Gardner et al v. Greg's Marine Construction, Inc. et al

Filing 29

MEMORANDUM OPINION. Signed by Chief Judge Deborah K. Chasanow on 1/14/14. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
TRACY GARDNER, et al.
:
v.

:

Civil Action No. DKC 13-1768

:
GREG’S MARINE CONSTRUCTION,
INC., et al.

:
:

MEMORANDUM OPINION
Presently pending and ready for review in this negligence
and

wrongful

death

case

are

motions

to

dismiss,

or

in

the

alternative, for summary judgment filed by Defendants Dominion
Cove Point LNG, LP (“Dominion LP”), Dominion Resources, Inc.
(“Dominion

Inc.”),

and

Dominion

Cove

Point

LNG

Company,

LLC

(“Dominion LLC”) as to Counts IV, V, and VI (ECF Nos. 11 & 12);
Defendant Weeks Marine, Inc. (“Weeks Marine”) as to Counts III,
V, and VI (ECF No. 13); and Defendant Greg’s Marine Excavation,
Inc. (“Greg’s Marine Excavation”) as to Counts I, II, V, and VI
(ECF No. 27).

The issues have been fully briefed, and the court

now rules, no hearing being deemed necessary.

Local Rule 105.6.

For the following reasons, the motions filed by these Defendants
will be granted.

I.

Background
Factual Background1

A.

On June 18, 2013, Tracy Gardner (“Gardner”) brought this
action

as

administrator

and

estate

of

Mark

(“Mr.

asserting
against

a

Copeland

violation

Greg’s

of

Marine

personal

the

representative

Copeland”
Jones

or

“the

46

U.S.C.

Act,

Construction,

Inc.

of

the

decedent”),
§

(“Greg’s

30104,
Marine

Construction”) and Greg’s Marine Excavation (Count I); violation
of the Longshore and Harbor Workers’ Compensation Act, 33 U.S.C.
§

903,

against

Greg’s

Marine

Construction

and

Greg’s

Marine

Excavation (Count II); negligence against Weeks Marine (Count
III); negligence against Dominion LP, Dominion LLC, and Dominion
Inc. (Count IV); and a survival action against all defendants
(Count

VI).2

Robert

Wayne

Copeland,

the

decedent’s

father,

brings a wrongful death claim against all Defendants (Count V).

1

The following facts are drawn from the complaint and from
documents quoted by, relied upon, incorporated by reference in
or otherwise integral to the complaint.
See In re E.Spire
Communication, Inc. Sec. Litig., 127 F.Supp.2d 734, 737 (D.Md.
2001).
2

The so-called “survival action” in Count VI is not a
separate cause of action and duplicates the claims in Counts I
through IV.
Maryland’s survival statutes did not create a new
cause of action. See Trimper v. Porter–Hayden, 305 Md. 31, 38–
39, 501 A.2d 446 (1985), overruled on other grounds by Md.Code
Ann., Cts. & Jud. Proc. § 3–904(g)(2); Smith v. Gray Concrete
Pipe Co., 267 Md. 149, 158–59, 297 A.2d 721 (1972), overruled on
other grounds by Owens–Ill., Inc. v. Zenobia, 325 Md. 420, 601
A.2d 633 (1992); see also Md.Code Ann., Est. & Trusts § 7–401(y)
(“[A personal representative] may prosecute, defend, or submit
2

Mark Copeland died on October 23, 2010 while performing
repair work at the Cove Point Terminal on Chesapeake Bay in
Maryland.

During the relevant time, Greg’s Marine Construction

employed Mark Copeland as a laborer.
complaint
Marine

alleges

that

Construction

Greg’s

“owned,

(ECF No. 1 ¶ 13).

Marine

operated,

Excavation
managed,

and

The

Greg’s

directed

and

controlled a barge, raft or floating platform operating in the
navigable

waters

of

the

Chesapeake

Bay.”

(Id.

¶

7).

The

complaint recites that “Dominion Cove Point LNG, LP, Dominion
Cove Point LNG Company LLC, and Dominion Resources, Inc. . . .
owned and operated Cove Point LNG Terminal, an offshore liquid
natural gas shipping terminal, located on the western shore of
the Chesapeake Bay in the State of Maryland.”
On

October

9,

2003,

Dominion

(Id. ¶ 12).

Transmission,

Inc.,

an

affiliated company of Dominion LP, entered into a Master Service
Contract (“MSC 634”) with Greg’s Marine Construction, Inc. for
work to be performed periodically by Greg’s Marine Construction
at the Cove Point Terminal.

(See ECF No. 11-2 ¶ 5 & ECF No. 11-

to arbitration actions, claims, or proceedings ... for the
protection or benefit of the estate, including the commencement
of a personal action which the decedent might have commenced or
prosecuted ....” (emphasis added)).
Courts often use the term
“survival action” loosely to refer to any claim brought by a
decedent’s estate. To be precise, a “survival action” is merely
the mechanism by which an estate brings a claim that the
decedent could have asserted had he survived.
It is not a
“claim” in the sense that, for example, one might assert a
battery or negligence claim.
3

3).

The MSC 634 provided that Greg’s Marine Construction’s

status

was

that

of

an

independent

contractor,

and

“neither

[Greg’s Marine Construction, Inc.] nor any employees of [Greg’s
Marine

Construction,

Inc.]

are

employees

Transmission, Inc.].”

(ECF No. 11-3, at 22).

2009,

Construction

of

Greg’s

Marine

submitted

[Dominion

On October 15,
a

proposal

to

Dominion LP for “work to be completed on the off-shore pier of
the Cove Point Terminal facility pertaining to the removal of
old, damaged concrete piling jackets and then the installation
of new concrete piling jackets.”
4).

(ECF No. 11-2 ¶ 8; ECF No. 11-

This “Final Proposal for Offshore Pile Jackets” provided

that “[t]here are a total of eleven (11) 54[inch] concrete piles
that have 8’ [Concrete Piles] Jackets installed by others that
are damaged.”

(ECF No. 11-4, at 1).

The proposal identified

eleven

piles,

No.

damaged

including

Pile

140,

on

which

the

decedent performed repair work at the time of his death.

On

October 21, 2009, Dominion LP issued a purchase order to Greg’s
Marine Construction for the concrete piling jacket removal work;
the order provided that “Master Service Contract 634 10/9/2003
between the same parties is hereby incorporated by reference as
if fully set forth herein.

MSC 634 shall be the sole source of

the terms and conditions of the agreement between these parties
and shall supersede and replace any other terms that [Greg’s
Marine Construction] may submit as part of their proposal unless
4

Dominion

provides

terms.”

(ECF

specific

No.

11-5,

at

written
1-2).

acceptance
The

of

proposal,

any

such

which

was

executed by Dominion LP and Greg Burkhardt of Greg’s Marine
Construction, further provided that “Contractors are expected to
comply with OSHA regulations.

Contractors are responsible for

the safety of their employees and associated OSHA compliance.”
(Id. at 2).

It further stated that “Contractors are required to

comply with all applicable Dominion Transmission safety rules
and procedures when performing work on the location.”

(Id.).

On October 23, 2010, Mark Copeland was performing repair
work in the navigable waters approximately one mile off-shore
from

the

Dominion

Maryland.

