Cook v. Quickspray, Inc. et al

Filing 128

ORDER granting Defendant Edgen Murray's Motion 104 for Summary Judgment. Signed by District Judge Halil S. Ozerden on 11/18/2015 (KWM)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
EDWARD COOK
v.
QUICKSPRAY, INC., PPG
INDUSTRIES, EDGEN MURRAY

§
§
§
§
§
§
§

PLAINTIFF
Civil No. 1:13cv389-HSO-RHW
DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT
EDGEN MURRAY’S MOTION [104] FOR SUMMARY JUDGMENT
BEFORE THE COURT is the Motion [104] for Summary Judgment filed by
Defendant Edgen Murray (“Edgen”). Plaintiff Edward Cook has filed a “Notice of
No Non-Frivolous Response” [122] to Edgen’s summary judgment Motion [104].
The Court finds that Edgen has carried its initial summary judgment burden. As
Plaintiff has submitted no response in opposition, the Court finds that Edgen’s
Motion [104] for Summary Judgment is well-taken and should be granted.
Plaintiff’s claims against Defendant Edgen will be dismissed.
I. BACKGROUND
A.

Factual Background
Edgen hired Accu-Fab and Construction, Inc. (“Accu-Fab”) to perform coating

work on steel pipes provided by Edgen. Mem. Supp. Mot. Summ. J. [105], at 1.
Plaintiff alleges that he was working for Accu-Fab on April 10, 2012, when the hose
to a pump Plaintiff was filling with coating material ruptured, spraying him with
coating material under high pressure. Compl. [1-1], at ¶¶ 13–14. Plaintiff was then

sprayed with more coating material by a fellow crew member “in the confusion
created by the incident.” Id. at ¶16. Plaintiff alleges that he developed a silicarelated lunge disease and other physical conditions as a result of the incident. Id.
at ¶47.
B.

Procedural History
On August 20, 2013, Plaintiff filed a Complaint in State court against

Defendants Quickspray, Inc. (“Quickspray”), PPG Industries (“PPG”), Edgen, and
Accu-Fab. Compl. [1-1], at 1–12. Plaintiff asserted products liability claims against
Quickspray, the manufacturer of the pump, and PPG, the manufacturer of the
coating material. Id. Plaintiff also raised negligence and gross negligence claims
against Accu-Fab, Edgen, and Quickspray. Id.
The suit was removed to this Court by Defendant Quickspray on the basis of
diversity jurisdiction because the only in-state Defendant, Accu-Fab, was exempt
from liability. Not. of Removal [1]. Plaintiff moved for remand, but the Court found
that Accu-Fab was improperly joined as a Defendant because it was statutorily
immune from Plaintiff’s common-law negligence claims under the Mississippi
Workers’ Compensation Act, Miss. Code Ann. § 71-3-1, et seq. (“MWCA”). Order
[37], at 10. Accordingly, the Court dismissed Plaintiff’s claims against Accu-Fab,
leaving Quickspray, PPG, and Edgen as the only remaining Defendants. Id.
On October 15, 2015, each remaining Defendant filed a Motion for Summary
Judgment, and PPG and Quickspray filed Motions to exclude Plaintiff’s experts.

2

Plaintiff filed responses in opposition to the other Defendants’ Motions, but filed a
“Notice of No Non-Frivolous Response” [122] as to Defendant Edgen’s Motion [104]
for Summary Judgment [104].
II. DISCUSSION
A.

Legal Standard
Though Edgen’s Motion [104] for Summary Judgment is unopposed, the

Court may not automatically grant the Motion without first determining whether
Edgen has carried its initial summary judgment burden. Bustos v. Martini Club
Inc., 599 F.3d 458, 468 (5th Cir. 2010) (“[A] district court may not grant a motion for
summary judgment merely because it is unopposed.”).
Summary judgment is appropriate where the “movant shows 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). The party seeking summary judgment carries
the initial burden of “informing the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (internal quotation omitted).
The Supreme Court has noted that “[o]ne of the principal purposes of the
summary judgment rule is to isolate and dispose of factually unsupported claims or
defenses.” Id. at 323–24.

