Opinion
Civil Action CV-2019-62
06-23-2020
CUSHMAN AMESBURY Plaintiff, v. EVERLAST ROOFING, INC., Defendant.
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Mary Gay Kennedy Justice
Before the court is Defendant Everlast Roofing, Inc.'s ("Everlast' s") motion for summary judgment Everlast contends that it is entitled to summary judgment on all three counts of Plaintiff Cushman Amesbury's ("Mr. Amesbury's'') complaint.
For the following reasons, Everlast's motion is granted.
I. Summary Judgment Factual Record
This matter arises out of injuries sustained while Mr. Amesbury was operating a machine used to bend metal roofing components. (Supp'g S.M.F. ¶ 2.) At all relevant times, Mr. Amesbury was employed by Bonney Staffing Center Inc., ("Bonney Staffing") a temporary employment agency. (Supp'g S.M.F. ¶ 1.) Between March 21, 2016, until his injury on March 30, 2016, Mr. Amesbury was assigned to work at Everlast, a metal roofing manufacturer located in Bridgton, Maine. (Supp'g S.M.F. ¶¶ 8, 11; Add. S.M.F. ¶ 18.)
Everlast paid Bonney Staffing to assign its employees to Everlast and to supply workers' compensation insurance for employees it loans to Everlast. (Supp'g S.M.F. ¶ 21.) Everlast employed Bonney Staffing's services because of a "temporary skill shortage" due to an, often seasonal, increase in sales volume. (Supp'g S.M.F. ¶¶ 8, 15.)
Plaintiff failed to properly controvert Paragraph 15 of Everlast's Statement of Material Facts. An opposing party's failure to counter the moving party's properly supported statement of material fact will cause that fact to be admitted. Stanley v. Hancock Cty. Comm'r, 2004 ME 157, ¶ 13, 864 A.2d 169 (citing M.R. Civ. P. 56(h)(4)).
As a temporary worker "on loan" to Everlast, Mr. Amesbury remained a Bonney Staffing employee. (Add. S.M.F. ¶ 19.) Mr. Amesbury submitted time sheets to Bonney Staffing and Bonney Staffing paid his salary. (Supp.'g S.M.F. ¶ 22; Add. S.M.F. ¶ 19.) However, Bonney Staffing had no supervisory personnel on site. (Supp.'g S.M.F. ¶ 14.) Mr. Amesbury did not coordinate the services of any Bonney Staffing employee. (Supp.'g S.M.F. ¶ 18.) Mr. Amesbury's work was supervised and controlled exclusively by Everlast employees. (Supp.'g S.M.F. ¶ 12.) Everlast determined Mr. Amesbury's hours and assigned duties, and exercised the same amount of control over Mr. Amesbury as it did with other temporary employees. (Supp.'g S.M.F. ¶¶ 13, 19.) Everlast also did its own screening of temporary help applicants in advance. (Supp.'g S.M.F. ¶ 20.)
Although Plaintiff attempts to deny Paragraph 13 of Defendant's Statement of Material Facts by stating that he was "paid and at all times remained an employee" of Bonney Staffing, it does not properly controvert the statement that Everlast, not Bonney Staffing, controlled plaintiffs hours and duties. (See Supp.'g S.M.F. ¶ 13; Opp. S.M.F. ¶ 13.)
Mr. Amesbury informed Bonney Staffing that he had no training, experience, or qualifications to work in a factory setting or with factory machinery. (Add. S.M.F. ¶ 4.) He was assured by Bonney Staffing and Everlast that in addition to being safe and short term, he would be provided with adequate training. (Amesbury Aff. ¶ 5.) It was Mr. Amesbury's understanding that Everlast would comply with applicable workplace safety regulations. (Amesbury Aff. ¶ 5.)
Everlast assigned Mr. Amesbury to work on a so-called "Bradbury Metal Folding Machine" (hereinafter the "Bradbury Machine"). (Add. S.M.F. ¶ 8.) The Bradbury Machine is operated by "a master and servant pedal system" and requires a minimum of two individuals. (Add. S.M.F. ¶ 9.)
