Klinker v. Furdiga et al

Filing 83

OPINION AND ORDER denying 73 Defendants' Motion for Summary Judgment. Signed by Chief Judge Christina Reiss on 5/27/2014. (pac)

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OISTRIC"(

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

ZACHARY KLINKER,

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lD!41tH 27 PH 3: 32

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Plaintiff,

v.

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Case No. 5:12-cv-254

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LEON FURDIGA and KATHERINE
SCANLAN,
Defendants.

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OPINION AND ORDER DENYING
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
(Doc. 73)
Pending before the court is a motion for summary judgment filed by Defendants
Leon Furdiga and Katherine Scanlan. (Doc. 73.) Defendants contend they were acting as
general contractors when Plaintiff Zachary Klinker, a roofer, was injured while working
on the construction of Defendants' principal residence. Because the Vermont Supreme
Court has held that general contractors fall within the definition of a statutory employer
and are thus immune from suit pursuant to Vermont Workers' Compensation Act, 21
V.S.A. §§ 601-711, Defendants argue that they are entitled to judgment as a matter oflaw
in their favor. 1 Plaintiff opposes the motion and contends that Defendants acted as

I Defendants further argue that Plaintiff cannot establish the essential elements of a
negligence/premises liability claim against Defendants. See Doc. 78 at 5-9. Plaintiff did not
respond to this claim which was raised for the first time in Defendants' reply brief. "The Second
Circuit has made clear that it disfavors new issues being raised in reply papers." McGarry v.
Pallito, 2013 WL 3338682, at *8 n.ll (D. Vt. July 2, 2013) (collecting Second Circuit cases);
see also McBride v. BIC Consumer Prods. Mfg. Co., 583 F.3d 92,96 (2d Cir. 2009) (noting
courts "ordinarily will not consider issues raised for the first time in a reply brief'); JP Morgan
Chase Bank v. Altos Homos de Mexico, SA. de C V, 412 F.3d 418, 428 (2d Cir. 2005) (directing
that arguments not made in an opening brief are waived, even if raised in a reply brief). At oral
argument, Defendants conceded that this alternative challenge to Plaintiff s negligence/premises

homeowners, not general contractors, and are therefore liable for their independent acts
of negligence.
The court heard oral argument on the pending motion on April 7, 2014, at which
time the court took the matter under advisement.
Plaintiff is represented by Michael F. Walsh, Esq. and Stephen L. Fine, Esq.
Defendants are represented by Andrew C. Boxer, Esq. and Joseph J. Sluka, Esq.

I.

Factual Background.
A.

Undisputed Facts.

Plaintiffwas injured on January 13,2009 on Defendants' property located at 105
Prospect Street, in Brattleboro, Vermont. At the time of his injury, Plaintiff was
employed by the Eric Slade Roofing Company ("Slade Roofing Company"). Defendants
hired Slade Roofing Company to install a roof on their principal residence which they
were in the process of constructing. After Plaintiff fell from Defendants' roof, Slade
Roofing Company paid workers' compensation benefits to Plaintiff related to his injuries.
In this lawsuit, Plaintiff seeks further compensation from Defendants for his injuries,
alleging Defendants negligently failed to provide "adequate safety precautions, including
safety harnesses, which would have prevented [him] from falling." (Doc. 1 at 1.)
In support of their contention that they were acting as general contractors at the
time of the incident, Defendants point to Defendant Furdiga's experience as a carpenter
and electrician which began when he was twelve years old and which included
residential, commercial, light commercial, and industrial construction projects, including
work on one roof.2 Although he previously owned an electrical and remodeling company
that employed four employees, in approximately 1989, Defendant Furdiga "laid [his]
tools down and went into supervision" (Doc. 73-2 at 4; 12/19/13 Furdiga Dep. at 11 :22­
liability claim was not properly before the court in the absence of supplemental briefing by both
parties.
Defendant Scanlan has no apparent education, experience, or training in the construction field,
and Defendants submitted no evidence regarding her role in the construction of Defendants'
residence.