LNG

Plant

(Id. ¶ 15).

located

at

Cove

Point

Road

in

The complaint refers to both Greg’s

Marine Construction and Greg’s Marine Excavation collectively as
“Greg’s Marine.”

The complaint alleges that “Mr. Copeland was

working

course

in

defendants,
subcontracts
Marine.”

the

Greg’s
between

(Id. ¶ 16).

and

Marine,

scope
pursuant

defendants,

of

his

to

Dominion,

the

employment

with

contracts

Weeks,

and

and

Greg’s

Specifically, Mr. Copeland “was utilizing

an air hammer to chip concrete from the pilings in order to
remove the deteriorated jackets.”

(Id. ¶ 19).

He was “seated

on the edge of a small seafaring vessel, temporary floating
platform and/or dock with a portion of his body in navigable
waters of the United States.”

(Id. ¶ 20).
5

At the time of the

incident

at

issue,

Plaintiffs

allege

that

“Greg’s

Marine”

furnished Mr. Copeland with “a fiberglass hard hat and brass
commercial

diver’s

helmet,

a

neoprene

wet

suit,

a

safety

harness, swimmer’s and/or diver’s fins and/or boots, a neck dam
and

collar,

an

umbilical

and/or

air

hose,

a

weight

belt,

thermal tube, a safety line and/or a communication line.”
¶ 22).

a

(Id.

Mr. Copeland was not a certified commercial diver, but

was “performing the tasks and duties that he was instructed to
perform by his employer [Greg’s Marine Construction].”
17, 25).

(Id. ¶¶

“Gregory Burkhardt, owner, shareholder, principal,

officer and/or agent of defendants, [Greg’s Marine Construction
and Greg’s Marine Excavation], was a certified commercial diver
and, at all times relevant hereto, had actual knowledge of the
training necessary to perform work as a commercial diver.”
¶ 24).

“[T]he concrete piling jacket on which Mark Copeland was

performing
pulled

(Id.

Mr.

repair

work

Copeland

to

became
the

detached
bottom

of

from
the

the

piling

Chesapeake

approximately fifty (50) feet below the surface.”

and
Bay,

(Id. ¶ 26).

Mr. Copeland’s coworkers then attempted to rescue him, but “in
their attempt to do so, they dislodged Mr. Copeland’s air hose
and/or safety line.”

(Id. ¶ 27).

Mr. Copeland was pronounced

dead at approximately 12:57 p.m. on October 23, 2010.

6

B.

Procedural Background

Plaintiffs filed a six count complaint on June 18, 2013.
Dominion LP moved to dismiss Counts IV, V, and VI, or in the
alternative, for summary judgment on July 29, 2013 (ECF No. 11).
Plaintiffs opposed the motion on August 15, 2013 (ECF No. 19),
and

Dominion

LP

replied

on

September

3,

2013

(ECF

No.

23).

Defendants Dominion Inc. and Dominion LLC filed a separate motion
to dismiss the same counts, or in the alternative, for summary
judgment on July 29, 2013 (ECF No. 12), Plaintiffs opposed on
August 15, 2013 (ECF No. 19), and Defendants replied on September
3, 2013 (ECF No. 22).

Weeks Marine moved to dismiss counts III,

V, and VI, or in the alternative, for summary judgment on July
30, 2013 (ECF No. 13), Plaintiffs opposed on August 15, 2013 (ECF
No. 20), and Defendant replied on September 10, 2013 (ECF No. 271).

Greg’s

Marine

September 10, 2013.

Construction

answered

(ECF No. 25).

the

complaint

on

Greg’s Marine Excavation

moved to dismiss Counts I, II, V, and VI, or in the alternative,
for summary judgment on September 10, 2013 (ECF No. 27), and
Plaintiffs opposed the motion on September 13, 2013 (ECF No. 28).
II.

Standard of Review
Matters

Defendants’
judgment.

outside
motions

the
shall

pleadings
be

will

treated

as

be

considered

ones

for

and

summary

Summary judgment is governed by Fed.R.Civ.P. 56(a)

which provides that: “[t]he court shall grant summary judgment
7

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.”

The United States Supreme Court has clarified that

this does not mean that any factual dispute will defeat the
motion: “[b]y its very terms, this standard provides that the
mere

existence

of

some

alleged

factual

dispute

between

the

parties will not defeat an otherwise properly supported motion
for

summary

judgment;

the

requirement

genuine issue of material fact.”

is

that

there

be

no

Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original).

“The

party opposing a properly supported motion for summary judgment
‘may not rest upon the mere allegations or denials of [his]
pleadings,’ but rather must set forth specific facts showing
that there is a genuine issue for trial.”

See Bouchat v. Balt.

Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003)
(alteration in original) (quoting

former Fed.R.Civ.P. 56(e)).

The court should “view the evidence in the light most favorable
to . . . the nonmovant, and draw all inferences in [his] favor
without

weighing

credibility.”

the

evidence

or

assessing

the

witness’

See Dennis v. Columbia Colleton Med. Ctr., Inc.,

290 F.3d 639, 644-45 (4th Cir. 2002).

The court must, however,

also abide by the “affirmative obligation of the trial judge to
prevent

factually

unsupported

proceeding to trial.”

claims

and

defenses

from

See Bouchat, 346 F.3d at 526 (internal
8

quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d
774, 778-79 (4th Cir. 1993) and citing Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986)).
III. Analysis
A.

Dominion LP’s Motion

1.

Negligence (Count IV)

Personal representative Gardner asserts a negligence claim
against Dominion LP.

To prevail on a claim of negligence, a

plaintiff must prove: “(1) that the defendant was under a duty
to protect the plaintiff from injury, (2) that the defendant
breached

that

duty,

(3)

that

the

plaintiff

suffered

actual

injury or loss, and (4) that the loss or injury proximately
resulted

from

Muthukumarana

v.

the

defendant’s

Montgomery

breach

Cnty.,

370

of

Md.

(quoting BG & E v. Lane, 338 Md. 34 (1995)).

447,

the

duty.”

486

(2002)

If no duty is owed

another, then no action can be sustained even though injury has
occurred.

Bauman v. Woodfield, 244 Md. 207, 216 (1966).

Here, Dominion LP employed Greg’s Marine Construction as an
independent

contractor

to

perform

work

on

defective

concrete

pilings of jackets, including Piling No. 140, on which Mark
Copeland - a Greg’s Marine Construction employee - performed
repair work at the time of his death.
principle

that

under

Maryland

law,

It is a well-established
“the

employer

of

an

independent contractor is not liable for the negligence of the
9

contractor

or

his

employees,”

subject

to

multiple

exceptions

contained in the Restatement (Second) of Torts.

Rowley v. Mayor

and

(1986)

City

Council

of

Balt.,

305

Md.

456,

461

(citing

Restatement § 409); Meltech Corp. v. Austin Mohawk & Co., Inc.,
Civil Action No. 11-cv-160-AW, 2013 WL 3353744, at *7 (D.Md.
July

1,

2013).

The

complaint

(and

Plaintiffs’

opposition)

suggests liability predicated upon Dominion LP’s own negligence
pursuant to Restatement (Second) of Torts § 414.3

Thus, the

threshold question is whether Dominion LP owed a duty to Mark
Copeland through the operation of Section 414 of the Restatement
(Second) of Torts.

See Brady v. Ralph M. Parsons Co., 327 Md.

