Myco, Inc. v. Super Concrete Co., Inc.

• Decision Date: 13 October 1989
• Docket Number: No. 88-1133.,88-1133.
• Citation: 565 A.2d 293
• Parties: MYCO, INC., Appellant, v. SUPER CONCRETE CO., INC., et al., Appellees.
• Court: D.C. Court of Appeals

565 A.2d 293

MYCO, INC., Appellant, v. SUPER CONCRETE CO., INC., et al., Appellees.

No. 88-1133.

District of Columbia Court of Appeals.

Argued June 21, 1989.

Decided October 13, 1989.

Paul H. Ethridge, Rockville, Md., for appellant.

Michael F. Flynn, Jr., Rockville, Md., for appellees.

Before ROGERS, Chief Judge, TERRY, Associate Judge, and GALLAGHER, Senior Judge.

GALLAGHER, Senior Judge:

In this appeal we are called upon to determine the effect of the District of Columbia's Workers' Compensation Act¹ on the right of a third party to indemnity from the employer of an injured worker seeking recovery in tort from that third party. Appellant Myco, Inc., appeals from an order of the Superior Court dismissing its amended third-party complaint for indemnity against appellee, Super Concrete Company. Appellant argues that the trial court erred in determining that Myco failed to allege a cognizable cause of action. We disagree and affirm.

I

Reviewing the facts in the light most favorable to appellant,² the record shows that in October, 1985, Super Concrete Co. contracted with appellant Myco, Inc. an electrical service and supply company incorporated in Maryland and doing business in the District, for Myco to convert a power washer on Super Concrete's business premises from a gasoline driven pump to an electric motor drive. The washer was located outdoors and used to wash trucks utilized in transporting concrete. Myco completed the conversion, and the two companies had no further business contacts.

On June 10, 1987, Thomas Fugitt — employed by Super Concrete as a truck driver — was using the washer to wash cement off the axle of his cement truck. When he picked up the metal spray wand, he was electrocuted. Fugitt's wife filed a workers' compensation claim for death benefits with the District of Columbia Department of Employment Services on June 19, 1987. As a result, Super Concrete's insurer, the PMA Group, has been paying weekly death benefits to Fugitt's estate.³

Fugitt's wife later filed a wrongful death action against Myco. The complaint alleged that. Myco had been negligent in installing a non-watertight starter box on the power washer and in installing only a single clamp attaching the power cord to that starter box, thereby allowing water to seep into it. On April 7, 1988, Myco filed a third-party complaint against Super Concrete. Myco alleged that Super Concrete, in contravention of Myco's instructions, "altered, modified, changed or otherwise tampered with the power washer . . . said alteration including" replacing the original fivefoot power cord with one thirty feet long, as well as altering the "plug, strain relief clamp and other equipment" installed by Myco. The third-party complaint sought contribution or indemnification from Super Concrete "for all sums of money which may be adjudged against . . . Myco . . . plus costs and attorney's fees.⁴

On May 23, 1988, Super Concrete filed a motion to dismiss the third-party complaint.⁵ Super Concrete argued that, because of a provision of the D.C. Workers' Compensation Acts⁶ restricting an employer's liability to workers' compensation payments when an employee has been killed or injured on the job, it could not be held liable to Myco for either contribution or indemnity.

On July 15, 1988, Myco filed an amended third-party complaint in response to an amended complaint filed by Fugitt.⁷ Myco conceded that it is barred from obtaining contribution from Super Concrete. However, Myco continued to assert that it could maintain an action for indemnification from Super Concrete.

Following oral argument by counsel for Myco and Super Concrete on July 25, 1988, the trial court granted Super Concrete's motion to dismiss the amended third-party complaint against it. The trial judge, in granting the motion, treated it as a motion for summary judgment. On July 28, 1988, the court ordered that final judgment be entered in favor of Super Concrete on Myco's amended third-party complaint.⁸ This appeal followed.

II

In reviewing the propriety of an order granting a motion for summary judgment, we are guided by the principle that the entry of summary judgment is proper if "there exists no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Wolf v. Regardie, 553 A.2d 1213, 1216 (D.C. 1989); see Nader v. de Toledano, 408 A.2d 31, 42 (D.C. 1979), cert. denied, 444 U.S. 1078, 100 S.Ct. 1028, 62 L.Ed.2d 761 (1980); Super.Ct.Civ.R. 56(c). As the parties have failed to allege the existence of a disputed material fact, we focus solely on the latter portion of this principle, that is, whether there exists a viable legal theory which, if proved, would entitle appellant to judgment in the trial court. See Williams v. Gerstenfeld, 514 A.2d 1172, 1177 (D.C. 1986). We must therefore determine whether a third party, in an action against it by or on behalf of an injured or deceased employee, is entitled to indemnity from the employer whose negligence is alleged to have contributed to the employee's injury. A leading authority has noted that the issue is "[p]erhaps the most evenly balanced controversy in all of [workers'] compensation law. . . ." 2B A. LARSON, WORKMEN'S COMPENSATION LAW § 76.11, at 14-644 (1989); see Comment, The Effect of Workers' Compensation Laws on the Right of a Third Party Liable to an Injured Employee to Recover Contribution or Indemnity from the Employer, 9 SETON HALL L.REV. 238, 297-300 (1978) (hereinafter Effect of Workers' Compensation Laws). Each of the parties to this dispute makes a strong argument. We conclude that the objectives underlying the Act, as well as the great weight of case law, oblige us to answer the question in the negative on the indemnity issue.

