RIEHLMAN, SHAFER & SHAFER JANE G. KUPPERMAN, ESQ., Tully, New York, Attorneys for Plaintiff.
BROWN, GAVALAS & FROMM, LLP FRED G. WEXLER, ESQ., New York, New York, Attorneys for Defendant.
MEMORANDUM-DECISION AND ORDER
MAE A. D'AGOSTINO, District Judge.
Plaintiff Michael Galeotti brings this action for negligence against Defendant Cianbro Corporation for an injury he sustained at work. Plaintiff is a New York resident, Defendant is a Maine corporation, and the accident occurred at a job site in Vermont. Plaintiff has collected workers' compensation benefits through a policy provided by his direct employer, Air2, LLC. Air2 was hired as a subcontractor by Defendant to do work on a project that Defendant was hired to complete. Defendant claims that, according to the laws of Vermont, a general contractor is considered the "statutory employer" of the employee of a subcontractor and, therefore, is immune from suit if workers' compensation benefits have been made available. Plaintiff claims that the law of his domicile, New York, should be applied to the present action. He also claims that the laws of New York allow for a subcontractor's employee to sue a general contractor, even if the employee has the option of collecting worker's compensation benefits.
Defendant has made a motion for Plaintiff's claim to be dismissed according to Federal Rule of Civil Procedure 12(b)(6). Defendant also moves, in the alternative, for summary judgment in the present action. Since Plaintiff responded to Defendant's statement of material facts and submitted matters outside the pleading in opposition to Defendant's motion, the Court will convert the motion to dismiss to one for summary judgment pursuant to Rule 56. See Smith v. Riccelli Brokerage Services, LLC, No. 09-CV-00230S, 2011 WL 2007209, *2 (W.D.N.Y. May 23, 2011) (citations omitted). Under the applicable choice of laws analysis, the Court finds that Vermont law applies and subsequently bars Plaintiff's claim. As such, the Court grants Defendant's motion for summary judgment.
Defendant is a Maine corporation with its principal place of business in Pittsfield, Maine. See Dkt. No. 9-3 at ¶ 2. Defendant is a large contractor that has undertaken operations in many different states, see Dkt. No. 12 at 4-7, but Defendant maintains that it has no "permanent offices" in New York State. Dkt. No. 9-3 at ¶ 2. Defendant has a standing contract, established July 10, 2009, with Vermont Transco, LLC ("Transco") to do business for Transco on demand. See Dkt. No. 9-3 at ¶ 4; see generally Dkt. No. 9-4. Transco is a Vermont limited liability company with its principal place of business in Vermont. See Dkt. No. 9-3 at ¶ 5. In this particular instance, Transco requested that Defendant "construct a 345 kV electric transmission line from the Vermont-Yankee Nuclear Facility near Vernon, Vermont to the Coolidge substation near Ludlow, Vermont." Id. at ¶ 7; see generally Dkt. No. 9-5. This particular location was near the border of Vermont, New Hampshire, and Massachusetts. See Dkt. No. 12-1 at ¶ 11. This agreement was executed on August 12, 2009. See Dkt. No. 9-3 at ¶ 6. Under its agreement with Transco, Defendant was allowed to enter into subcontracts with other companies in order to complete its work. See id. at ¶ 7; Dkt. No. 9-4 at 7-8.
As per the authority given by its agreement with Transco, Defendant entered into a subcontract with Air2, LLC ("Air2"), a Maryland company. See Dkt. No. 9-3 at ¶ 9; Dkt. No. 12-1 at ¶ 5 (confirming that Air2's principal place of business is in Maryland); see generally Dkt. No. 9-6. The agreement was entered into on our about October 20, 2009. See Dkt. No. 12-4 at ¶ 11. Air2 was hired to "provide helicopter line construction services." See Dkt. No. 9-3 at ¶ 9. Defendant claims that this type of work is typically done by Defendant's own employees, but it was more efficient to perform the work using Air2's helicopters. See id. at ¶ 7. Plaintiff denies sufficient information to either confirm or dispute Defendant's assertion that it normally does this type of work. See Dkt. No. 12-4 at ¶ 14.