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12:2). Thereafter, for approximately fifteen years, he was employed as a superintendent
who "ran the field" and "laid the work out" for between twelve to three hundred
employees. In this role, Defendant Furdiga worked on a wide variety of projects,
including "residential; hospitals; clinics; warm-storage buildings; sewage disposal
buildings; water treatment plants; power plants." (Doc. 73-2 at 4-5; 12/19/13 Furdiga
Dep. at 12:6-13:19.) Defendant Furdiga was never a licensed building contractor.
He retired in 2005.
In approximately 2006, Defendants commenced construction on their principal
residence, which they were building "from the ground up." (Doc. 73-2 at 3; 12/19/13
Furdiga Dep. at 8: 1-2.) Defendant Furdiga performed the building design and
architectural work himself, and secured a permit from the town of Brattleboro for the
construction. In approximately 2007, after construction began, Defendant Furdiga
secured a general liability insurance policy for the premises and rented and installed a
fence to secure the construction site.
Defendant Furdiga was "in charge of building" the residence and was "overseeing
everything that was done." (Doc. 73-2 at 3; 12/19/13 Furdiga Dep. at 8:12-15.) With
assistance, he performed certain tasks including "all of the framework" and installing the
windows. (Doc. 73-2 at 5-6; 12/19/13 Furdiga Dep. at 15:19-17:5.) He hired contractors
to perform other tasks, including laying the foundation, erecting the timber frame,
constructing and installing the metal work for the heating system, and installing the
plumbing. Defendant Furdiga purchased the roofing panels himself, although he hired
two other contractors to install the panels, which required the use of a crane. To finish
the roof, Defendant Furdiga solicited bids from four different contractors, and he
ultimately hired the Slade Roofing Company to install a standing seam roof.
In approximately January 2009, the Slade Roofing Company began its work on the
roof at Defendants' residence. The company's foreman, Plaintiff, and another employee
arrived in the late afternoon of January 13,2009 to clean the snow off the roof in
preparation for their work. They determined that they did not need to use hook ladders
and staging because as Plaintiff explained:

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[W]e only used a ladder .. ; . Mr. Furdiga already had it set up with 2 by 4s.
I couldn't see because of the snow, but there was 2 by 4s; the day of the
accident there was 2 by 4s nailed to the roof kind of like a ladder .... And
the pitch of the roof was not very steep. It was more of a flat pitch of a
roof. So, it was walkable, is what we called it, walkable so you didn't need
the staging and the hook ladders .... So, you just put a ladder up on the
roof and climb up on the roof.
(Doc. 73-3 at 6; 12/19/13 Klinker Dep. at 67:11-68:2.) Plaintiff had never seen or used
this type of set-up previously and did not see any ropes secured to the roof.
Defendant Furdiga was present when Plaintiff suffered his injury on January 13,
2009. He observed that the roofers were not using harnesses, which he kept in the
garage, and that they were not using safety ropes, which he had installed approximately
three months previously. He did not say anything to the roofers about the harnesses and
ropes because he did not think it was his "place" since they were "Eric's employees."
(Doc. 78-1 at 6; 12/19/13 Furdiga Dep. at 25:3-5.)
After the foreman and the other employee had cleared the majority of snow from
the roof, Plaintiff joined the two men on the roofto "finish raking it off." (Doc. 78-1 at
6; 12/19/13 Furdiga Dep. at 25:10-20.) In the course of this task, Plaintiff fell off the
back side of Defendants' residence and suffered injuries.

II.

Conclusions of Law and Analysis.
A.

Standard of Review.

