Marcano v. Hess Oil Virgin Islands Corp.

• Citation: 237 F.Supp.2d 592
• Decision Date: 30 September 2002
• Docket Number: No. CIV.A.1999/051.,CIV.A.1999/051.
• Parties: Andre MARCANO, Appellant, v. HESS OIL VIRGIN ISLANDS CORP., Appellee.
• Court: U.S. District Court — Virgin Islands

237 F.Supp.2d 592

Andre MARCANO, Appellant, v. HESS OIL VIRGIN ISLANDS CORP., Appellee.

No. CIV.A.1999/051.

District Court, Virgin Islands, Appellate Division, D. St. Croix.

Considered: September 28, 2001.

Filed: September 30, 2002.

As Amended January 30, 2003.

K. Glenda Cameron, Law Offices of Lee J. Rohn, St. Croix, VI, for Appellant.

Britain H. Bryant, Bryant, Barnes & Moss, LLP, St. Croix, VI, for Appellee.

Before: RAYMOND L. FINCH, Chief Judge, District Court of the Virgin

Islands; THOMAS K. MOORE,¹ Judge of the District Court of the Virgin Islands; and RHYS S. HODGE, Judge of the Territorial Court, Division of ST. THOMAS and ST. JOHN, Sitting by Designation.

OPINION OF THE COURT

FINCH, Chief Judge.

Andre Marcano appeals the March 2, 1999 Order of the Territorial Court granting summary judgment in favor of Hess Oil Virgin Islands Corporation ("HOVIC"). The sole issue presented is whether the trial court erred in granting HOVIC's motion for summary judgment.

I. FACTS

Andre Marcano ("Marcano" or "appellant") was employed by Industrial Maintenance Corporation ("IMC"), a contractor hired by HOVIC to perform maintenance services. (Joint Appendix ("J.A.") at 215.) The contract under which IMC and HOVIC operated (CSX-0209) stated that IMC's status was that of an "independent contractor". (J.A. at 224.)

At the time pertinent to this discussion, Marcano was employed as a "B millwright" whose function was to "repair rotating equipment in the refinery" such as pumps and fans. (Id. at 189, 204.) As a B millwright, Marcano was under the direct supervision of IMC foreman, Jose M. Figueroa ("Figueroa"). Figueroa's recollection was that Marcano had been attempting to install a fan belt on a large piece of machinery referred to as a "fin fan" when his injury occurred.

Marcano alleges that on December 20, 1994, he and Figueroa were attempting to remove, not install, the fan belt when he was injured. According to Marcano, he remained below and instructed Figueroa on which direction to turn the flywheel² during their collaborative effort to change the fan belt. At some point when Figueroa was turning the flywheel, the tip of Marcano's thumb was caught and cut off. Because of the nature of the cut, it was not stitched. The wound was bandaged, and Marcano was given antibiotics. Marcano returned to work the following day and was placed on light duty. Shortly thereafter, he filed an action for damages against HOVIC alleging that HOVIC had been negligent in the installation of the belt, had failed to provide him with manuals for the proper changing of the fan belt, and had failed to properly instruct him on the procedure for its removal. HOVIC filed a motion for summary judgment which the trial judge granted on March 2, 1999. The trial judge stated in relevant part that:

Control of the activity that led to the injury, was within the operational details under the purview of IMC. Plaintiff demonstrated no contractual duty owed by the defendant concerning the machine and its safety. Evidence points to IMC employees being in control of the instrumentality at the time of the injury. It is also evident that the work being performed at the time of the injury was being done at the direction of and in conjunction with the plaintiff's IMC supervisor. Finally the record also reveals that miscommunication between the plaintiff and his co-employee was the sole cause of the injury. Therefore, as a matter of law, no liability can be found for the defendant HOVIC and summary judgment is appropriate. (Brief of Appellant, unnumbered attachment, Marcano v. HOVIC, No. 69/1995, slip op. at 3-4 (Terr.Ct. Mar. 3, 1999) (emphasis added).) Marcano did not seek reconsideration from the trial court, but, instead, filed this timely appeal on March 9, 1999.

II. DISCUSSION

A. Jurisdiction and Standard of Review

This Court has appellate jurisdiction to review the judgments and orders of the territorial court in all civil cases. v.I. CODE ANN. tit. 4, § 33 (1997 & Supp.2001); Section 23A of the Revised Organic Act of 1954. The standard of review in an appeal from a grant of summary judgment is plenary. Virgin Islands Bldg. Specialties, Inc. v. Bucaneer Mail Assocs., 197 F.R.D. 256, 260 (D.V.I.App.Div.2000); Roach v. West Indies Inv. Co., 42 V.I. 238, 94 F.Supp.2d 634 (D.V.I.App.Div.2000).

