Ryan v. New Bedford Cordage Co.

• Decision Date: 30 September 1976
• Docket Number: Civ. A. No. 73-240,74-99.
• Citation: 421 F. Supp. 794
• Court: U.S. District Court — District of Vermont
• Parties: Daniel E. RYAN, Administrator of the Estate of Marvin George Ellsworth Mousseau v. NEW BEDFORD CORDAGE COMPANY et al. (two cases). VERMONT CONSTRUCTION COMPANY, INC. v. GEORGE & ASMUSSEN, LTD. (two cases).

421 F. Supp. 794

Daniel E. RYAN, Administrator of the Estate of Marvin George Ellsworth Mousseau v. NEW BEDFORD CORDAGE COMPANY et al. (two cases).

VERMONT CONSTRUCTION COMPANY, INC. v. GEORGE & ASMUSSEN, LTD. (two cases).

Civ. A. Nos. 73-240, 74-99.

United States District Court, D. Vermont.

September 30, 1976.

COPYRIGHT MATERIAL OMITTED

Edward J. Tyler, III, Tyler & Bruce, St. Albans, Vt. (Louis E. Wolfe, O'Connell & Wolfe, Plattsburgh, N.Y., of counsel), for plaintiffs.

Robert H. Erdmann, Dinse Allen & Erdmann, Burlington, Vt., for defendant New Bedford Cordage Co.

Richard W. Affolter, Pierson, Affolter & Amidon, Burlington, Vt., for defendant Reynolds & Son, Inc.

Lawrence Miller, Miller & Norton, Rutland, Vt., for defendant Vermont Construction Co., Inc.

Alden T. Bryan, Hoff, Curtis, Bryan, Quinn & Jenkins, Burlington, Vt., for defendant George & Asmussen, Ltd.

MEMORANDUM AND ORDER

HOLDEN, Chief Judge.

These companion cases arose out of an accident which occurred on a construction site in St. Johnsbury, Vermont on September 30, 1971. Marvin Mousseau and Alvin Martin, both employees of Johnson Industrial Painting Contractors, were working on a scaffold suspended on the exterior of an unfinished building when the Manila rope supporting the platform broke, causing both men to fall to the ground. As a result of the fall, Mousseau was killed and Martin was injured. Workmen's Compensation benefits were recovered from the employer Johnson. Daniel Ryan, Mousseau's administrator, and Martin brought suit against the New Bedford Cordage Company, which manufactured the Manila rope, Reynolds & Son, Inc., the retailer from which it was purchased, and Vermont Construction Company, Inc., the general contractor on the construction project, for which Johnson was a subcontractor.

Defendant Vermont Construction brought a third party action against the employer Johnson, which was dismissed by the court on September 19, 1974. A second third party action by Vermont Construction and a claim by the plaintiffs against George & Asmussen, Ltd., a masonry subcontractor on the project, were voluntarily dismissed by these parties during the course of the trial.

After seven days of trial in these consolidated cases the jury returned special and general verdicts for the plaintiff Ryan, finding the defendant Vermont Construction liable in negligence for the wrongful death of Marvin Mousseau in the amount of $189,800 in Civ. No. 73-240. In the companion case of Alvin E. Martin against the same defendants, Civ. No. 74-99, the jury, by way of special interrogatories and a general verdict, found the defendant Vermont Construction liable in negligence in the amount of $32,500. In both cases the jury found the defendants New Bedford Cordage and Reynolds & Son not liable to the plaintiffs on their products liability claims.

At 9:25 in the evening, after approximately nine hours of deliberation, the jury reported they had reached a verdict. By answer to special interrogatories, the jury found the defendant Vermont Construction's negligence was, to the extent of 65%, a proximate cause of the accident which caused Mousseau's death. The decedent's contributory negligence was found to have been 35% of the total negligence. Under the Vermont comparative negligence statute, 12 V.S.A. § 1036, these findings rendered Vermont Construction liable for 65% of the plaintiff's total damage which was found to be $292,000.

In the companion case of Martin, the jury found the plaintiff was guilty of contributory negligence to the extent of 35%, compared to Vermont Construction's negligence of 65%. The jury correctly applied this ratio to Martin's total damage of $50,000 and returned a general verdict of $32,500 for this plaintiff. To this extent, the general verdicts were consistent with the underlying answers to the special interrogatories and with the evidence supporting the claims against Vermont Construction.

