Polanco-Garcia v. Santa Rosa Mall, LLC., et al, No. 3:2012cv01418 - Document 148 (D.P.R. 2014)

Court Description: OPINION AND ORDER declaring Santa Rosa Mall, Burlington, Frama, and Cordex employers or statutory employers of Polanco and, therefore, immune from suit under PRWACA. We find that the Puerto Rico Department of Labor is not a party to adversarial proc eedings, but was merely subpoenaed for documents. We retain the case of Polanco v. Mark Carbon for further disposition. Partial Judgment will enter dismissing the complaint against Santa Rosa Mall, Burlington Coat Factory, Frama, and Cordex on worker's compensation immunity grounds. Judgment will also enter to terminate the Puerto Rico Department of Labor as a party. Signed by Judge Jose A. Fuste on 02/10/2014.(mrj)

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UNITED STATES DISTRICT COURT DISTRICT OF PUERTO RICO 1 2 3 4 MIGUEL A. POLANCO-GARCIA, Plaintiff, Civil No. 12-1418 (JAF) v. SANTA ROSA MALL, LLC., BURLINGTON COAT FACTORY, LLC., CORDEX CONSTRUCTION, INC., MAX CARBON, FRAMA CONSTRUCTION COMPANY, INC., FRAMA BUILDERS INC., MAPFRE INSURANCE COMPANY, TRIPLE-S PROPIEDAD, INC., Defendants. PUERTO RICO DEPARTMENT OF LABOR, Interested Party. 5 6 OPINION AND ORDER 7 Miguel Polanco-García ( Polanco ) fell off a scaffold allegedly without a safety 8 harness while working on a remodeling project at the Burlington Coat Factory Store at 9 Santa Rosa Mall in Bayamón. (Docket No. 34.) 10 Polanco was directly employed by an individual by the name of Mark Carbon. 11 Polanco came to work as part of Mark Carbon s crew contracted by Cordex Construction 12 Inc. ( Cordex ), which, in turn, had been contracted to remodel the store by Frama 13 Builders, Inc. (Docket No. 34.) Whether there are two Frama corporations or not is Civil No. 12-1418 (JAF) -2- 1 immaterial. For our purposes, we treat Frama as one. Pursuant to the Puerto Rico 2 Workmen s Accident Compensation Act, 11 LPRA § 1 et seq., and the applicable case 3 law, all contractors had to be either insured employers or statutory employers of Polanco 4 in order to get the benefit of immunity from suit under the Puerto Rico Workmen s 5 Accident Compensation Act, 11 LPRA § 21. Mark Carbon was not insured, but Cordex 6 was, and its policy included by reference the Frama construction companies. Therefore, 7 Cordex is an insured employer and Frama, Burlington, and the Santa Rosa Mall benefit 8 from Cordex s immunity as statutory employers of Polanco. 9 Rodríguez v. Bristol Myers Barceloneta, Inc., 147 D.P.R. 383 (1999). See Carlos Martínez 10 Two issues are before us at the present. One is jurisdictional and the other relates 11 to the interpretation of the immunity protection under the Puerto Rico Workmen s 12 Accident Compensation Act ( PRWACA ) and the different entities involved in the 13 remodeling. 14 I. 15 Diversity Jurisdiction 16 17 18 19 20 21 22 23 We find that diversity exists between Polanco, a Dominican national, and the defendants. 28 U.S.C. §1332(a)(2), provides for jurisdiction between, [c]itizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State. Civil No. 12-1418 (JAF) -3- 1 28 U.S.C. §1332(a)(2). It is undisputed that, although Polanco had been living in Puerto 2 Rico for seven years at the time he filed this action, he was not a United States citizen. 3 (Docket No. 31 at 2.) 4 The First Circuit has not addressed the issue of long-term, non-legal residents. 5 However, the courts that have addressed this issue have found that unlawful long-term 6 residents are diverse for the purpose of federal jurisdiction. 7 Schatzman & Aaronson, P.A., 108 F.3d 1347, 1349 (11th Cir. 1997); Tevdorachvili v. 8 Chase Manhattan Bank, 103 F.Supp.2d 632, 637 (E.D.N.Y. 2000). It is undisputed that 9 Polanco was a citizen of the Dominican Republic and not of the United States. (Docket 10 No. 31.) Therefore, Polanco is not a citizen of Puerto Rico for jurisdictional purposes, 11 and diversity exists. See Foy v. Schantz, 12 II. 13 Immunity Considerations under PRWACA 14 After the accident, Polanco was taken to the Puerto Rico Industrial Hospital, 15 sponsored by the Puerto Rico Workmen s Compensation statute, for treatment as an 16 employee covered by the PRWACA. At the Industrial Hospital, because of Polanco s 17 illegal immigration status as a citizen of the Dominican Republic, he was told that the 18 hospital would have to report his illegal alien status to authorities. Polanco refused 19 treatment and visited on his own the Puerto Rico Medical Center seeking treatment for an 20 accident, not work related. (Docket No. 34.) Polanco claims damages for negligence 21 under the Puerto Rico Civil Code, Section 1802, 31 LPRA § 5141, against defendants. 