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April 25, 1996

DANIEL THOMAS, et ano., Plaintiffs, against STONE CONTAINER CORPORATION, Defendant.

The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 Plaintiff Daniel Thomas seeks recovery for personal injuries allegedly sustained in an accident while he was employed as a temporary laborer for an independent contractor that was performing certain maintenance work at a Virginia paper mill owned by defendant Stone Container Corporation ("Stone"). Stone previously moved for summary judgment dismissing the complaint on the ground that Thomas was its statutory employee under the Virginia Workers Compensation Act ("VWCA") and that Stone therefore could not be sued. The Court denied the motion on the ground that the statutory employment determination was within the primary jurisdiction of the Virginia Workers' Compensation Commission (the "Commission"), which was about to decide the issue in a proceeding commenced by Thomas. Thomas v. Stone Container Corp., No. 95 Civ. 5726 (LAK), 1996 U.S. Dist. LEXIS 1956, 1996 WL 79325 (S.D.N.Y. Feb. 23, 1996). Days later, however, plaintiff settled the proceeding before the Commission in a manner that resulted in the dismissal of his workers' compensation claim against Stone, thus precluding a determination of the question in the administrative context. Stone therefore renews its motion for summary judgment dismissing the complaint.

 The Facts

 The accident that is the focus of this case occurred at Stone's Hopewell mill. Thomas was employed at the time by Labor Pro Temporary Services, which had supplied Thomas and other workers to Industrial NDT ("INDT"), which in turn had been engaged by Stone to conduct metallurgical surveying in preparation for certain non-destructive metallurgical testing. In view of the fact that the case turns, at this stage, on whether Stone is to be regarded as Thomas' statutory employer, a review of the evidence concerning the nature and extent of Stone's relevant operations is essential.

 Stone's Factual Contentions

 Stone has put forward a detailed account of its staffing and operations at the Hopewell mill, all of which is undisputed save in certain particulars discussed below.

 Stone has maintenance and engineering ("M&E") departments at the Hopewell mill which employ 158 people -- 36 percent of the mill's entire workforce. These departments include managers, skilled workers, and unskilled laborers, some of whom are trained in specific maintenance tasks required at the mill including metallurgical testing, welding, pipe fitting, and millwright work. They are responsible for ensuring the good working order of all aspects of the mill's equipment, and Stone has personnel on staff responsible for metallurgical testing among other functions. The majority of all maintenance work at the mill is undertaken directly by Stone employees, who spend about 230,000 hours per year on maintenance and repair work.

 Stone maintains that it conducts non-destructive metallurgical testing about twelve times a year at the mill and that twelve of its employees are trained to conduct this work, which usually is done with the assistance of unskilled laborers. It contends also that it owns all of the equipment necessary to perform this work.

 Stone conducts a maintenance outage at the mill each year during which extensive testing and repair operations are carried out. Because the mill is idled during the annual outage, thus stopping all production, there is a premium on doing the necessary work quickly, and Stone's entire M&E staff works around the clock. Nevertheless, while most of the work is performed by Stone employees, Stone also hires subcontractors to assist, specifying in advance the work to be done and then directing the subcontractors' activities and monitoring their work on a daily basis.

 In March 1994, the mill had a regularly scheduled outage during which Stone determined that non-destructive metallurgical testing would be conducted on the recovery boiler, which generates power and steam for the mill. It hired INDT to perform this work, and INDT in turn contracted to supply technicians at a rate of $ 38 per hour and laborers to assist the technicians at a rate of $ 26 per hour. Thomas was among the laborers supplied by INDT.

 INDT was not on its own during the outage. Two employees from Stone's Engineering and Technology Group came to Hopewell to assist in the work INDT was to conduct. They tested and/or approved each of the skilled INDT employees who was to conduct the actual testing. They did not, however, test the unskilled laborers. According to Stone, these two Stone employees monitored INDT's work.

 Thomas was injured on March 19, 1994, during the outage, while performing unskilled labor relating to the testing of the recovery boiler.

 Thomas' Affidavit

 Thomas has submitted a brief affidavit in opposition to the motion. *fn1" The pertinent assertions are that (1) Thomas' "understanding is that STONE CONTAINER did not have [the] special equipment" used by INDT during the outage (Thomas Aff. P 9: see also id. P 15): (2) Thomas never was directed, managed, controlled or supervised by Stone employees while he was at the mill (id. P 11); (3) Thomas "was told that 'they (Stone Container) did not do this kind of work themselves' by employers [sic] of INDT and Stone Container" (id); and (4) "while Stone Container may maintain a staff of employees in their maintenance and engineering department, Stone Container's ordinary course of business is not in maintenance, and certainly not metallurgical surveying," something Thomas allegedly was told by Stone employees (id. P 15; see also id. P 16). Thus, Thomas seeks to place in issue whether Stone personnel typically did the sort of work that it hired INDT to perform and whether it had the specialized equipment necessary to do so. The affidavit, however, does not set forth facts showing that Thomas is competent to testify to most of the assertions it contains.


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