulted in his death.Respondent, as the wholly dependent widow of the decedent, ² was awarded weekly death benefits of $355, and funeral expenses of $2,500, payable by the employer, SDS.Shortly thereafter, SDS and Respondent settled the claim for a lump sum amount.A & P, as the workers' compensation insurer for SDS, paid all workers' compensation benefits, including the settlement amount.³

Respondent then brought the action below in the Circuit Court for Baltimore City.In her original and Amended Complaint, Respondent alleged premises liability on the part of A & P and joint liability on the part of A & P and Super Fresh for failing to provide proper supervision of the activities at the warehouse where her husband was killed.

In a Motion for Summary Judgment, A & P maintained that Respondent's sole remedy was under the workers' compensation statute.A & P insisted that it was immune from suit by virtue of its status as the workers' compensation insurer for SDS and Super Fresh.Seeking the same immunity from suit, Super Fresh claimed that it was Salvatore Imbraguglio's statutory employer.After hearing argument on the issue, the circuit court granted summary judgment in favor of A & P and Super Fresh, concluding that they, along with SDS, were the decedent's consolidated employers and therefore entitled to tort immunity under the exclusivity provisions of the Act.

Respondent filed a timely appeal to the Court of Special Appeals.The intermediate appellate court reversed the judgment of the circuit court and concluded that A & P's coincidental status as SDS and Super Fresh's workers' compensation insurer did not necessarily shield it from suit.Imbraguglio v. Great Atlantic and Pacific Tea Co., 108 Md.App. 151, 671 A.2d 72(1996).The court instead held that

"A & P's immunity is limited to the extent that it was functioning as SDS's insurer and to the extent it may have negligently performed duties it had undertaken pursuant to the insurance contract.In the absence of these agreements in the record, we cannot conclude that the circuit court was legally correct when it found A & P to be immune from suit."

Imbraguglio, 108 Md.App. at 163, 671 A.2d at 78.The court also concluded that a sufficient material factual dispute existed to preclude a finding, as a matter of law, that Salvatore Imbraguglio was the statutory employee of Super Fresh.We issued a writ of certiorari to consider A & P's claim of immunity and the contention that Super Fresh served as Salvatore Imbraguglio's legal employer.

II.

At the outset, we observe that summary judgment may be granted only when there is no dispute as to any material fact and the moving party is entitled to judgment as a matter of law.Maryland Rule 2-501(a);Bowen v. Smith, 342 Md. 449, 454, 677 A.2d 81, 83(1996);White v. Friel, 210 Md. 274, 285, 123 A.2d 303, 308(1956).In that regard, our review of the case sub judice is identical to that undertaken by the Court of Special Appeals.

III.

a.

The first issue raised by A & P is a question of law.Our review is therefore expansive.A & P primarily contends that as the workers' compensation insurer for SDS and Super Fresh, it is immune from suit to the same extent that SDS, as the employer, is immune from employee suits stemming from work related injuries and death.The Workers' Compensation Act provides in pertinent part under § 9-509:

"Exclusivity of compensation.

(a) Employers.--Except as otherwise provided in this title, the liability of an employer under this title is exclusive.

(b) Covered employees and dependents.--Except as otherwise provided in this title, the compensation provided under this title to a covered employee or the dependents of a covered employee is in place of any right of action against any person.

(c) Exception--Failure to secure compensation.--(1) If an employer fails to secure compensation in accordance with this title, a covered employee who has sustained an accidental personal injury, compensable hernia, or occupational disease or, in case of death, the personal representative of the covered employee may:

(i) bring a claim for compensation under this title; or

(ii) bring an action for damages.

* * * * * *

(d) Same--Deliberate act.--If a covered employee is injured or killed as the result of the deliberate intent of the employer to injure or kill the covered employee, the covered employee or, in the case of death, the surviving spouse, child, or dependent of the covered employee may:

(1) bring a claim for compensation under this title; or

(2) bring an action for damages against the employee."(Emphasis added inpart (a), supra ).

Section 9-509 vindicates an essential and basic tenet of workers' compensation law--limited employer liability.In exchange, injured employees are provided the prospect of swift and sure compensation, without regard to fault, under other provisions of the Act.First struck in 1914, that beneficial social contract continues unabated.SeePolomski v. Mayor & City Council of Baltimore, 344 Md. 70, 76-77, 684 A.2d 1338, 1340-41(1996);DeBusk v. Johns Hopkins Hosp., 342 Md. 432, 437-38, 677 A.2d 73, 75-76(1996).

The Act, however, neither excuses third-parties from their own negligence nor limits their liability.⁴Section 9-901 allows injured employees, or their personal representatives either to (1) file a claim for benefits under the workers' compensation title; or (2) bring a third-party action against the person or persons responsible for the injury or death.If the employee or their personal representative enforces the compensation remedy under the Act, § 9-902 permits the self-insured employer, the insurer, the Subsequent Injury Fund, ⁵ or the Uninsured Employers' Fund ⁶ to bring an action for damages against the negligent third-party responsible for the injury or death of the employee.If the self-insured employer, the insurer, the Subsequent Injury Fund, or the Uninsured Employers' Fund fails to do so within two months after an award by the Workers' Compensation Commission, the injured employee or their personal representative may then proceed against a negligent third-party, notwithstanding the payment of workers' compensation benefits.⁷

Although the Act expressly preserves a right of action against third-party tortfeasors, identifying an entity as such has been the subject of considerable dispute.A & P, in its role as the workers' compensation insurer, seeks to cloak itself with the limited liability expressly provided for employers by § 9-509 of the Act.

b.

Flood v. Merchants Mutual Ins. Co., 230 Md. 373, 187 A.2d 320(1963), upon which A & P heavily relies, first addressed the issue of insurer immunity for acts of its own negligence.In Flood, this Court rejected a workers' compensation claimant's argument that his employer's...