Summary judgment must be granted when the record shows there is no genuine
dispute as to any material fact and the moving party is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). "[A] party seeking summary judgment always bears the
initial responsibility 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 ofa genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986) (internal quotation marks omitted). "A fact is material if it might affect the
outcome of the suit under the governing law, and an issue of fact is genuine if the

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evidence is such that a reasonable jury could return a verdict for the nonmoving party."

Ramos v. Baldor Specialty Foods, Inc., 687 F.3d 554,558 (2d Cir. 2012) (internal
quotation marks omitted). In deciding the motion, the district court must resolve all
ambiguities and draw all reasonable inferences in favor of the non-moving party, and
must deny the motion if a rational juror could decide in favor of that party under the
applicable law. See Scott v. Harris, 550 U.S. 372, 378-80 (2007).
In this case, there are no disputed facts material to the determination of whether
Defendants were acting as general contractors and are entitled to statutory employer
status under Vermont's Workers' Compensation Act. Accordingly, the only issue before
the court is whether Defendants have established that they are entitled to judgment on
that issue in their favor as a matter of law. 3

B.

Vermont Law Governing Workers' Compensation Claims.

Vermont's Workers' Compensation Act is an employee's exclusive remedy
against his or her statutory employer for work-related injuries:
Except as provided in subsection 618(b) and section 624 of this title, the
rights and remedies granted by the provisions of this chapter to an
employee on account of a personal injury for which he or she is entitled to
compensation under the provisions of this chapter shall exclude all other
rights and remedies of the employee, the employee's personal
representatives, dependents or next of kin, at common law or otherwise on
account of such injury.
21 V.S.A. § 622. While the parties agree that the § 618(b) exception is inapplicable in
this case, they dispute whether 21 V.S.A. § 624 applies. Section 624 provides that:
Where the injury for which compensation is payable under the provisions
of this chapter was caused under circumstances creating a legal liability to
pay the resulting damages in some person other than the employer, the
acceptance of compensation benefits or the commencement of proceedings
to enforce compensation payments shall not act as an election of
remedies[.]
3 Because

federal subject matter jurisdiction in this case is based on diversity of citizenship, the
court applies the substantive law ofthe forum state. See Erie R.
R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); see also Omega Eng'g, Inc. v. Omega, SA., 432
F.3d 437, 443 (2d Cir. 2005).

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21 V.S.A. § 624(a). Thus, for an employee to recover compensation in a third-party suit
for a work-related injury the defendant must be "some person other than the employer."
21 V.S.A. § 624(a); see also Arnoldv. Palmer, 2011 VT 8, ~ 9,189 vt. 608,609,19
A.3d 592, 594 ("Under the Act, a workers' compensation award excludes all other rights
and remedies for an employee's work-related personal injuries against his employer, but
an employee may bring suit against a person other than the employer.") (internal
quotation marks and citations omitted). An "employer" is statutorily-defined as follows:
[AJny body of persons, corporate or unincorporated, public or private, and
the legal representative of a deceased employer, and includes the owner or
lessee of premises or other person who is virtually the proprietor or
operator of the business there carried on, but who, by reason of there being
an independent contractor or for any other reason, is not the direct employer
of the workers there employed.
21 V.S.A. § 601(3).
"Section 601(3) creates a statutory employer/employee relationship where no such
relationship existed at common law." In re Chatham Woods Holdings, LLC, 2008 VT 70,
~

10, 184 Vt. 163, 169-70,955 A.2d 1183, 1188. The "legislative intent" of21 V.S.A.

§ 601 (3) "was to impose liability only upon the owner or proprietor of a regular trade or
business conducted on his premises, or the premises of another, where an ... independent
contractor is carrying out some phase of the owner's or operator's business." King v.

