Hyon-Su v. Maeda Pacific Corp.
| Decision Date | 11 June 1990 |
| Docket Number | HYON-S,P,88-15095,Nos. 88-2975,s. 88-2975 |
| Citation | 905 F.2d 302 |
| Parties | Shinlaintiff-Appellant, v. MAEDA PACIFIC CORP.; Tae Jo Corporation, Defendants-Appellees. Shinlaintiff-Appellee, v. MAEDA PACIFIC CORP., Defendant-Appellant, and Tae Jo Corporation, Defendant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Frederick J. Kerley, Moore, Ching, Boertzel & Lawlor, Agana, Guam, for defendant-appellee/cross-appellant Maeda Pacific Corp.
James S. Brooks, Brooks & Brooks, Agana, Guam, for plaintiff-appellant/appellee Shin Hyon-Su.
David W. Dooley, Carlsmith, Wichman, Case, Mukai and Ickiki, Timothy A. Stewart, Agana, Guam, for defendant-appellee Tae Jo Corp.
Appeal from the United States District Court for the District of Guam.
Before WRIGHT, HUG and LEAVY, Circuit Judges.
Shin Hyon-Su ("Hyon-Su") appeals from the Appellate Division of the District Court of Guam's affirmance of the dismissal of his action against Maeda Pacific Corporation ("Maeda"). The action was dismissed by the Superior Court of Guam on the grounds Hyon-Su's exclusive remedy against Maeda was in workers' compensation. Maeda cross-appeals from the Appellate Division's reversal of the superior court's grant of summary judgment on Hyon-Su's intentional tort claim and its order remanding that claim to the trial court for further proceedings. We affirm as to the appeal and reverse as to the cross-appeal.
Maeda is a construction company incorporated in Guam. On September 23, 1984, Maeda contracted with the Public Utility Agency of Guam to construct a collector and interceptor sewer system in Mangilao (hereinafter the "Dairy Road Project"). As general contractor, Maeda was required to furnish all labor, materials, equipment, tools and services necessary to perform and complete all work required for the construction project. Maeda thereafter entered into a subcontract with the Tae Jo Corporation ("Tae Jo") for the excavation work and the digging of manhole trenches. Hyon-Su was employed by Tae Jo to work on the Dairy Road Project as a laborer.
On February 25, 1984, Hyon-Su was assigned to compact the floor of a manhole trench located on the Dairy Road job site. While performing this task, the walls of the trench collapsed upon him, causing serious bodily injury. Both Maeda and Tae Jo carried workers' compensation insurance at the time of the accident. Since the accident, Maeda has paid Hyon-Su temporary disability benefits totalling $23,940.00 and medical benefits totalling $155,544.00.
On February 4, 1986, Hyon-Su filed a complaint in the Superior Court of Guam against Maeda and Tae Jo seeking compensatory and punitive damages for the injuries he suffered as a result of the collapse. In Counts I and II of the complaint, Hyon-Su respectively alleged that Tae Jo's and Maeda's failure to heed the warnings of the safety inspector that shoring and an exit ladder were needed in their excavations was not only negligent, it constituted "willful, intentional, reckless and wanton" misconduct.
Both defendants subsequently moved for summary judgment on the grounds Hyon-Su's common law action for negligence was barred by the workers' compensation law of Guam which provided his exclusive remedy unless the defendants' misconduct, if any, was found to be intentional. On April 10, 1987, the Superior Court of Guam granted Tae Jo's motion for summary judgment on Count I reasoning that, even if Tae Jo had preexisting knowledge of insufficient shoring or the absence of a ladder in the excavation, its conduct only amounted to negligence and thus Hyon-Su's remedy was limited to workers' compensation.
On July 24, 1987, the superior court also granted Maeda's motion for summary judgment on Hyon-Su's complaint. The court began by referring to its earlier decision in which it dismissed the intentional tort claim against Tae Jo "because the facts as averred in the pleadings showed conduct amounting merely to negligence." The court went on to hold that Maeda was a "statutory employer" within the meaning of the Guam Workers' Compensation Act ("GWCA") and thus workers' compensation was Hyon-Su's exclusive remedy against Maeda for his work-related injuries. On July 31, 1987, a judgment was entered dismissing the entire action against both defendants.
Hyon-Su thereafter appealed from the superior court's dismissal of his complaint to the Appellate Division of the District Court of Guam. The Appellate Division affirmed the dismissal as to Tae Jo. However, while it agreed that Maeda was immune from a common law negligence action under the GWCA, it remanded Count II to the superior court for further proceedings because Hyon-Su had alleged intentional and wanton misconduct.
Hyon-Su timely appeals from the Appellate Division's ruling that Maeda is entitled to immunity from this negligence action under the exclusivity provisions of the GWCA. 1 Maeda timely appeals from the Appellate Division's remand of Hyon-Su's intentional tort claim.
