Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cottingham v. Tutor Perini Building Corp.

United States District Court, E.D. Pennsylvania

February 21, 2017

CORY COTTINGHAM
v.
TUTOR PERINI BUILDING CORP. et al.

          MEMORANDUM

          O'NEILL, J.

         Plaintiff Cory Cottingham, an employee of a subcontractor on a construction site, brings claims against Tutor Perini Building Corporation and Keating Building Company[1] for negligence based on an accident in which plaintiff's leg and foot were crushed by falling cement panels. Dkt. No. 23 (Sec. Am. Compl.). Defendants move for summary judgment on plaintiff's claim, submitting several briefs in support of their motion. Dkt. Nos. 66 (Mot. and Mem.), 69 (Reply) and 71 (Sur-Reply). They argue, among other things, that defendant Tutor Perini Building Corporation is entitled to Worker's Compensation Act immunity as plaintiff's statutory employer, and they present evidence to this effect. Plaintiff, in his responses, Dkt. Nos. 68 (Response) and 70 (Reply), contends that Tutor Perini Building Corporation is not entitled to this immunity because it did not control or occupy the construction site. However, plaintiff does not present sufficient evidence to support this contention. Therefore, I will grant defendants' motion for summary judgment.

         BACKGROUND

         This personal injury case arises out of an accident that occurred during the Chestnut Street Tower construction project at 31st and Chestnut Streets in Philadelphia. Plaintiff worked for Carson Concrete Corporation, a subcontractor of defendant Tutor Perini Building Corporation. Dkt. No. 66, Ex. A (Cottingham Dep.) at 12:3-16. According to the subcontract with Tutor Perini Building Corporation, Carson was to lay the concrete foundation and superstructure of the building. Dkt. No. 66, Exs. H-1 and H-2 (Subcontract between Tutor Perini Building Corp. and Carson Concrete Corp., Jan. 11, 2013).

         I. The Accident

         On July 10, 2013, plaintiff was working with a coworker to hoist cement blocks. Cottingham Dep. at 151:6-15. They were using rigging equipment to secure stacks of panels to the crane's hook with four slings that they secured to the bottom panel in the stack at four points with pins. Cottingham Dep. at 153:11-154:6; Dkt. No. 68, Ex. N (Bradfield Safety Consultants Report, Aug. 12, 2016) at 2. In order to have a secure lift, the two workers must secure their pins in the same block, each on his respective side of the stack. Dkt. No. 68, Ex. N at 3.

         When the load was about a foot off the ground, it came apart and the cement panels fell on plaintiff's legs. Cottingham Dep. at 187:12-190:22. Dkt. No. 66, Ex. S (McGilligan Dep.) at 68:1-74:12. Both parties agree that the men had placed the pins at different levels of the stack, though they disagree about which worker misplaced his pins. Dkt. No. 68, Ex. N at p. 1 (Pl.'s Expert Report) (concluding plaintiff's coworker misplaced his pins); Dkt. No 66, Ex. U (Def.'s Expert Report, Sala) at 18 (concluding plaintiff misplaced his pins), Ex. T (Def.'s Expert Report, Riggs) at 5-6 (same).

         Plaintiff's expert opined that a number of safety precautions could have prevented the accident, including a job safety analysis before the operation that would have revealed the need to use either a basket hitch or a combination of a strap along with the lifting pins to secure the load from unanticipated movement. Dkt. No. 68, Ex. N at p. 11. He also determined that plaintiff and his coworker were unqualified for the rigging work they were performing. Id. at p. 15.

         II. The Defendants

         Carson, plaintiff's employer, is not a defendant in this action.[2] Rather, plaintiff brings this negligence claim against two other companies that, he argues, were responsible for safety at the construction site. Sec. Am. Compl. ¶¶ 8-12.

         These defendants have a complex corporate relationship. Both are owned by the same parent company, Tutor Perini Corporation. Dkt. No. 66, Ex. J (Keating Building Corp. Supp. Responses to Pl.'s Interrogs., June 15, 2016) at 3. This parent company acquired Keating Building Corporation in 2009. Dkt. No. 68, Ex. C (Press Release, Jan. 15, 2009). Keating Building Corporation then converted to a Delaware LLC and changed its name slightly, from “Corporation” to “Company.” Dkt. No. 68, Ex. C (Press Release); Ex. D (State of Delaware Certification of Conversion from a Corp. to a LLC, Dec. 24, 2009). Defendant contends that Keating Building Corporation's employees became Tutor Perini Building Corporation employees, but that Keating Building Company continues to exist and operate as a wholly owned subsidiary of Tutor Perini Corporation. Keating Building Corp. Supp. Responses to Pl.'s Interrogs. at 3; Dkt. No. 66, Ex. E (Shaw Dep.) at 32:4-33:12, 67:16-68:25.

