United States District Court, E.D. Pennsylvania
Cory Cottingham, an employee of a subcontractor on a
construction site, brings claims against Tutor Perini
Building Corporation and Keating Building
Company 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.
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).
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.
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
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.
plaintiff's employer, is not a defendant in this
action. 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.
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.
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.
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).
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”).
Responsibility for ...