Snide, 479 A.2d 752, 754 (Vt. 1984). The statutory definition covers any employer
"who, although not the direct employer, is nevertheless the virtual proprietor or operator
ofthe business there carried on." Arnold, 2011 VT 8, ~ 9, 189 Vt. at 609-10, 19 A.3d at
594 (internal quotation marks omitted).
"[TJhe critical inquiry in determining whether an employer is a 'statutory
employer' under § 601(3) is whether the type of work being carried out by the
independent contractor is the type of work that could have been carried out by the
owner's employees as part of the regular course of the business." Edson v. State, 2003
VT 32, ~ 7,175 Vt. 330, 332, 830 A.2d 671,673; accord Frazier v. Preferred Operators,

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Inc., 2004 VT95, ~~6-8, 177 Vt. 571, 572-73, 861 A.2d 1130,1132-33 (describing

"nature-of-the-business" test for defining a statutory employer, as opposed to the "right­
to-control" test). "This is the critical inquiry because § 601(3)'s underlying purpose ...
is to prevent business owners or general contractors from attempting to avoid liability for
workers' compensation benefits by hiring independent contractors to do what they would
have otherwise done themselves through their direct employees." Vella v. Hartford Vt.
Acquisitions, Inc., 2003 VT 108, ~ 7, 176 Vt. 151, 154, 838 A.2d 126, 130 (internal

quotation marks omitted).

C.

Whether Defendants Are Statutory Employers.

Defendants contend that they are "employers" pursuant to 21 V.S.A. § 601(3)
because they were acting as general contractors in building their residence. They argue
that Vermont's Workers' Compensation Act imposes no requirement that a property
owner be engaged in a business, for profit, to be a statutory employer.
In Welch v. Home Two, Inc., 783 A.2d 419 (Vt. 2000), the Vermont Supreme
Court held that general contractors fall within the statutory definition of an employer,
rejecting a plaintiffs "attempt[] to preserve the option of collecting workers'
compensation benefits from the subcontractor and suing the general contractor for
negligence by application of a statutory employer 'test' that would insulate a general
contractor from the definition of' employer.'" Id. at 421. In concluding that general
contractors should be treated as statutory employers, the Vennont Supreme Court noted:
It would be difficult, to say the least, to give effect to the clear legislative
intent to make general contractors "employers" for purposes of broadening
workers' compensation coverage, if general contractors cannot be said to be
operators of the general contracting business on the premises where the
construction project takes place.
Id. at 422. Thus, it is because general contractors are "virtually" the "operator of the

business ... carried on" at a construction site that they fall within the statutory definition
of an "employer." 21 V.S.A. § 601(3).
Here, Defendants submitted no evidence that Defendant Scanlan had any role in
the construction of their residence beyond her mere ownership of the property. There is
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thus neither a factual nor legal basis for the court to conclude that she was acting as a
general contractor in the construction of Defendants , home. In contrast, it is undisputed
that Defendant Furdiga oversaw construction of the residence; that he performed certain
tasks customarily performed by a general contractor; and that he had the skills and
experience to perform this work although he was retired. The question before the court is
whether this is sufficient to confer statutory employer status upon him. The court
concludes that it is not.
"A statutory employer does not include the mere owner of the premises, unless the
owner is also the virtual proprietor or operator of the business there carried on." Vella,
2003 VT I 08, ~ 5, 176 Vt. at 154, 838 A.2d at 129 (internal quotation marks, citations,
and alterations omitted). "Whether the work contracted for by the owner or proprietor
with the independent contractor is a part of, or process in, the trade, business or
occupation of the owner must be decided on a case by case basis." Frazier, 2004 VT 95,
~

