Lewis et al v. Axens North America, Inc. et al

Filing 64

ORDER granting 41 Motion for Summary Judgment; granting 44 Motion for Summary Judgment. The Clerk is directed to close the case. Signed by Judge B. Avant Edenfield on 10/15/14. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
BRIAN D. LEWIS AND STEPHANIE
LEWIS,
Plaintiffs,
4:14-cv-27

V.

AXENS NORTH AMERICA, INC.,
BASF CATALYSTS, LLC, BASF
CORPORATION, and NATIONAL
BULK EQUIPMENT,
Defendants.
ORDER
I. INTRODUCTION
Before the Court are Motions for
Summary Judgment filed by both BASF
Catalysts, LLC ("BASF Catalysts"), and
BASF Corporation ("BASF Corp."). ECF
Nos. 41, 44. For the reasons set forth below,
the Court GRANTS both motions.
II. BACKGROUND
BASF Catalysts owned real property in
Savannah. ECF No. 53 at 4. BASF Corp.
operated a plant on that property, id. at 4-5,
and it contracted with Axens North
America, Inc. ("Axens"), to manufacture
alumina gel at the plant, ECF No. 39-1 at 214. BASF Corp. separately contracted with
Austin Maintenance & Construction, Inc.
("Austin"), to provide the labor, services,
materials, and transportation necessary to
fulfill BASF Corp.'s contract with Axens.
ECF No. 39-1 at 35-68. Austin also agreed
to purchase and maintain workers'
compensation insurance. Id. at 53.

On November 4, 2011, Brian Lewis was
employed by Austin. ECF No. 53 at 6. He
was not employed by BASF Catalysts,
BASF Corp., or Axens. Id. While operating
a newly installed bagging machine, Lewis
was injured when a bag of alumina gel fell
on him. Id. at 9.
After his injury, Lewis received
workers' compensation. ECF No. 41-4 at 36. He received this benefit from an
insurance company because he was
employed by Austin. Id. at 5.
III. STANDARD OF REVIEW
"The court shall grant summary
judgment if the movant shows that there is
no genuine dispute as to any material fact
and the movant is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(a). In
ruling on summary judgment, the Court
views the facts and inferences from the
record in the light most favorable to the nonmoving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986); Reese v. Herbert, 527 F.3d
1253, 1271 (11th Cir. 2008). Courts,
moreover, may consider all materials in the
record, not just those cited by the parties.
Fed. R. Civ. P. 56(c)(3).
Because the jurisdiction of this case is
based upon diversity, the Court applies the
substantive law of Georgia.
See, e. g.,
Horowitch v. Diamond Aircraft Indus., Inc.,
645 F.3d 1254, 1257 (11th Cir. 2011).
IV. BASF CORP.'S MOTION FOR
SUMMARY JUDGMENT
BASF Corp. argues that summary
judgment is appropriate because it is entitled

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employer. In return, the vicariously liable
party is immune from tort liability for the
injury suffered." Manning v. Ga. Power
Co., 314 S.E.2d 432, 433 (Ga. 1984). "The
quid pro quo for the statutory employer's
potential liability is immunity from tort
liability." Wright Assocs., Inc. v. Rieder, 277
S.E.2d 41, 44 (Ga. 1981). A statutory
employer need not actually pay workers'
compensation benefits, but it must be liable
to pay such benefits. See Vratsinas Constr.
Co. v. Chitwood, 723 S.E.2d 740, 742-43
(Ga. Ct. App. 2012). An owner or entity
merely in possession of the premises can be
classified as statutory employer "only in the
isolated situation where he also serves as a
contractor for yet another entity and hires
another contractor to perform the work on
the premises." Yoho v. Ringier of Am., Inc.,
434 S.E.2d 57, 59 (Ga. 1993) (alteration,
emphasis, and internal quotation marks
omitted).

to immunity as Lewis's statutory employer.
ECF No. 43 at 2. The Court agrees.
The Workers' Compensation Act ("The
Act") provides a framework for the relief of
injured Georgia workers. See O.C.G.A. §
34-9-1 et seq. Because the Act provides
relief, it bars tort actions against an injured
worker's employer. O.C.G.A. § 34-9-11(a)
("The rights and remedies granted to an
employee by this chapter shall exclude all
other rights and remedies of such employee.
The Act bars tort actions even when
the injury results from an employer's
Kellogg Co. v.
intentional misconduct.
Pinkrton, 558 S.E.2d 423, 424 (Ga. Ct. App.
2001). Acceptance of workers'
compensation benefits triggers this
immunity "because such benefits are
provided by an employer to the employee."
Kaplan v. Pulte Home Corp., 537 S.E.2d
727, 729 (Ga. Ct. App. 2000) (citing Mann
v. Workman, 351 S.E.2d 680 (Ga. Ct. App.
1986)).
.").

Here, BASF Corp. is a statutory
employer. Although it operates the plant,
BASF Corp. also serves as a contractor for
another entity—Axens—and hires a second
contractor—Austin—to perform the work at
the plant. As Lewis acknowledges in his
brief, BASF Corp. was responsible to
provide services to Axens at the time of his
accident. ECF No. 57 at 12. Therefore,
under the Georgia Supreme Court's
reasoning in Yoho, BASF is a statutory
employer under the Act.