On March 30, 2016, while operating the Bradbury Machine, Mr. Amesbury sustained serious injuries to the tips of two of his fingers that required amputation. (Supp'g S.M.R ¶¶ 2-3, 7; Pl.'s Ex. A, at 1.) Mr. Amesbury has since received workers' compensation benefits from Bonney Staffing and its insurer. (Supp.'g S.M.F. ¶¶ 9-10.)
While Everlast employees did provide some training and instruction, Mr. Amesbury claims that he was not informed about the "kick bar" emergency stop function. (Add. S.M.R ¶ 16; Amesbury Dep. 36, 38, 43, 45.) There were no safety guards on the Bradbury Machine at any point during Mr. Amesbury's assignment. (Add. S.M.F. ¶ 10.) According to Mr. Amesbury's deposition testimony, he believes the Bradbury Machine could have been maintained more thoroughly and that he should have been provided more safety training. (Amesbury Dep. 49.) Following the incident, the Occupational Safety and Health Administration ("OSHA") conducted an investigation. (Add. S.M.F. ¶ 21.)
Everlast correctly notes that Paragraph 12 of Plaintiff's Statement of Additional Material Facts is not supported by the record citation. The citation makes no reference to the OSHA investigation. "An assertion of fact set forth in a statement of material facts shall be followed by a citation to the specific page or paragraph of identified record material supporting the assertion. The court may disregard any statement of fact not supported by the specific citation ...." M.R. Civ. P. 56(h)(4).
On February 21, 2019, Plaintiff filed a three count complaint alleging: (Count I) Strict Products Liability; (Count II) Breach of Warranty; and (Count III) Negligence. On December 30, 2019, Everlast filed this motion for summary judgment on all counts.
II. Standard of Review
A party is entitled to summary judgment when review of the parties' statements of material facts and the record to which the statements refer, demonstrates that there is no genuine issue as to any material fact in dispute, and that the moving party is entitled to judgment as a matter of law. Dyer v. Dep't of Transp., 2008 ME 106, ¶ 14, 951 A.2d 821; M.R. Civ. P. 56(c). A contested fact is "material" if it could potentially affect the outcome of the case. Id. A "genuine issue" of material fact exists if the claimed fact would require a factfinder to "choose between competing versions of the truth." Id. (quoting Farrington's Owners' Ass'n v. Conway Lake Resorts, Inc., 2005 ME 93, ¶ 9, 878 A.2d 504).
When deciding a morion for summary judgment, the court reviews the evidence in the light most favorable to the non-moving party. Id. A plaintiff opposing a summary judgment motion must establish a prima facie case for each element of each of his or her claims. Tri-Town Marine, Inc. v. J.C. Milliken Agency, Inc., 2007 ME 67, ¶ 7, 924 A.2d 1066. The evidence offered in support of a genuine issue of material fact "need not be persuasive at that stage, but the evidence must be sufficient to allow a fact-finder to make a factual determination without speculating." Estate of Smith v. Cumberland Cty., 2013 ME 13, ¶ 19, 60 A.3d 759.
III. Discussion
A. Count I: Strict Liability
Maine's strict liability statute, 14 M.R.S. § 221 (2019), provides:
One who sells any goods or products in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to a person whom the manufacturer, seller or supplier might reasonably have expected to use, consume or be affected by the goods, or to his property, if the seller is engaged in the business of selling such a product and it is expected to and does reach the user or consumer without significant change in the condition in which it is sold. This section applies although the seller has exercised all possible care in the preparation and sale of his product and the user or consumer has not bought the product form or entered into any contractual relation with the seller.14 M.R.S. § 221. It is well-settled law that strict products liability claims require a plaintiff to establish that "the named defendant sold the goods or products" and that the "defendant was engaged in the business of selling the goods or products." Burns v. Architectural Doors & Windows, 2011 ME 61, ¶ 23 n. 7, 19 A.3d 823 (reciting the elements of strict products liability).
