United States District Court, W.D. Pennsylvania
August 9, 2005.
WELLS HANN, ELDA COCO, Personal Representative of the Estate of James Coco, deceased, EDWARD HANN, BILLY MYERS FLOYD KING and DOUG RADIGAN, Plaintiffs,
CRAWFORD & COMPANY, a corporation, Defendant.
The opinion of the court was delivered by: DONETTA AMBROSE, District Judge
FINDINGS OF FACT CONCLUSIONS OF LAW and ORDER OF COURT
Plaintiffs, Wells Hann, Elda Coco, personal representative of
the estate of James Coco, deceased, Edward Hann, Billy Myers, and
Floyd King initially brought this cause of action against
Defendant, Crawford & Company ("Crawford"), on September 21,
2000.*fn1 They filed their Third Amended Complaint along
with Plaintiff, Doug Radigan, against Crawford on June 17, 2002.
(Docket No. 59). Therein, Plaintiffs assert that Crawford
violated the Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 207(a)(1), for failure to pay overtime wages for work in excess
of forty hours per week as insurance monitors, insurance
adjusters, and other work on four catastrophe projects (the Exxon
Valdez Oil Spill, the Ashland Oil Spill, the Uni-Mart Convenient
Store Underground Petroleum Leak, and the Buckeye Oil Spill)
between 1989 and 1992. A non-jury trial in this matter was held
on May 16 and 17, 2005 and May 19-20, 2005. Based on the same, I
make the following findings of fact and conclusions of law.
FINDINGS OF FACT
I. IDENTIFICATION OF THE PARTIES AND THEIR JOB DUTIES
1. Crawford is a provider of claims adjusting and cost control
services for insurance companies and self-insured businesses.
2. Crawford provides its services for both man-made and natural
3. Each of the six Plaintiffs worked for Crawford and claims
Crawford violated the FLSA for failure to pay overtime wages for
work in excess of forty hours per week as insurance monitors,
insurance adjusters, and other work on four catastrophe projects
(the Exxon Valdez Oil Spill, the Ashland Oil Spill, the Uni-Mart
Convenient Store Underground Petroleum Leak, and the Buckeye Oil
Spill) between 1989 and 1992.
B. WELLS HANN
4. Wells Hann was employed by Crawford from September 1989
through March 1991, as a supervisor for the response to cost
claims by thirteen different governmental agencies on the Ashland Oil Spill project.
C. JAMES COCO
5. James Coco was employed by Crawford from April 1988 through
August 1989, as an auditor/invoice reviewer and as a monitor on
the Exxon Valdez Oil Spill project ("Exxon Valdez project").
6. While on the Exxon Valdez project, Mr. Coco began working
out of the Exxon Valdez Command Center ("the Command Center") in
7. When Mr. Coco became a monitor on the Exxon Valdez project
he moved offices, but the location is unknown.
D. EDWARD HANN
8. Edward Hann came to Crawford with 37 years of experience in
handling business interruption claims. Edward Hann was also a
part owner or sole owner of three companies where he complied
with state and federal wage laws.
9. Edward Hann was employed by Crawford as a claims adjuster
from August 1989 through September 1990, on the Exxon Valdez
10. While on the Exxon Valdez project, Edward Hann worked
solely out of the Exxon Claims Office at the Calais Building in
E. BILLY MYERS
11. Billy Myers was employed by Crawford as an auditor/invoice
reviewer and a claims adjuster from April 1989 through March
1990, on the Exxon Valdez project out of the Command Center
(April 1989-August/September 1989) and the Calais building
(August 1989 March 1990). 12. Mr. Myers also worked as a claims adjuster from April 1990
through January 1992 on the Buckeye Pipeline Petroleum Spill
project ("Buckeye project") in Natrona Heights, Pennsylvania.
13. Mr. Myers was a core catastrophe adjuster for Crawford from
1990 to 2000. Core catastrophe adjusters are first responders. In
other words, they are one of the first employees on the site to
assess the situation. Mr. Myers attended some of the annual core
catastrophe adjuster meetings at Crawford's headquarters in
14. Prior to working for Crawford, Mr. Myers was the President
and 40% owner of Underwood Building Supplies ("Underwood"), a
company worth 10 million dollars in sales when he left. While Mr.
