TRACY GARDNER, et al.
GREG'S MARINE CONSTRUCTION, INC., et al.
DEBORAH K. CHASANOW, District Judge.
Presently pending and ready for review in this negligence and wrongful death case are motions to dismiss, or in the alternative, for summary judgment filed by Defendants Dominion Cove Point LNG, LP ("Dominion LP"), Dominion Resources, Inc. ("Dominion Inc."), and Dominion Cove Point LNG Company, LLC ("Dominion LLC") as to Counts IV, V, and VI (ECF Nos. 11 & 12); Defendant Weeks Marine, Inc. ("Weeks Marine") as to Counts III, V, and VI (ECF No. 13); and Defendant Greg's Marine Excavation, Inc. ("Greg's Marine Excavation") as to Counts I, II, V, and VI (ECF No. 27). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motions filed by these Defendants will be granted.
A. Factual Background
On June 18, 2013, Tracy Gardner ("Gardner") brought this action as administrator and personal representative of the estate of Mark Copeland ("Mr. Copeland" or "the decedent"), asserting a violation of the Jones Act, 46 U.S.C. § 30104, against Greg's Marine Construction, Inc. ("Greg's Marine Construction") and Greg's Marine Excavation (Count I); violation of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. § 903, against Greg's Marine Construction and Greg's Marine Excavation (Count II); negligence against Weeks Marine (Count III); negligence against Dominion LP, Dominion LLC, and Dominion Inc. (Count IV); and a survival action against all defendants (Count VI). Robert Wayne Copeland, the decedent's father, brings a wrongful death claim against all Defendants (Count V).
Mark Copeland died on October 23, 2010 while performing repair work at the Cove Point Terminal on Chesapeake Bay in Maryland. During the relevant time, Greg's Marine Construction employed Mark Copeland as a laborer. (ECF No. 1 ¶ 13). The complaint alleges that Greg's Marine Excavation and Greg's Marine Construction "owned, operated, managed, directed and controlled a barge, raft or floating platform operating in the navigable waters of the Chesapeake Bay." ( Id. ¶ 7). The complaint recites that "Dominion Cove Point LNG, LP, Dominion Cove Point LNG Company LLC, and Dominion Resources, Inc.... owned and operated Cove Point LNG Terminal, an offshore liquid natural gas shipping terminal, located on the western shore of the Chesapeake Bay in the State of Maryland." ( Id. ¶ 12).
On October 9, 2003, Dominion Transmission, Inc., an affiliated company of Dominion LP, entered into a Master Service Contract ("MSC 634") with Greg's Marine Construction, Inc. for work to be performed periodically by Greg's Marine Construction at the Cove Point Terminal. ( See ECF No. 11-2 ¶ 5 & ECF No. 11 3). The MSC 634 provided that Greg's Marine Construction's status was that of an independent contractor, and "neither [Greg's Marine Construction, Inc.] nor any employees of [Greg's Marine Construction, Inc.] are employees of [Dominion Transmission, Inc.]." (ECF No. 11-3, at 22). On October 15, 2009, Greg's Marine Construction submitted a proposal to Dominion LP for "work to be completed on the off-shore pier of the Cove Point Terminal facility pertaining to the removal of old, damaged concrete piling jackets and then the installation of new concrete piling jackets." (ECF No. 11-2 ¶ 8; ECF No. 11-4). This "Final Proposal for Offshore Pile Jackets" provided that "[t]here are a total of eleven (11) 54[inch] concrete piles that have 8' [Concrete Piles] Jackets installed by others that are damaged." (ECF No. 11-4, at 1). The proposal identified eleven damaged piles, including Pile No. 140, on which the decedent performed repair work at the time of his death. On October 21, 2009, Dominion LP issued a purchase order to Greg's Marine Construction for the concrete piling jacket removal work; the order provided that "Master Service Contract 634 10/9/2003 between the same parties is hereby incorporated by reference as if fully set forth herein. MSC 634 shall be the sole source of the terms and conditions of the agreement between these parties and shall supersede and replace any other terms that [Greg's Marine Construction] may submit as part of their proposal unless Dominion provides specific written acceptance of any such terms." (ECF No. 11-5, at 1-2). The proposal, which was executed by Dominion LP and Greg Burkhardt of Greg's Marine Construction, further provided that "Contractors are expected to comply with OSHA regulations. Contractors are responsible for the safety of their employees and associated OSHA compliance." ( Id. at 2). It further stated that "Contractors are required to comply with all applicable Dominion Transmission safety rules and procedures when performing work on the location." ( Id.