Here, Plaintiff admits that Everlast is solely in the business of "manufacturing and selling metal roofs, '' that it never sold the Bradbury Machine, and that it is not in the business of selling such machines. (Supp.'g S.M.F. ¶¶ 5-7; Opp. S.M.F. ¶¶ 5-7.) With these facts, there is no doubt that Plaintiff failed to establish prima facie evidence that Everlast is a "seller... engaged in the business of selling such a product," or that Everlast ever sold the Bradbury Machine at issue. See Stanley v. Schiavi Mobile Homes, Inc., 462 A.2d 1144, 1147-48 (Me. 1983) (providing that a defendant who did not sell the product in question lacked the status of "one who sells").
The court concludes that Everlast is entitled to summary judgment in its favor with respect to Count I.
B. (Count II) Breach of Express and Implied Warranty
For similar reasons, Count II also fails. As with Count I, Plaintiff's opposition does not address Count II, and fails to set forth any argument suggesting that a genuine issue of fact exists as to whether Everlast breached any express or implied warranty. Although Plaintiff may have abandoned this cause of action, the court will nonetheless address it.
Plaintiff alleges that "Defendant expressly and impliedly warranted that the product was without defect, safe, and reasonably fit for use by persons who were foreseeable users of that product." (Pl.'s Compl. ¶ 19.)
Maine's version of Article 2 of the U.C.C. provides that "a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind." 11 M.R.S. § 2-314(1) (emphasis added). Everlast correctly points out that a cause of action alleging breach of implied warranty of merchantability, like the implied warranty of fitness for a particular purpose, is conditioned upon the existence of a merchant seller and an actual sale of the good in question. See 11 M.R.S. §§ 2-314(1), 2-315. As previously discussed, the summary judgment record lacks any factual basis demonstrating Everlast's status as a merchant, or that Everlast ever sold or offered the Bradbury Machine for sale. (Supp.'g S.M.F. ¶¶ 5-7, 23; Opp. S.M.F. ¶¶ 5-7.)
The absence of any genuine issue of fact to the contrary precludes a cause of action asserting both a breach of implied warranty and a breach of express warranty. See 11 M.R.S. § 2-313 (express warranties are created where there is "[a]ny affirmation of fact of promise made by the seller to the buyer... that the goods shall conform to the affirmation or promise.") (emphasis added).
Because this matter falls outside the scope of the U.C.C., the court concludes that Everlast is entitled to summary judgment in its favor with respect to Count II.
C. (Count III) Negligence
Everlast contends that it is entitled to immunity from any claim arising under the common law pursuant to the Maine's Worker's Compensation Act, 39A M.R.S. § 101 et seq. (Def.'s Mot. Summ. J. 6.) The statute, as interpreted by the Law Court, provides:
39-A M.R.S. § 104 provides:
An employer that contracts with a private employment agency for temporary help services is, as a general rule, immune from a civil suit bought by an employee of the private employment agency for workplace injuries so long as the agency has secured workers' compensation protection for the employee.Penn v. PMC Corp., 2006 ME 87, ¶ 7, 901 A.2d 814 (citing 39-M.R.S. § 104). Thus, "if an employer has secured the payment of workers' compensation for its employees, the employee ... 'is deemed to have waived [his or her] right of action at common law and under section 104 to recover damages for the injuries." Marcoux v. Parker Hannifin/Nichols Portland Div., 2005 ME 107, ¶ 6, 881 A.2d 1138 (citing 39-A M.R.S. §§ 104, 408 (2001)).
Plaintiffs opposition asserts that a factual dispute exists as to whether Ever last had "sufficient direction, or exercised sufficient control" over Mr. Amesbury within the meaning of "temporary help services." (Pl.'s Opp'n to Def.'s Mot. Summ. J. 4.) Indeed, "a 3rd party employer's immunity from suit by a temporary employee is subject to the requirement that the temporary employee was one who was subject to the direction and control of the 3rd party employer." Marcoux, 2005 ME 107, ¶ 12, 881 A.2d 1138 (emphasis added). In other words, if Mr. Amesbury was not under sufficient "direction and control" by Ever last, Everlast is not entitled to section 104 immunity. See Id.
