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

• Decision Date: 01 September 1995
• Docket Number: No. 668,668
• Citation: Imbraguglio v. Great Atlantic and Pacific Tea Co., Inc., 671 A.2d 72, 108 Md.App. 151 (Md. App. 1995)
• Parties: Ethel A. IMBRAGUGLIO, Individually, etc. v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., et al. ,
• Court: Court of Special Appeals of Maryland

Page 151

108 Md.App. 151

671 A.2d 72

Ethel A. IMBRAGUGLIO, Individually, etc. v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., et al.

No. 668, Sept. Term, 1995.

Court of Special Appeals of Maryland.

Feb. 6, 1996.

Eugene A. Shapiro, P.A., Baltimore, for Appellant.

Rudolph L. Rose (Severn E.S. Miller and Semmes, Bowen & Semmes, on the brief), Baltimore, for Appellees.

Argued before FISCHER, CATHELL and MURPHY, JJ.

CATHELL, Judge.

Following the death of her husband, Ethel Imbraguglio, appellant, brought this wrongful death action against The Great Atlantic and Pacific Tea Company (A & P) and Super Fresh Food Market of Maryland, Inc. (Super Fresh) (collectively, appellees). Appellant elected to have this matter tried by a jury. Finding that the action was barred by the Maryland Workers' Compensation Act (the Act), the Circuit Court for Baltimore City granted summary judgment in favor of appellees. On appeal from that grant, appellant asks:

I. Is A & P a third party under the Workers' Compensation Statues [sic] and as such, amenable to suit?

[II]. Was Super Fresh of Maryland the Decedent's statutory employer at the time of his death?

For the reasons to be set forth, the grant of summary judgment at this juncture was inappropriate, and we shall, accordingly, reverse the entry of summary judgment in favor of both appellees and remand this case to the circuit court.

The Facts

A & P, Super Fresh, and Supermarket Distribution Services, Inc. (SDS) are distinct corporate entities; both Super Fresh and SDS are wholly owned subsidiaries of A & P. It appears that, in Maryland, Super Fresh operates supermarkets on behalf of A & P; SDS provides the warehousing and distribution for those markets. For purposes of workers' compensation claims, A & P is self-insured, as well as the insurer for both SDS and Super Fresh.

Salvatore Imbraguglio, appellant's decedent, was employed as a forklift operator by SDS. On April 21, 1992, he was working at a warehouse owned by A & P and managed by employees of Super Fresh. On the day in question, one David Williams lifted appellant's decedent, who was standing on a pallet, some thirteen to twenty feet into the air using a forklift, in order to reposition some stock. When some of the boxes shifted, appellant's decedent lost his balance. He subsequently fell to the ground, thereby sustaining his fatal injuries.

As a result of this occurrence, appellant filed a Dependent's Claim with the Maryland Workers' Compensation Commission (the Commission). A hearing was held, and the Commission allowed appellant's claim. Appellant was awarded weekly compensation of $355 and funeral expenses of $2,500. Subsequently, on appeal, appellant and SDS compromised and settled the claim; A & P, as SDS's insurer, was responsible for making specified payments to appellant.

Thereafter, appellant brought the case sub judice based upon the alleged negligence of appellees. She contends that A & P is liable as the owner of the property upon which appellant's decedent met his demise, and that both A & P and Super Fresh are liable based upon their failure to supervise properly the activities at the warehouse. Following discovery, appellees made a Motion for Summary Judgment. The circuit court, as stated, found that, as a matter of law, the action was barred by the Act. At the conclusion of the motion hearing, the circuit court stated:

I'm going to grant the motion because I think Maryland law has long been settled on this issue and it's the intent to--that one employer, of course, which is not necessarily true in this case, but one employer shall be the--pay Workmen's Compensation, the idea being to protect [employers] from multiplicity of suits and also to protect the employee from lack of liability. That was the original theory of Workmen's Compensation.

In recent years, third-party actions have developed to the point where we have to look at the corporate structure to determine whether or not there is actual division of authority and the division of operation. In this particular case, I don't think there is. It looks to me like one consolidated employment, of which there are separate corporations for whatever reasons which are not apparent to me in the record. It could be tax purposes.

In its subsequent Order, the court granted the motion "for the reasons stated by [appellees] in support of their motion, and for the reasons stated on the record."

In their Motion for Summary Judgment and at the hearing, appellees argued the same grounds that they now press on appeal that they are immune from suit based upon the status of A & P and Super Fresh as SDS's workers' compensation insurer and appellant's decedent's statutory employer, respectively.

As previously stated, the court granted appellees' motion. Appellant has noted this timely appeal therefrom.

