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Cemex, Inc. v. Industrial Contracting and Erecting

June 26, 2006

CEMEX, INC., PLAINTIFF,
v.
INDUSTRIAL CONTRACTING AND ERECTING, INC., DEFENDANT/ THIRD PARTY PLAINTIFF,
v.
MINSERCO, INC., THIRD PARTY DEFENDANT.



The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge

MEMORANDUM OPINION AND ORDER OF COURT

Presently pending before the Court for disposition is the SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT, with brief in support, filed by Defendant Industrial Contracting and Erecting, Inc. ("ICE") and the brief in opposition filed by Plaintiff, Cemex, Inc. ("Cemex"). After consideration of the filings of the parties, arguments of counsel, and the applicable case law, the Supplemental Motion for Summary Judgment will be granted.

BACKGROUND

This is the second of two lawsuits which arose from a work place accident which occurred on September 24, 1999, when a dragline shovel*fn1 in which David J. Carcaise ("Carcaise") was working fell over and down a 70' embankment. Both the dragline and the quarry where Carcaise was working were owned by Cemex.*fn2

At the time of the accident, Carcaise was an employee of Minserco, Inc. ("Minserco"), the contractor hired to operate the dragline. As a result of the accident, Carcaise sustained catastrophic personal injuries and the damage to the dragline was severe. Cemex also allegedly incurred increased costs because it operated an older, less efficient dragline during the period of repair.

As a result of the accident, David Carcaise and his wife, Leslie, filed a lawsuit for personal injuries and loss of consortium on May 15, 2001. Approximately a month later, on or about June 21, 2001, Cemex filed the instant action against ICE for property damages arising out of the dragline accident.

A. Carcaise v. Cemex v. ICE (Civil Action No. 01-0859)

As stated supra, on May 15, 2001, David J. Carcaise and his wife, Leslie J. Carcaise (collectively referred to as "the Carcaises") filed a Complaint in this Court against Cemex for personal injuries and loss of consortium which resulted from the September 24, 1999 accident. Plaintiffs alleged that the accident happened due to unstable ground conditions and/or inadequate ballasting of the dragline.

On July 13, 2001, Cemex filed an Answer in which it denied liability and asserted that the condition of the dragline was the responsibility of a party other than Cemex. On September 24, 2001, Cemex filed a Third Party Complaint against ICE, in which it alleged that ICE was responsible for the accident because of its breach and/or negligent performance of a 1993 Construction Contract between ICE and Cemex's predecessor Medusa Corporation relative to the disassembly and re-erection of the subject dragline. In accordance with the Construction Contract, ICE disassembled, transported, and reassembled the dragline from its then location in Kentucky to the Wampum, Pennsylvania quarry. Distilled to its essence, Cemex alleged that ICE failed to install a sufficient quantity of ballast in the dragline at the time of reassembly in Pennsylvania in accordance with the manufacturer's specifications and that said failure was a proximate cause of the accident. Third Party Complaint, at ¶¶ 22-23.

A jury trial commenced in the matter on October 26, 2004, and concluded with a verdict in favor of the Carcaises on November 9, 2004. Specifically, the jury found in favor of David S. Carcaise in the amount of $6,400,000.00 and in favor of Leslie J. Carcaise, his wife, in the amount of $500,000.00. The jury also determined that Cemex was 70% causally negligent, that ICE was 20% causally negligent, and that Plaintiff, David S. Carcaise, was 10% causally negligent.

On November 10, 2004, the Court molded the jury verdict and entered judgment in favor of David S. Carcaise in the amount of $5,760,000.00 plus costs, with Cemex being liable for $4,480,000 of that amount and ICE being liable for $1,280,000.00 of that amount. The Court also molded the jury verdict in favor of Leslie J. Carcaise and entered judgment in the amount of $450,000.00 plus costs, with Cemex being liable for $350,000.00 of that amount and ICE being liable for $100,000 of that amount.

On May 16, 2005, the Court entered an Amended Judgment in favor of the Carcaises in which Cemex and ICE were found to be joint tortfeasors. Cemex and ICE have both taken appeals, which are pending before the United States Court of Appeals for the Third Circuit.

B. Cemex v. ICE v. Minserco, Inc. (Civil Action No. 02-1240)

On September 21, 2001, the same day Cemex moved in the Carcaise action to join ICE as a third-party defendant, Cemex requested the Prothonotary of the Court of Common Pleas of Lawrence County, Pennsylvania to issue a Writ of Summons upon ICE. Nine months later, on June 21, 2002, Cemex filed a Complaint for property damages against ICE in the Court of Common Pleas of Lawrence County, Pennsylvania. Shortly thereafter, ICE removed the case to this Court. See Notice of Removal.

In the "removed action," Cemex asserts claims against ICE based on the same "incident" in which Mr. Carcaise was injured, i.e., when "the dragline slid down" the seventy-foot embankment. See Complaint at ¶ 10. Cemex alleges that ICE breached its 1993 Contract by allegedly failing to properly disassemble, assemble, transport, and erect the dragline. Specifically, Cemex alleged that ICE failed to place sufficient ballast in the dragline at the time of reassembly in accordance with the manufacturer's specifications, and that said failure was a substantial factor in bringing about the incident. (Complaint at ¶¶ 12, 15, and 25.)

On July 19, 2002, ICE filed a Third-Party Complaint against Minserco, alleging, inter alia, that its negligent operation of the dragline pursuant to a Stripping Contract with Cemex was the sole cause of the dragline accident.

ICE has filed the instant motion in which it seeks to have all claims against it dismissed based on the doctrines of collateral estoppel and/or res judicata. In the alternative, ICE seeks to have Count I of the Complaint stricken based on the doctrines of Economic Loss and/or Gist of the Action.*fn3

STANDARD OF REVIEW

Summary judgment should 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." Fed. R. Civ. P. 56(c). Thus, the Court's task is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). The non-moving party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Liberty Lobby, 477 U.S. at 249). Further, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Id. (citing Celotex Corp. v. ...


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