On October 23, 2010, Mark Copeland was performing repair work in the navigable waters approximately one mile off-shore from the Dominion LNG Plant located at Cove Point Road in Maryland. ( Id. ¶ 15). The complaint refers to both Greg's Marine Construction and Greg's Marine Excavation collectively as "Greg's Marine." The complaint alleges that "Mr. Copeland was working in the course and scope of his employment with defendants, Greg's Marine, pursuant to the contracts and subcontracts between defendants, Dominion, Weeks, and Greg's Marine." ( Id. ¶ 16). Specifically, Mr. Copeland "was utilizing an air hammer to chip concrete from the pilings in order to remove the deteriorated jackets." ( Id. ¶ 19). He was "seated on the edge of a small seafaring vessel, temporary floating platform and/or dock with a portion of his body in navigable waters of the United States." ( Id. ¶ 20). At the time of the incident at issue, Plaintiffs allege that "Greg's Marine" furnished Mr. Copeland with "a fiberglass hard hat and brass commercial diver's helmet, a neoprene wet suit, a safety harness, swimmer's and/or diver's fins and/or boots, a neck dam and collar, an umbilical and/or air hose, a weight belt, a thermal tube, a safety line and/or a communication line." ( Id. ¶ 22). Mr. Copeland was not a certified commercial diver, but was "performing the tasks and duties that he was instructed to perform by his employer [Greg's Marine Construction]." ( Id. ¶¶ 17, 25). "Gregory Burkhardt, owner, shareholder, principal, officer and/or agent of defendants, [Greg's Marine Construction and Greg's Marine Excavation], was a certified commercial diver and, at all times relevant hereto, had actual knowledge of the training necessary to perform work as a commercial diver." ( Id. ¶ 24). "[T]he concrete piling jacket on which Mark Copeland was performing repair work became detached from the piling and pulled Mr. Copeland to the bottom of the Chesapeake Bay, approximately fifty (50) feet below the surface." ( Id. ¶ 26). Mr. Copeland's coworkers then attempted to rescue him, but "in their attempt to do so, they dislodged Mr. Copeland's air hose and/or safety line." ( Id. ¶ 27). Mr. Copeland was pronounced dead at approximately 12:57 p.m. on October 23, 2010.
B. Procedural Background
Plaintiffs filed a six count complaint on June 18, 2013. Dominion LP moved to dismiss Counts IV, V, and VI, or in the alternative, for summary judgment on July 29, 2013 (ECF No. 11). Plaintiffs opposed the motion on August 15, 2013 (ECF No. 19), and Dominion LP replied on September 3, 2013 (ECF No. 23). Defendants Dominion Inc. and Dominion LLC filed a separate motion to dismiss the same counts, or in the alternative, for summary judgment on July 29, 2013 (ECF No. 12), Plaintiffs opposed on August 15, 2013 (ECF No. 19), and Defendants replied on September 3, 2013 (ECF No. 22). Weeks Marine moved to dismiss counts III, V, and VI, or in the alternative, for summary judgment on July 30, 2013 (ECF No. 13), Plaintiffs opposed on August 15, 2013 (ECF No. 20), and Defendant replied on September 10, 2013 (ECF No. 27-1). Greg's Marine Construction answered the complaint on September 10, 2013. (ECF No. 25). Greg's Marine Excavation moved to dismiss Counts I, II, V, and VI, or in the alternative, for summary judgment on September 10, 2013 (ECF No. 27), and Plaintiffs opposed the motion on September 13, 2013 (ECF No. 28).
II. Standard of Review
Matters outside the pleadings will be considered and Defendants' motions shall be treated as ones for summary judgment. Summary judgment is governed by Fed.R.Civ.P. 56(a) which provides that: "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." The United States Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion: "[b]y its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). "The party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of [his] pleadings, ' but rather must set forth specific facts showing that there is a genuine issue for trial." See Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) ( quoting former Fed.R.Civ.P. 56(e)). The court should "view the evidence in the light most favorable to... the nonmovant, and draw all inferences in [his] favor without weighing the evidence or assessing the witness' credibility." See Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). The court must, however, also abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." See Bouchat, 346 F.3d at 526 (internal quotation marks omitted) ( quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).
A. Dominion LP's Motion
1. Negligence (Count IV)
Personal representative Gardner asserts a negligence claim against Dominion LP. To prevail on a claim of negligence, a plaintiff must prove: "(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty." Muthukumarana v. Montgomery Cnty., 370 Md. 447, 486 (2002) ( quoting BG & E v. Lane, 338 Md. 34 (1995)). If no duty is owed another, then no action can be sustained even though injury has occurred. Bauman v. Woodfield, 244 Md. 207, 216 (1966).
Here, Dominion LP employed Greg's Marine Construction as an independent contractor to perform work on defective concrete pilings of jackets, including Piling No. 140, on which Mark Copeland - a Greg's Marine Construction employee - performed repair work at the time of his death. It is a well-established principle that under Maryland law, "the employer of an independent contractor is not liable for the negligence of the contractor or his employees, " subject to multiple exceptions contained in the Restatement (Second) of Torts. Rowley v. Mayor and City Council of Balt., 305 Md. 456, 461 (1986) ( citing Restatement § 409); Meltech Corp. v. Austin Mohawk & Co., Inc., Civil Action No. 11-cv-160-AW, 2013 WL 3353744, at *7 (D.Md. July 1, 2013). The complaint (and Plaintiffs' opposition) suggests liability predicated upon Dominion LP's own negligence pursuant to Restatement (Second) of Torts § 414. Thus, the threshold question is whether Dominion LP owed a duty to Mark Copeland through the operation of Section 414 of the Restatement (Second) of Torts. See Brady v. Ralph M. Parsons Co., 327 Md. 275, 283-84 (1992) (discussing Section 414 in analyzing duty owed to employees of subcontractors); Wells v. Gen. Elec. Co., 807 F.Supp. 1202, 1206 (D.Md. 1992) (citing Maryland case-law adopting Restatement (Second) of Torts § 414).
a. Retention of Control - Restatement (Second) of Torts Section 414
Dominion LP argues that Gardner's negligence claim fails insofar as Gardner attempts to hold Dominion LP personally liable because Dominion LP did not retain and exercise control over the manner, method, and operative details of Greg's Marine Construction's work and thus it did not owe a duty of care to Mark Copeland, an employee of Greg's Marine Construction. (ECF No. 11-1, at 14). The complaint alleges that Dominion LP had a duty to warn of unsafe conditions at Dominion Cove Point LNG Terminal and that it failed to supervise the construction work and implement an adequate safety plan for the work being ...