275, 283-84 (1992) (discussing Section 414 in analyzing duty
owed to employees of subcontractors); Wells v. Gen. Elec. Co.,
807 F.Supp. 1202, 1206 (D.Md. 1992) (citing Maryland case-law
adopting Restatement (Second) of Torts § 414).
a.
Retention of Control – Restatement (Second) of Torts
Section 414
Dominion LP argues that Gardner’s negligence claim fails
insofar

as

Gardner

attempts

to

3

hold

Dominion

LP

personally

There are three broad categories of exceptions to the
general non-liability rule: (1) negligence of the employer in
selecting, instructing, or supervising the contractor; (2) nondelegable duties of the employer, arising out of some relation
toward the public or the particular plaintiff; and (3) work
which is specially, peculiarly, or “inherently” dangerous.
See
Wells, 807 F.Supp. at 1205.
These exceptions are incorporated
into Sections 410 through 429 of the Restatement (Second) of
Torts. The facts here do not trigger these exceptions.
10

liable because Dominion LP did not retain and exercise control
over the manner, method, and operative details of Greg’s Marine
Construction’s work and thus it did not owe a duty of care to
Mark Copeland, an employee of Greg’s Marine Construction.
No. 11-1, at 14).

(ECF

The complaint alleges that Dominion LP had a

duty to warn of unsafe conditions at Dominion Cove Point LNG
Terminal and that it failed to supervise the construction work
and

implement

an

adequate

performed on its facility.

safety

plan

for

the

work

(See ECF No. 1, at 23-24).

being
These

allegations trigger the application of Restatement (Second) of
Torts § 414, which states the following:
One who entrusts work to an independent
contractor, but who retains control of any
part of the work, is subject to liability
for physical harm to others for whose safety
the employer owes a duty to exercise
reasonable care, which is caused by his
failure
to
exercise
his
control
with
reasonable care.
Id.;

Brady,

327

Md.

at

283-84.

Comment

c

to

Section

clarifies what is meant by “control”:
In order for the rule stated in this Section
to apply, the employer must have retained at
least some degree of control over the manner
in which the work is done. It is not enough
that he has merely a general right to order
the work stopped or resumed, to inspect its
progress or to receive reports, to make
suggestions or recommendations which need
not necessarily be followed, or to prescribe
alterations and deviations.
Such a general
right is usually reserved to employers, but
it does not mean that the contractor is
11

414

controlled as to his methods of work, or as
to operative detail.
There must be such a
retention of a right of supervision that the
contractor is not entirely free to do the
work in his own way.
Id.

Notably, the retention of control must exist “in respect to

the very thing from which the injury arose.”

Gallagher’s Estate

v. Battle, 209 Md. 592, 602 (1956) (emphasis in original), cert.
denied, 352 U.S. 894 (1956); Wells, 807 F.Supp. at 1206.
There

is

nothing

in

the

MSC

634

or

the

purchase

order

executed between Dominion LP and Greg’s Marine Construction that
evidences Dominion LP’s retention of control over the concrete
piling jackets that would give rise to liability under Section
414 of the Restatement (Second) of Torts.4
7,

affidavit

of

Michael

Frederick

(See ECF No. 11-2 ¶

(“Pursuant

to

the

Master

Service Contract, while performing its work at the Cove Point
Terminal, Greg’s Marine [Construction] was to operate at all
times as an independent contractor and to retain control over
the operative details of its work.”)).
sections

of

the

MSC

634

and

the

Gardner’s reliance on

purchase

order

Dominion LP’s retention of control is misplaced.

to

evidence

First, Gardner

cites Section 7 of the MSC to show that Dominion LP retained
control over the work:

4

The purchase order between Greg’s Marine Construction and
Dominion LP incorporates by reference the MSC 634. (ECF No. 115, at 1).
12

If requested by [Dominion LP], [Greg’s
Marine Construction] shall furnish [Dominion
LP] with evidence of the qualifications,
education and experience of its personnel.
[Dominion LP] shall have the right to
require the removal of any of [Greg’s Marine
Construction’s] personnel from the Work, if
in the sole judgment of [Dominion LP], such
removal is in [Dominion LP’s] best interest.
Any
of
[Greg’s
Marine
Construction’s]
personnel judged unsatisfactory by [Dominion
LP] shall be reassigned and other qualified
personnel assigned to the Work at no
additional cost to [Dominion LP].
(ECF No. 11-3, at 7).
the

discretion

from

to

performing

Although this section gives Dominion LP

remove

the

work,

unqualified
it

does

subcontractor

not

evidence

personnel

Defendant’s

control over the very thing from which the injury arose.

Mr.

Copeland’s death resulted from “the concrete piling jacket on
which

Mr.

detached
bottom

Copeland

from

of

the

the

was

piling

Chesapeake

below the surface.”

performing
and

repair

pull[ing]

Bay,

Mr.

approximately

(ECF No. 1 ¶ 26).

work

bec[oming]

Copeland
fifty

to

(50)

the
feet

Furthermore, when Mr.

Copeland’s coworkers or other employees attempted to rescue him,
they dislodged his air hose and/or safety line.
reliance
control

on

this

over

the

section
very

Thus, Gardner’s

to

show

that

Dominion

thing

from

which

the

misplaced.

13

LP

injury

retained
arose

is

Gardner also cites Section 12.D of the MSA, which enabled
Dominion Transmission, Inc. to suspend the work.

Specifically,

that section states:
[Dominion LP] may, without cause, order
[Greg’s Marine Construction] in writing, to
suspend performance of the Work, in whole or
in part, for such period of time as
[Dominion LP] may determine.
(Id. at 12).
exerted

a

retaining

This provision suggests that at most, Dominion LP

general
the

degree

of

discretion

to

in

control

over

suspend

Maryland

is

the

the

work

work

insufficient

(i.e.,

wholly

to

or

partially),

which

establish

liability.

See, e.g., Meltech Corp., 2013 WL 3353744, at *9

(“The fact that Beechgrove had some general input on Robert
White’s work does not make it liable for its subcontractor’s
negligence.”); Rowley, 305 Md. at 461 (holding that the City was
not liable for negligence where it retained policy oversight
only, including “the power to disapprove bookings of attractions
and

conventions

it

considered

inappropriate.”).

Moreover,

Comment c to Section 414 of the Restatement (Second) of Torts
expressly provides that “[i]t is not enough that [the employer]
has

merely

a

general

(emphasis added);

right

to

order

the

work

stopped.”

see also Parker v. Neighborhood Theatres,

Inc., 76 Md.App. 590, 600 (1988) (holding that defendant did not
participate in the control and manner in which the construction
took

place

where

the

contract
14

permitted

defendant

to

make

changes in the work within the scope of the specifications, to
stop

the

work

if

it

did

not

meet

the

requirements

of

the

contract documents, and to make job site inspections).
Section

22.A

of

the

MSC

on

which

Gardner

also

relies

similarly reflects that Dominion LP at most exercised general
control over the execution of the contract with Greg’s Marine
Construction.

Specifically,

that

section

prohibited

Greg’s

Marine Construction from assigning any rights or delegating its
duties under the MSC without Dominion LP’s permission.

This

section likewise does not evidence that Dominion LP controlled
the operative details of the subcontractor’s work, much less the
very thing from which the injury arose.

