Kruszynski v. SGS North America Inc.
Filing
15
MEMORANDUM OPINION AND ORDER granting 12 MOTION for Summary Judgment (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
November 30, 2016
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
ROBERT KRUSZYNSKI,
§
§
§
§
§
§
§
§
§
Plaintiff,
v.
SGS NORTH AMERICA INC.,
Defendant.
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-1115
MEMORANDUM OPINION AND ORDER
Plaintiff,
defendant,
SGS
Robert
North
Kruszynski,
America
negligence under Texas law.
brings
Inc.,
for
this
action
negligence
against
and
gross
Plaintiff seeks damages for injuries
sustained to his knee while working for the defendant. 1
Pending
before the court is Defendant SGS North America Inc.'s Motion for
Summary Judgment (Docket Entry No. 12).
For the reasons explained
below, defendant's motion for summary judgment will be granted.
I.
Factual and Procedural Background
Plaintiff was employed by defendant at a refinery in Baytown,
Texas.
Plaintiff alleges that he
was working on Defendants provided equipment when the
equipment became unsafe causing [him] to slip, fall, and
injure his knee. As a result of Defendant's failure to
1
Plaintiff's Original Petition,
Exhibit A attached to
Defendant's Notice of Removal ("Notice of Removal"), Docket Entry
No. 1-1, p. 3 ~ 7.
use reasonable care in maintaining the equipment,
Plaintiff has been damaged and has suffered an injury. 2
Plaintiff alleges that "Defendant had a duty to exercise the degree
of care that a reasonably careful person would use to avoid harm to
others under circumstances similar to those described herein, " 3 and
that "Plaintiff's injuries were proximately caused by Defendant's
negligent,
careless
and
reckless
disregard
of
said
duty." 4
Plaintiff allegedly sustained the injuries at issue on or about
October 22,
2013, 5 and undisputed facts
show that on that date
defendant was subscribed to Texas workers' compensation insurance. 6
On October 22, 2015, plaintiff filed suit in County Court at
Law No.
2
for
3
County,
Texas
(Cause No.
1069193) . 7
On
Id. ~ 8.
4
Harris
Id. ~ 9.
5
Plaintiff's Response to Defendant's Motion for Summary
Judgment ("Plaintiff's Response"), Docket Entry No. 13, p. 1 ~ 4.
See
also
Supporting
Affidavit
of
Plaintiff
("Plaintiff's
Affidavit"), Docket Entry No. 13-1; Affidavit of Robert Franks
("Franks Affidavit"), Exhibit A to Defendant SGS North American
Inc. 's Motion for Summary Judgment ("Defendant's MSJ") , Docket
Entry No. 12-1, ~~ 3-4 (acknowledging that plaintiff worked at
defendant's Baytown refinery and allegedly sustained a knee injury
on October 22, 2013).
6
Affidavit of Lauren Daloisio, Exhibit D to Defendant's MSJ
("Daloisio Affidavit"), Docket Entry No. 12-4, ~ 5; Affidavit of
William Rheaume ("Rheaume Affidavit") , Exhibit F to Defendant's
MSJ, Docket Entry No. 12-6, ~~ 3-5.
7
Plaintiff's Original Petition, Exhibit A to Notice of
Removal, Docket Entry No. 1-1, ~ 4. See also Plaintiff's Response,
Docket Entry No. 13, p. 2 ~ 5.
-2-
March 14, 2016, plaintiff requested issuance of citation directed
to SGS Petroleum Services Group, and addressed to Lauren Daloisio,
201 Route 17 North, 7th Floor, Rutherford, NJ 07070. 8
was delivered on April 4,
other than the addressee.
2016,
The citation
but was signed for by a person
9
On April 25, 2015, defendant filed in state court a plea to
the jurisdiction, special exceptions, and an original answer that
included the assertion of various affirmative defenses including
limitations. 10
action
to
On the
this
court
same date defendant
removed plaintiff's
asserting
jurisdiction. 11
diversity
On
October 21, 2016, defendant filed the pending motion for summary
j udgmen t . 12
Response,
13
On November
2 016,
plaintiff
filed
Plaintiff's
and on November 14, 2016, defendant filed Defendant SGS
8
Return of Citation,
Entry No. 12-5, p. 2.
9
7,
Exhibit E to Defendant's MSJ,
Docket
Id. at 5.