Plaintiff is a resident of the state of New York. See Dkt. No. 12-1 at ¶ 3; see also Dkt. No. 12-4 at ¶ 3. He was hired by Air2 on February 3, 2008, and entered Air2's "apprentice lineman program[ ]" six months after that date. See Dkt. No. 12-1 at ¶ 4. Plaintiff was assigned to Defendant's Vermont job site on March 14, 2010. See id. at ¶ 6. About a year prior to this assignment, he had done work for Air2 while Air2 was a subcontractor for Defendant on an assignment in Maine. See id. at ¶¶ 12-13. While working on this assignment, Plaintiff was on the job for about twenty days at a time, during which he would stay at a hotel in Vermont near the job site. See id. at ¶¶ 7-8. In between the twenty-day periods, Plaintiff would return to his home in New York for ten days at a time. See id. at ¶¶ 7, 9-10.
Plaintiff was injured on April 20, 2010, while doing work for Air2 as part of its subcontract with Defendant. See Dkt. No. 12-4 at ¶¶ 15-16. Upon being injured, Plaintiff was airlifted to Dartmouth-Hitchcock Medical Center in Lebanon, New Hampshire to receive treatment. See Dkt. No. 12-1 at ¶ 14. Plaintiff was compensated for his injuries out of a workers' compensation insurance plan maintained by Air2. See Dkt. No. 12-4 at ¶ 17; Dkt. No. 12-1 at ¶ 15; Dkt. No. 12-1 Ex. A, at 5-6; Dkt. No. 9-7 at 2-3. Air2 was required to maintain this plan under the conditions of its subcontract with Defendant. See Dkt. No. 9-3 at ¶ 11; Dkt. No. 9-6 at 9. The workers' compensation plan maintained by Air2 had to be in compliance with Vermont law in order to satisfy the agreement between Air2 and Defendant. See Dkt. 12-4 at ¶¶ 8-9; Dkt. No. 9-3 at ¶ 11; Dkt. No. 9-6 at 9.
Plaintiff alleges that Air2's workers' compensation benefits are administered by a Tennessee company under the laws of Tennessee. See Dkt. No. 12-4 at pg. 3, ¶ 1. Plaintiff is currently receiving the maximum benefits allowed by his policy. See id. at pg. 3, ¶ 2. Plaintiff claims that if his policy were being paid by a Vermont insurer, he would be entitled to more benefits, see id. at pg. 4, ¶ 3; specifically, an additional $20.00 per week because of his two children. See Dkt. No. 12-1 at ¶ 18; Dkt. No. 12 at ¶ 8. Defendant also maintained workers' compensation insurance in compliance with Vermont law that is available to Plaintiff. See Dkt. No. 9-3 at ¶ 8; Dkt. No. 13 at 8. Plaintiff does not dispute that this insurance is available to him but denies sufficient information as to whether or not Defendant's policy complies with Vermont law. See Dkt. No. 12-4 at ¶ 10.
A. Standard of Review
1. Rule 12(b)(6) Dismissal for Failure to State a Claim
A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the party's claim for relief and pleadings without considering the substantive merits of the case. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007); Global Network Commc'ns v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006). In considering the legal sufficiency, a court must accept as true all well-pleaded facts in the pleading and draw all reasonable inferences in the pleader's favor. See ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) (citation omitted). This presumption of truth, however, does not extend to legal conclusions. See Aschroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (citation omitted). "Generally, consideration of a motion to dismiss under Rule 12(b)(6) is limited to consideration of the complaint itself" unless all parties are given a reasonable opportunity to submit extrinsic evidence. Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006). In ruling on a motion to dismiss pursuant to Rule 12(b)(6), a district court generally must confine itself to the four corners of the complaint and look only to the allegations contained therein. Robinson v. Town of Kent, N.Y., No. 11 Civ. 2875, 2012 WL 3024766, *3-4 (S.D.N.Y. July 24, 2012) (citing Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007)).