In fact, the complaint

alleges that “[a]t all times relevant hereto, Mr. Copeland was
performing

the

tasks

and

duties

that

he

was

instructed

perform by his employer [Greg’s Marine Construction].”

to

(ECF No.

1 ¶¶ 17, 23) (emphasis added).
Finally, Gardner argues in the opposition that Dominion LP
was negligent because “Dominion LP’s obligations under the MSA
required coordination of the safety programs of Greg’s Marine
[Construction]
Inc.”

and

Dominion

(ECF No. 19, at 6).

LP

and/or

Dominion

Transmission,

Specifically, Gardner references

Section 27 of the MSC, which required Greg’s Marine Construction
to

implement

safety

and

programs

comply
“for

the

with

Dominion

performance
15

Transmission,
of

their

Inc.’s

respective

portions

of

the

Work

as

are

set

forth

in

their

respective

subcontracts and adopt such other safety programs as [Greg’s
Marine Construction] deems necessary or appropriate.”
11-3, at 20).

(ECF No.

Section 27 further stated that “[Greg’s Marine

Construction] shall coordinate its safety programs with those of
[Dominion Transmission, Inc.].”

(Id.).

The coordination of

safety programs, however, is manifestly different from Dominion
LP’s

retention

of

control

over

repair

work

of

the

concrete

piling jackets, which ultimately led to Mark Copeland’s death.
See, e.g., Wells, 807 F.Supp. at 1207 (“Montel did rely, to some
degree, upon General Electric electricians in the completion of
its project. . . .
is

manifestly

The provision of such assistance, however,

different

from

General

Electric’s

retention

of

control over the electricity within the areas in which Montel
employees were working, and control is the deciding criterion.”)
(emphasis in original).
Greg’s

Marine

Marine

Construction’s

In fact, Dominion LP contracted with

Construction

for

employees

the

very

perform

purpose
repair

that
work

Greg’s
on

the

defective concrete piling jackets, including Pile Number 140,
which
work.

detached

while

Mr.

Copeland

(See ECF No. 11-4).

was

performing

the

repair

The purchase order specifically

tasked Greg’s Marine Construction with the responsibility for
the safety of its employees and associated Occupational Safety
and

Health

Act

(“OSHA”)

compliance.
16

(ECF

No.

11-5,

at

2).

Moreover,

Section

27

stated

that

“Supplier

[Greg’s

Marine

Construction] shall be responsible for providing its employees
and

suppliers

equipment,
eyewear,

working

including
earplugs,

on

the

without

project

site

limitation,

respirators,

work

with

all

hardhats,

gloves

protective

and

necessary protective and medical equipment.”

safety

all

other

Indeed, in the

complaint, Gardner asserts that at the time of the accident,
“Greg’s Marine” provided safety gear to Mark Copeland.

(See ECF

No. 1 ¶ 22).
Judge Blake’s analysis in Leppo v. Jacobs Facilities, Inc.,
Civil Action No. CCB-09-3415, 2010 WL 3085430 (D.Md. Aug. 6,
2010),

is

instructive.

employee

of

(“JFI”),

the

sustained

on

responsible

a

That

contractor

for

job.

various

involved

against

construction
the

case

Jacobs

manager,
As

for

construction

managerial

tasks,

a

lawsuit

by

Facilities,

an

Inc.

injuries

plaintiff

manager,

“JFI

such

as

was

preventing

construction delays, checking compliance with building codes and
construction
compliance

plans,
with

and

monitoring

established

safety

(internal quotations omitted).

construction
standards.”

contractor
Id.

at

*1

Specifically, JFI was to “note

and report unsafe working conditions [and] failures to adhere to
[the] safety plan required by construction requirement.”
Much

like

the

provision

in

the

purchase

order

Id.

requiring

“Dominion Transmission job site agents [] promptly [to] notify a
17

contractor supervisor of any observed noncompliance [with safety
requirements]; and require prompt corrective action,” (ECF No.
11-5,

at

3),

JFI’s

inspectors

were

required

physically

to

inspect the worksite to monitor safety requirements and orally
and in writing notify the construction contractor in the event
they observed unsafe working conditions on the premises.5

In

finding no duty and granting summary judgment for JFI, Judge
Blake

reasoned

that

“[a]lthough

JFI

monitored

safety

on

the

construction site, it lacked authority to compel [the general
contractor] to take any safety precautions.
GSA

contract,

JFI

did

not

control

the

As specified in its

means

and

methods

of

construction and, therefore, may not be held liable for any harm
resulting
oversight.”

from

[the

general

contractor’s]

alleged

safety

Id. at *3; Appiah v. Hall, 183 Md.App. 606, 633

(2008) (holding that although the defendant had “[t]he ability
to recommend or impose safety requirements,” this did not mean
that it retained “control over the very thing that caused the
injury,” as contemplated by § 414); Wajer v. Balt. Gas & Elec.
Co., 157 Md.App. 228, 244 (2004) (concluding that the defendant,
despite conducting safety inspections and coordinating safety
efforts on the construction site, lacked the necessary degree of
5

The
purchase
order
stated
that
notifications
of
noncompliance will be documented.
The purchase order also
included that “Dominion Transmission job site agents will
immediately notify a contractor supervisor of any observed
imminent danger.” (ECF No. 11-5, at 2).
18

control to trigger a duty of care to construction contractor
employees under Section 414 because its inspector could only
request that unsafe conditions be changed and could not control
the

“methods,

performed”).

techniques,
The

or

same

sequences

rationale

of

applies

the
to

work

to

these

be

facts.

Indeed, Gardner asserts in the complaint that “Defendant, Weeks,
controlled

the

method

renovation

work

done

(emphasis

added).

and
on

manner

this

of

the

project.”

Furthermore,

the

construction

(ECF

MSC

634

No.

1

and

¶

provided

49)
that

“Supplier [Greg’s Marine Construction] shall furnish all labor,
services,

supervision,

material,

tools,

supplies,

machinery,

vehicles and equipment necessary to fully and completely perform
the [w]ork in accordance with the provisions of the [C]ontract,
as well as any applicable Governmental Requirements.”

(ECF No.

11-3, at 1; id. at 21) (emphasis added); Trosclair v. Bechtel
Corp.,

653

F.2d

162

(5th

Cir.

1981)

(holding

that

a

prime

contractor who required a subcontractor to implement detailed
safety measures and inspect the worksite for compliance with
safety programs was not liable for injuries suffered by the
subcontractor’s

employees

on

the

job);

Roberson

v.

United

States, 382 F.2d 714, 721 (9th Cir. 1967) (“The safety inspection
activities

of

the

[prime

contractor]

did

not

relieve

the

[subcontractor] of any of its contractual duties . . . [I]t was
designed only to make sure that [subcontractor] performed those
19

duties.”).
“Dominion

Thus, Gardner’s assertion in the opposition that
LP

charged

itself

with

the

obligation

to

monitor

safety” would not give rise to liability under Section 414.
See, e.g., Wells, 807 F.Supp. at 1208 (“[t]his practical and
pragmatic coordination of safety efforts did not give General
Electric the necessary right of control over the details of
Montel’s salvage job which would predicate a § 414 duty owing to
Mr. Wells.”).6
b.