9, 177 Vt. at 573, 861 A.2d at 1134 (citation omitted). "Due consideration must be

given to the customary practice of the owner or proprietor in carrying out his usual
business and to the terms of the contract between the employee and the independent
contractor." Id. (citation omitted). In addition, the "work being done by the injured
employee [must] pertain[] to the [owner's] business." Frazier, 2004 VT 95, ~ 10, 177 Vt.
at 574, 861 A.2d at 1134 (citation omitted).
In the construction of his own home, Defendant Furdiga was not engaged in the
"regular course of [his] business," Edson, 2003 VT 32, ~ 7, 175 Vt. at 332, 830 A.2d at
673, or engaged in a "trade, business, or occupation." Frazier, 2004 VT 95, ~ 9, 177 Vt.
At 573, 861 A.2d at 1134. He was, instead, retired from the construction field and acting
as a general contractor on a home project for his own benefit. Moreover, Plaintiff was
not injured in the course of doing work related to Defendant Furdiga's business, he was
injured in the course of doing work related to his employer Slade Roofing Company's
business. There is thus no basis, under Vermont law, to deem Defendants statutory
employers. Defendants nonetheless ask the court to draw a distinction between a
completed home in which the owners live and a home under construction for which the
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property owners are serving as general contractors but where they do not yet reside.
Defendants point to Betts v. Kempers, 745 P.2d 283 (Colo. App. 1987), for the
proposition that a court must examine the nature of the project at issue to determine
whether private homeowners acting as general contractors are statutory employers. In

Betts, however, the Colorado statutes at issue differ markedly from Vermont's. As the
Betts court observed:
There are at least two categories of "statutory employers" that the
Act recognizes. One of these classes of statutory employers is created by
§ 8-48-1 02( 1), which provides that an owner of real property, who
contracts to have "any work done on and to said property," is to be
considered the employer of the contractor and of his employees. However,
exempted from this provision is: "the owner of a private home who
contracts out any work done to or about said home."
Thus, if the work being performed at the time of plaintiffs injuries is
considered as being done "to or about" a "private home," defendant fell
within this exception to § 8-48-102(1), and he would not be considered to
be a statutory employer. If, on the other hand, the structure cannot be
considered to be a private home, defendant must be deemed to have been
plaintiffs statutory employer and immune from suit under § 8-42-102.
Id. at 283-84 (internal citations, alterations, and notations omitted) (concluding the

structure was "uncompleted" at the time of the accident giving rise to the lawsuit and thus
was not a "private home" within the meaning of Colorado's statute).
Section 601(3) of Vermont's Workers' Compensation Act contains no comparable
distinction concerning a "private home." Accordingly, it is not the nature of the project
or its state of completion that governs, rather it is whether the type of work being carried
out (and in which the plaintiff is injured) is the type of work that could have been carried
out by the general contractor's own employees as part of the general contractor's regular
course of business. Vella, 2003 VT 108, , 5, 176 Vt. at 154, 838 A.2d at 129.
In this case, regardless of whether Defendant Furdiga performed tasks customarily
performed by a general contractor, neither he nor Defendant Scanlon was engaged in the
trade, business, or occupation of home construction. Moreover, Plaintiffwas not injured
in the course of work that could have been carried out by Defendants' own employees, he

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was injured in the course of work that Defendants, as homeowners, contracted with
Plaintiff's employer to perform. Allowing a homeowner who acts as a general contractor
on a home project to claim statutory employer status would thus do nothing to further

"§ 601(3)'s underlying purpose [which is] to prevent business owners or general
contractors from attempting to avoid liability for workers' compensation benefits by
hiring independent contractors to do what they would have otherwise done themselves
through their direct employees." Vella, 2003 VT 108,17,176 Vt. at 154,838 A.2d at
130 (internal quotation marks omitted).
Because Defendants have not established under 21 V.S.A. § 601(3) that they are
statutory employers for purposes of Vermont's Workers' Compensation Act, Defendants
are "some person[s] other than the employer," for purposes of Plaintiffs' lawsuit.
Defendants have thus failed to establish that they are entitled to judgment as a matter of
law in their favor on Plaintiffs' negligence/premises liability claim.

CONCLUSION
For the foregoing reasons, the court DENIES Defendants' Motion for Summary
Judgment. (Doc. 73.)
SO ORDERED.
'I'­
Dated at Rutland, in the District of Vermont, this ;27 day of May, 2014.

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