The issue of Mr. Amesbury's employment status is a mixed question of law and fact Id. ¶ 13 (citations omitted). When the facts are undisputed, the issue becomes purely a question of law. Id. Here, the record demonstrates that Mr. Amesbury satisfied the elements of "temporary help services" contained in section 104. See Penn, 2006 ME 87, ¶ 9, 901 A.2d 814.
In Marcoux, the Law Court affirmed the denial of defendant's, a 3rd party employer's, motion for summary judgment against plaintiff, a temporary employee, because a factual dispute existed regarding the "degree of direction and control" the 3rd party employer exercised over the temporary employee.
First, there is no dispute that Mr. Amesbury was an employee of Bonney Staffing, a private employment agency. (Supp'g S.M.R. ¶¶ 8, 15; Add. S.M.F. ¶ 19.) The facts establish that Everlast paid Bonney staffing to assign its employees to work at Everlast and supplement its work force during "a temporary skill shortage" resulting from an, often seasonal, increase in sales volume. (Supp.'g S.M.F. ¶ 15.) Second, there is no dispute that Bonney Staffing secured the payment of workers' compensation. (Supp'g S.M.F. ¶¶ 9-10.)
If Everlast's need for workers subsided, Mr. Amesbury could have been let go at any time and sent back to Bonney Staffing. (Supp'g S.M.F. ¶ 16; Opp. S.M.F. ¶ 16.) If the work load continued and Mr. Amesbury's job performance proved satisfactory, however, he could have been offered a permanent job at Everlast. (Supp'g S.M.F. ¶ 17.)
Lastly, regarding the extent of "direction and control," the record establishes that Mr. Amesbury was "supervised and controlled exclusively by employees of Everlast," and that Everlast employees alone determined his "hours, what shift he was assigned to, what work he was assigned to, and the machine he would work on." (Supp'g S.M.F. ¶¶ 12-13.) Plaintiff further admits that Bonney Staffing had no supervisory personnel on site. (Supp'g S.M.F. ¶ 14.) Although Mr. Amesbury was paid by Bonney Staffing and submitted time sheets to Bonney Staffing, these facts are insufficient to create a genuine issue of fact regarding Mr. Amesbury's employment status. (See Add. S.M.F. ¶ 19.)
Because the record demonstrates that Mr. Amesbury satisfied the elements of "temporary help services/' the court concludes that Everlast is entitled to section 104 immunity and a summary judgment in its favor with respect to Count III.
The court is also not persuaded by Plaintiff's argument that section 104 immunity fails on the grounds that Mr. Amesbury's employment agreement was the product of misrepresentation. (See Pl.'s Opp'n to Def.'s Mot. Summ. J. 6.)
IV. Conclusion
For the foregoing reasons, Defendant Everlast Roofing, Inc.'s motion for summary judgment is GRANTED.
The Clerk is directed to incorporate this Order into the docket by reference pursuant to Maine Rule of Civil Procedure 79(a).
An employer who has secured the payment of compensation in conformity with sections 401 to 407 is exempt from civil actions, either at common law or under sections 901 to 908; Title 14, sections 8101 to 8118; and Title 18-C, section 2-807, involving personal injuries sustained by an employee arising out of an in the course of employment or for death resulting from those injuries. An employer that uses a private employment agency for temporary help services is entitled to the same immunity from civil actions by employees of the temporary help service as is granted with respect to the employer's own employees as long as the temporary help service has secured the payment of compensation in conformity with sections 401 to 407. "Temporary help services" means a service where an agency assigns its own employees to a 3rd party to work under the direction and control of the 3rd party to support or supplement the 3rd party's work force in work situations such as employee absences, temporary skill shortage, seasonal work load conditions and special assignments and projects.39-A M.R.S.§ 104.