Non-delegable Duty to Provide a Safe Workplace

The allegations in the complaint also suggest that Gardner
believes that Dominion LP breached a duty by failing to maintain
a safe workplace at Cove Point Terminal.7

Specifically, Gardner

6

The court in Wells also noted that even if defendant
retained sufficient control to invoke a duty to use reasonable
care pursuant to Section 414, “employees of an independent
contractor are not within the class of persons to whom the duty
in this section might run.” 807 F.Supp. at 1209; Wilson v. Ford
Wells cited the
Motor Co., 656 F.2d 960 (4th Cir. 1981).
discussion in Rowley v. City of Baltimore regarding the anomaly
created by “providing greater protection to employees of an
independent contractor than to the defendant’s own employees and
the effect of workers’ compensation laws.”
Wells, 807 F.Supp.
at 1208.
Thus, courts in Maryland have reasoned that Section
414 of the Restatement (Second) of Torts was generally intended
for the protection of persons other than the independent
contractors and their employees. Brady, 327 Md. at 282-83.
7

This duty, often referred to as the “safe workplace
doctrine” when applied to a contractor’s employees, is set forth
in Restatement § 343 and is closely related to the duty of a
landowner. See Wells, 807 F.Supp. at 1210 n.11; Doali-Miller v.
SuperValue Inc., Civil No. JFM-10-2422, 2011 WL 1935831 (D.Md.
May 19, 2011) (“Maryland has adopted the general rule regarding
20

asserts

that

Defendant’s

duty

included

exercising

reasonable

care to protect business invitees such as Mark Copeland because
he would not discover or realize the danger or fail to protect
himself against it.

(See ECF No. 1 ¶ 59).

The analysis in

LeVonas v. Acme Paper Board Co. is instructive on this point:
If
the
owner
employs
an
independent
contractor to do certain work, he owes to
employees of the contractor the same duty he
would owe to employees of his own to furnish
them a safe place to work. When the risk to
which an employee is exposed arises from
causes which are concealed, the employer is
bound to notify him of them, provided that
he himself knows them, or by the exercise of
ordinary care ought to have known of them .
. . [L]iability for injuries to a servant of
an independent contractor rests upon the
owner when the premises on which the
stipulated work is done remain under his
control and the injuries arise out of the
abnormally
dangerous
condition
on
the
premises, the owner being chargeable with
knowledge of the danger.
184 Md. 16, 19-20 (1944) (emphasis added).
The record presents no disputed issue of material fact as
to Dominion LP’s fulfillment of its narrow duty to provide a
safe workplace for Greg’s Marine Construction employees.

Any

claim of liability predicated upon the “safe workplace” doctrine
requires (1) Dominion LP’s control over the premises, and (2)
the presence of an “abnormally dangerous condition.”
Vonas, 184 Md. at 20.

See Le

Gardner asserts in the complaint that

the liability of possessors of land to invitees set forth in the
Restatement (Second) of Torts § 343”).
21

Dominion

failed

to

warn

“plaintiffs’

decedent,

a

business

invitee, of the peculiar, dangerous and unsafe conditions then
and there existing upon the construction site premises.”
No. 1, at 24).
predicate

(ECF

But as the court observed in Wells, “[t]he

control

necessary

to

find

[defendant]

liable

under

[the safe workplace] theory is analogous to that required under
§ 414.”

807 F.Supp. at 1211.

Here, there is no genuine issue

of material fact that Dominion LP did not retain sufficient
control to create liability under Section 414.

Moreover, in

Cutlip v. Lucky Stores, Inc., 22 Md.App. 673, 683 (1974), the
Maryland Court of Special Appeals cautioned against finding the
very conditions of a contracting job – which is the case here itself “abnormally dangerous”:
The “abnormally dangerous conditions on the
premises” referred to in Le Vonas do not
include conditions which arise after and as
a result of the independent contract.
The
“conditions”
are
those
latent
dangers
preexisting the contract’s carrying over
without the owner’s taking precautions to
guard against the conditions before he
permits others to occupy the premises.
Dominion LP had a duty to notify Greg’s Marine Construction
employees of any latent or concealed dangers present at Cove
Point Terminal.

The danger that the concrete piling jacket

would detach in the course of repair work was not either latent
or

concealed;

notification.

therefore,

Dominion

LP

owed

no

duty

of

In fact, the danger Plaintiff cites is the very
22

work Greg’s Marine Construction was contracted to perform.

See

Wells, 807 F.Supp. at 1211-12 (“[t]he very essence of Montel’s
contract was to strip out the electrical conduit and bussing
within

Building

1;

thus,

the

condition

of

plaintiff

Wells

working around electrical wiring – which led to his injury –
arose both after and as a result of that contract and could not
be considered an ‘abnormally dangerous condition’ as defined by
the

Le

Vonas

court.”).

As

noted

in

Rowley,

“under

the

circumstances of this case the duty [to maintain the premises in
a reasonably safe condition] did not extend to the independent
contractor and its employees with respect to defects arising
from

the

failure

of

the

contractor

to

repairs it had undertaken to perform.”

accomplish

the

very

Rowley, 305 Md. at 463.

Similarly, Dominion LLP contracted Greg’s Marine Construction
specifically for the purpose of repairing eleven concrete piling
jackets,

including

Pile

Number

140.

Thus,

Dominion

LP’s

position that “Greg’s Marine [Construction] and its employees
were on notice in advance of the start of the project about the
‘damaged’ condition of the then existing jackets” is persuasive.
(ECF No. 11-1, at 27).
2.
VI)

Wrongful Death (Count V) and Survival Action (Count

As noted above in footnote 2, there is no separate cause of
action known as a “survival claim.”

23

Rather, a survival action

is brought by the personal representative asserting a claim that
could have been brought by the decedent, had he survived.

Thus,

Count VI is not a cause of action and will be dismissed against
all of the named Defendants.
The wrongful death claim in Count V, however, is a separate
cause of action, but it cannot be maintained if, as Dominion LP
argues, negligence cannot be shown.

A wrongful death action is

brought by the relatives of the decedent, seeking recovery for
their loss as a result of the victim’s death.
In addition, if the deceased victim left a
parent, spouse, or child (or, in the absence
of such a person, any other person related
to the victim by blood or marriage and who
was substantially dependent on the victim),
that person may sue, on his or her own
behalf,
for
certain
losses
the
person
suffered by reason of the wrongful death of
the victim.
See Md.Code, §§ 3-901 to 3-904
of the Courts and Judicial Proceedings
Article.
That is the “wrongful death” or
“Lord
Campbell’s”
action.
As
presently
codified, it permits the defined class of
persons to maintain an action against a
person whose “wrongful act” causes the death
of another. The term “wrongful act” is
defined to mean “an act, neglect, or default
... which would have entitled the party
injured to maintain an action and recover
damages if death had not ensued.” Id. § 3901(e).
Smith v. Borello, 370 Md. 227, 233 (2002).
Here, any wrongful death claim against Dominion LP would be
premised on the alleged negligence of Dominion LP.
supra,

Dominion

LP

cannot

be

held
24

liable

on

As discussed

the

theory

of

negligence.

Accordingly,

the

wrongful

death

claim

against

Dominion LP also cannot lie.
3.

Plaintiffs’ Rule 56(d) Request

In an attempt to avoid summary judgment, Plaintiffs spend
most

of

the

premature

opposition

because

“no

arguing

discovery

that
has

summary

been

judgment

conducted

and

is
no

documents have been exchanged other than those that Dominion LP
electively attached to the instant Motion.”