10
Defendant's Plea to the Jurisdiction and, Subject Thereto,
Special Exceptions and Original Answer, Exhibit B to Notice of
Removal, Docket Entry No. 1-2, p. 6 ("Statute of Limitations.
Plaintiff failed to institute and serve his suit within the time
required by the applicable statute of limitations, Plaintiff did
not exercise diligence in securing service after his suit was
filed,
and
Plaintiff's
action
should
be
dismissed
with
prejudice.").
11
Notice of Removal, Docket Entry No. 1, p. 1
12
Defendant' s MSJ, Docket Entry No. 12.
13
Plaintiff's Response, Docket Entry No. 13.
-3-
~
4.
North American Inc.'s Reply to Plaintiff's Response to Defendant's
Motion for Summary Judgment. 14
II.
Standard of Review
Summary judgment is authorized if the movant establishes that
there is no genuine dispute about any material fact and the law
entitles it to judgment.
material
facts
are
Fed. R. Civ. P. 56(c).
"genuine"
if
the
evidence
Disputes about
is
such
that
a
reasonable jury could return a verdict for the nonmoving party.
Anderson v. Liberty Lobby, Inc., 106 S. Ct. 2505, 2511 (1986).
The
Supreme Court has interpreted the plain language of Rule 56(c) to
mandate the entry of summary judgment "after adequate time for
discovery and upon motion,
showing
sufficient
to
against a party who fails to make a
establish
the
existence
of
an
element
essential to that party's case, and on which that party will bear
the
burden
of
proof
at
trial."
106 S. Ct. 2548, 2552 (1986).
"must
Celotex
Corp.
v.
Catrett,
A party moving for summary judgment
'demonstrate the absence of a
genuine
issue of material
fact,' but need not negate the elements of the nonmovant's case."
Little v.
Liquid Air Corp.,
(en bane)
(quoting Celotex,
37 F.3d 1069,
106 S.
Ct.
1075
(5th Cir.
at 2553-2554).
1994)
If the
moving party meets this burden, Rule 56(c) requires the nonmovant
14
Defendant SGS North America Inc.'s Reply to Plaintiff's
Response to Defendant's Motion for Summary Judgment ("Defendant's
Reply"), Docket Entry No. 14.
-4-
to go beyond the pleadings and show by admissible evidence that
specific facts exist over which there is a genuine issue for trial.
Id.
Factual controversies are to be resolved in favor of the
nonmovan t ,
"but
only
when
both
evidence of contradictory facts."
III.
parties
have
submitted
Id.
Analysis
Defendant moves for summary judgment arguing that plaintiff's
claim
is
barred
by
limitations
and
by
the
exclusive
remedy
provision of the Texas Worker's Compensation Act. 15
A.
Plaintiff's Claim is Barred by Limitations
Plaintiff has alleged a claim for personal injury caused by
the defendant's negligence under Texas law.
Plaintiff's state law
personal injury claim for negligence is controlled by Texas' twoyear statute of limitations.
Tex. Civ. Prac. & Rem Code§ 16.003.
Citing Gant v. DeLeon, 786 S.W.2d 259 (Tex. 1990), defendant argues
that "plaintiff's personal injury claim is barred for failure to
accomplish service within the statute of limitations." 16
1.
Applicable Law
In order to bring
period,
a
Texas
suit within the
plaintiff
must
both
applicable
limitations
file
within
15
Defendant' s MSJ, Docket Entry No. 12, p. 1
16
Id. at 5.
-5-
suit
~
2.
the
limitations period and use due diligence to serve the defendant
Gant,
with process.
Newsome,
883
786
F.2d 416,
S.W.2d at 260.
419
{5th Cir.
1989)
See also Burrell v.
{"Under Texas
law,
filing of suit does not interrupt limitations unless diligence is
exercised in procuring issuance and service of citation.").
If a
plaintiff files suit within the limitations period, but serves the
defendant after the limitations period has expired,
the date of
service relates back to the date of filing only if the plaintiff
exercises due diligence in obtaining service.
Gant, 786 S.W.2d at
259-260. "Summary judgment may be granted when service of suit on
the
defendant
is
accomplished beyond
the
limitations
period."
Belleza-Gonzalez v. Villa, 57 S.W.3d 8, 11 (Tex. App.-Houston [14th
Dist.] 2001, no pet.)
