Miller v. Wingmark Corp.

• Decision Date: 29 July 2008
• Docket Number: Civil No. 2005–106.
• Citation: 50 V.I. 431
• Court: U.S. District Court — Virgin Islands
• Parties: Robert MILLER and Matthew Anderson, Plaintiffs v. WINGMARK CORPORATION, Budget Marine, Dennis L. Boone, Edwin R. Padgett and William M. Karr d/b/a William M. Karr & Associates, Defendants. Edwin R. Padgett, Third Party Plaintiff, v. William M. Karr and William M. Karr & Associates, Third Party Defendants.

50 V.I. 431

Robert MILLER and Matthew Anderson, Plaintiffs

v.WINGMARK CORPORATION, Budget Marine, Dennis L. Boone, Edwin R. Padgett and William M. Karr d/b/a William M. Karr & Associates, Defendants.

Edwin R. Padgett, Third Party Plaintiff,

v.William M. Karr and William M. Karr & Associates, Third Party Defendants.

Civil No. 2005–106.

District Court of the Virgin Islands, Division of St. Thomas and St. John.

July 29, 2008.

Natalie Nelson Tang How, Esq., St. Croix, U.S.V.I., for plaintiff Robert Miller.

Clive C. Rivers, Esq., St. Croix, U.S.V.I., for plaintiff Matthew Anderson.

Maria T. Hodge, Esq. and Mark D. Hodge, Esq., St. Thomas, U.S.V.I ., for defendants Edwin Padgett and Wingmark Corporation.

Douglas L. Capdeville, Esq., St. Croix, U.S.V.I., for defendant William M. Karr.

Henry C. Smock, Esq. St. Thomas, U.S.V.I., for defendant Budget Marine.

MEMORANDUM OPINION

GÓMEZ, Chief Judge.

Before the Court is the motion of defendants Edwin R. Padgett (“Padgett”) and Wingmark Corporation (“Wingmark”) (collectively, the “Defendants”) for summary judgment against the plaintiffs, Robert Miller (“Miller”) and Matthew Anderson (“Anderson”) (together, the “Plaintiffs”). For the reasons stated below, the Court will grant the motion.

I. FACTS

On or about October 30, 2002, Wingmark entered into a construction management agreement (the “Contract”) with William M. Karr & Associates, Inc. (“Karr”). Pursuant to the Contract, Karr agreed to be the construction manager for the development of parcels 3B–41 and 3B–68 in Cruz Bay Quarter, St. John, U.S. Virgin Islands (the “Properties”). During the time period relevant to this matter, Padgett was the record owner of parcel 3B–68, and Wingmark held the deed thereto. Karr had complete responsibility over the construction of residences on parcel 3B68 (the “Residences”). Karr also provided full time supervision over the construction site.

Karr hired Boone to lay tile and brick at the Residences. Boone hired the Plaintiffs to perform construction work at the Residences.

At approximately 7:10 a.m. on July 11, 2003, the Plaintiffs were riding as passengers in a truck driven by Boone. The truck was owned by Budget Marine. Boone was driving on a public road in St. John, Virgin Islands after leaving the work site at the Residences. Miller was in the front passenger seat. Anderson was riding unrestrained in the back of Boone's truck. Boone lost control of his truck, and it rolled over and down an embankment. Both Miller and Anderson were injured in the accident.

The Virgin Islands Police Department charged Boone with negligent driving, driving without a valid license, and lack of proper automobile insurance. Boone was subsequently arrested.

Thereafter, the Plaintiffs commenced this action against Boone, Karr, Padgett, Wingmark, and Budget Marine. Count One of the Amended Complaint (the “Complaint”) alleges negligence against Budget Marine. Count Two alleges negligence against Padgett and Wingmark. Count Three alleges intentional infliction of emotional distress against all the defendants. Count Four alleges intentional as well as negligent infliction of emotional distress against all of the defendants. Count Five seeks punitive damages.

On May 2, 2007, Padgett and Wingmark filed a notice of their summary judgment motion with the Court and served a copy of the brief upon the Plaintiffs. The Plaintiffs have failed to timely oppose the summary judgment motion.¹

II. DISCUSSION

A. Federal Rule of Civil Procedure 56

Summary judgment is appropriate under Federal Rule of Civil Procedure 56 (“Rule 56”) if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Hersh v. Allen Products Co., 789 F.2d 230, 232 (3d Cir.1986).