         The parties dispute which defendant company-Tutor Perini Building Corporation or Keating Building Company-was involved in the Chestnut Street Tower project. On the one hand, only Tutor Perini Building Corporation had any contracts related to the project. The contract for the tower's construction is between the owner of the 31st Street property and Tutor Perini Building Corporation and, pursuant to that contract, the property owner paid Tutor Perini Building Corporation to be the construction manager. Dkt. No. 68, Ex. K (Constr. Mgmt. Servs. Agreement, Oct. 22, 2012) at 1; Shaw Dep. at 75:3-17; Dkt. No. 69, Ex. 2 (Vendor History Report, May 4, 2016) (summarizing vendor invoices related to the Chestnut Street Tower project). The contract with Carson for the concrete work is also with Tutor Perini Building Corporation. Dkt. No. 66, Exs. H-1 and H-2 (Subcontract between Tutor Perini Building Corp. and Carson Concrete Corporation, Jan. 11, 2013). Additionally, the people who managed the construction at the site saw themselves as Tutor Perini Building Corporation employees, even though they formerly worked for Keating Building Corporation. See Dkt. No. 66, Ex. F (Statler Dep.) at 17:7-12, Ex. M (Schellenberg Dep.) at 20:14-17, 21:13-20; Ex. N (Cooney Dep.) at 7:24-25; Ex. O (M. Hart Dep.) at 18:13-17. And after the purchase, Bradley Statler, formerly the president of Keating Building Corporation, began reporting to the Tutor Perini Building Corporation president. Statler Dep. at 15:9-19:24. In 2014, Craig Shaw, then Tutor Perini Building Corporation president, informed Statler his employment was terminated. Statler Dep. at 17:16-18:4.

         On the other hand, there is evidence that Keating Building Company was involved in the project. First, Keating Building Company paid the people who worked on the site and sent their W-2s. Dkt. No. 68, Ex. H (2013 W-2 Earnings Summaries). Second, Bradley Statler, the Keating Building Corporation president turned Tutor Perini executive vice president, cosigned the construction contract between Tutor Perini Building Corporation and the property owner using his former, Keating title. See Constr. Mgmt. Servs. Agreement, Oct. 22, 2012 at 107; Statler Dep. at 16:15-19. Third, Keating Building Corporation obtained building permits for the site. Dkt. No. 68, Ex. J (Phila. Building Permits, Jan. 14, 2013 and July 26, 2013). Finally, plaintiff points to a letter on Tutor Perini Building Corporation letterhead from Rachel Fisler, a contracts administrator at Tutor Perini Building Corporation, to Safway Services, a subcontractor performing work on the construction site, that advises Safway to “feel free to contact Keating Building Company's assigned Project Manager” if questions arise. Dkt. No. 68, Ex. I (Letter from Fisler to Safway, Sept. 5, 2013).

         Deposition testimony from Shaw and Statler explains that the integration of former Keating Building Corporation employees into Tutor Perini Building Corporation took some time, that during this time Tutor Perini used Keating Company for payroll and that Bradley Statler signed the contract because the property owner was familiar with him and felt more comfortable working with him. Statler Dep. at 92:23-93:11 (explaining that email was not initially transitioned to Tutor Perini Building Corporation systems); Shaw Dep. 50:4-13 (explaining that Tutor Perini Building Corporation was “processing paychecks to certain individuals working on that job through Keating's payroll system. It just had not been converted to our own systems at that time”), Keating Building Corp.'s Supp. Responses to Pl.'s Interrogs. at 6 (“Keating Building Company is the appointed payroll agent for all of Philadelphia-based Tutor Perini Building Corp. payroll.”); Shaw Dep. at 55:21-56:12 (same), 78:10-22 (explaining that Tutor Perini Building Corporation gave Statler the power of attorney so that he “had the authority to act on behalf of Tutor Perini Building Corp who is the party to the contract with tower. So, they wanted that comfort level that Brad acting in that capacity had the authority and authorization to do that”), 83:2-15 (explaining that the property owner “felt very comfortable with Brad in that regard and would like to see his signature on here”).

         III. Responsibility for ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.