800 S.W.2d 826,
defendant
will
830
(citing Murray v. San Jacinto Agency, Inc.,
(Tex.
provide
1990)).
cause
for
"[D]elay in the service of
dismissal
of
the
plaintiff's
petition only when the plaintiff failed to exercise due diligence
in attempting to accomplish service."
Id.
(citing Murray,
800
S.W.2d at 830).
The defendant bears the burden to establish the limitations
defense.
Belleza-Gonzalez,
S.W.2d at
830).
When,
57 S.W.3d at 11
as here,
a
(citing Murray,
800
defendant has affirmatively
pleaded the defense of limitations and shown that the plaintiff
failed to timely serve the defendant,
plaintiff to explain the delay.
the burden shifts to the
Murray, 800 S.W.2d at 830.
-6-
Once
the plaintiff presents an explanation, the burden shifts back to
the defendant to show why that explanation is insufficient as a
matter
of
law.
If
the
plaintiff
shows
diligence,
the
defendant must show why that exercise was insufficient to relate
the date of service back to the date of filing.
57 S.W.3d at 11.
Belleza-Gonzalez,
See also Carter v. MacFadyen, 93 S.W.3d 307, 313
(Tex. App.-Houston [14th Dist.], 2002, pet. denied).
A plaintiff
is not
required to use
the highest degree of
diligence to procure service, but is required to use the degree of
diligence that "an ordinarily prudent person would have used under
the same or similar circumstances."
12
(quoting Reynolds v.
App. -Amarillo
198 0,
no
Belleza-Gonzalez, 57 S. W. 3d at
Alcorn,
601 S.W.2d 785,
writ) ) .
"Generally,
788
the
(Tex.
Civ.
question
of
diligence is a question of fact, but if no excuse is offered for a
delay in the service of citation,
'or if the lapse of time and the
plaintiff's acts are such as conclusively negate diligence, a lack
of diligence will be found as a matter of law.'"
Webster v.
Thomas,
5 S.W.3d 287,
Dist.] 1999, no pet.)).
289
(Tex.
Id.
(quoting
App.-Houston
[14th
"Lack of due diligence in serving process
on a defendant has been found as a matter of law after a five and
four-fifths month delay.
In fact,
several Texas courts have
held that delays of more than a few months negate due diligence as
a matter of law."
Id. at 11.
-7-
2.
Application of the Law to the Facts
Defendant argues that even if plaintiff filed suit within the
limitations
dismissal
period,
plaintiff's
claims
because plaintiff did not
effecting service of process.
are
exercise
still
due
subject
to
diligence
in
Defendant argues that plaintiff
failed to exercise due diligence to effect service because
Plaintiff did not even attempt to serve Defendant within
or at any time near th expiration of the statute of
limitations, and his dilatory efforts to effect service
were still improperly executed.
Service was untimely,
Plaintiff's efforts show a lack of diligence, and his
suit is accordingly barred. 17
In support of this argument defendant offers evidence showing that
Plaintiff filed suit on the two year anniversary of his
alleged accident,
the date when the
statute of
limitations expired. Plaintiff waited over four months
to even request issuance of the citation.
Even after
requesting citation, Plaintiff requested an incorrect
citation which he then failed to properly deliver.
Specifically, when the citation finally issued, it was
directed to an incorrect entity and addressed to a
representative not authorized to accept service.
When
the citation was eventually mailed more than five months
after the limitation period expired, it also was not
signed for by the addressee as required. 18
Plaintiff
responds
that her personal
injury claim is not
barred for failure to accomplish service within the statute of
limitations because the facts of this case are distinguishable from
those of Gant where "Plaintiffs waited approximately 37 months to
effectively serve the defendants,
17
18
Id. a t 6
fT
11
Id. at 5-6
17
~
•
16.
-8-
and they couldn't explain the
long gap between filing and the time of service." 19
Plaintiff
argues that defendant's motion for summary judgment on limitations
should be denied because
Plaintiff timely filed suit, and a mere 4 months elapsed
before Defendants were served.
Unfortunately,
Defendants make this argument for the first time, and
have waived that argument when the[y] filed their answer
and then their subsequent removal to the Federal Court
with never filing a Special Exception or making a Special
Appearance.