Myers worked for Underwood, he knew there was a wage law
regarding overtime pay for employees that worked over 40 hours a
F. FLOYD KING
15. Floyd King was employed by Crawford as the project manager
from April 1990 through December 1991, on the Buckeye project.
16. Mr. King also worked on the Exxon Valdez project as a
supervisor over claims adjusters, and for Crawford on the Ashland
Oil project but is not pursuing a claim for those projects in
17. Because of his job duties, Mr. King had knowledge of the
fact that when certain people work over 40 hours a week, they are
entitled to overtime compensation. 18. From 1983-1994, Mr. King was a core catastrophe adjuster
and attended some of the annual meetings at Crawford's
G. DOUG RADIGAN
19. Doug Radigan was employed by Crawford as a monitor from May
1989 through September 1989, on the Exxon Valdez project at the
Command Center for the first two to three weeks and then he
worked on the Exxon Barge II ("EBII").
20. Mr. Radigan also worked for Crawford as an adjuster for
business interruption claims and lost wage claims from
September/October 1989 through March 1990, on the Uni-Mart
Convenience Store Underground Petroleum Leak project ("Uni-Mart
project") in Greentree, Pennsylvania in the Jacobs building.
21. Mr. Radigan also worked for Crawford as a monitor and
invoice reviewer from April 1990 through December 1991, on the
22. Prior thereto, and at least since the 1980's, Mr. Radigan
has known that there is a law that requires an employer to pay
overtime compensation for hours worked in excess of 40 hours per
H. JOB DUTIES
23. Crawford employees perform two general functions: claims
control and cost control. Claims functions are performed by
adjusters and their supervisors, and involve the handling of
third-party claims, whereas cost control functions are performed
by monitors, invoice reviewers, and their supervisors, and
involve minimizing the costs of the project by monitoring the
clean-up process and auditing invoices presented to the client by
contractors. 24. Claims adjusters investigate, evaluate and negotiate both
liability and damages with third parties, including lost wages
and business interruption claims. Business interruption claims
are those claims where, due to the catastrophe, businesses lose
money because of a decline or interruption of sales, and require
people to work overtime or use contractors.
25. Monitors are the eyes and ears of the client on the project
and work with the contractors and their employees to make sure
the clean-up costs are under control. In other words, they
monitor what exactly is going on with the project and document
26. Invoice reviewers analyze all of the cost information and
tell the accounting story of the spill. They are the client's
right hand, feeding them documentation and information when there
is a discrepancy between the invoices and the actual
documentation. They are involved in the negotiation over the
resolution of disputed bills.
II. RELEVANT LOCATIONS OF EMPLOYMENT WITH CRAWFORD
27. Crawford's headquarters are in Atlanta, Georgia, which is
where core catastrophe adjusters hold their annual meetings.
Crawford conspicuously posted FLSA notices at its headquarters in
28. If a catastrophe project could not be conducted from its
headquarters, Crawford would set up at one of the following
locations: 1) the client's facility; 2) a temporary catastrophe
office rented by Crawford; or 3) a permanent Crawford office. A. EXXON VALDEZ OIL SPILL
29. The Exxon Valdez Oil Spill occurred in March of 1989, in
30. Mr. Coco, Mr. Myers, Mr. Radigan, and Edward Hann all
worked on the Exxon Valdez project. Mr. King worked on the Exxon
Valdez project, but does not assert a claim for his work on the
Exxon Valdez project in this lawsuit.
31. There were four locations at which said Plaintiffs worked
on the Exxon Valdez project: 1) The Valdez Command Center in
Valdez, Alaska; 2) The Calais Building in Anchorage, Alaska; 3)
The Exxon Barge II ("EB-II"); and 4) The Kenai Office in Kenai,
32. Crawford stipulated at trial that it did not post any FLSA
notices at any of the locations on the Exxon Valdez project in
33. Each site was a multi-employer worksite operated and
controlled by Exxon. Exxon controlled access to the locations and
issued identification badges to all Crawford employees upon their
arrival, which provided Crawford employees access to the entire
34. As testified to by former Exxon employees, Don Carpenter
and Otto Harrison, Exxon conspicuously posted FLSA notices in
each of the four locations.