We review de novo the interpretation of local law by the Appellate Division of the District Court of Guam. People of the Territory of Guam v. Yang, 850 F.2d 507, 511 (9th Cir.1988) (en banc). A grant of summary judgment is likewise reviewed de novo, using the same standard employed by the trial court under Fed.R.Civ.P. 56(c). Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989).
The Appellate Division held that Maeda was immune from a common law negligence action under the GWCA, but remanded Count II to the trial court because Hyon-Su had alleged intentional misconduct. See San Pedro v. Modular Homes, Inc., No. 77-024A (Appellate Division, D.C. Guam Jan. 5, 1979) (workers' compensation not exclusive remedy to employees who allege willful, wanton, or intentional misconduct). Maeda argues that it was error for the Appellate Division to remand the intentional tort claim because the trial court had already determined that its misconduct, if any, was merely negligent and Hyon-Su did not appeal that ruling. The Appellate Division apparently remanded the intentional tort claim on the mistaken assumption the superior court had not reached that issue.
In dismissing the entire complaint against Maeda, the superior court referred to its prior decision in which it held the misconduct alleged in the complaint against Tae Jo amounted "merely to negligence." Because Hyon-Su's allegations of misconduct against Maeda and Tae Jo were identical, implicit in the superior court's reference is a finding that Maeda's conduct was also merely negligent. This is confirmed by the fact the court dismissed the entire action against Maeda, including the intentional tort claim. Therefore, since the superior court had already considered and rejected the intentional tort claim, it was a mistake for the Appellate Division to have remanded that claim to the trial court for a redetermination. 2
The Appellate Division held that Maeda was Hyon-Su's "statutory employer," 3 and was therefore immune from a negligence action under the exclusivity provisions of the Guam Workers' Compensation Act, Government Code Sec. 37005 (1981). Section 37005 establishes workers' compensation as the exclusive remedy available to an injured employee from his employer for work-related injuries, "provided that, if an employer fails to secure payment of compensation as required by this Title," the injured employee may either claim workers' compensation or maintain an action at law for damages. 4
While conceding that Maeda was his "statutory employer," Hyon-Su claims that Guam Government Code Sec. 37004 ("contractor-under" clause) qualifies the conditions under which a statutory employer is entitled to immunity from a negligence action. Section 37004(a) provides:
Every employer shall be liable for and shall secure payment to his employees of the compensation payable under Secs. 37007, 37008, and 37009. In the case of an employer who is a subcontractor, the contractor shall be liable for and shall secure payment of such compensation to employees of the subcontractor unless the subcontractor has secured such payment.
Hyon-Su interprets this provision to mean the exclusivity provision of section 37005 does not apply to statutory employers who are not "required" to provide workers' compensation coverage because such coverage has been secured by the direct employer. Accordingly, Hyon-Su argues that Maeda is not entitled to immunity because Tae Jo secured insurance coverage for all of its employees.
Hyon-Su relies upon Runcorn v. Shearer Lumber Prods., Inc., 107 Idaho 389, 690 P.2d 324 (1984), in which the Idaho Supreme Court held that a general contractor is subject to suit as a third party if the subcontractor has provided compensation coverage. Runcorn is inapplicable here, however, because the exclusive liability of an employer under the Idaho Workers' Compensation laws, Idaho Code Sec. 72-209(1), and the exclusive remedy of an employee under section 72-211 are both expressly subject to the provisions of section 72-223. Section 72-223 defines "third parties" who are subject to a common law action for damages to " 'include those employers described in section 72-216, having under them contractors or subcontractors who have in fact complied with the' statute requiring procurement of workmen's compensation insurance." Id. at 393, 690 P.2d at 328 (quoting Idaho Code Sec. 72-223). In contrast, the Guam legislature has not expressly limited a statutory employers' exclusive liability to situations where the subcontractor has failed to procure workers' compensation insurance. 5
For many years, the majority of jurisdictions held that where the subcontractor was insured under a statute limiting the general contractor's workers' compensation liability to uninsured subcontractor situations, the...
To continue reading
Request your trial
-
In re Hongisto
...any claim of error based on the denial of a continuance on such grounds is deemed waived on appeal. See Hyon-Su v. Maeda Pacific Corp., 905 F.2d 302, 304, n. 1 (9th Cir.1990) (holding appellant's "failure to raise or argue an issue in appellant's opening brief is deemed a waiver of that 10.......
-
Edson v. State, 01-446.
...liable for workers' compensation benefits, even though compensation was actually paid by subcontractor); cf. Hyon-Su v. Maeda Pacific Corp., 905 F.2d 302, 305-06 (9th Cir.1990) (immunity from tort suit applies to general contractor even where subcontractor has provided workers' compensation......
-
U.S. v. Silva
...as a justification for her need for a continuance. Accordingly, we decline to address the hearsay issue. See Hyon-Su v. Maeda Pacific Corp., 905 F.2d 302, 304 n. 1 (9th Cir.1990) ("failure to raise or argue an issue ... is deemed a waiver of that ...