To survive a motion to dismiss, a party need only plead "a short and plain statement of the claim, " see Fed.R.Civ.P. 8(a)(2), with sufficient facts "to sho[w] that the pleader is entitled to relief[.]'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (quotation omitted). Under this standard, the pleading's "[f]actual allegations must be enough to raise a right of relief above the speculative level, " see id. at 555 (citation omitted), and present claims that are "plausible on [their] face." Id. at 570. "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citation omitted). "Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). Ultimately, "when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, " Twombly, 550 U.S. at 558, or where a plaintiff has "not nudged [its] claims across the line from conceivable to plausible, the [ ] complaint must be dismissed[.]" Id. at 570.
2. Summary Judgment
According to Rule 12 of the Federal Rules of Civil Procedure, "[i]f, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). Since Defendant moved for summary judgment in the alternative thereby giving Plaintiff notice that the motion may be treated as one for summary judgment, and because Plaintiff submitted affidavits, exhibits and a counter-statement of material facts in response to Defendant's motion, the Court finds that it may properly treat Defendant's motion as one for summary judgment. See Janneh v. Runyon, 932 F.Supp. 412, 415 & n.2 (N.D.N.Y. 1996).
A court may grant a motion for summary judgment only if it determines that there is no genuine issue of material fact to be tried and the facts as to which there is no such issue warrant judgment for the movant as a matter of law. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994) (citations omitted). When analyzing a summary judgment motion, the court "cannot try issues of fact; it can only determine whether there are issues to be tried." Id. at 36-37 (quotation and other citation omitted). Not all facts, however, are relevant. "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Moreover, it is well-settled that a party opposing a motion for summary judgment may not simply rely on the assertions in its pleading. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed.R.Civ.P. 56(c), (e)).
In assessing the record to determine whether any such issues of material fact exist, the court is required to resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Chambers, 43 F.3d at 36 (citing Anderson, 477 U.S. at 255) (other citations omitted). Where the non-movant either does no respond to the motion or fails to dispute the movant's statement of material facts, the court may not rely solely on the moving party's Rule 56.1 statement; rather, the court must be satisfied that the citations to evidence in the record support the movant's assertions. See Giannullo v. City of New York, 322 F.3d 139, 143 n.5 (2d Cir. 2003) (holding that not verifying in the record the assertions in the motion for summary judgment "would derogate the truth-finding functions of the judicial process by substituting convenience for facts").
B. Choice of Laws Analysis
Federal courts considering diversity cases are to apply the choice of law rules established by the law of their forum state. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496-97 (1941); Day & Zimmerman, Inc. v. Challoner, 423 U.S. 3, 4-5 (1975); see also Forest Park Pictures v. Universal TV Network, Inc., 683 F.3d 424, 433 (2d Cir. 2012). Therefore, New York's choice of law rules apply to this case.
"Where the substantive law of the forum state is uncertain or ambiguous, the job of the federal courts is carefully to predict how the highest court of the forum state would resolve the uncertainty or ambiguity." Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir. 1994). When the state's highest court has yet to make a definitive ruling on a specific issue, the court "must apply what [it] find[s] to be the state law after giving proper regard' to relevant rulings of other courts of the State." Id. (quoting Comm'r of Internal Revenue v. Estate of Bosch, 387 U.S. 456, 465 (1967).
1. Actual Conflict of Laws Exists
The first step in New York's choice of law inquiry is to establish whether or not there is a conflict between the laws of the different jurisdictions involved in the case. See In re Allstate Ins. Co. (Solarz), 81 N.Y.2d 219, 223 (1993); see also Forest Park Pictures, 683 F.3d at 433 (citation omitted). A conflict between the laws of two different jurisdictions arises when each jurisdiction prescribes "different substantive rules[.]" Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998) (citation omitted). If there is no conflict, then a choice of laws analysis is entirely unnecessary, and the forum state may apply its own law to the case at hand, so long as the forum state is one of the relevant jurisdictions. See IBM v. Liberty Mut. Ins. Co., 363 F.3d 137, 143-44 (2d Cir. 2004) (citation omitted); Trolone v. Lac D'Amiante Du Quebec, Ltee, 297 A.D.2d 528, 528 (1st Dep't 2002), aff'd99 N.Y.2d 647 (2003) (affirming the trial ...