Standard of Review

Maryland Rule 2-501(a) provides that: "Any party may file at any time a motion for summary judgment on all or part of an action on the ground that there is no genuine dispute as to any material fact and that the party is entitled to judgment as a matter of law." "The purpose of the summary judgment procedure is to decide whether there is an issue of fact sufficiently material to be tried, not to try the case or to resolve factual disputes." Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 335 Md. 135, 144, 642 A.2d 219 (1994); Maryland Casualty Co. v. Lorkovic, 100 Md.App. 333, 353-55, 641 A.2d 924 (1994). It is "not intended to substitute for a trial but merely provides a mechanism for determination of whether there exist material facts in dispute requiring a trial." Lorkovic, 100 Md.App. at 353-54, 641 A.2d 924. When ruling on a motion for summary judgment, "the trial court must address two separate issues: whether the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine dispute as to any material fact and whether the movant is entitled to judgment as a matter of law." Syme v. Marks Rentals, Inc., 70 Md.App. 235, 238, 520 A.2d 1110 (1987).

"When the moving party has provided the court with sufficient grounds for summary judgment, the opposing party must demonstrate that there is a genuine dispute of material fact by presenting facts that would be admissible in evidence." Gross v. Sussex, Inc., 332 Md. 247, 255, 630 A.2d 1156 (1993); Miller v. Fairchild Indus., Inc., 97 Md.App. 324, 340, 629 A.2d 1293, cert. denied, 333 Md. 172, 634 A.2d 46 (1993). The review of the grant of summary judgment, therefore, involves the determination of whether a dispute of material fact indeed exists, Gross, 332 Md. at 255, 630 A.2d 1156, and "whether the trial court was legally correct," Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 592, 578 A.2d 1202 (1990). With this standard in mind, we turn to the instant appeal.

Discussion

Against one's employer, absent an intentional act to injure the employee, an employee's exclusive remedy is through Maryland's workers' compensation statutes. Md.Code (1991 Repl.Vol., 1995 Cum.Supp.), § 9-509 of the Labor & Employment Article; ¹ Johnson v. Mountaire Farms, Inc., 305 Md. 246, 253, 503 A.2d 708 (1986); Anderson v. Bimblich, 67 Md.App. 612, 616, 508 A.2d 1014 (1986). "Since the worker's sole remedy against the employer is a claim under the Act, the employer is considered to be 'immune' from suit at law." Brady v. Ralph Parsons Co., 308 Md. 486, 498, 520 A.2d 717 (1987); see Belcher v. T. Rowe Price Found., 329 Md. 709, 736, 621 A.2d 872 (1993). The invocation of § 9-509 and its attendant immunity as a defense to a third-party action has been dubbed the "exclusivity" or "exclusive remedy" defense.

Nevertheless, an action at law may be sustained by the injured employee or his representative against certain third parties. §§ 9-901, 9-902; Brady, 308 Md. at 498, 520 A.2d 717. Under § 9-901, the employee or his representative has the right to elect to proceed against a third party who is responsible for the injury:

When a person other than an employer is liable for the injury or death of a covered employee ... in case of death, the personal representative or dependents of the covered employee may:

(1) file a claim for compensation against the employer under this title; or

(2) bring an action for damages against the person liable for the injury or death or, in case of joint tort feasors, against each joint tort feasor.

This right is not extinguished by the employee's receipt of compensation under the Act. In relevant part, § 9-902 provides:

(c) Action by covered employee or dependents.--If the self-insured employer [or] insurer ... does not bring an action against the third party ... after the Commission makes an award, the covered employee or, in case of death the dependents of the covered employee may bring an action for damages against the third party.

See, e.g., South Down Liquors, Inc. v. Hayes, 323 Md. 4, 6, 590 A.2d 161 (1991) (noting that both employee and workers' compensation insurer have right to bring action against third-party tortfeasor). As this discussion suggests, whether appellees are immune from a third-party action as a matter of law or amenable to such a suit by appellant is the focal point of the instant appeal.

Dual Employment

In part, the circuit court granted summary judgment upon finding that appellant's decedent was in "one consolidated employment," or a dual employment. Under this approach, the circuit court found that appellant's decedent was, in effect, an employee of A & P, Super Fresh, and SDS. If this was indeed the case, then A & P and Super Fresh are immune from suit to the same extent as SDS. The Court of Appeals, however, "has frequently reiterated that the question whether an employer-employee relationship exists is one for the jury to determine." Mackall v. Zayre Corp., 293 Md. 221, 230, 443 A.2d 98 (1982). "If there is evidence to support an inference that more than one individual or company...