The jury also returned general verdicts on the products liability claims of each plaintiff against New Bedford Cordage and Reynolds & Son in the amount of $25,000. The court recognized that these general verdicts were inconsistent with the court's instructions and declined to accept all verdicts, including the special interrogatories and general verdicts against Vermont Construction. Supplementary instructions were given, explaining why all the verdicts as first returned were unacceptable. The court inquired of the jury if they understood the additional instructions and the foreman answered in the affirmative. The court went on to caution the jury to inquire of the court if they had further problems and not to hesitate to request suspension of their deliberations until the next day if they were overtired. The jury gave no indication that they wished to interrupt their deliberations. Thirty minutes later the jury returned without changing the original special and general verdicts for the plaintiffs against Vermont Construction in both cases. The plaintiffs' verdicts, as initially returned for the plaintiffs against New Bedford and Reynolds & Son, were amended to general verdicts for both defendants in each case. All verdicts were received after being confirmed on the court's verbatim reading back of each verdict to the jury. The court's invitation to a poll of the jury was declined.

After judgments were entered according to the several verdicts, the defendant Vermont Construction moved for judgment notwithstanding the verdicts, for a new trial and that the verdicts in both cases be reduced by the amount of workmen's compensation benefits paid to both plaintiffs by the carriers for their employer, Johnson Industrial Painting Contractors. This defendant also moved to vacate the court's pretrial order dismissing its third party complaint against Johnson Industrial Painting Contractors.

The plaintiffs moved for judgment against all defendants on the ground that the jury had originally returned general verdicts against all defendants albeit the damages were incorrectly assessed on the products liability claims.

The court is satisfied that the verdicts which were finally received are fully supported by the evidence and consistent with the court's instructions. There is no indication of compromise or confusion on the part of the jury in their deliberation. All of the post trial motions are denied, including the request of Vermont Construction for the court to vacate its order dismissing the third party action against Johnson.

The evidence at the trial firmly establishes that the general contractor, Vermont Construction, and the subcontractor, Johnson, were both at fault in the tragic accident that occurred on the construction site. Both actors were actively negligent in their failure to exercise reasonable care for the safety of Mousseau and Martin. In the court's judgment, they stand as joint tortfeasors.

Again, Vermont Construction has failed to advance any express agreement on the part of the third party defendant to indemnify the general contractor, although the subcontract was prepared and submitted by Vermont Construction. To its Memorandum and Order of September 19, 1974, the court will merely add a reference to New England Telephone and Telegraph Co. v. Central Vermont Public Service Corp., 391 F.Supp. 420 (D.Vt.1975).

Judge Oakes's opinion in that case restates the law of Vermont to the effect that one active, or primarily liable, tortfeasor may not be indemnified by another except by an express indemnification provision in a contract. Id. at 426. Compare Digregorio v. Champlain Valley Fruit Co., 127 Vt. 562, 255 A.2d 183 (1969). The rule against indemnification would predictably incline the Supreme Court of Vermont against reducing the injured workman's recovery by the amount of compensation he has received from his employer. The Supreme Court of Vermont has said in Dubie v. Cass-Warner Corp., 125 Vt. 476, 478, 218 A.2d 694, 696 (1966):

Receipt of statutory compensation has no relevance with respect to the employee's right to sue the tort-feasor. The wrongdoer is not entitled to credit for compensation payments, from outside sources, against the damages he brought about.

See also New England Telephone, supra, 391 F.Supp. at 428.

In its present motion for judgment the defendant renews the contention advanced in its motion for a directed verdict to the effect that Vermont Construction is the statutory employer of both plaintiffs as defined in the Vermont Workmen's Compensation Law, 21 V.S.A. § 601(3):

"Employer" includes any body of persons, corporate or unincorporated, public or private, and the legal representative of a deceased employer, and includes the owner or lessee of premises or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor or for any other reason, is not the direct employer of the workmen there employed. If the employer is insured, "employer" includes his insurer so far as applicable.

As the general contractor, Vermont Construction maintains it comes within the definition, and as a statutory employer, it is entitled to immunity from common law liability by force of 21 V.S.A. § 622, which provides:

The rights and remedies granted by the provisions of this chapter to an employee on account of a personal injury for which he is entitled to compensation under the provisions of this chapter shall exclude all other rights and remedies of such employee, his personal representatives, dependents or next of kin, at common law or otherwise on account of such injury.

The present action is founded on the provisions of 21 V.S.A. § 624, as amended by No. 232 of the Public Acts of 1959. The 1959 amendment restored common law liability in favor of an injured employee when caused under circumstances where legal liability resides in a stranger to the contract of employment, even though the workman may have received compensation under...