B. ASHLAND OIL SPILL
35. The Ashland Oil Spill occurred on January 2, 1988, in
Floreffe, Pennsylvania, which is a suburb of Pittsburgh,
Pennsylvania, on the Monongahela River.
36. Crawford set up a temporary catastrophe office in the
Jacobs building on Greentree Hill, in Pittsburgh, Pennsylvania,
in January of 1988. 37. Both Wells Hann and Mr. King worked on the Ashland Oil
Spill project. In addition, during the time that Mr. Radigan was
working on the Uni-Mart project, he would routinely visit his
brother, Kip, who was working on the Ashland Oil Spill project.
Mr. Radigan would also go to the Jacobs building to talk with
John Knight, assistant project manager for the Ashland Oil Spill
38. In mid-January, 1988, John Knight, copied the FLSA notice
that was posted in Crawford's branch office in the NRC building
(next to the Jacob's building) and had Linda Straka, office
manager for the Ashland Oil Spill project, conspicuously post an
FLSA notice on the bulletin board in the Jacobs building. An FLSA
notice remained on that bulletin board until the project ended,
with old posters being replaced with updated posters at the
C. UNI-MART CONVENIENT STORE UNDERGROUND PETROLEUM LEAK
39. The Uni-Mart leak occurred in Pittsburgh, Pennsylvania,
around September 1989.
40. Crawford used space in its Pittsburgh branch office to
operate its services for the Uni-Mart project. In 1982, the
Pittsburgh Branch Office was located in the Jacobs complex in the
NRC building, but later moved to Penn Center West, in Robinson
41. The project was not a long project because a dispute arose
between Crawford and Uni-Mart, and Crawford withdrew from the
42. Mr. Radigan worked on the Uni-Mart project. During the time
that Mr. Radigan worked on the Uni-Mart project, he worked out of
the NRC building. He would go over to the Jacobs building to give John Knight updates
on the Uni-Mart project.
43. Mr. Charlie Histon, manager of the Pittsburgh branch
office, conspicuously posted an FLSA notice in Crawford's
Pittsburgh branch office in the NRC building and in Penn Center
West. An FLSA notice remained in those offices, with old posters
being replaced with updated posters at the appropriate times.
D. BUCKEYE OIL SPILL
44. The Buckeye oil` spill occurred in Pittsburgh,
Pennsylvania, when oil from a pipeline spilled into the Allegheny
45. The services provided by Crawford on the Buckeye project
began in April of 1990 and concluded in January of 1992.
46. Mr. King, Mr. Myers, and Mr. Radigan all have filed claims
for work they performed on the Buckeye project.
47. Crawford employees working on the Buckeye project worked
out of an office in Natrona Heights, but the employees would
first check in at the Jacobs building, where an FLSA notice was
CONCLUSIONS OF LAW
1. The statute of limitations for alleged past due overtime
wages under the FLSA is two years, or three years for a willful
violation. 29 U.S.C. § 255(a).*fn2 Since the last alleged violation occurred in January of 1992, and
Plaintiffs' claims were not filed until 2000, there is no doubt
that the statue of limitations has run, absent some sort of
2. The burden of proving that the statute of limitations has
been tolled is upon Plaintiffs. Courtney v. La Salle Univ.,
124 F.3d 499, 505 (3d Cir. 1997).
3. "Equitable tolling functions to stop the statute of
limitations from running where the claim's accrual date has
already passed." Oshiver v. Levin, Fishbein, Sedran & Berman,
38 F.3d 1380, 1387 (3d Cir. 1994), citing, Cada v. Baxter
Healthcare Corp., 920 F.2d 446, 450 (7th Cir. 1990).
