Joao Rodrigues-Nova, et al. v. Recchi America Inc., Et al. (order)
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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 02-CV-919
JOAO RODRIGUES-NOVO, et al., APPELLANTS,
v.
RECCHI AMERICA, INC., et al., APPELLEES.
Appeal from the Superior Court of the
District of Columbia
(No. CA-3703-00)
(Hon. Linda K. Davis, Trial Judge)
(Order filed November 13 , 2003)
Before TERRY and STEADMAN, Associate Judges, and NEBEKER, Senior Judge.
ORDER OF CERTIFICATION
Appellant Joao Rodrigues-Novo was injured in a construction accident while
working at the Branch Avenue Metro Station in Prince George’s County, Maryland.1
At the time of the accident, Rodrigues-Novo was employed by Pessoa Construction,
Inc. (“Pessoa”). Pessoa was a subcontractor of appellee Recchi America, Inc.
1
Rodrigues-Novo was operating a Toyota SDK-8 loader to break up pavement at
the construction site. When he attempted to secure the loader’s hydraulic hammer,
his right leg got caught between the hammer and the lift arms, crushing his foot. The
accident resulted in appellant having his lower right leg amputated.
2
(“Recchi”).
Recchi, in turn, was a contractor working for the Washington
Metropolitan Area Transportation Authority (“WMATA”), which owned the site.
Appellant Rodrigues-Novo and his wife filed suit in the District of Columbia
Superior Court against Recchi, WMATA, and supervisor Leroy Barnes2 alleging
negligence in the supervision, maintenance, and inspection of the loader and
construction site, which negligence they claimed caused their damages. The trial
court granted summary judgment to both defendants, on the ground that under the
Maryland law of workers’ compensation they were “statutory employers” and hence
immune from suit.
An appeal has been taken to this court challenging that
conclusion.
The answer to this question of law will be determinative of this appeal3 and it
appears to this court that as to WMATA, there is no controlling appellate decision,
2
Mr. Barnes, a safety inspector hired by Recchi, was never served and is not a
party to this appeal.
3
Appellants also assert that the trial court abused its discretion in permitting
appellants to raise the statutory employer defense when it was not raised in their
original answer to the complaint. We find no merit in this argument in the
circumstances here. See D.C. Super. Ct. Civ. R. 15(a) (leave to amend pleadings shall
be freely given); Fed. Mktg. Co. v. Virginia Impression Prods. Co., 823 A.2d 513,
526 (D.C. 2003) (laches defense raised in motion for summary judgment not unfair
surprise); Osei-Kuffnor v. Argana, 618 A.2d 712, 714-15 (D.C. 1993) (res judicata
defense raised in motion for judgment on the pleadings not substantially prejudicial
to plaintiff).
3
constitutional provision or statute of Maryland.4 Furthermore, the issue is one of
general importance, given the extensive ongoing activities of WMATA in Maryland.
Accordingly, pursuant to D.C. Code § 11-723(h) (2001), the Maryland Uniform
Certification of Questions of Law Act, Md. Code Ann., Cts. & Jud. Proc. § 12-601
et seq. (2002 Repl.), and Rule 8-305 of the Maryland Court of Appeals, we hereby
respectfully certify to the Maryland Court of Appeals the following question of law:
Whether, in the circumstances of this case,5 WMATA6 was a “statutory employer”
under the Maryland Workers’ Compensation Act and hence immune from suit
alleging negligence.
I.
The Maryland Workers’ Compensation Act grants immunity from suit in tort
to employers who are required to carry workers’ compensation insurance. Md. Code
Ann., Lab. & Empl. § 9-509(a) (1999 Repl.). Thus, if an employer falls within the
4
Initially appellants raised an argument that District of Columbia workers’
compensation law, rather than Maryland law, should apply to the dispute. Appellants
conceded at oral argument that Maryland law should control, and we so hold.
5
The parties at oral argument acknowledged that the question of law presented
in this certification with respect to WMATA depends upon the documentary evidence
in the record, including the WMATA Compact, the referenced Fifth Interim Capital
Contributions Agreement, and the contract between WMATA and Recchi, in the
context of the other undisputed facts set forth in this order of certification and as may
be jointly supplemented by the parties. See Md. Code Ann., Cts. & Jud. Proc. § 12606(b).
6
See also note 7, infra.
4
statutory definition, immunity is a defense to any tort claim brought by an injured
employee. However, this basic tenet of the workers’ compensation system does not
preclude an injured employee from pursuing a tort claim against third parties who are
not their employers, but who may be liable for their injuries. See Md. Code Ann.,
Lab. & Empl. § 9-902(c); Brady v. Ralph Parsons Co., 520 A.2d 717, 723 (Md.