Additionally, Plaintiff[']s counsel had a
genuine belief that service had been requested and issued
at the time of filing. It was later discovered that the
District Clerk[']s Office had not received or issued the
requested service as Plaintiff's counsel had thought.
Therefore there [was] no long period of unexplained gaps
and Defendant has not been harmed or prejudiced by this
minor 4 month gap between filing and service. 20
The undisputed facts in this case are comparable to those in
Boyattia v.
Hinojosa,
18 S.W.3d 729,
732-734
(Tex.
App.-Dallas
2000, pet. denied), where the plaintiff similarly filed a lawsuit
the day before the statute of limitations expired,
office
failed
to
forward
the
plaintiff allowed a period of
citation
time
for
the clerk's
service,
and
the
to lapse before taking any
action to insure that the defendants were properly served.
In
Boyattia the court held that the clerk's failure to issue citation
within three
months
was
unreasonable
and that
the
plaintiff's
failure to take any actions to effect service during the clerk's
three-month delay constituted a lack of diligence as a matter of
law.
Id. at 734 ("We conclude Boyattia's failure to act during the
19
Plaintiff's Response, Docket Entry No. 13, pp. 4-5
20
Id. at 5
~
16.
-9-
~
15.
clerk's three-month delay constitutes a
matter of law.") .
counsel
took
Here,
any
action
lack of diligence as a
there is no evidence that plaintiff's
to
insure
that
service
was
properly
effected from October 22, 2015, the day the case was filed, until
March
14,
2016,
when
citation
was
requested.
Instead,
the
plaintiff has presented an affidavit stating that "[a]fter filing
suit, my lawyer attempted service and eventually realized that the
district clerk's office had never received or issued service.
As
soon as he realized this, he immediately issued a new request for
service and the Defendants were served timely." 21
Defendant objects to the Plaintiff's Affidavit as inadmissible
hearsay
pursuant
to
Federal
Rule
of
Evidence
802
because
an
affidavit opposing a motion for summary judgment must be made on
personal knowledge.
Missing from Plaintiff's Affidavit is any
statement explaining how plaintiff had -
or why plaintiff should
reasonably be expected to have had - personal knowledge about his
counsel's efforts to serve the defendant.
Because Plaintiff's
Affidavit does not show that plaintiff had personal knowledge of
any attempt his counsel made to effect service on the defendant,
defendant's objection to those portions of Plaintiff's Affidavit
that describe his
counsel's efforts
to serve
the defendant
is
meritorious and is SUSTAINED.
21
Plaintiff' s Affidavit, attached
Docket Entry No. 13-1, pp. 1-2.
-10-
to
Plaintiff's
Response,
Plaintiff fails to present evidence that his counsel made any
effort to serve the defendant for the four-and-a-half-month period
between October 22, 2015, when this action was filed, and March 14,
2016,
when citation was requested.
served until April 4,
2016.
counsel
serve
attempted
to
Moreover,
defendant was not
Although plaintiff argues that his
the
defendant,
plaintiff
fails
to
describe any actions that his counsel took to attempt service,
fails to say when his counsel realized that the defendant had not
been served, and fails to offer any reason for the five-and-a-halfmonth delay from October 22,
service on the defendant.
2015,
to April 4,
2016,
to effect
Plaintiff's unexplained failure to take
any action for the four-and-a-half-month period from October 22,
2015, to March 14, 2016, when citation was requested, and failure
to effect service on the defendant until April 4, 2016, constitute
a lack of diligence as a matter of law.
(unexplained
three-month
period
of
Boyattia, 18 S.W.3d at 734
delay
constituted
lack
of
diligence as a matter of law); Webster, 5 S.W.3d at 290 ("[W)e are
comfortable holding, as a matter of law, that a four month and ten
day delay amounts
to a
lack of diligence,
if
coupled with no
efforts or insufficient efforts to procure citation and service.") .
Accordingly, the court concludes that the claims asserted in this
action are barred by limitations because the date that service was
effected on the defendant does not relate back to the date that
Plaintiff's Original Petition was filed.
-11-
B.
Plaintiff's Claim is Barred by the Exclusive Remedy Provision
of the Texas Workers' Compensation Act
Defendant also argues that plaintiff's personal injury claim
is barred by the exclusive remedy provision of the Texas Workers'
Compensation Act because
[i]n the instant case,
Plaintiff was employed by
Defendant at the time he claims that he became injured at
work.
