Pridemore v. Hryniewich

• Decision Date: 19 May 2017
• Docket Number: Civil Docket No.: CL16-3262-01,Civil Docket No.: CL16-3261-01
• Parties: Re: Pridemore v. Hryniewich, et al. v. Willard Marine, Inc. Glover v. Hryniewich, et al. v. Willard Marine, Inc.
• Court: Circuit Court of Virginia

Re: Pridemore v. Hryniewich, et al. v. Willard Marine, Inc.

Glover v. Hryniewich, et al. v. Willard Marine, Inc.

Civil Docket No.: CL16-3261-01

Civil Docket No.: CL16-3262-01

FOURTH JUDICIAL CIRCUIT OF VIRGINIA CIRCUIT COURT OF THE CITY OF NORFOLK

May 19, 2017

DAVID W. LANNETTI JUDGE

Keith L. Leonard, Esq.

Huffman & Huffman

Brothers-in-Law, P.L.L.C.

12284 Warwick Boulevard, Suite 2A

Newport News, Virginia 23606

Mark T. Coberly, Esquire

Vandeventer Black LLP

500 World Trade Center

Norfolk, Virginia 23510

Dear Counsel:

Today the Court rules on the Special Pleas in Bar filed by Third Party Defendant Willard Marine, Inc. ("Willard") against Defendants/Third Party Plaintiffs Richard J. Hryniewich and the City of Norfolk (collectively, "Defendants"). Willard alleges that the Longshore and Harbor Workers' Compensation Act (the "LHWCA" or the "Act") provides the exclusive remedy for any injuries Plaintiffs Timothy B. Pridemore and David L. Glover (collectively, "Plaintiffs") incurred while under Willard's employ and therefore bars the causes of action and recovery sought in Defendants' Third Party Complaints. Although Defendants acknowledge that the LHWCA ordinarily provides exclusive relief to injured employees and prohibits a negligent vessel from shifting liability to an employer, they assert that they nevertheless are entitled to indemnity and/or contribution from Willard for negligence pursuant to the maritime "dual capacity doctrine." Defendants also respond that their breach of contract claim is unrelated to any LHWCA limitation.

The Court holds that (1) the City of Norfolk (the "City"), as a shipowner, cannot invoke the dual capacity doctrine against a non-vessel owner and (2) because Willard was not a vessel for purposes of the doctrine and did not adopt a distinct non-employer persona, the dual capacity doctrine cannot be invoked against it. The Court finds, however, that Defendants have sufficiently alleged a breach of contract claim. The Court therefore SUSTAINS IN PART and OVERRULES IN PART Willard's Pleas in Bar.

Background

In January 2014, the City entered a contract (the "Contract") with Willard to make certain improvements and repairs to the City's 29-foot SAFE Boats police patrol boat, known as MARINE 5, including installation of "new motors . . . new control cable, ignition switch, harnesses and malfunction gauge . . . fuel [system components] . . . and Yamaha stainless steel[] propellers." (Defs.' Third Party Compl. Against Willard Marine, Inc. ("Compl.") ¶ 2 & Ex. A, at 6.) The Contract requires Willard to, inter alia, obtain insurance for workers' compensation, automobile liability, commercial general liability, professional liability, and umbrella/excess liability. (Id. Ex. A, at 10-11.) It further requires that Willard provide the City with certificates of insurance that "shall list the City of Norfolk . . . as the additional insured for the specified project." (Id. Ex. A, at 10.)

The Contract further provides that, in preparation for Willard's redelivery of MARINE 5 to the City, Willard must "[p]erform sea trial with [Norfolk Harbor Patrol] representative" to demonstrate that the Contract work is complete. (Id. ¶ 5 & Ex. A, at 7.) On March 21, 2014, Richard J. Hryniewich ("Hryniewich"), a Norfolk police officer, was at the helm of MARINE 5 during the required sea trials. (Id. ¶¶ 7, 14.) Plaintiffs, who are Willard employees, were on board MARINE 5 during the sea trials as Willard representatives. (Id. ¶¶ 6, 10.) "At approximately three-quarters throttle," Hryniewich "initiated a turn," and MARINE 5 "suddenly and violently capsized." (Id. ¶¶ 19-20.) As a result, Plaintiffs allegedly sustained serious injuries. (Id. ¶ 21.)

Plaintiffs filed personal injury actions against Defendants pursuant to maritime law and the "Saving to Suitors" clause of Article III, Section II of the United States Constitution, alleging negligence and gross negligence. Defendants in turn filed Third-Party Complaints against Willard, alleging breach of contract, contractual indemnity, breach of the warranty of workmanlike service, equitable or common law indemnity and contribution, unseaworthiness, and general maritime negligence.

Willard subsequently filed Pleas in Bar, alleging that the LHWCA provides the exclusive remedy vis-à-vis Willard for any injuries allegedly suffered and that the Third Party Complaints therefore should be dismissed.¹ Defendants responded that, inter alia, although the LHWCA normally provides exclusive relief to injured employees, Defendants are entitled to indemnity and/or contribution from Willard for vessel negligence pursuant to the dual capacity doctrine. The Court held a hearing on March 6, 2017 (the "Hearing"), during which it heard argument from counsel.