22 (Docket No 1.) Civil No. 12-1418 (JAF) 1 2 -4- Generally, in cases of damage caused by fault or negligence, the Puerto Rico Civil Code provides that: A person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done. Concurrent imprudence of the party aggrieved does not exempt from liability, but entails a reduction of the indemnity. 3 4 5 6 7 8 9 31 LPRA § 5141. However, this cause of action does not encompass the right to 10 compensation in a labor accident. Rivera v. Industrial Commission, 67 D.P.R. 526 11 (1947). Instead, the Work-Related Accidents Act establishes a system of mandatory 12 insurance so that [w]orkers, to a certain extent, waive their right to sue their employer in 13 exchange for a benefit which could eventually be smaller, but which is reliable, 14 immediate and certain. 11 L.P.R.A. § 1a; See Soc. De Gananciales v. Royal Bank de 15 P.R., 145 D.P.R. 178 (1998). The exclusivity of the remedy provided by the PRWACA 16 is absolute provided the employer is insured, regardless of the degree of negligence 17 attributable to his employer. Feliciano Rolon v. Ortho Biologics, F.Supp.2d 409, 414 18 (D.P.R. 2005) (citing Hernandez Sanchez v. Bermudez & Longo, 149 D.P.R. 543 (1999). 19 In this case, Cordex (the contractor) paid for an insurance policy that lasted from 20 February 18, 2011, to December 31, 2011, and covered fifteen employees at the Santa 21 Rosa Mall location. (Docket No. 94-3.) The accident occurred on June 2, 2011. (Docket 22 No. 34 at 2.) Therefore, Polanco should have been covered and received his exclusive 23 remedy from this insurance policy. Although the parties have not made available the 24 State Insurance Fund accident report, it is obvious that one issued. 25 Industrial Hospital would not have opened its doors to Plaintiff, as it did. However, even Otherwise, the Civil No. 12-1418 (JAF) -5- 1 if the employer does not report the accident, the law imposes an obligation on the worker 2 to report it to the State Insurance Fund within five days. Santos et al. v. Lederle, 153 3 D.P.R. 812, 825-26 (2001). Therefore, Polanco s legal right was not to sue his employers 4 in federal court but, rather, to receive accident-related treatment at the State Insurance 5 Fund, all employers and statutory employers remaining immune from suit. 6 The entities that hired Cordex either directly or indirectly, namely Frama, 7 Burlington, and Santa Rosa Mall, are statutory employers, and are immune from liability 8 because their contractor, Cordex, carried worker s compensation insurance. See Carlos 9 Martínez Rodríguez v. Bristol Myers Barceloneta, Inc., 147 D.P.R. 383 (1999). 10 However, Carbon did not purchase a policy with the State Insurance Fund. 11 (Docket No. 136.) State law is unclear about whether immunity from suit travels down to 12 subcontractors. The Puerto Rico Supreme Court has stated that the Act does not require 13 two policies instead of one, but the court was speaking of immunity traveling up from 14 the subcontractor to the contractor. 15 Resources Authority (A.F.F.), 105 D.P.R. 861, 5 P.R. Offic. Transl. 1198, 1206 (1977). 16 Because we are unable to find a statement by the Puerto Rico Supreme Court that 17 immunity travels down to the subcontractor, we find that Max Carbon is not immune 18 from suit. Therefore, he is the only defendant who remains liable. Héctor Lugo Sánchez v. Puerto Rico Water 19 III. 20 Conclusion 21 For the foregoing reasons, we declare Santa Rosa Mall, Burlington, Frama, and 22 Cordex employers or statutory employers of Polanco and, therefore, immune from suit Civil No. 12-1418 (JAF) -6- 1 under PRWACA. We find that the Puerto Rico Department of Labor is not a party to 2 adversarial proceedings, but was merely subpoenaed for documents. (Docket No. 46.) 3 Since we have found no case law, or have been cited any, granting an entity 4 situated in the shoes of Mark Carbon, an uninsured employer, benefits under the 5 workmen s compensation policies above him, we retain the case of Polanco v. Mark 6 Carbon for further disposition. 7 Partial Judgment will enter dismissing the complaint against Santa Rosa Mall, 8 Burlington Coat Factory, Frama, and Cordex on worker s compensation immunity 9 grounds. Judgment will also enter to terminate the Puerto Rico Department of Labor as a 10 party. 11 IT IS SO ORDERED. 12 San Juan, Puerto Rico, this 10th day of February, 2014. 13 14 15 S/José Antonio Fusté JOSE ANTONIO FUSTE U. S. DISTRICT JUDGE

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