1987).
The Act sets forth who is considered an employer, commonly referred to as a
“statutory employer,” as follows:
(a) In general - A principal contractor is liable to pay a
covered employee or the dependents of the covered
employee any compensation that the principal contractor
would have been liable to pay had the covered employee
been employed directly by the principal contractor if:
(1) the principal contractor undertakes to perform
any work that is part of the business, occupation, or trade
of the principal contractor;
(2) the principal contractor contracts with a
subcontractor for the execution by or under the
subcontractor of all or part of the work undertaken by the
principal contractor; and
(3) the covered employee is employed in the
execution of that work.
Md. Code Ann., Lab. & Empl. § 9-508. Such statutory employers are immune from
suit in the same manner as a direct employer. Sections 9-508 (b), 9-509 (a); Brady,
supra, 520 A.2d at 726.
5
The focus in this appeal is whether WMATA meets these requirements for
treatment as a statutory employer.7
II.
Appellants present three principal arguments in support of their position that
Maryland law does not provide immunity for WMATA.
A.
Appellants first argue that WMATA is not a principal contractor who has
contracted to perform work within the meaning of the statute. As the statutory
language is applied in Brady, a principal contractor must be a party to two distinct
contracts. 520 A.2d at 727. The first contract is with a third party, under which the
principal contractor will undertake certain work for the third party. Id. The second
contract must be with a subcontractor who agrees to perform that same work in whole
or in part. Id.
7
Appellants suggest, rather weakly, that Recchi itself may not be a statutory
employer because the work being undertaken by Rodrigues-Novo was not within the
scope of the relevant contracts. We do not read the documents as narrowly as
appellants suggest and, unless otherwise advised by the Maryland Court of Appeals,
will consider Recchi to be a statutory employer.
6
Appellants assert that WMATA is not a party to any contract with a third party
that will qualify it for principal contractor status. To refute this argument, WMATA
points to a document, dated August 20, 1992, entitled “Fifth Interim Capital
Contributions Agreement Commitment Letters Local Funding Agreement”
(“Agreement”) as the antecedent required contract. The Agreement provides for the
District of Columbia, various municipalities in Virginia (referred to as “Political
Subdivisions”), and Montgomery County and Prince George’s County in Maryland
(referred to as “Guarantors”) to provide funding for four WMATA construction
projects, including the Branch Avenue Metro Station where Rodrigues-Novo was
working. Appellants contend that the Agreement is not sufficient, under the Brady
precedent, to serve as an antecedent contract.
In Brady, the Maryland Court of Appeals ruled that the Mass Transit Authority
(“MTA”) was not a statutory employer under the Act because it had never entered
into a principal contract with a third party. 520 A.2d at 727. MTA had contracted
with a general contractor for the construction of three train stations, much as
WMATA contracted with Recchi to perform construction work on a Metro station
project. Id. MTA attempted to present a “Capital Grant Contract” as evidence of an
antecedent contract, but had not presented the contract prior to appeal, leaving the
Brady court unable to consider its validity as a principal contract. Id. at 727-28 n. 22.
The Court did note that “a mere financing agreement, which grants funds for a
construction project, between an owner or contractor and a third party will not give
7
rise to an antecedent contract unless the agreement also requires that the owner or
contractor perform work or services for the third party.” Id.
Appellants invoke Brady as precedent for finding that WMATA, like MTA, is
not a statutory employer. Appellees, however, point to Section 10 of the Agreement
as evidence that WMATA, as owner and contractor for the Branch Avenue site, is
required to perform construction work for Prince George’s County. Section 10 states
that if one of the planned projects (such as the Branch Avenue Metro Station) did not
receive approval from the Federal Transportation Administration, WMATA would
work on an alternate project in the same jurisdiction with the allocated funds. While
Section 10 clarifies the responsibilities of each of the funding municipalities, we find
no language, in Section 10 or elsewhere in the Agreement, specifically indicating that
WMATA will actually perform construction work, rather than acting as the conduit
for funds to reach construction contractors. Nonetheless, we think the issue of
whether the Agreement is an antecedent contract within the scope of Brady presents
an unanswered question of Maryland law. There is no clear line between a “mere
financing agreement” and the type of antecedent contract that, in the totality of
circumstances here, could provide WMATA with statutory employer immunity.