A.

The triadic relationship between an employer, an injured or deceased employee and a third party is governed by the District of Columbia Workers' Compensation Act, D.C.Code §§ 36-301 et seq. (the Act), which establishes a no-fault means of recovery for accidental injuries occurring in the course of employment. Grillo v. National Bank of Washington, 540 A.2d 743, 748 (D.C. 1988) (citing COMMITTEE ON PUBLIC SERVICES AND CONSUMER AFFAIRS, REPORT ON BILL 3-106, LAW 3-77: THE DISTRICT OF COLUMBIA WORKERS' COMPENSATION ACT OF 1979 Part II, at 2 (Jan. 16, 1980) (hereinafter COMMITTEE REPORT).⁹ To provide a "reasonably quick and efficient manner to compensate employees for disabilities resulting from employment-bred injuries," Ferreira v. District of Columbia Department of Employment Services, 531 A.2d 651, 654 (D.C. 1987), the Act operates on a "quid pro quo" basis. See Grillo, supra, 540 A.2d at 748; cf. WMATA v. Johnson, 467 U.S. 925, 931-32, 104 S.Ct. 2827, 2831, 81 L.Ed.2d 768 (1984) (interpreting LHWCA). Toward this end, § 36-304(a) of the Act provides:

The liability of an employer prescribed in Section 36-303 shall be exclusive and in place of all liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law on account of such injury or death.¹⁰

(Emphasis added.)

This exclusivity provision creates an equation roughly balancing the sacrifices of and benefits to both employer and employee. See Grillo, supra, 540 A.2d at 748; 2A A. Larson, supra, § 65.11, at 12-8 to 12-9. The employee gains the benefit of receiving faster and virtually guaranteed compensation for accidental job-related injury, even in cases where the accident was the consequence of the employee's own negligence, see Meiggs v. Associated Builders, Inc., 545 A.2d 631, 637 (D.C. 1988), while in return relinquishing any tort claim against the employer. The employer assumes a new liability which fixes automatically without any finding of fault on its part, but is relieved of its previously unlimited common law tort liability. See Grillo, supra, 540 A.2d at 748 (citing COMMITTEE REPORT, supra, Part I, at 6); cf: Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corp., 350 U.S. 124, 129, 76 S.Ct. 232, 235, 100 L.Ed. 133 (1956); Billy v. Consolidated Machine Tool Corp., 51 N.Y.2d 152, 159, 412 N.E.2d 934, 939, 432 N.Y.S.2d 879, 883 (1980).

Though workers' compensation statutes typically govern only the employee-employer relationship, in many instances the injury results from the exclusive or concurrent fault of a third party. Because an employee is prevented from seeking a tort award from the employer, see D.C.CODE § 36-304(a), and because workers' compensation benefits often fall far short of those potential awards,¹¹ see Castro v. State, 114 Cal.App.3d 503, 515, 170 Cal.Rptr. 734, 741 (4th Dist. 1981), suing the third party becomes an attractive alternative to make up the difference.

In such cases, nothing precludes the employee from seeking injury-related damages from that third-party tortfeasor. See 2A A. LARSON, supra, § 71.10, at 14-2. In regard to a claim by an employee against a third party, the Act is neutral, "leaving [the third party] with [its] common-law liability to the injured employee. . . ." Schweizer v. Elox Division of Colt Industries, 70 N.J. 280, 287-88, 359 A.2d 857, 861 (1976); see DiNicola v. George Hyman Construction Co., 407 A.2d 670, 673 (D.C. 1979) (interpreting LHWCA). However, when the third party, to protect against an adverse monetary judgment, seeks indemnity from the employer for having contributed to or caused the injury for which the employee seeks damages, that cause of action runs head-on into the exclusivity provision of the Act.

To illustrate, in this case the estate of the injured employee sued Myco, which in turn joined Super Concrete as a third-party defendant seeking indemnification (or contribution). Myco alleged that Super Concrete was negligent in maintaining and modifying the washer. Although Myco later conceded that the exclusivity provision of the workers' compensation statute bars an action for contribution,¹² it...