Sobratti v. Tropical Shipping and Const. Co., Ltd.

• Decision Date: 05 June 2003
• Docket Number: No. 448/1999.,Nos. CIV.A.2002/25.,s. CIV.A.2002/25.,448/1999.
• Citation: 267 F.Supp.2d 455
• Parties: Henry SOBRATTI, Appellant, v. TROPICAL SHIPPING AND CONSTRUCTION COMPANY, LTD., Appellee.
• Court: U.S. District Court — Virgin Islands

267 F.Supp.2d 455

Henry SOBRATTI, Appellant, v. TROPICAL SHIPPING AND CONSTRUCTION COMPANY, LTD., Appellee.

Nos. CIV.A.2002/25.

No. 448/1999.

District Court, Virgin Islands, Appellate Division, D. St. Croix.

June 5, 2003.

COPYRIGHT MATERIAL OMITTED

Lee J. Rohn, K. Glenda Cameron, Law Offices of Lee J. Rohn, St. Croix, VI, for Appellant.

Matthew J. Duensing, Garry E. Garten, Stryker, Duensing, Casner & Dollison, St. Thomas, VI, for Appellee.

Before: RAYMOND L. FINCH, Chief Judge, District Court of the Virgin Islands; THOMAS K. MOORE, Judge of the District Court of the Virgin Islands; and BRENDA J. HOLLAR, Judge of the Territorial Court, Sitting by Designation.

MEMORANDUM OPINION

PER CURIAM.

Henry Sobratti ("Appellant", "Sobratti") challenges the trial court's grant of summary judgment and presents the following issues for review:

1) Whether the trial court erred in determining that the appellee was an "employer" immune from tort liability under the Longshoremen Harbor Workers Compensation Act ["LHWCA"]; and

2) Whether the court erred in ruling on the motion for summary judgment without benefit of a hearing and without permitting further discovery pursuant to Federal Rule of Civil Procedure 56(f).

Appellee additionally claims it is entitled to an award of attorney's fees and costs for what it terms a frivolous appeal.

For the reasons more fully stated below, the trial court's decision will be affirmed, and the appellee's request for attorney's fees and costs pursuant to V.I. Rules of Appellate Procedure 30(a) will be denied.

I. STATEMENT OF FACTS AND PROCEDURAL HISTORY

It is undisputed that appellant was hired by AllTemp Services and was assigned to work as a stevedore at Tropical Shipping and Construction Co., Ltd. ("Tropical", "Appellee"). It is further undisputed that Appellant was performing duties for Tropical at the time of his injury. The parties disagree, however, on the facts surrounding an issue that carries some legal significance here—that is, who was the appellant's employer under the facts of this case.

Sobratti contends that, during his term of employment with Tropical, he received project instructions from AllTemp. As evidence of such instructions, Sobratti points to a document titled, "Tropical Shipping Stevedore Project", which outlines the work schedule, time and attendance requirements, job descriptions and safety policies employees assigned to Tropical were expected to follow. [Joint Appendix ("J.A.") at 96-97]. That document also specifies that time cards are to be submitted to AllTemp. However, the document also provides that all personnel must agree to be bound by Tropical Shipping's safety policies and wear protective equipment as directed or supplied by Tropical Shipping. [Id.]. In support of his assertion that All-Temp controlled the specifics of the job, Sobratti also points to an affidavit in which he characterizes the above-mentioned document as a job description: "AllTemp provided me with a written job description of what to do and what not to do with respect to work done for Tropical Shipping." [J.A. at 26]. However, Tropical counters that the project instructions were actually written by and issued for Tropical. [Appellee's Br. at 6]. Moreover, Sobratti contends that payment for work done while at Tropical was made alternatingly by both Tropical and AllTemp. [J.A. at 74-82].

On April 11, 1999, while unloading a vessel at Tropical's worksite, Sobratti fell from a ladder and sustained serious injuries to his left elbow. It is undisputed that, at the time of his injuries, appellant was performing work for Tropical. [J.A. at 5-6, 88]. Appellant avers he is now unable to work as a result of those injuries. Following that incident, appellant filed a claim with the U.S. Department of Labor ("DOL")for benefits under the Longshoremen Harbor Worker Compensation Act ("LHWCA", "the Act"). [J.A. at 85-88]. By letter dated April 20,1999, the DOL notified Sobratti that it had determined he came within the jurisdiction of the LHWCA and was, therefore, entitled to receive compensation benefits. [J.A. at 85-86]. The DOL conducted an informal conference on June 14, 1999, at which Sobratti was represented by his legal counsel. [J.A. at 90]. Following that conference, on June 23, 1999, DOL issued a memorandum in which it concluded that the covered employer was Tropical Shipping. [J.A. at 88]. The DOL also established the amount of compensation to which Sobratti was entitled and also ordered Tropical to pay all of his medical expenses, in line with the statutory responsibilities of an employer. Id. As a result of that ruling, appellant collected benefits through Tropical's insurance carrier and Tropical. While appellant concedes he has received those benefits, he contends they were paid not entirely by Tropical but, rather, in part by Birdsall, Inc.—an entity with whom he is unfamiliar. [J.A. at 73]. Appellee contends Birdsall and Tropical are one and the same.