(ECF No. 19, at 7).8

Defendant counters that “Plaintiffs have failed to identify the
specific issues of material fact as to Dominion LP that are
likely

to

permitted.”

be

uncovered

or

disclosed

if

such

discovery

is

(ECF No. 23, at 15) (emphasis in original).

Ordinarily,

summary

judgment

is

inappropriate

if

“the

parties have not had an opportunity for reasonable discovery.”
E.I. duPont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d
435, 448 (4th Cir. 2011).

Rule 56(d) allows the court to deny a

motion for summary judgment or delay ruling on the motion until
discovery has occurred if the “nonmovant shows by affidavit or
declaration that, for specified reasons, it cannot present facts
essential to justify its opposition.”

Notably, requests under

Rule 56(d) “‘cannot simply demand discovery for the sake of

8

In an apparent procedural oversight, Plaintiffs reference
Rule 56(f) instead of Rule 56(d).
The 2009 Amendments to the
Federal Rules of Civil Procedure transferred the language of
former Rule 56(f) to Rule 56(d).
25

discovery.’”

Hamilton v. Mayor & City Council of Balt., 807

F.Supp.2d 331, 342 (D.Md. 2011) (quoting Young v. UPS, No. DKC08-2586, 2011 WL 665321, at *20 (D.Md. Feb. 14, 2011)).
interpreting

Rule

56(d)

have

consistently

held

Courts
that

a

nonmovant’s request may be denied if “the additional evidence
sought for discovery would not have by itself created a genuine
issue of material fact sufficient to defeat summary judgment.”
Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191, 195 (4th
Cir. 2006) (internal quotation marks omitted).

Put simply, Rule

56(d) does not authorize “fishing expedition[s].”

Morrow v.

Farrell, 187 F.Supp.2d 548, 551 (D.Md. 2002), aff’d, 50 F.App’x.
179 (4th Cir. 2002).
Plaintiffs posit that they have not had an opportunity to
conduct discovery “necessary to respond to the factual disputes
raised” in the motion.

(ECF No. 19, at 11).

They submit an

affidavit from Plaintiff’s counsel, which seeks several forms of
discovery: (1) depositions of Corporate Designees of Dominion
Resources,

Inc.,

Point

Company,

LNG

Construction,
Contracts

Dominion
LLC,

Inc.,

executed

Cove

and

Point

Weeks
Greg’s

between

all

LNG,

Marine,
Marine

LP,

Dominion

Inc.,

Greg’s

Excavation,

defendants

to

this

Cove

Marine

Inc.;
cause

(2)
of

action, which includes all modifications and appendices; (3) all
job

hazard

connection

analyses
with

the

and/or

job

renovation,
26

safety

analyses

demolition,

conducted

in

reconstruction,

restoration

and

construction

work

being

performed

at

the

Dominion Cove Point LNG Terminal on October 23, 2010 and prior
to

that

date;

(4)

all

safety

manuals

generated

or

used

in

connection with the work being performed at the Dominion Cove
Point LNG Terminal; (5) all minutes of meetings in connection
with the construction project; (6) depositions of workers onsite at the time of Mark Copeland’s death; (7) construction
drawings,

technical

drawings,

architectural

drawings

and/or

other documents utilized to plan and carry out the construction
work being performed at the Dominion Cove Point LNG Terminal;
(8)

information

pertaining

to

the

commercial

diving

training

required by Dominion LP, et al., for workers at the Dominion
Cove Point LNG Terminal; (9) Mark Copeland’s personnel file;
(10)

Mark

Copeland’s

safety

training,

commercial

driving

training, and/or other training history; and (11) expert review
of documents, records, and other information obtained through
discovery.

(ECF No. 19, at 14-17).

Although the affidavit

indicates that the above information “will materially affect the
outcome of this case and create genuine issues of material fact
sufficient

to

demonstrate

defeat

that

the

summary
areas

judgment,”

of

discovery

Plaintiffs
they

do

identify

not
would

create a genuine issue of material fact regarding Dominion LP’s
duty

to

the

Construction,

employees
essential

of
to

its

contractor,

establish
27

Greg’s

negligence.

See,

Marine
e.g.,

Betos v. Suburban Hosp., Inc., Civil Action No. DKC-11-1452,
2012 WL 2564781, at *9 (D.Md. June 29, 2012) (“the crux of Mr.
Betof’s argument is that he should be allowed to find out if
[he] has a claim, rather than that [he] has a claim for which
[he]

needs

Plaintiffs

.

.

thus

.

discovery”

cannot

(internal

sustain

their

citations
case

by

omitted)).9

invoking

the

protections of Rule 56(d).
B.

Dominion LLC’s and Dominion Inc.’s Motion

The negligence and wrongful death claims are also asserted
against Dominion LLC and Dominion Inc.

In moving to dismiss or

for summary judgment, these two Defendants argue that contrary
to the allegations in the complaint, only Dominion LP operates
and controls the Cove Point Terminal.

Specifically, Defendants

explain that Dominion, LLC is a one percent passive shareholder
in

Dominion

LP

and

that

company of Dominion LLC.

Dominion

Inc.

is

the

remote

(ECF No. 12-1, at 2).

parent

Defendants

contend that neither played any role in the operation of Cove
Point Terminal.

Defendants submit an affidavit from Sharon L.

Burr, the Assistant Corporate Secretary for Dominion Inc. and
Assistant Secretary for Dominion LLC, attesting that Dominion LP
9

Notably, Dominion LP asserts in the reply brief that
“Dominion LP does not even have any of the documents that
Plaintiffs claim they need from Dominion LP in discovery in
order to oppose a motion for summary judgment.” (ECF No. 23, at
16).
Dominion LP includes an affidavit from Mark Reaser,
Director of LNG Operations for the Dominion Cove Point LNG
Terminal, attesting to this point. (See ECF No. 23-2).
28

is the sole owner and operator of Cove Point Terminal and that
no employees of either Dominion Inc. or Dominion LLC work at the
Cove Point Terminal.

(See ECF No. 12-2).

state

Inc.

that

Dominion

acts

as

a

Defendants further

holding

company

for

affiliated companies, “and played no role in the day to day
operations of the Cove Point Terminal beyond funding and general
administrative services.”

(ECF No. 12-1, at 8).

Plaintiffs’ negligence and wrongful death claims against
Dominion LLC and Dominion Inc. suffer from the same infirmity as
those asserted against Dominion LP.
“based

on

the

contracts

attached

Plaintiffs maintain that

to

Defendant

Dominion

Cove

Point LNG, LP’s Motion to Dismiss or, in the alternative, Motion
for

Summary

Judgment,

interchangeably.”

the

various

Dominion

(ECF No. 18, at 7).

entities

operated

The record does not

support Plaintiffs’ position as it clearly reflects that Greg’s
Marine

Construction

contracted

with

Dominion

LP

to

perform

repair work on eleven concrete piling jackets and incorporated
by reference the MSC 634.

Furthermore, Plaintiffs overlook the

principle that “[a] contractual obligation, by itself, does not
create a tort duty.

Instead, the duty giving rise to a tort

action must have some independent basis.”
Ins. Fund, 353 Md. 241, 253 (1999).

Mesmer v. Md. Auto.

