Phillips v. United Engineers & Constructors, Inc.

• Decision Date: 09 December 1986
• Docket Number: No. 1-585A122,1-585A122
• Court: Indiana Appellate Court
• Parties: Floyd S. PHILLIPS, Administrator of the Estate of Edward M. Phillips, deceased, Appellant (Plaintiff Below), v. UNITED ENGINEERS & CONSTRUCTORS, INC., Hoosier Energy Rural Electric Cooperative, Inc., Riley-Stoker Corporation and Shurtleff & Andrews, Appellees (Defendants Below), and Plasteel Products Corporation, Appellee (Third Party Defendant Below).

Page 1265

500 N.E.2d 1265

Floyd S. PHILLIPS, Administrator of the Estate of Edward M.

Phillips, deceased, Appellant (Plaintiff Below), v. UNITED ENGINEERS & CONSTRUCTORS, INC., Hoosier Energy Rural

Electric Cooperative, Inc., Riley-Stoker

Corporation and Shurtleff & Andrews,

Appellees (Defendants Below),

and

Plasteel Products Corporation, Appellee (Third Party Defendant Below).

No. 1-585A122.

Court of Appeals of Indiana,

First District.

Dec. 9, 1986.

B. Michael McCormick, McCormick Law Firm, Terre Haute, Hann, Mitchell & Mitchell, Washington, Pa., for appellant.

J. David Huber, Zoercher & Huber, Tell City, for appellees.

ROBERTSON, Presiding Judge.

Appellant-plaintiff Floyd S. Phillips, administrator of the estate of Edward M. Phillips ¹, deceased, appeals from the granting of summary judgment in favor of United Engineers & Contractors, Inc. (United) and Hoosier Energy Rural Electric Cooperative, Inc. (Hoosier Energy).

We affirm the order of summary judgment in favor of Hoosier Energy and reverse the order of summary judgment in favor of United.

The facts viewed in a light most favorable to Phillips disclose that Decedent was installing sheet metal siding at the Merom Electric Generating Station then under construction. On November 27, 1979, Decedent and a co-worker, Donald Lawrence, were carrying pieces of metal flashing across a catwalk when Decedent fell backwards from the unfinished east end of the catwalk, plunging 119 feet to his death.

The contractual obligations undertaken by the parties at the Merom Generating Station were as follows: Hoosier Energy engaged United to provide all engineering services for the project, to coordinate the work among the contractors, and to inspect materials and equipment to assure their conformance with the plans and specifications. Hoosier Energy also contracted with approximately 109 contractors for various other services. The Decedent's employer, Plasteel Products (Plasteel), agreed to furnish and install sheet metal siding under its contract with Hoosier Energy. Riley-Stoker Corporation (Riley-Stoker) constructed a boiler for Hoosier Energy in the area from which Decedent fell. Shurtleff & Andrews, under a sub-contract with Riley-Stoker, erected structural steel around the boiler and apparently, together with Riley-Stoker, built the catwalk from which Decedent fell. United did not contract with any of the aforementioned contractors.

The catwalk from which Decedent fell was unfinished at the east end where a set of steps was to be placed later. Moreover, the end of the catwalk was not safeguarded by a cable or other barricade. Although Decedent had been wearing a safety belt as he worked, he had not "tied off" to a piece of steel when the accident occurred.

Phillips, as administrator of Decedent's estate, brought a wrongful death suit against Hoosier Energy, United, Riley-Stoker, and Shurtleff & Andrews. Hoosier Energy filed a third party complaint against Plasteel. The trial court granted motions for summary judgment in favor of Hoosier Energy and United, and Phillips appeals.

We must decide the following issues:

I. Whether the trial court erred in granting summary judgment in favor of Hoosier Energy because it owed no duty to Phillips?

II. Whether the trial court erred in granting summary judgment in favor of United because it owed no duty to Phillips?

III. Whether Phillips was contributorily negligent or incurred the risk as a matter of law?

IV. Whether the trial court abused its discretion in entering an order granting Hoosier Energy an enlargement of time to answer discovery until thirty days after the court's ruling on the motions for summary judgment?

V. Whether the trial court erred by refusing to consider the affidavit of Paul Perry before ruling on the motion for summary judgment?

Before proceeding to address these issues, we note that our standard of review from an order granting summary judgment is the same as that in the trial court. Matter of Estate of Belanger, (1982) Ind.App., 433 N.E.2d 39, 42, trans. denied. The trial court should grant summary judgment only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Indiana Rules of Trial Procedure, Trial Rule 56(C); Moll v. South Central Solar Systems, Inc., (1981) Ind.App., 419 N.E.2d 154, 159. In determining whether a genuine issue of material fact exists, we accept as true all facts set forth by the non-moving party and resolve all doubts against the movant. Barnd v. Borst, (1982) Ind.App., 431 N.E.2d 161, 165; English Coal v. Durcholz, (1981) Ind.App., 422 N.E.2d 302, 303. Only where there is no dispute as to the material facts or inferences to be drawn therefrom, and the moving party is entitled to summary judgment as a matter of law, may the court grant such a motion.