On or about July 28, 1999, appellant filed an action sounding in negligence in the Territorial Court and named Tropical as the sole defendant. In his complaint, appellant alleged, in part, that:

4. On or about April 11, 1999, the Plaintiff was employed by Alltemp Services, Inc. performing work at the container port.

5. Plaintiff was a borrowed employee of Defendant Tropical.

6. Plaintiff was instructed to use a ladder provided by Defendant.

7. The ladder was in a defective condition.

8. Defendant knew the ladder was in a defective condition and had previously been instructed by OSHA to remove the ladder from the job.

9. Defendant failed to warn Plaintiff of the dangerous condition.

10. As a direct and proximate result of Defendant's negligence and the defective condition of the ladder, it broke while Plaintiff was on it, Plaintiff having climbed almost to the top of the ladder.

[J.A. at 5-6]. In its answer, Tropical admitted appellant was an Alltemp employee, performing work with Tropical as a borrowed employee, as alleged in the complaint. [J.A. at 7]. Appellee also raised several affirmative defenses, arguing, inter alia, that because Sobratti was a borrowed employee of Tropical, he was limited to the remedies provided in the LHWCA and was barred from pursuing an independent tort action.¹ [J.A. at 8]. Just over one month after the initial pleadings, and before any substantial discovery was conducted, Tropical filed a motion for summary judgment,² arguing the appellee's tort claim was statutorily barred. Tropical argued that Sobratti's assertions in the complaint that he was a borrowed employee of Tropical, as well as other evidence on record establishing that employment status, left no genuine issue of material fact to be decided. By Order entered October 5, 1999, the trial court put both parties on notice that the motion was to be decided without a hearing and ordered submission of any supporting affidavits or memoranda by October 26, 1999. [J.A. at 35]. Appellant never responded to the motion. Rather, on the deadline date set by the court, [J.A. at 2], appellant filed a motion to stay ruling on the motion pending further discovery, pursuant to Federal Rule of Procedure 56(f). As basis for that motion, appellant asserted that discovery regarding the owner of the vessel and the ladder³ was particularly critical to determining the issue of control—a key inquiry in determining the appellant's actual employer. [J.A. at 20]. Appellant additionally claimed the contract between Tropical and Alltemps was also important in resolving the issue of control. The appellee opposed that motion; however, there is no indication in the record the court decided the motion to delay a decision on the summary judgment motion pending further discovery. Rather, the trial court, by order entered February 8, 2000, finally decided the motion for summary judgment in the appellee's favor, after finding that Sobratti was a borrowed employee of Tropical whose injuries were compensable solely as permitted under the LHWCA. [J.A. at 1]. This appeal followed.

II. DISCUSSION

A. Jurisdiction and Standard of Review

This Court has jurisdiction to review final judgments and orders of the Territorial Court in all civil matters. See, VIRGIN ISLANDS CODE ANN. tit. 4, § 33; Revised Organic Act of 1954 § 23A.

The trial court's grant of summary judgment is afforded plenary review, and this Court applies the same standard that should have been applied below. See, Government of V.I. v. Innovative Communications Corp., 215 F.Supp.2d 603 (D.V.I. 2002). That standard dictates that summary judgment be granted only where, after viewing the evidence and the inferences to be drawn therefrom in the light most favorable to the non-movant, the court determines there are no genuine issues of material fact in dispute. Id.;see, also, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A "material fact" is one whose determination would affect the outcome of the case. See, Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir.1994). The trial court's legal determinations or its interpretation of a statute is also afforded plenary review; however, its findings of fact may be disturbed only for clear error. See, HOVIC v. Richardson, 894 F.Supp. 211 (D.V.I.App.Div.1995); In re Cendant Corp. Prides Litig., 233 F.3d 188, 193 (3d Cir. 2000).

B. Was Summary Judgment Appropriate?

Sobratti challenges the lower court's grant of summary judgment as inappropriate, arguing there remained genuine issues of material fact in dispute regarding whether Tropical is an employer protected from tort liability under the LHWCA.⁴

The LHWCA provides protection for certain specified workers, by requiring employers to maintain insurance coverage to compensate...