The opinion of the court was delivered by: Thomas J. McAVOY Senior United States District Judge
On October 29, 2009, the Estate of Timothy A. Loveria by Gregorio O. Loveria, Administrator (Plaintiff), commenced a wrongful death action pursuant to NY EPTL §§ 5-4.1 through 5-4.5 and a survival action pursuant to NY EPTL § 11-3.3 alleging that "Portadam, Robert Gatta, and Timothy Brearman, individually and collectively, intentionally failed to take safety precautions required by OSHA and industry standards to protect Loveria and Loveria drowned at [the Portadam Job Site]." See Docket No. 1. Defendants filed the instant motion for summary judgment pursuant to Fed. R. Civ. P. 56 arguing that the Complaint should be dismissed: (1) for lack of subject matter jurisdiction; (2) due to the workers' compensation bar; and (3) for lack of personal jurisdiction as to Timothy Brearman.
This case arises out of a workplace accident which resulted in the death of Timothy A. Loveria. The decedent was working as a commercial diver in the course of his employment with Defendant Portadam, Inc. (Portadam). The project involved the removal of a temporary dam and the dredging and widening of a channel. Before the incident occurred, decedent was diving to remove sandbags under the water. According to the Complaint, "Loveria was submerged under water when a life-threatening condition arose requiring emergency assistance from other Portadam employees at the Job Site." See Docket No. 1.
At the time of the incident, Defendant Brearman was standing on a float pulling out steel frames from the water. Decedent informed Brearman that he was running low on air in his tank but that he had enough air in his tank to make it to shore. Decedent then proceeded to shore and Brearman continued working. While working, Brearman heard someone yell from the shore that decedent needed help. Another Portadam diver, Booth, performed a search and rescue for decedent. Booth found decedent in the water and he was taken on shore where CPR was applied and an ambulance arrived.
The Complaint alleges that "Portadam employees failed to act in the manner required by law and industry standards to the emergency condition involving Loveria, and Loveria drowned as a result thereof." Specifically, Plaintiff alleges that Defendants violated 29 CFR §§ 1910.410, 1910.420, 1910.421, 1910.422, 1910.423, 1910.424, 1910.430, 1910.605, and 1904.39 of the Occupational Safety and Health Act. Generally, these sections require: (1) certain qualifications for every member of the dive team; (2) procedures to follow before, during and after dives, specifically that a diver be line-tendered from the surface, or accompanied by another diver in the water in continuous visual contact during the diving operations; (3) certain equipment to be kept at the dive site; and (4) incident reporting procedures. The Complaint goes on to maintain that "the foregoing violations represent a widespread pattern of practice by Portadam, in violation of the OSHA regulations, which violations were a substantial factor in causing the death of Loveria" and that "Portadam knew, or should have known, that its actions in failing to maintain safe work conditions in general, and specifically at the Job Site at issue, in conformity with OSHA laws were substantially certain to result in the death of Loveria."
Following the incident, decedent's mother commenced a workers' compensation claim in New Jersey. OnOctober 29, 2009, Decedent's estate filed the Complaint in the instant action. Defendants filed this motion for summary judgment on March 25, 2010 arguing that the Complaint should be dismissed: (1) for lack of subject matter jurisdiction; (2) due to the workers' compensation bar; and (3) for lack of personal jurisdiction as to Timothy Brearman. Plaintiff opposes the motion arguing that the action for wrongful death falls under the intentional tort exception to the workers' compensation exclusivity bar.Plaintiff concedes that Defendant Gatta is a resident of the State of New York, and, thus, because he is not diverse should be dismissed from the action. Similarly, Plaintiff concedes that the complaint should be dismissed for lack of personal jurisdiction as to Brearman because he is a resident of Pennsylvania and is not subject to long arm jurisdiction in New York.
Summary judgment, pursuant to Fed. R. Civ. P. 56(c), is warranted 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 a judgment as a matter of law." The party moving for summary judgment bears the initial burden of showing, through the production of admissible evidence, that no genuine issue of material fact exists. Major League Baseball Properties, Inc. v. Salvino, 542 F.3d 290, 309 (2d Cir. 2008). Only after the moving party has met this burden is the non-moving party required to produce evidence demonstrating that genuine issues of material fact exist. Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006). The nonmoving party must do more than "rest upon the mere allegations... of the [plaintiff's] pleading" or "simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); see also Fed.R.Civ.P. 56(e) ("When a motion for summary judgment is made [by a defendant] and supported as provided in this rule, the [plaintiff] may not rest upon the mere allegations... of the [plaintiff's] pleading...."). Rather, "[a] dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Ross v. McGinnis, 00-CV-0275, 2004 WL 1125177, at *8 (W.D.N.Y. Mar. 29, 2004) [internal quotations omitted] [emphasis added]. It must be apparent that no rational finder of fact could find in favor of the non-moving party for a court to grant a motion for summary judgment. Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-24 (2d Cir. 1994); Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988). In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) [citation omitted]; Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990) [citation omitted].
In the instant case, Defendants argue that "[s]ummary judgment... is warranted because the exception to the New Jersey workers' compensation bar does not apply." See Docket No. 28. "Pursuant to N.J.S.A. 34:15-8, the Legislature has prescribed that workers compensation is the sole remedy against an employer for a covered employee who is injured on the job, except where the employer's conduct amounts to an intentional wrong." Kibler v. Roxbury Board of Education, 392 N.J. Super. 45, 47 (2007); see Laidlow v. Hariton Machinery Co., 170 N.J. 602,605-606 (2002) ("an employer who causes the death or injury of an employee by committing an 'intentional wrong' will not be insulated from common-law suit."). In Laidlow, 170 N.J. at 617,the Supreme Court of New Jersey interpreted and articulated the two prong test, promulgated in Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 174 (1985), which must be met "in order for an employer's act to lose the cloak of immunity" provided by N.J.S.A. 34:15-8:
(1) the employer must know that his actions are substantially certain to result in injury or death to the employee, and (2) the resulting injury and the circumstances of its infliction on the worker must be (a) more than a fact of life of industrial employment and (b) plainly beyond anything the Legislature intended the Workers' Compensation Act to immunize.
Defendants argue that neither prong has been met.
"[W]hen an employee sues an employer for an intentional tort and the employer moves for summary judgment based on the Workers' Compensation bar, the trial court must make two separate inquiries." Laidlow, 170 N.J. at 623. The first inquiry requires the court to determine, "whether, when viewed in a light most favorable to the employee, the evidence could lead a jury to conclude that the employer acted with knowledge that it was substantially certain that a worker would suffer injury." Id. If the court finds that a reasonable jury could so find, "a court must determine whether, if the employee's allegations are proved, they constitute a ...