At all relevant times, Defendant carried an
insurance policy that provided workers' compensation
coverage to its employees.
Therefore, Plaintiff is
barred from bringing this personal injury lawsuit against
Defendant, and summary judgment in Defendant's favor is
appropriate. 22
Plaintiff
responds
that his
personal
injury claim is
not
barred by the exclusive remedy provision of the Texas Workers'
Compensation Act because
Texas courts have . . . held that where there is an issue
of who manufactured or assembled the equipment used in
the employee injury, then the Employer is not protected
under the "exclusive remedy" doctrine and Plaintiff may
proceed with their suit and or [proceed] to discover the
information necessary to obtain the liable party as to
the equipment. 23
Asserting
that
the
discovery period
is
not
due
to
end until
February of 2017, plaintiff argues that his
counsel has been tied in multiple jury trials for a
majority of the time this year delaying some of the
discovery requests being sent out to identify the
products and equipment that Defendant is believed to have
22
Defendant's MSJ, Docket Entry No. 12, p. 7 , 20 (citing
Franks Affidavit, Exhibit A to Defendant's MSJ, Docket Entry
No. 12-1; Daloisio Affidavit, Exhibit D to Defendant's MSJ, Docket
Entry No. 12-4; Rheaume Affidavit, Exhibit F to Defendant's MSJ,
Docket Entry No. 12-6).
23
Plaintiff's Response, Docket Entry No. 13, pp. 5-6 , 18.
-12-
contributed to the assembly and or manufacturing of that
item. To grant summary judgment while this genuine issue
of material fact still exists would be improper. 24
Plaintiff has failed to cite and the court has failed to find any
authority supporting plaintiff's argument that an employer is not
protected by the exclusive remedy provision of the Texas Workers'
Compensation Act "where there is an issue of who manufactured or
assembled the equipment used in the employee injury. " 25
Plaintiff
asserts
against defendant
equipment
that
for
negligence
and
gross
its alleged role
caused
him
to
fall
negligence
in failing
and
injure
claims
to maintain
his
knee. 26
Plaintiff's claims are barred by the exclusive remedies provision
of
§
the
Texas
408.001(a)
Workers'
Compensation
Act,
Texas
Labor
Code
("Recovery of workers' compensation benefits is the
exclusive remedy of an employee covered by workers'
compensation
insurance coverage . . . for . . . a work-related injury sustained
by the employee.").
Under Texas's [workers' compensation] scheme, employees
covered
by
subscriber-purchased
policies
receive
compensation on a no-fault basis, and, in exchange,
subscribing employers benefit from an exclusive remedy
provision. This provision prevents employees from suing
subscribers for negligence.
Patterson v. Mobil Oil Corp., 335 F.3d 476, 480
cert. denied, 124 S. Ct. 1071 (2004).
24
Id. a t 6
fT
11
19
25
Id. at 5
~
(5th Cir. 2003),
In addition,
18.
•
26
Plaintiff's Original Petition, Exhibit A attached to Notice
of Removal, Docket Entry No. 1-1, ~ 7.
-13-
the common law liability of [a subscribing] employer
cannot be stretched to include accidental injuries caused
by the gross, wanton, willful, deliberate, intentional,
reckless, culpable, or malicious negligence, breach of
statute, or other misconduct of the employer short of
genuine intentional injury.
Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985).
Because
plaintiff alleges that he sustained the injury for which he seeks
damages while working for the defendant,
presented
undisputed
compensation
evidence
insurance
that
subscriber
sustained the injury at issue,
it
and the defendant has
was
when
a
valid
plaintiff
workers'
alleges
he
defendant is entitled to summary
judgment on plaintiff's claims for negligence and gross negligence
because those claims are barred by the exclusive remedy provision
of the Texas Workers' Compensation Act.
102 F.3d 199, 203-04 (5th Cir. 1997)
See Ward v. Bechtel Corp.,
(holding that Texas Workers'
Compensation Act barred plaintiff's negligence claims).
IV.
For
the
reasons
Conclusions and Order
explained
above,
Defendant's
Motion
for
Summary Judgment (Docket Entry No. 12) is GRANTED.
SIGNED at Houston, Texas, this 30th day of November, 2016.
UNITED
-14-
LAKE
DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?