The movant has the initial burden of showing there is no genuine issue of material fact, but once this burden is met it shifts to the non-moving party to establish specific facts showing there is a genuine issue for trial. Gans v. Mundy, 762 F.2d 338, 342 (3rd Cir.1985). “[T]here is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party.” Anderson, 477 U.S. at 249. “[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In making this determination, this Court draws all reasonable inferences in favor of the non-moving party. See Bd. of Educ. v. Earls, 536 U.S. 822, 850 (2002).

III. ANALYSIS

Padgett and Wingmark argue that summary judgment is appropriate because the Plaintiffs' injuries were caused by an independent contractor—in this case, Boone—who was involved in an accident outside any property owned by Padgett or Wingmark.

A. Independent Contractor Status

As a threshold matter, the Court must determine whether Boone was an independent contractor or an employee of Padgett and Wingmark.

Section 220(2) of the Restatement (Second) of Agency (“Section 220”) provides:

In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a part of the regular business of the employer;

(i) whether or not the parties believe they are creating the relation of master and servant; and

(j) whether the principal is or is not in business.

Restatement (Second) of Agency § 220(2) (1957); see also Evans v. United Arab. Shipping Corp. S.A.G., 4 F.3d 207, 216 (3d Cir.1994).

“Although there are a number of factors relevant to this inquiry, the most important factor is the degree of control exercised by the principal....” McCarthy v. Recordex Serv., 80 F.3d 842, 853 (3d Cir.1996) (internal citation omitted). In an employer-employee relationship, “the [employer] not only controls the result of the work but has the right to direct the way in which it shall be done.” Id. (citation and quotation omitted). In contrast, “the characteristic of the [employer-independent contractor] relationship is that the person engaged in the work has the exclusive control of the manner of performing it, being responsible only for the result.” Id. (citation and quotation omitted).

The parties do not dispute the fact that the Contract gave Karr “complete responsibility” over the construction of the Residences. (Padgett Aff. at ¶ 11, April 30, 2007.) Karr also agreed to provide “full time supervision” over the work site. ( Id. at ¶ 12.) There is no evidence suggesting either Padgett or Wingmark had any control over Boone's work on a daily basis. Pursuant to his responsibilities under the Contract, Karr selected Boone for the specific task of laying certain tile work and brick at the Residential Property. All tiles, bricks, and other supplies were provided to Boone at the work site.

Boone sent Karr periodic invoices for his work. Karr paid Boone with funds from Karr's account. Karr paid Boone fixed lump sums rather than an hourly rate. Padgett's affidavit states, “[n]either Boone nor Plaintiffs were employees or agents of mine or Wingmark.” ( Id. at ¶ 24.) In Padgett's view, neither he nor Wingmark had created an employer-employee relationship with Boone.

The undisputed facts show that neither Padgett nor Wingmark exercised any control over the manner or means in which Boone conducted his work on the Residences. Though Boone was not required to supply his own materials for the work he performed, the evidence as a whole strongly suggests that no employer-employee relationship existed between Padgett or Wingmark and Boone. Therefore, the Court finds that Boone performed his work on the Residences as an independent contractor. See, e.g., Evans v. United Arab Shipping Co., 4 F.3d 207, 216 (3d Cir.1993) (holding that no employer-employee relationship existed between a ship's owner and the ship's pilot because the owner had no discretion in selecting pilots, and the only control the owner retained was the power to remove a pilot after concluding that the pilot was taking the ship into danger); Samson v. Harvey's Lake Borough, 881 F.Supp. 138, 142–43 (M.D.Pa.1995) (holding that a zoning inspector was an independent contractor because, inter alia, the county occasionally supervised the inspector, but exercised no daily control over him; did not pay the inspector out of payroll, but as an administrative expense; and provided only some of his work tools); Whitfield Constr. Co. v. Commercial Development Corp., 392 F.Supp. 982, 999–1000 (D.V.I.1975) (holding that an engineer was an independent contractor because he agreed to perform the specific task of designing floor slabs and slab supports, he was paid by the job, and “his was a minute proportion of the project which required a particular expertise”).

B. Liability of Employer of Independent Contractor

The Complaint in this matter states that Karr was acting as an agent for Wingmark in hiring Boone to work on the Residences. The Defendants contend that, even assuming that Karr's actions are imputed to them and they are thus...