In the absence of a duty of

care, there can be no liability in negligence.

Walter, Smullian

& Blumenthal, P.A. v. Katz, et al., 361 Md. 645, 655 (2000).
29

Here, Plaintiffs cannot establish that Dominion LLC and Dominion
Inc. owed a duty of care to Mark Copeland, an employee of Greg’s
Marine Construction, and thus cannot show negligence.

Indeed,

given the corporate structure, Dominion LLC and Dominion Inc.
are

even

further

Construction,
repair

work

removed

which
at

from

contracted

Cove

Point

employees
with

of

Greg’s

Dominion

Terminal.10

In

LP
the

to

Marine
perform

opposition,

Plaintiffs make a Rule 56(d) request, seeking the same documents
as described supra.

But here too, Plaintiffs fail to show how

the documents they seek will create a genuine issue of material
fact as to Dominion LLC’s and Dominion Inc.’s liability for
negligence.
Dominion

Accordingly, summary judgment will be granted as to

Inc.

and

Dominion

LLC

and

Plaintiffs’

Rule

56(d)

request will be denied.
C.

Weeks Marine’s Motion

The complaint also includes negligence and wrongful death
claims against Weeks Marine.

(ECF No. 1, at 17).

The complaint

alleges that Weeks Marine contracted “Greg’s Marine” to replace
deteriorated concrete jackets on pilings owned by Dominion LP.

10

Defendants also correctly state that a corporate parent
cannot be held liable for subsidiary’s wrongful acts solely by
virtue of its ownership of and control over subsidiary, unless
the corporate veil can be pierced under conventional doctrines
because of inadequate capitalization of subsidiary, gross
disregard of corporate formalities, and the like.
In re Am.
Honda Motor Co., Inc. Dealerships Relations Litig., 958 F.Supp.
1045, 1051 (D.Md. 1997).
30

(ECF No. 1 ¶ 14).
Construction

in

But the record reflects that Greg’s Marine

fact

contracted

with

Dominion

LP

to

perform

repair work on the concrete jackets and Weeks Marine entered
into a separate contract with Dominion LP, dated October 28,
2009, for mooring and breasting dolphin repair work at the South
and North Off-Shore Berths at Cove Point Terminal.

(See ECF No.

13-4 & ECF No. 13-3 ¶ 4 (affidavit of Robert Gianna)).

Like the

Plaintiffs, Weeks Marine refers to Greg’s Marine Construction
and Greg’s Marine Excavation collectively as “Greg’s Marine” in
its motion and the supporting affidavits.
2).

(See ECF No. 13-1, at

Weeks Marine contends that Weeks Marine and “Greg’s Marine”

are two unrelated and independent contractors of Dominion LP and
“the only nexus between the two is that they happened to be
working at the same general work-site at the same time.”

(ECF

No. 13-1, at 9-10).
In

support

of

its

position,

Weeks

Marine

includes

an

affidavit from Robert Gianna, Project Engineer for Weeks Marine,
in which he attests that “[a]t no time at issue in the Complaint
w[ere] Greg’s Marine [Construction and Greg’s Marine Excavation]
[]

subcontractor[s]

Marine,

and

Greg’s

or

independent

Marine

contractor[s]

[Construction

and

of

Greg’s

Weeks
Marine

Excavation] performed no work for Weeks Marine in connection
with the aforesaid October 28, 2009 contract between Dominion LP

31

and Weeks Marine.”

(ECF No. 13-3 ¶ 9).11

He also avers that the

October 28, 2009 contract between Dominion LP and Weeks Marine
required Weeks Marine to inspect and supervise the work of its
own

subcontractors

and

employees.

(Id.

¶

17).

Mr.

Gianna

further attests that Weeks Marine used two small time-chartered
workboats to transport Weeks Marine’s employees to and from the
offshore Cove Point Terminal; on the day of Mark Copeland’s
death “although Weeks Marine was working at the opposite berth,
Dominion LP’s security personnel asked Weeks Marine if it could
bring one of the workboats to the South Berth to transport Mark
Copeland’s body from the South Berth area to a waiting ambulance
on the shore.”

(Id. ¶ 25).

Weeks Marine states that this was

its only connection to the incident at issue.
Weeks Marine’s position is persuasive.

Plaintiff cannot

demonstrate that as an independent contractor to Dominion LP,
Weeks

Marine

Construction,

owed

a

another

duty

to

independent

employees
contractor

of
of

Greg’s

Marine

Dominion

LP.

The fact that Weeks Marine was also performing repair work at
Cove Point Terminal does not create a duty of care by Weeks
Marine to employees of another independent contractor.

As Weeks

Marine posits, “the only indirect facts linking Weeks Marine and

11

Weeks Marine submits as an exhibit the “Subcontractor
Invoice Summary,” which also does not identify Greg’s Marine
Construction or Greg’s Marine Excavation as subcontractors.
(ECF No. 13-6).
32

Greg’s Marine [Construction] is that both were performing work
at the Cove Point Terminal at the same time, albeit at different
berths, and, that, after Mark Copeland’s body was pulled from
Chesapeake Bay, at the request of Dominion LP, Weeks Marine’s
time chartered vessel, GO BETWEEN, transported Mark Copeland to
the

shore

so

that

waiting

emergency

medical

(ECF No. 13-1, at 11).12

attend to him.”

personnel

could

Although Plaintiffs

again make the same Rule 56(d) request with respect to Weeks
Marine’s motion, they fail to specify how any of the documents
they seek (the same documents discussed supra) will create a
genuine issue of material fact as to Weeks Marine’s duty to Mark
Copeland.
To

Accordingly, this request will be denied.13

the

extent

Plaintiffs

attempt

to

hold

Weeks

Marine

liable for negligence in violating applicable OSHA regulations
(see

ECF

No.

1,

at

21),

this

argument

is

also

unavailing.

First, Weeks Marine submits the Citation and Notification of
Penalty

(dated

December

15,

2010)

that

OSHA

Greg’s Marine Construction, not Weeks Marine.

issued

against

(See ECF No. 13-

12

Weeks Marine submits an affidavit from Thomas Langan,
Corporate Risk manager with Weeks Marine, attesting that the two
workboats chartered by Weeks Marine – OUTLAW and GO BETWEEN –
were not owned by Weeks Marine, but remained under the control
of the Captains hired by the vessels’ owners. (ECF No. 13-2 ¶
6).
13

As Weeks Marine notes in the reply, the materials
Plaintiffs seek in discovery “are wholly outside the scope of
Weeks Marine’s knowledge and control, as they were not involved
with the piling jacket repair work.” (ECF No. 24, at 10).
33

9).

Moreover,

“OSHA

does

not

independently

establish

tort

duties between a contractor and employees of other contractors
or subcontractors.

The Act explicitly states that it shall not

be construed to supersede or affect any workmen’s compensation
law

or

rights,

to

enlarge

duties,

or

or

diminish

liabilities

injuries to their employees.”
The

Fourth

Circuit

the

has

of

law

employers

or

with

statutory
respect

to

Jones, 2004 WL 1254029, at *5.

stated,

regulations promulgated under

common

“‘[i]n

a

negligence

action,

. . . [OSHA] provide evidence of

the standard of care exacted of employers, but they neither
create an implied cause of action nor establish negligence per
Albrecht v. Balt. & Ohio R. Co., 808 F.2d 329, 332 (4th

se.’”