Positions of the Parties

Willard's Position

Willard asserts that "the Defendants' claims against [Willard] are precluded by law." (Third-Party Def.'s Plea in Bar and Supp. Memo. ("Plea in Bar") 2.) Specifically, it asserts that Defendants' breach of contract, contractual indemnity, breach of the warranty of workmanlike service claims, and equitable or common law indemnity and contribution claims² "are all contractual claims brought against Willard, the employer of the injured Plaintiff[s], seeking contractual indemnity in the event that Defendants—as 'vessels'—are found negligent and such negligence caused Plaintiff[s'] injuries." (Id. at 5-6.) Willard contends that this "back door effort to pass liability back to the injured employee[s'] employer, which is already paying workers' compensation to the injured employee[s,] is specifically barred as a matter of statute and public policy." (Id. at 5.) It asserts that Section 905 of the LHWCA "permits the injured longshoreman to sue the vessel and exempts the employer from any liability to the vessel for any damages that may be recovered." (Id. at 8 (emphasis added by Willard) (quoting Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 268 (1979)).)

Willard argues that Defendants' equitable or common law indemnity and contribution, unseaworthiness, and general maritime negligence claims "are also precluded actions because the [LHWCA] provides the exclusive remedy for non-contractual tort indemnity claims." (Id. at 10.) Willard asserts that such non-contractual indemnity claims "are precluded by the express language of Section 905(a)." (Id. at 12.) It also contends that "[a]s part of the 1972 changes [to the LHWCA], Congress added Section 905(b), which specifically eliminated the right of longshoremen and harbor workers to recover against a vessel on the basis of unseaworthiness." (Id. at 10 (citing Scindia Steam Navigation Co. v. De Los Santos, 451 U.S. 156, 165 (1981); In re Columbia Leasing L.L.C., 991 F. Supp. 2d 722, 730 (E.D. Va. 2014)).)

In response to Defendants' dual-capacity-doctrine argument, Willard argues that it is not a "vessel" for purposes of the LHWCA, and that it specifically is not an owner pro hac vice or an operator. (Reply to Third-Party Pl.s' Br. in Opp. to Plea in Bar 2-6.)

Defendants' Position

As an initial matter, Defendants assert that it is premature for the Court to rule on the Pleas in Bar, as other anticipated motions might make them moot.

With respect to its claims other than its breach of contract claims,³ Defendants contend they are "not barred because Willard was in possession and control and responsible for the operation of the City's vessel at the time of the accident at issue here, such that it was acting in a dual capacity with respect to the Plaintiffs." (Third Party Pls.' Br. in Opp. to Third-Party Def.'s Plea in Bar ("Br. in Opp. to Plea in Bar") 2.) According to Defendants, "where the employer acts in a 'dual capacity' as both employer and, inter alia, ship owner or operator, at the time the employee's injury was caused . . . , the employer retains tort liability in its capacity as a 'vessel' for acts of negligence involving a vessel owned, operated, or chartered by the employer." (Id.) Defendants also argue that "[w]hen potentially liable to its employees under the dual capacity doctrine an employer also is not immune to contribution or indemnity liability to third parties." (Id.) They specifically assert that Willard met the statutory definition of "vessel" as either an owner pro hac vice or an operator of MARINE 5 (Id. at 6-14.) Defendants alternatively imply that Willard fulfilled some other vessel role, that dual capacity liability depends on "whether the party in question had possession of the vessel and control over the activity that led to the harm alleged," and that Willard had such possession and control. (Id. at 8-9.) Defendants also recognize that Willard would be immune from indemnity and contribution claims if Plaintiffs were involved in "ship repair," but argue that Plaintiffs in fact were not involved in ship repair. (Id. at 14-17.)

With respect to its breach of contract claim—that Willard breached its contractual obligation to obtain required insurance and/or provide to the City related insurance information—Defendants assert that "LHWCA immunity does not immunize a covered employer from liability for its breach of a contract to name the vessel owner as an additional insured on the employer's liability insurance policy, even if the employer is immune from liability from contribution and indemnity." (Id. at 20 (citing Viosin v. O.D.E.C.O. Drilling Co., 744 F.2d 1174, 1179 (5th Cir. 1984); Price v. Zim Israel Navigation Co., 616 F.2d 422, 429 (9th Cir. 1980)).)

Analysis

Legal Standard

A plea in bar presents a distinct issue that, if proven, creates a bar to the plaintiff's right of recovery. Hilton v. Martin, 275 Va. 176, 177, 654 S.E.2d 572, 574 (2008). The purpose of a plea in bar is "to narrow the litigation by resolving an issue that will determine whether a plaintiff may proceed to trial on a particular cause of action." Hawthorne v. VanMarter, 279 Va. 566, 578, 692 S.E.2d 226, 234 (2010).

The moving party has the burden of proving the...