4. "[T]here are three principal, though not exclusive,
situations in which equitable tolling may be appropriate: (1)
where the defendant has actively misled the plaintiff respecting
the plaintiff's cause of action; (2) where the plaintiff in some
extraordinary way has been prevented from asserting his or her
rights; or (3) where the plaintiff has timely asserted his or her
rights mistakenly in the wrong forum." Oshiver,
38 F.3d at 1387. In this case, Plaintiffs assert that equitable tolling is
appropriate because Crawford failed to post notices of the FLSA
in violation of 29 C.F.R. § 516.4.
5. Section 516.4 provides as follows: § 516.4 Posting of notices. Every employer employing
any employees subject to the Act's minimum wage
provisions shall post and keep posted a notice
explaining the Act, as prescribed by the Wage and
Hour Division, in conspicuous places in every
establishment where such employees are employed so as
to permit them to observe readily a copy. Any
employer of employees to whom section 7 of the Act
does not apply because of an exemption of broad
application to an establishment may alter or modify
the poster with a legible notation to show that the
overtime provisions do not apply. For example:
"Overtime Provisions Not Applicable to Taxicab
Drivers (Sec. 13(b)(17))".
29 C.F.R. § 516.4.
6. The failure to post a required notice will toll the running
of the limitations period, "at least until such time as the
aggrieved person seeks out an attorney or acquires actual
knowledge of his rights under" the Act. Nagger v. Henry F.
Eichmann, Inc., 640 F.Supp. 365, 370 (W.D.Pa. 1985), citing,
Bienheim v. Dresser Industries, Inc., 569 F.2d 187, 193 (3d Cir.
7. Applying the above law to the facts of the case, I find that
Crawford has met its posting duties under § 514.6 with regard to
the Ashland project in the Jacobs building and with regard to the
Uni-Mart project in the NRC building. Therefore, I conclude that
Plaintiffs have failed to meet their burden of establishing that
the statute of limitations was tolled as to those employees who
worked on said projects: Wells Hann and Doug Radigan.
Consequently, the statute of limitations as to Wells Hann and
Doug Radigan has run and their claims for those projects are
8. I further conclude that Plaintiffs have failed to meet their
burden of establishing that the statute of limitations was tolled
as to the Exxon Valdez project as to James Coco, Edward Hann, Billy Myers and Doug Radigan. The
Department of Labor ("DOL") issued an Opinion Letter dated March
3, 2003, interpreting posting requirements on multi-employer work
sites and stated that where the employees of a company are
working "in another employer's office," and the FLSA notice is
already conspicuously posted in compliance with § 516.4, no
additional positing of the notice is required. Defendant's Ex. Z.
I find this interpretation of § 514.6 to be persuasive,
consistent with the intent of the regulation to conspicuously
post, and logical as it relates to multi-employer work sites.
Otherwise, multi-employer work sites would be littered with
redundant postings. Therefore, I conclude that Plaintiffs have
failed to meet their burden of establishing that the statute of
limitations was tolled as to those employees who worked on the
Exxon Valdez project: James Coco, Edward Hann, Billy Myers and
Doug Radigan. Consequently, the statute of limitations as to
James Coco, Edward Hann, Billy Myers and Doug Radigan has run and
their claims as to the Exxon Valdez project are time-barred.
9. While there is no definitive evidence that Crawford posted
at the Natrona Heights location, I conclude that tolling of the
statute of limitations is not warranted for those employees
working on the Buckeye project: Billy Myers, Floyd King and Doug
Radigan. First, all employees who worked on the Buckeye project
were required to check in at the Jacobs building where the notice
was conspicuously posted. Second, each of these employees worked
on other projects for Crawford where the notices were posted.
Third, each of these employees' job duties with Crawford at some
point involved understanding the right to overtime compensation for certain employees. Fourth, Mr. Myers and Mr.
Radigan had outside, independent knowledge of the right to
overtime for certain employees who worked over 40 hours a week.
Thus, each employee had knowledge of his rights under the FLSA
prior to 1997. Consequently, the statute of limitations as to
Billy Myers, Floyd King and Doug Radigan has run and their claims
as to the Buckeye project are time-barred. ORDER OF COURT
AND NOW, this 9th day of August, 2005, after a bench trial
and for the reasons set forth above, it is ordered that judgment
is entered in favor of Defendant and against Plaintiffs as to all
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