United States District Court, D. Maryland
TROY D. PRICE, JR.
ATLANTIC RO-RO CARRIERS, INC., et al.
CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE.
defendant The Rukert Terminals Corporation
("Rukert") has filed a motion for summary judgment
in this long-running litigation, alleging that Mos Shipping
Co., Ltd., ("Mos") is barred by the Longshore and
Harbor Workers' Compensation Act ("LHWCA"), 33
U.S.C. §§ 901 et seq., from pursuing a
claim for indemnity or contribution against Rukert. No oral
argument is necessary. See Local Rule 105.6 (D. Md.
2016). For the reasons stated below, the motion for summary
judgment will be granted.
action arises out of an injury suffered by plaintiff Troy D.
Price, Jr. ("Price) while helping to unload freight
aboard a cargo vessel owned and/or operated by Mos. At the
time of his injury, Price was employed as a longshoreman by
Beacon Stevedoring Corporation ("Beacon") and
worked on a vessel moored at a pier in one of Rukert's
is a privately owned Maryland corporation that operated a
marine terminal on South Clinton Street in Canton, Maryland.
(John L. Coulter Affi ¶ 2, ECF No. 140-2.) Beacon is a
privately owned Maryland corporation that provides
stevedoring services exclusively for ships loading and
unloading at Rukert's South Clinton Street Terminal.
(Id. at ¶ 2.) Rukert and Beacon are owned by
the same two families and share a Board of Directors.
(Id. at ¶¶ 9-10.) The CEO and President of
Rukert are the President and Executive Vice President,
respectively, of Beacon. (Id. at ¶¶ 7-8.)
The Boards of Directors for the two companies meet on the
same day in immediate succession, (id. at ¶
11), although there is a separate agenda for each
company's business, (John L. Coulter Dep., pp. 54:13-20,
ECF No. 173-1).
companies operate out of the same offices in Baltimore,
Maryland, and share the same post office box and fax number.
(John L. Coulter Affi at ¶¶ 4-6.) All management
positions at Beacon are on the payroll at Rukert. (John L.
Coulter Dep., pp. 34.) Beacon pays Rukert a monthly fee of
$13, 900 for administrative and management services it
receives from Rukert. (Id. at 35:9-19.) Rukert and
Beacon are both insured for LHWCA and Maryland Workers'
Compensation Act claims under the same policy, written in
Rukert's name, which is currently making payments to
Price for compensation and medical expenses. (John L. Coulter
Affi at ¶ 13; Reply in Supp. of Mot. Summ. J. 5, ECF No.
182.) Beacon's employees pay into Rukert's retirement
plan and are covered under Rukert's healthcare plan,
although Beacon pays for its employees' shares in those
plans. (John L. Coulter Dep., pp.8:13-9:2, pp. 50.)
companies maintain separate bank accounts and separate
financial statements. (Mem. in Opp'nto Summ. J. Mot. 12,
ECF No. 173; Beacon Bank Statement, ECF No. 173-5; Rukert
Bank Statement, ECF No. 173-6.) At various times, Rukert will
loan money to Beacon and Beacon will loan money to Rukert.
(John L. Coulter Dep., pp. 20-25.) The loans carry interest
and are paid off "usually pretty quickly."
(Id. at pp. 20.) While paid on a separate payroll,
Beacon's employees work exclusively at Rukert's
terminal and work within the terminal for Rukert when there
are no loading or unloading tasks to complete. (John L.
Coulter Affi at ¶ 5, ECF No. 182-1.)
seeks compensation under the LHWCA, which "establishes a
comprehensive federal workers' compensation program"
that provides longshoremen with medical benefits for
work-related injuries. Howlett v. Birkdale Shipping Co.,
S.A., 512 U.S. 92, 96 (1994). An injured
longshoreman's employer must pay the statutory benefits
regardless of fault, but the employer is shielded from
further liability. Id. Price filed a complaint
against Mos under Section 905(b) of the LHWCA, which permits
a longshoreman to "seek damages in a third-party
negligence action against the owner of the vessel on which he
was injured" even though he has received benefits from
his employer as mandated by the LHWCA. Id.
October 2011, Mos filed a third-party complaint against
Rukert, alleging negligence in maintaining forklifts operated
by Beacon employees and failure in properly training and
certifying Beacon employees in the operation of forklifts.
(Third Party Compl. ¶¶ 13-16, ECF No. 16.) In
February 2017, Rukert filed a motion for summary judgment,
claiming to operate as a single enterprise with Beacon and
therefore denying further liability under the LHWCA. (Mot.
for Summ. J., ECF No. 140). Mos responded, arguing Rukert was
precluded from raising the affirmative defense due to waiver
or collateral estoppel, and that further discovery was
necessary to determine the level of integration between
Rukert and Beacon. (Opp'n to Mot. for Summ. J., ECF No.
144). After limited additional discovery relating to the
corporate and financial structure of Rukert and Beacon, the
parties submitted supplemental briefings. (See ECF
Nos. 155, 173, 182).
argues that Rukert waived its statutory immunity defense by
failing to raise it as an affirmative defense in its answer
to the complaint. As "it is well established that an
affirmative defense is not waived absent unfair surprise or
prejudice, " Mos asserts that its inability to conduct
discovery into the financial relationship between Rukert and
Beacon resulted in unfair surprise and prejudice. Patten
Grading & Paving, Inc. v. Skanska USA Bldg., Inc.,
380 F.3d 200, 205 n. 3 (4th Cir. 2004). Courts have found,
however, that "affirmative defenses raised for the first
time in summary judgment motions may provide the required
notice." Grunley Walsh U.S., LLC v. Raap, 386
F.App'x 455, 459 (4th Cir. 2010); see, e.g., Brinkley v.
Harbour Recreation Club, 180 F.3d 598, 612-13 (4th Cir.
1999) (noting that plaintiff had "ample opportunity to
respond" to affirmative defense first raised in
defendant's summary judgment motion).
sure, Rukert allowed more than five years to lapse before
raising the statutory immunity issue in its motion for
summary judgment. Mos, however, had ample opportunity to
respond to Rukert's arguments. The parties were allowed
to conduct additional limited discovery related to the
financial relationship between Rukert and Beacon and fully
briefed the motion. (See April 2017 Scheduling Ltr,