3

B.

Analysis
Plaintiff’s negligence claim against Edgen is premised on the allegation that

Edgen failed to use reasonable care in selecting Accu-Fab to perform the job and in
supervising Accu-Fab in the use of “dangerous instrumentalities, procedures, and
operations related to Amercoat and the Quickspray pump.” Compl. [1-1], at ¶38.
Plaintiff’s prima facie negligence claim requires Plaintiff to establish (1) a duty
owed by Edgen to Plaintiff, (2) breach of that duty, (3) causation, and (4) damages.
Rolison v. City of Meridian, 691 So. 2d 440, 444 (Miss. 1997).
Edgen argues that it owed no duty to Plaintiff, who was the employee of an
independent contractor, Accu-Fab. Under Mississippi law, in the rare
circumstances when an employer is liable for the acts of an independent contractor,
the duty does not extend to protect employees of the independent contractor, but is
“designed to protect third persons.” Corban v. Skelly Oil Co., 256 F.2d 775, 780 (5th
Cir. 1958) (“We have seen no case where the inherently dangerous doctrine has
been extended so as to permit an employee of an independent contractor to recover
from the principal for a breach of the non-delegable duty.”). Nor can there be any
vicarious liability for any negligence of Accu-Fab or its employees under Mississippi
law. Mississippi Power Co. v. Brooks, 309 So. 2d 863, 866 (Miss. 1975) (“[T]he
owner was not liable for injuries sustained by an employee of an independent
contractor caused by the negligence of such independent contractor.”). Because
Edgen did not owe a legal duty to Plaintiff under Mississippi law, Plaintiff cannot
make out a prima facie case of negligence against Edgen.
4

Even if Edgen owed a legal duty to Plaintiff to ensure that Accu-Fab was
competent to perform the job in question, Edgen contends that Plaintiff cannot
establish the element of breach. Edgen asserts that Accu-Fab possessed the
expertise to perform the work, and Plaintiff has not offered evidence to the
contrary. Mem. Supp. Mot. Summ. J. [105], at 4. Edgen points to the affidavit and
deposition testimony of Mr. Paul Bosarge, President of Accu-Fab, to establish AccuFab’s expertise and experience in performing coating work for twenty-two years.
Id. at 2, 7. With no evidence before the Court that Accu-Fab was not competent to
perform the work in question, Plaintiff’s negligent hiring claim against Edgen fails
on the element of breach.
Edgen also contends that it exerted no control over Accu-Fab’s operations on
the project, as confirmed by Mr. Bosarge, such that it cannot be held accountable for
failing to supervise Accu-Fab. Id. at 13–14. Accu-Fab decided which pump to use
and directly purchased the pump in question, with no input from Edgen. Dep.
Bosarge [104-1], at 112–13; Purchase Order [104-4]. Edgen would come to the site
to discuss scheduling, but had no direction over Accu-Fab’s employees or safety
guidelines and procedures. Dep. Bosarge [104-1], at 169–72, 225. With no evidence
before the Court that Edgen had the capacity to exercise any supervisory authority
regarding the project, Plaintiff’s negligent supervision claim against Edgen cannot
withstand summary judgment.
Edgen has carried its initial summary judgment burden to demonstrate the
absence of any issues of material fact. Plaintiff has not submitted any contrary
5

evidence creating a dispute of material fact. The Court finds that, as a matter of
law, based on the undisputed facts, Plaintiff cannot establish a negligence claim
against Edgen.
III. CONCLUSION
For the foregoing reasons,
IT IS, THEREFORE, ORDERED AND ADJUDGED that Defendant
Edgen Murray’s Motion [104] for Summary Judgment is GRANTED. Plaintiff’s
claims against Defendant Edgen Murray are hereby DISMISSED WITH
PREJUDICE.
SO ORDERED AND ADJUDGED, this the 18th day of November, 2015.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

6