Summary judgment is appropriate only when "there is no genuine issue as to any material fact" and "the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A "genuine" dispute exists when the evidence would allow a reasonable jury to return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The trial court must accept any fact advanced by the non-moving party through admissible affidavits and evidence as true and resolve any doubt in that party's favor. See Brown v. Vitelcom, Inc., 41 V.I. 253, 257, 47 F.Supp.2d 595, 598 (D.Vi.1999). "On review `the appellate court is required to apply the same test that the lower court should have utilized.'" Carty v. Hess Oil Virgin Islands Corp., 42 V.I. 125, 129, 78 F.Supp.2d 417, 419 (D.V.I.App.Div.1999) (quoting Tree of Life Distributing Co. v. National Enterprises of St. Croix, Inc., Civ. No.1997-30, 1998 U.S. Dist. LEXIS 17980, at *6 (D.V.I.App.Div. Nov. 5, 1998), aff'd, 208 F.3d 206 (3d Cir.2000)).

B. Whether the Trial Judge Erred in Granting Summary Judgment in favor of HOVIC.

Marcano contends that HOVIC is liable because the fin fans were "improperly maintained due to H[OVIC's] negligence." For example, the fin fans required periodic replacement of the jack bolts, which were supposed to be loosened so that the belt "just fell off in your hand." (Reply Brief of Appellant at 6; see also Brief of Appellant at 59.)³ In fact, Figueroa stated during his deposition that bolts were often rusted because of the "environment of the refinery," therefore, seized bolts were a "common" scenario that the millwrights had to deal with. (J.A. at 279.) Marcano further contends that HOVIC failed to provide him with manuals for the proper changing of the fan belt, and failed to properly instruct him on the procedure for its removal. (J.A. at 212.) Finally, Marcano argues that HOVIC is liable under RESTATEMENT (SECOND) OF TORTS § 414 because it controlled the workplace, and directed the manner in which the work was to be performed.

HOVIC denied negligence and argued that: 1) it had no obligation to provide manuals or instruction for the changing of the fin fan belt to Marcano, an employee of its independent contractor, IMC; and 2) HOVIC did not retain control over the details of the fin fan job. (Appellee Brief of HOVIC at 7, 29.)

1. Whether This Court can Review Marcano's Opposition to HOVIC's Motion for Summary Judgment.

Marcano suggests that the trial judge did not consider his opposition to HOVIC's motion for summary judgment. In fact, the first sentence in his brief states that "[t]he Territorial Court must have lost a portion of its file before ruling on this matter." (Brief of Appellant at 7.) HOVIC argues that there is no evidence to support this allegation, and because "Marcano did not appeal Judge Ross's denial of the motion for an extension of time to file opposition" the question of whether that denial was an abuse of discretion is waived. (Appellee Brief of HOVIC at 8.)

Marcano's suspicion that his forty-five page opposition to summary judgment was not considered is not totally unfounded. He neglects to mention, however, that he filed his motion for extension of time to respond to HOVIC's motion for summary judgment two weeks after his response was due. The trial judge did not rule on Marcano's motion for extension of time to file his opposition to summary judgment, but Marcano, nevertheless, submitted his opposition. The trial judge denied Marcano's motion for time to conduct additional discovery, and granted HOVIC's motion for summary judgment. Then, in granting summary judgment,⁴ the judge referred to Marcano's "opposition to summary judgment", while focusing solely on the reasons set forth in Marcano's motion for time to conduct additional discovery. Therefore, there is arguably a question of whether the trial judge considered Marcano's opposition when he granted summary judgment. Nonetheless, assuming arguendo that the trial judge never looked at Marcano's opposition, the findings of fact and law in the opinion before this Court for review are sufficient to warrant reversal. Additionally, we find no support for HOVIC's argument that the judge's failure to rule on the motion for extension of time constitutes a denial of that motion.

2. Whether IMC was an Independent Contractor.

Marcano contends that although IMC is referred to in the maintenance service contract as an "independent contractor", HOVIC retains complete control over IMC. (Brief of Appellant at 31-43.) Marcano alleges that on the date of his injury, he did not receive his work permit from IMC foreman, Figueroa, but instead received that permit directly from Alton Garth Elliot ("Elliot"), a HOVIC supervisor. (Id. at 50.) During deposition, Elliot was asked:

Q. Did you ever give instructions to people in that area about what they should be doing?

A. To people such as —

Q. The crew.

A. The crew?

Q. Um-hum.

A. Maybe I did on that particular area, because I did on other jobs as well.

(Id. at 67-68.) Contrary to Marcano's assertion, Figueroa contends that he (Figueroa) received the permit to continue work on the fin fans directly from Elliot. Figueroa, in turn, assigned Marcano and another IMC employee, Alvin Jones ("Jones"), the task of changing the fan belt. Approximately two hours later, Figueroa came to the work area and gave Jones a task which required him to leave the immediate work area for a period of time. Jones left, and Figueroa took his place at the top of the fin fan, because two people were needed to turn the flywheel....