Triguero v. Consolidated Rail Corp.

• Decision Date: 19 April 1991
• Docket Number: D,No. 873,873
• Citation: 932 F.2d 95
• Parties: Rafael TRIGUERO, Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Defendant. CONSOLIDATED RAIL CORPORATION, Third-Party Plaintiff-Appellant, v. UNIVERSAL MARITIME SERVICE CORPORATION, Third-Party Defendant-Appellee. ocket 90-7826.
• Court: U.S. Court of Appeals — Second Circuit

Page 95

932 F.2d 95

1991 A.M.C. 2007

Rafael TRIGUERO, Plaintiff, v. CONSOLIDATED RAIL CORPORATION, Defendant.

CONSOLIDATED RAIL CORPORATION, Third-Party Plaintiff-Appellant, v. UNIVERSAL MARITIME SERVICE CORPORATION, Third-Party

Defendant-Appellee.

No. 873, Docket 90-7826.

United States Court of Appeals, Second Circuit.

Argued Jan. 29, 1991.

Decided April 19, 1991.

Thomas M. Smith, Walker & Bailey, New York City (Lawrence R. Bailey, Jr., of counsel), for third-party plaintiff-appellant.

Celestino Tesoriero, Grainger & Tesoriero, New York City (James M. Leonard, of counsel), for third-party defendant-appellee.

Before KEARSE, PRATT and McLAUGHLIN, Circuit Judges.

McLAUGHLIN, Circuit Judge:

Defendant-third-party plaintiff, Consolidated Rail Corporation ("Conrail"), appeals from a judgment of the United States District Court for the Southern District of New York (Robert W. Sweet, Judge ), following an order dismissing the third-party

                complaint against Universal Maritime Service Corporation ("Universal") upon Universal's motion for summary judgment.  601 F.Supp. 50.    The district court held that Universal's injured employee was an "employee" within the meaning of the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. Sec. 901 et seq., 1 making Universal immune from tort-based contribution once it paid out benefits under the Act.  The district court also found that Conrail failed to show there was an implied agreement for indemnification by Universal and, as a consequence, dismissed Conrail's third-party complaint for indemnification.  After final judgment, Conrail appealed, arguing that the LHWCA did not apply in this case and, even if it did, Conrail should have been allowed to pursue its third-party claims.  Because we agree with the district court, we affirm
                

BACKGROUND

Plaintiff Rafael Triguero worked for third-party defendant-appellee Universal when he was injured on the job in January 1982. Because a precise understanding of Triguero's job is crucial to certain issues on this appeal, we set out the following pertinent facts.

Universal is a stevedoring business. It has a 95-acre dockside facility known as Shed 220 in the port district of Port Elizabeth, New Jersey. Shed 220 provides temporary storage for both incoming and outgoing cargo and, as such, serves as a nexus between maritime and overland transportation. Defendant Conrail runs a rail facility, also within the Port Elizabeth-Port Newark area, known as the Portside Container Yard ("Portside").

Triguero drove a yard hustler which, as described by the district court, "is a truck-like vehicle used to transport large metal boxes with cargo inside, known as containers." Triguero's job was to move cargo within Universal's Shed 220 facility and to shuttle containers between Shed 220 and Portside. On the day of the injury, Triguero was instructed to pick up two containers at Portside and deliver them to Shed 220 where they would remain until being loaded aboard the vessel S.S. BARBER NARA. At some point during the loading operation, the hustler overturned causing the injury for which Triguero brought this action.

Universal is a self-insured employer, and it paid Triguero benefits in accordance with 33 U.S.C. Sec. 901 et seq. Triguero brought this suit against Conrail for negligent failure to maintain Portside in a safe and proper condition. Conrail, in turn, filed a third-party complaint against Universal for tort-based contribution and contract-based indemnity. Invoking the protection of the LHWCA, Universal moved to dismiss the third-party complaint or, in the alternative, for summary judgment. Fed.R.Civ.P. 12(b)(6), 56(c). Conrail responded that Triguero was not an "employee" within the meaning of the LHWCA and, even if he was, Conrail still had an implied contract claim against Universal for indemnity.

Because both sides filed supporting affidavits, the district court treated the motion as one for summary judgment. Grand Union Co. v. Cord Meyer Dev. Corp., 735 F.2d 714, 716 (2d Cir.1984). In so doing, the district court concluded that although the "current state of the record strongly suggests that Triguero is an employee," genuine issues of material fact remained concerning Triguero's classification as an employee under the Act. The district court, therefore, denied Universal summary judgment on the tort-based claims, with leave to renew the motion after discovery, reasoning that the protections afforded a benefits-paying employer against further contribution under the Act do not attach unless and until the injured worker can be classified as an employee.