Alternatively or in addition, appellees invoke as the requisite primary contract
the charter establishing WMATA. That charter constitutes a compact between the
District of Columbia, the Commonwealth of Virginia, and the State of Maryland. The
8
WMATA Compact authorizes WMATA to “[e]nter into and perform contracts, leases
and agreements with any person, firm or corporation or with any political
subdivision...including, but not limited to, contracts or agreements to furnish transit
facilities and service.” D.C. Code § 9-1107.01, Art. V, Sec. 12(f) (2001); Md. Code
Ann., Transp. I § 10-204, Art. V, Sec. 12(f) (2001 Repl.). The construction of
facilities must be implemented via project contracts between WMATA and local
jurisdictions. See Art. VII, § 18 (“Commitments for Financial Participation”).
B.
Appellants further argue that construction work, such as that undertaken at the
Branch Avenue site, is not part of WMATA’s “trade, business or occupation.”
Appellants draw a comparison to a supermarket chain that, while it must build new
stores to grow as a business, is not in the “business” of constructing supermarkets.
WMATA, however, posits as the threshold question whether the subcontracted work
(i.e. the construction work) is an “essential or integral” part of the principal
contractor’s business. See Honaker v. W.C. & A.N. Miller Dev. Co., 388 A.2d 562,
567 (Md. App. 1978) (Honaker II), aff’d, 401 A.2d 1013 (Md. 1979). WMATA
invokes Section 12 of the WMATA Compact, which authorizes WMATA to
“Construct...real and personal property...necessary or useful in rendering transit
services or in activities incidental thereto.” D.C. Code § 9-1107.01, Art. V, Sec.
12(d); Md. Code Ann., Transp. I § 10-204, Art. V, Sec. 12(d).
9
C.
Finally, appellants contend that WMATA cannot in any event be a statutory
employer because WMATA is a “public utility” within the scope of Lathroum v.
Potomac Elec. Power Co. (“PEPCO”), 524 A.2d 1228 (Md. 1987). In Lathroum, the
employee of a contractor brought suit against PEPCO for injuries arising from an
accident in an underground coal hopper owned by PEPCO. Id. at 1228-29. The
Maryland Court of Appeals decided that PEPCO was not a statutory employer within
the meaning of the Act because the legislature “never intended a ‘principal contract’
to arise where there is a statutory duty on the part of a public utility to provide a
regulated commodity to the public.” Id. at 1230. The court continued:
PEPCO is not performing any work or service according to
customer specifications or direction; it is merely providing
a regulated commodity pursuant to statutorily mandated
requirements. If indeed there is a contract in this case, it is
more akin to a contract for the sale of a product, which this
Court has concluded is not within the contemplation of the
“statutory employer” provision of the Act.
Id. at 1231.
Appellants assert that WMATA was not building the Branch Avenue station
according to the specifications of the “customer,” Prince George’s County, but rather
was providing mass transit facilities in accord with the WMATA Compact.
WMATA, however, points to the previously mentioned Agreement between
10
WMATA and the Political Subdivisions and Guarantors, which provides for the
Political Subdivisions’ and Guarantors’ approval of design projects, and allows
individual jurisdictions to change project designs in their respective geographic areas
if they fund the cost of any changes. In this way, it is argued, WMATA is not similar
to a public utility, because the Agreement stipulates that WMATA will provide transit
facilities according to the specifications of local jurisdictions, including Prince
George’s County, in exchange for consideration.
III.
As indicated, we are unable to address with confidence the questions raised by
appellants’ arguments outlined above, the answers to which control the ultimate
question that we hereby certify to the Maryland Court of Appeals. The Maryland
Court of Appeals, acting as the receiving court, may reformulate the certified
question. Md. Code Ann., Cts. & Jud. Proc. § 12-604, 606(a)(3). The names and
addresses of counsel of record appear at the end of this order. Md. Code Ann., Cts.
& Jud. Proc. § 12-606(a)(4). Fees and costs of certification shall be initially borne
by appellants, id. § 12-610, subject to possible eventual adjustment pursuant to D.C.
App. R. 39. The above-named appellants in this court shall be treated as the
appellants in the certification procedure. Md. Ct. App. R. 8-305(b).
11
The clerk of this court is directed to transmit under official seal the original of
this order of certification, signed by the presiding judge of the certifying division, and
seven copies thereof to the Maryland Court of Appeals, together with the filing fee
for docketing regular appeals, payable to the Clerk of the Court of Appeals, such
filing fee to be paid in the first instance by appellants. Id. The clerk of this court
shall also transmit such portions of the record on appeal before this court to the
Maryland Court of Appeals as may be requested by that court pursuant to Md. Code
Ann., Cts. & Jud. Proc. § 12-605(b) and Md. Ct. App. R. 8-305(c).
FOR THE COURT:
JOHN A. TERRY
Associate Judge
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