Under the Act, "[a] principal,
intermediate, or subcontractor shall be liable
for compensation to any employee injured
while in the employ of any of his
subcontractors engaged upon the subject
matter of the contract to the same extent as
the immediate employer." O.C.G.A. § 34-98(a). This provision "makes principal or
intermediate contractors secondarily liable
for workers' compensation benefits for
injured employees of a subcontractor." Carr
v. FedEx Ground Package Sys., Inc., 733
S.E.2d 1, 3 (Ga. Ct. App. 2012). This
doctrine—the statutory employer doctrine—
"permits liability for workers' compensation
benefits to attach vicariously against
someone other than an injured employee's

BASF Corp. has not actually paid any
workers' compensation benefits to Lewis,
but this is irrelevant to whether it deserves
immunity. Lewis has received benefits
already. ECF No. 41-4 at 3-6. So long as
BASF Corp. is potentially liable for such
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cannot be liable to third parties for damages
arising from the negligence of the tenant."
Colquitt v. Rowland, 463 S.E.2d 491, 492
(Ga. 1995) (interpreting O.C.G.A. § 44-714). Instead, liability depends upon control
of the property, not ownership. Dixon v.
Infinity Broad. E., Inc., 656 S.E.2d 211, 213
(Ga. Ct. App. 2007); see also Hodge v.
United States, 310 F. Supp. 1090, 1098
(M.D. Ga. 1969) aff'd, 424 F.2d 545 (5th
Cir. 1970) ("Georgia law recognizes that a
landowner can relinquish control over a
portion of his premises and is thereafter
relieved of the duties [to invitees].").

payments, it is entitled to immunity from
tort action, see Vratsinas Constr. Co. 723
S.E.2d at 743, and BASF Corp.'s status as a
contractor under O.C.G.A. § 34-9-8(a) it
potentially liable.
Because BASF Corp. meets the
requirements to be considered a statutory
employer under Georgia law, it qualifies for
immunity from tort actions. See Carr, 733
S.E.2d at 3. Each of the claims that Lewis
has brought against BASF Corp. are tort
claims. See ECF No. 1-1 at 5-8. Therefore,
summary judgment in favor of BASF Corp.
is appropriate.

Here, the relationship between BASF
Catalysts and BASF Corp. is analogous to a
landlord-tenant relationship. BASF
Catalysts owns the real property, while
BASF Corp. occupies it and operates the
plant. ECF No. 53 at 4-5. Therefore, BASF
Catalysts cannot be liable to Lewis as a third
party for BASF Corp.'s negligence. See
O.C.G.A. § 44-7-14; see also Fraley ex rel.
Fraley v. Lake Winnepesaukah, Inc., 631 F.
Supp. 160, 161-62 (N.D. Ga. 1986) (finding
that a lessor who had "fully parted with
possession" of the premises was not liable
for the alleged negligence of the tenant).

V. BASF CATALYSTS'S MOTION
FOR SUMMARY JUDGMENT
BASF Catalysts argues that summary
judgment is appropriate because it owed no
duty to Lewis. ECF No. 46 at 8. The Court
agrees.
BASF Catalysts owns the real property
on which BASF Corp. operates a plant.
ECF No. 53 at 4-5. But ownership of real
property does not automatically confer
liability. Hous. Auth. of Atlanta v. Famble,
317 S.E.2d 853, 862 (Ga. Ct. App. 1984).
Rather, "[i]t must appear that the injury
resulted from a breach of some duty owed
by the defendant to the injured party." Id
(citing Slaughter v. Slaughter, 177 S.E.2d
119, 121 (Ga. Ct. App. 1970)).

That the two parties did not memorialize
their agreement in a lease does not mean that
their relationship cannot be described as a
landlord-tenant relationship. See O.C.G.A.
§ 44-7-1(a) ("The relationship of landlord
and tenant is created when the owner of real
estate grants to another person, who accepts
such grant, the right simply to possess and
enjoy the use of such real estate."). There is
no indication that BASF Corp. paid BASF
Catalysts for the use of the real property, but
rent is not essential to the creation of a

Generally, an owner of real property
See
owes a duty of care to invitees.
O.C.G.A. § 51-3-1. But a landlord who has
"fully parted with possession and the right
of possession" is not responsible for injuries
caused by the negligence of the tenant.
O.C.G.A. § 44-7-14. "[A] landlord who
relinquishes possession of the premises
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landlord-tenant relationship. See S.S. Air,
Inc. v. City of Vidalia, 628 S.E.2d 117, 119
(Ga. Ct. App. 2006). BASF Catalysts has
surrendered the control of the real property
to BASF Corp., who operates the plant on
that site. ECF No. 53 at 4-5. Therefore, just
as a landlord cannot be responsible for the
negligent acts of a tenant, BASF Catalysts
cannot be liable for the negligent acts of
BASF Corp.

This

Zf day of October 2014.

le,

6az-_4,V

B. AVANT EDENFIELD, JUDGE /
UNITED STATES DISTRICT CORT
SOUTHERN DISTRICT OF GEORGIA

Lewis argues that BASF Catalysts
retained a duty to inspect its real property
for defects. ECF No. 54 at 2-3. But Lewis's
injury was caused by a newly installed
bagging machine, not by BASF Catalysts's
property. See ECF No. 53 at 9. Even if
BASF Catalysts did retain a duty to inspect
the premises, that duty would not extend to
the inspection of fixtures installed by other
parties. See Coiquitt, 463 S.E.2d at 492
(holding a landlord was not liable when an
invitee sustained injury in a swimming pool
installed by tenant).
The Court finds that BASF Catalysts did
not violate any duty it owed to Lewis.
Therefore, it cannot be liable in tort for his
injuries, and summary judgment in favor of
BASF Catalysts is appropriate.

VI. CONCLUSION
The Court GRANTS summary judgment
to BASF Corp. and also GRANTS summary
judgment to BASF Catalysts. Because the
other parties to this case were previously
dismissed, see ECF Nos. 35, 40, the clerk is
DIRECTED to close this case.

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