The district court did, however, grant Universal judgment on the related claim for contract-based indemnification. Although conceding there was no express indemnification agreement with Universal, Conrail had argued--irrespective of the At the close of discovery, Universal renewed its motion for summary judgment on the tort-based third-party claim for contribution. The court, finding that the well-developed record confirmed its initial assessment, classified Triguero as an LHWCA employee and granted Universal summary judgment. Accordingly, on November 16, 1984, the district court dismissed the third-party complaint. Triguero has since succeeded in his negligence action against Conrail and, with a final judgment entered in the case, Conrail brings this appeal.

LHWCA's application to the case--that there was an implied warranty of workmanlike performance by Universal and, hence, under this warranty Universal should fully indemnify Conrail for all damages awarded against Conrail. The district court disagreed, finding that Conrail failed to carry its burden of showing an implied warranty. The court also denied Conrail's request for more discovery on the contract issues, reminding Conrail that the relevant facts were within its own control. Discovery continued on the tort-based claim, as already noted.

On appeal Conrail maintains: (1) that Triguero is not an employee within the meaning of the LHWCA and, consequently, there is no statutory bar to Conrail's attempt to secure contribution from Universal; and (2) regardless of how Triguero is classified under the Act, Conrail should not be foreclosed from recovering against Universal for breach of an implied warranty of workmanlike performance. As to both arguments, Conrail maintains that, at the very least, genuine issues of material fact remain, making the district court's grant of summary judgment inappropriate.

DISCUSSION

Mindful that our review of the district court's determination to grant summary judgment is de novo, EAD Metallurgical, Inc. v. Aetna Casualty & Surety Co., 905 F.2d 8, 10 (2d Cir.1990), we consider the record in the light most favorable to Conrail, the non-movant. Even so, we are satisfied that Conrail has failed to meet its burden to establish a genuine issue of material fact. Delaware & Hudson Railway Co. v. Consolidated Rail Corp., 902 F.2d 174, 177-78 (2d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2041, 114 L.Ed.2d 125 (1991); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986). We also review whether the law was correctly applied. National Union Fire Ins. Co. v. Turtur, 892 F.2d 199, 203 (2d Cir.1989); City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir.1988) (citing 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 2716, at 654 (2d ed. 1983)). We conclude that the district court did apply the law correctly, namely, that Triguero was an LHWCA employee, that application of the LHWCA precludes a third-party claim for contribution against Universal, and that Conrail failed to come forward with any evidence to suggest the existence of an implied agreement for indemnification through a warranty of workmanlike service.

We first examine the broader question of the LHWCA's effect on Conrail's two-part claim for contribution or indemnity. The critical statute is Sec. 905(a) of the Act:

The liability of an employer prescribed in section 904 of this title shall be exclusive and in place of all other 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 or in admiralty on account of such injury or death

....

33 U.S.C. Sec. 905(a). Interpreting this language, this circuit has concluded that once an employer fulfills its obligations under the Act by paying out benefits to the injured LHWCA employee, further tort-based contribution from the employer is foreclosed. Lopez v. Oldendorf, 545 F.2d 836 (2d Cir.1976). The Sec. 905(a) exclusivity provision of the LHWCA "immunizes a compensation-paying employer from third party claims for contribution." Zapico v. Bucyrus-Erie Co., 579 F.2d 714, 717 (2d Cir.1978); Lopez, 545 F.2d at 839-40 ("Inasmuch Conrail's claim for (implied) contract-based indemnity against Universal, is not so easily disposed of. ² This circuit has recognized that a third-party action for contractual indemnity is not barred by the exclusivity provision of section 905(a). Zapico, 579 F.2d at 721-22. The rationale, anchored in Supreme Court precedent, is that an employer's liability for contractual indemnity:

as [LHWCA employer] furnished its employee ... with the benefits required by the Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C. Sec. 901 et seq., it is not subject to a claim for contribution."), cert. denied, 431 U.S. 938, 97 S.Ct. 2650, 53 L.Ed.2d 256 (1977); see also Ketchum v. Gulf Oil Corp., 798 F.2d 159, 161 (5th Cir.1986) (including this court among the circuits that interpret Sec. 905(a) to abrogate independent tort liability of the employer to its employees); Drake v. Raymark Indus., Inc., 772 F.2d 1007, 1021 (1st Cir.1985), cert. denied, 476 U.S. 1126, 106 S.Ct. 1994, 90 L.Ed.2d 675 (1986); T. Schoenbaum,...