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Klinker v. Furdiga

United States District Court, D. Vermont

May 27, 2014


For Zachary Klinker, Plaintiff: Michael F. Walsh, Esq., PRO HAC VICE, Law Offices of Michael F. Walsh, P.C., Westwood, MA; Stephen L. Fine, Esq., Athens, VT.

For Leon Furdiga, Katherine Scanlan, Defendants: Andrew C. Boxer, Esq., Joseph J. Sluka, Esq., Ellis Boxer & Blake, Springfield, VT.

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Christitina Reiss, Chief United States District Judge.

Pending before the court is a motion for summary judgment filed by Defendants Leon Furdiga and Katherine Scanlan. (Doc. 73.) Defendants contend they were acting as general contractors when Plaintiff Zachary Klinker, a roofer, was injured while working on the construction of Defendants' principal residence. Because the Vermont Supreme Court has held that general contractors fall within the definition of a statutory employer and are thus immune from suit pursuant to Vermont Workers' Compensation Act, 21 V.S.A. § § 601-711, Defendants argue that they are entitled to judgment as a matter of law in their favor.[1] Plaintiff opposes the motion

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and contends that Defendants acted as homeowners, not general contractors, and are therefore liable for their independent acts of negligence.

The court heard oral argument on the pending motion on April 7, 2014, at which time the court took the matter under advisement.

Plaintiff is represented by Michael F. Walsh, Esq. and Stephen L. Fine, Esq. Defendants are represented by Andrew C. Boxer, Esq. and Joseph J. Sluka, Esq.

I. Factual Background.

A. Undisputed Facts.

Plaintiff was injured on January 13, 2009 on Defendants' property located at 105 Prospect Street, in Brattleboro, Vermont. At the time of his injury, Plaintiff was employed by the Eric Slade Roofing Company (" Slade Roofing Company" ). Defendants hired Slade Roofing Company to install a roof on their principal residence which they were in the process of constructing. After Plaintiff fell from Defendants' roof, Slade Roofing Company paid workers' compensation benefits to Plaintiff related to his injuries. In this lawsuit, Plaintiff seeks further compensation from Defendants for his injuries, alleging Defendants negligently failed to provide " adequate safety precautions, including safety harnesses, which would have prevented [him] from falling." (Doc. 1 at 1.)

In support of their contention that they were acting as general contractors at the time of the incident, Defendants point to Defendant Furdiga's experience as a carpenter and electrician which began when he was twelve years old and which included residential, commercial, light commercial, and industrial construction projects, including work on one roof.[2] Although he previously owned an electrical and remodeling company that employed four employees, in approximately 1989, Defendant Furdiga " laid [his] tools down and went into supervision" (Doc. 73-2 at 4; 12/19/13 Furdiga Dep. at 11:22- 12:2). Thereafter, for approximately fifteen years, he was employed as a superintendent who " ran the field" and " laid the work out" for between twelve to three hundred employees. In this role, Defendant Furdiga worked on a wide variety of projects, including " residential; hospitals; clinics; warm-storage buildings; sewage disposal buildings; water treatment plants; power plants." (Doc. 73-2 at 4-5; 12/19/13 Furdiga Dep. at 12:6-13:19.) Defendant Furdiga was never a licensed building contractor. He retired in 2005.

In approximately 2006, Defendants commenced construction on their principal residence, which they were building " from the ground up." (Doc. 73-2 at 3; 12/19/13 Furdiga Dep. at 8:1-2.) Defendant Furdiga performed the building design and architectural work himself, and secured a permit from the town of Brattleboro for the construction. In approximately 2007, after construction began, Defendant Furdiga secured a general liability insurance

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policy for the premises and rented and installed a fence to secure the construction site.

Defendant Furdiga was " in charge of building" the residence and was " overseeing everything that was done." (Doc. 73-2 at 3; 12/19/13 Furdiga Dep. at 8:12-15.) With assistance, he performed certain tasks including " all of the framework" and installing the windows. (Doc. 73-2 at 5-6; 12/19/13 Furdiga Dep. at 15:19-17:5.) He hired contractors to perform other tasks, including laying the foundation, erecting the timber frame, constructing and installing the metal work for the heating system, and installing the plumbing. Defendant Furdiga purchased the roofing panels himself, although he hired two other contractors to install the panels, which required the use of a crane. To finish the roof, Defendant Furdiga solicited bids from four different contractors, and he ultimately hired the Slade Roofing Company to install a standing seam roof.

In approximately January 2009, the Slade Roofing Company began its work on the roof at Defendants' residence. The company's foreman, Plaintiff, and another employee arrived in the late afternoon of January 13, 2009 to clean the snow off the roof in preparation for their work. They determined that ...

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