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HOLDAMPF v. FIDELITY & CAS. CO.

June 16, 1992

FRANK J. HOLDAMPF, Plaintiff,
v.
FIDELITY & CASUALTY COMPANY OF NEW YORK, NAVISTAR INTERNATIONAL CORPORATION, SEARS, ROEBUCK & COMPANY, J. B. HUNT TRANSPORT SERVICES, INC., JAMES N. TOLAR, ROMANO & ROMANO, and AMIRA ZODI TIRDAD, PENNSYLVANIA DEPARTMENT OF TRANSPORTATION CENTER FOR HIGHWAY SAFETY, Defendants.


Lewis


The opinion of the court was delivered by: TIMOTHY K. LEWIS

LEWIS, District J.

 In this case, plaintiff Frank Holdampf, acting pro se, has sued various entities and persons for injuries he suffered in a tractor trailer accident on September 8, 1989. Pending before the court are motions for summary judgment filed by defendants James N. Tolar and J.B. Hunt Transport, Inc. ("J.B. Hunt"), and motions to dismiss filed by defendants Fidelity & Casualty Co. of New York ("Fidelity"); Sears, Roebuck & Co. ("Sears"); Romano & Romano; and the Pennsylvania Department of Transportation Center for Highway Safety ("Penn DOT"). Because Sears and Fidelity filed affidavits in support of their motions to dismiss, the court has notified the parties that these motions would be treated as summary judgment motions and has considered the further documentation submitted by plaintiff in response to that notice. For the following reasons, the court will grant all of defendants' outstanding motions.

 FACTS

 The facts of this case are undisputed. On September 8, 1989, plaintiff Frank J. Holdampf and defendant James N. Tolar, employees of J.B. Hunt, were driving a J.B. Hunt tractor trailer from Chicago, Illinois to Brooklyn, New York when an accident occurred at a construction site on Interstate 80 in Butler County, Pennsylvania. Apparently, plaintiff was a driver-trainee at the time.

 Tolar was driving and the plaintiff was emerging from the sleeper compartment of their truck, when plaintiff noticed that the truck was "tailgating" an automobile driven by defendant Amira Zodi Tirdad. The vehicles were 20 feet apart and traveling approximately 55 miles per hour. Tirdad lost control of his automobile, and the J.B. Hunt truck crashed into it. Plaintiff suffered severe bodily injury.

 Plaintiff brought this action against the above-named defendants, Navistar International Corp. (the alleged manufacturer of the truck), and Amira Zodi Tirdad seeking damages for his physical injuries and financial losses.

 DISCUSSION

 I. Motions for Summary Judgment

 As noted above, defendants J.B. Hunt, Tolar, Fidelity and Sears have filed motions for summary judgment. Federal Rule of Civil Procedure 56(c) provides that summary judgment may be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."

 When confronted with a motion for summary judgment, it is not the court's function to weigh the evidence and determine the truth of the matter, but rather simply to determine whether there is a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

 The moving party has the burden of identifying those portions of pleadings, depositions, answers to interrogatories, and admissions on file, together with 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, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmoving party then must go beyond the pleadings and, by affidavits, depositions, answers to interrogatories, and admissions on file, designate facts showing that there is a genuine issue for trial. Id. at 324.

 A. Motions filed by J.B. Hunt and James N. Tolar

 J.B. Hunt and Tolar have filed both a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and a motion for summary judgment. In the motions, they assert that plaintiff's claims are barred by the Pennsylvania Workmen's Compensation Act, 77 Pa. Cons. Stat. Ann. § 1, et seq. (the "WCA"). Plaintiff responds that there is an exception under the WCA for intentional torts committed by his employer or co-employee.

 Although J.B. Hunt and Tolar have suggested that Texas, rather than Pennsylvania, law should apply, they assert that the workmen's compensation statutes in both Texas and Pennsylvania contain similar exclusivity provisions. Therefore, there is no need to address the conflicts of law issue.

 Section 303(a) (the "exclusivity provision") of the WCA establishes that "the liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees." 77 Pa. Cons. Stat. Ann. § 481(a). In Poyser v. Newman & Co., 514 Pa. 32, 522 A.2d 548, 550 (1987), the Pennsylvania Supreme Court definitively held that the intentional tort exception to the exclusivity provision, to the extent that it was ever alive in Pennsylvania, was now dead. The court explained and reaffirmed this holding in Barber v. Pittsburgh Corning Corp., 521 Pa. 29, 555 A.2d 766, 770 (1989) ("In this Court's decision in Poyser, supra, we expressly held . . . that there was no intentional tort exception to the exclusivity provision of the WCA"). This court recently applied the Poyser case in Stylianoudis v. Westinghouse Credit Corp., No. 90-903 (W.D. Pa. January 23, 1992). Therefore, plaintiff cannot maintain his case against his employer, J.B. Hunt, based upon an intentional tort exception to the WCA. J.B. Hunt's motion will be granted.

 Whether plaintiff can maintain this action against his fellow employee, James N. Tolar, requires a slightly different analysis, however. The exclusivity provision of the WCA relates to employers' liability. Liability of co-employees must be analyzed under section ...


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