Cir. 1987) (quoting Melerine v. Avondale Shipyards, Inc., 659
F.2d 706 (5th Cir. 1981)); Ellis v. Chase Commc’ns, Inc., 63 F.3d
473, 478 (6th Cir. 1995) (“even if an OSHA violation is evidence
of [defendant’s] negligence . . . [defendant] must owe a duty to
[plaintiff] under a theory of liability independent of OSHA, as
OSHA

does

not

create

a

private

right

of

action.

OSHA

regulations can never provide a basis for liability”).
Because Plaintiffs cannot establish that Weeks Marine owed
any duty to Mark Copeland as an employee of another independent
contractor of Dominion LP, summary judgment is also appropriate
as to the negligence and

wrongful death claims against Weeks

Marine.
34

D.

Greg’s Marine Excavation’s Motion

Personal representative Gardner alleges that Greg’s Marine
Excavation violated the Jones Act, 46 U.S.C. § 30104, and the
Longshore and Harbor Workers’ Compensation Act, 33 U.S.C. § 903.
Robert Wayne Copeland asserts a wrongful death claim against
this Defendant.
Greg’s

Marine

Excavation

argues

that

it

is

an

improper

defendant because it has “no connection to this matter other
than

the

fact

that

Defendant

Greg’s

Marine

Excavation,

Inc.

owned the barge that provided transportation on the date of the
accident

and

Gregory

Burkhardt

is

the

president

of

both

Defendant Greg’s Marine Construction, Inc. and Defendant Greg’s
Marine Excavation, Inc.”

(ECF No. 27-1, at 2).

Specifically,

Greg’s Marine Excavation contends that “Mark Copeland was never
employed

by

Defendant

Greg’s

Marine

Excavation,

Inc.

at

any

point, but was only [an employee of] Defendant Greg’s Marine
Construction, Inc.”

(Id.).

Greg’s Marine Excavation submits an

affidavit from Gregory Burkhardt averring that over the years,
Dominion LP hired Greg’s Marine Construction to perform work at
the

Cove

Marine

Point

Terminal,

Construction

completed

on

the

and

that

submitted

off-shore

a

pier

in

October

proposal
of

the

2009,

for

Cove

work

Point

“Greg’s
to

be

Terminal

pertaining to the removal and installation of concrete piling
jackets.”

(Id. at 5) (emphasis added).
35

Defendant’s position is persuasive.

To prevail on a Jones

Act claim, a seaman must establish: (1) personal injury in the
course of his employment; (2) negligence by his employer or an
officer, agent, or employee of the employer; and (3) that the
employer’s negligence was a cause “in whole or in part” of his
injury.

Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d

432, 436 (4th Cir. 1999).

Notably, Jones Act actions may be

maintained only against a seaman’s employer, and a plaintiff may
maintain

a

Jones

Act

claim

against

only

one

employer.

See

Mitola v. Johns Hopkins Univ. Applied Physics Lab., 839 F.Supp.
351, 354-55 (D.Md. 1993) (“[A] ‘seaman’ is entitled to sue his
employer,

and

only

the

single

entity

determined

to

be

his

employer, for negligence pursuant to the Jones Act.” (citing
Cosmopolitan
(1949)).

Shipping

Co.

v.

McAllister,

337

U.S.

783,

791

The Longshore and Harbor Workers’ Compensation Act

authorizes compensation to workers who are injured or die in the
course of their employment.

Section 903(a) of the Longshore and

Harbor Workers’ Compensation Act limits coverage to injuries:
occurring upon the navigable waters of the
United States (including any adjoining pier,
wharf, dry dock, terminal, building way,
marine railway, or other adjoining area
customarily used by an employer in loading,
unloading,
repairing,
dismantling,
or
building a vessel.

36

33 U.S.C. § 903(a) (emphasis added).

Section 905(b) allows

third party actions against a vessel for injuries to a person
caused by the negligence of a vessel.
Here,

Mark

Construction,
Plaintiffs

Copeland

not

have

stated supra.

was

Greg’s

not

a

33 U.S.C. § 905(b).

laborer

Marine

established

with

Greg’s

Excavation.
negligence

Marine

Furthermore,

for

the

reasons

Plaintiffs assert in the opposition that “[t]he

barge that transported Mr. Copeland to the jobsite and from
which

the

owned

and

Greg’s

[Marine]

controlled

by

Construction
moving

employees

defendant,

worked

Greg’s

was

Marine

Excavation, Inc. . . . the sister company of Greg’s [Marine]
Construction.”

(ECF No. 28-1, at 1-2) (emphasis added).14

But

this does not give rise to liability under the Jones Act and the
Longshore and Harbor Workers’ Compensation Act.
these

claims

against

Greg’s

14

Marine

Accordingly,

Excavation

will

be

Plaintiffs argue in the opposition that Greg’s Marine
Excavation’s motion is premature as there has been no discovery
“necessary to ascertain the relationship between Greg’s [Marine]
Construction and Greg’s Marine [Excavation] and the various
roles each played and/or shared on this particular project.”
(ECF No. 28-1, at 2). Plaintiffs have provided no affidavit or
declaration, however, in connection with their opposition to
this Defendant’s motion. Thus, to the extent Plaintiffs request
discovery or a denial of the motion for summary judgment
pursuant to Rule 56(d), this request will be denied.
See Y.B.
v. Board of Educ. of Prince George’s County, 895 F.Supp.2d 689,
702 (D.Md. 2012) (“Plaintiffs’ Rule 56(d) request fails at the
first step because it contains no affidavit in support of their
demand for discovery.”).

37

dismissed.15

Because Plaintiffs cannot establish Greg’s Marine

Excavation’s liability, the wrongful death claim will also be
dismissed.
IV.

Conclusion
For the foregoing reasons, the motions to dismiss, or in

the

alternative,

Dominion

LP,

for

Dominion

summary
Inc.,

judgment

Dominion

filed

LLC,

Greg’s Marine Excavation will be granted.

by

Weeks

Defendants
Marine,

and

A separate order will

follow.
/s/
DEBORAH K. CHASANOW
United States District Judge

15

Plaintiffs also argue that Greg’s Marine Excavation’s
motion should not be considered because it is untimely, as it
was filed eighty-two (82) days after Plaintiff served the
complaint on Greg’s Marine Excavation on June 20, 2013.
According to Plaintiffs, they consented to a thirty-day
extension for Greg’s Marine Excavation to respond to the
complaint, but Greg’s Marine Excavation did not move for
dismissal until September 10, 2013, another thirty days later.
The record does not contain any return of service on this
Defendant, nor reflect any extensions of time sought by Greg’s
Marine
Excavation.
Weighing
the
underlying
merits
of
Plaintiffs’ claims against Greg’s Marine Excavation and the
time, expense, and effort to Plaintiffs of proceeding with their
claims against Greg’s Marine Excavation, it is appropriate to
grant Defendant’s summary judgment motion.
See, e.g., Brumback
v. Callas Contractors, Inc., 913 F.Supp. 929, 934 (D.Md. 1995)
(granting summary judgment motion that was untimely filed in the
interest of judicial economy); Bland v. Norfolk and Southern
R.R. Co., 406 F.2d 863, 866 (4th Cir. 1969) (“Summary judgment is
to avoid a useless trial.”).

38