ISSUE I Duty Owed by Hoosier Energy

In its motion for summary judgment, Hoosier Energy maintained that it owed no duty to Decedent and was therefore entitled to summary judgment. Phillips countered that Hoosier Energy retained such a degree of control over the activities of the contractors on the project that it owed a duty to Decedent as a matter of law, relying on Prest-O-Lite v. Skeel, (1914) 182 Ind. 593, 106 N.E. 365. In Prest-O-Lite, our supreme court set out the general rule that an owner cannot be held liable for injuries to employees of contractors. The contract in Prest-O-Lite provided that the owner, through a person called an inspector, would have the authority to examine the materials furnished for the project and to reject any that did not conform to specifications. It was held that although the authority of the inspector gave him the power to determine that a standard was met, the means and methods of attaining those standards were not subject to his control.

Phillips does not point to any genuine issue of material fact which would preclude summary judgment in favor of Hoosier Energy, nor has he convinced us that the undisputed facts remove the instant case from the operation of the general rule in Prest-O-Lite, 106 N.E. 365. Rather, it is apparent that Hoosier Energy did not retain any control as to the means and methods by which the contractors engaged in their work.

As evidence that Riley-Stoker and Plasteel were servants, Phillips points to various contract provisions by which Phillips contends Hoosier Energy reserved the right to control or govern the contractors. Upon examination of the contracts it is apparent that Hoosier Energy required nothing more than that materials furnished and work performed meet the plans and specifications, and that contractors conform to federal, state and local safety regulations. If control is said to be operative when the right of some supervision is retained, it must be more than a general right which is usually reserved to those who hire persons to perform work. Cummings v. Hoosier Marine Properties, Inc., (1977) 173 Ind.App. 372, 363 N.E.2d 1266, trans. denied. Moreover, Riley-Stoker and Plasteel were not rendered servants of Hoosier Energy because the work was to be done to the satisfaction of United representing Hoosier Energy. See id.

Phillips also presents no evidence that Decedent himself was under the control or direction of Hoosier Energy in performing his assigned duties. Absent any control by Hoosier Energy over the manner or means by which the independent contractors or Decedent performed their duties, we must conclude that Hoosier Energy could not have owed Decedent any duty predicated upon a right to control found in the contract.

Phillips further contends that Hoosier Energy owed a duty under one of the five exceptions to the general rule of Prest-O-Lite: when the party is charged by law or contract with a specific duty: here, to provide for Decedent's safety. See Jones v. Indianapolis Power and Light Co., (1973) 158 Ind.App. 676, 304 N.E.2d 337. The law does not impose on Hoosier Energy any duty with respect to Decedent. The regulations of the Indiana Department of Labor relating to the construction industry and found at 610 IAC 5-1-1 et seq. have been held to impose a specific duty on prime contractors, pursuant to the express language of the definitional provisions:

(C)(6) The prime contractor of a project shall be deemed as being responsible for compliance with the provisions of this Code. In the event there is more than one prime contractor on a project, each shall be responsible for compliance of this Code [610 IAC 5-1] within the area of his jurisdiction.

(8) The term "prime contractor" shall be interpreted as being the person, firm or corporation that is responsible to the awarding unit for direct or indirect completion of all or part of the over-all project.

See, Katapodis v. Koppers Co., Inc., (7th Cir.1985) 770 F.2d 655; Maynard v. Flanagin, Bros., (1985) Ind.App., 484 N.E.2d 71; Jones v. IPALCO, 304 N.E.2d 337.

Phillips has utterly failed to demonstrate in what way Hoosier Energy could be deemed a prime contractor under the regulations. Because Hoosier Energy is the owner/contractee and not a prime contractor, it is not charged with a specific duty to provide for safety under the Indiana Administrative Code. Jones, id.; Katapodis, 770 F.2d 655.

It is clear that Hoosier Energy did not contract for the specific duty to provide for Decedent's safety at the work site. Hoosier Energy and United's contract makes no mention of safety, the parties having limited their agreement to general provisions regarding supervision of construction. ² The contracts between Hoosier Energy and its various contractors merely require each contractor to conduct its operations safely and to observe applicable laws and regulations respecting safety. We have refused to extend a specific duty to an owner/contractee where the contract...