The opinion of the court was delivered by: William H. Walls, U.S.D.J.
This matter comes before the Court on the motion of plaintiff Pederson for an interim order to compel PCA Engineering Inc. ("PCA") to pay his maintenance and cure, the motion of defendant PCA for summary judgment to dismiss the complaint and Powell-Duffryn Terminals, Inc.'s ("Powell-Duffryn") cross-claims against it, and the motion of defendant Powell-Duffryn for summary judgment on its cross-claims against PCA. The motion of plaintiff Pederson for an interim order is denied; defendant PCA's motion for summary judgment to dismiss the complaint and cross-claims is denied; defendant Powell-Duffryn's motion for summary judgment on its cross-claims against defendant PCA is denied.
I. Background and Procedural History
Plaintiff filed a complaint in this action on July 14, 1997. In his complaint, plaintiff alleges that he sustained serious personal injuries in the course of his duties as a harbor worker and diver employed by PCA at the Powell-Duffryn waterfront facilities on or about July 14, 1995. (Compl. ¶¶ 10, 21, 27.) According to plaintiff, on that date, as an employee of PCA, he performed services for Powell-Duffryn in the navigable waters of the United States abutting the waterfront facility near East 30th Street, Bayonne, New Jersey. (Id. ¶ 16.) Powell-Duffryn had hired PCA to perform corrosion control and replace anodes (large pieces of metal which protect the piles of a pier) on its facilities from July 10 to July 18, 1995. (Lombardi Certification ¶ 7.) Plaintiff asserts that when he was on a vessel owned and constructed by PCA specifically for this task, he loaded and moved materials including anodes for installation at the Powell-Duffryn pier. (Id. ¶¶ 25-26; Mem. of Law in Supp. of Pl.'s Mot. at 1.) According to plaintiff, in the course of this work, while underwater, he was struck by an anode and trapped between it and a pier pile and suffered severe and disabling injuries as a result. (Compl. ¶ 26; Mem. of Law in Supp. of Pl.'s Mot. at 1.)
After the accident, plaintiff did not see a doctor, and despite the injury to his back, continued working until March, 1996. (Young Declaration ¶ 5; Lombardi Declaration Ex. C.) Between July, 1995 and March, 1996, plaintiff hurt his back on the job another time, and on March 8, 1996 he strained it again. (Lombardi Declaration Ex. C.) Plaintiff asserts that he has been unable to work since March, 1996 due to the condition of his back. (Young Declaration ¶ 5.) At that time, he wrote a letter to PCA recounting his injuries, and PCA filed a report with the New Jersey Division of Workers' Compensation. (Lombardi Certification, Ex. C, D.) Sometime after that, plaintiff underwent back surgery. (Mem. of Law in Supp. of Pl.'s Mot. at 1-2.) Plaintiff received workers' compensation benefits for his medical expenses and $453.09 per week for lost wages from approximately March, 1996 to November, 1997. (Young Declaration ¶¶ 7-8.) In November, 1997, Liberty Mutual Insurance Co., the insurance carrier for defendant PCA, informed plaintiff that PCA had transferred him from its New Jersey workers' compensation policy to its Jones Act policy. (Id. ¶ 8.) Their reason for doing so was that the complaint plaintiff filed in this action asserted claims under the Jones Act, 46 App.U.S.C. § 688, and the Longshore and Harbor Workers' Compensation Act ("LHWCA"), 33 U.S.C. § 902(3)(G); therefore the state workers' compensation benefits were statutorily terminated on November 24, 1997. (Br. in Supp. of Def.'s PCA Mot. at 3.) Because PCA's Jones Act policy had a $25,000 limit and the amount paid to plaintiff in the form of wages and medical expenses had exceeded that, plaintiff's benefits were terminated. (Young Declaration ¶ 8.) Since November 22, 1997, plaintiff has not been paid for his lost wages or medical expenses. (Id. ¶ 9.) On August 21, 1998, plaintiff filed a petition for workers' compensation benefits for an August 8, 1995 injury with the New Jersey Division of Workers' Compensation. (Def. PCA's Reply Letter at 6.)
In his complaint, plaintiff asserts that Powell-Duffryn owned, leased, operated, managed, and controlled the pier and adjoining land in that waterfront facility. (Id. ¶¶ 11-15.) He claims that Powell-Duffryn failed to provide him with a safe workplace, with reasonable and adequate equipment to perform his duties in a safe manner, failed to supervise the work performed on its facility on July 14, 1995, and failed to comply with applicable laws, rules, and regulations. (Id. ¶¶17-20.) Plaintiff also contends that the carelessness and negligence of defendant PCA in the operation of its vessel proximately caused his injuries. (Id. ¶ 27.)
It is plaintiff's contention that he is a seaman within the meaning of the Jones Act, 46 App. U.S.C. § 688, and is entitled to all the protections of that Act. That he was on a vessel in the navigable waters of the United States transporting materials to other positions in and about those navigable waters renders him a seaman, according to plaintiff. (Id. ¶ 29-31.) Plaintiff claims that he is entitled to maintenance and cure under the Act, and defendants have failed to pay him without just cause. (Id. ¶ 37.) Plaintiff's doctors have recommended that he have further back surgery, and he asserts that he will not be able to have this surgery unless defendant PCA pays for his medical bills and expenses. (Young Declaration ¶ 6.) In addition to the maintenance and cure, plaintiff asks for $5,000,000 in damages for his injuries.
Plaintiff requests that this Court enter an interim order requiring defendant PCA to pay him maintenance and cure, loss of wages and medical expenses, under the Jones Act, 46 App. U.S.C. § 688 or the New Jersey workers' compensation statute, N.J.S.A. 34:15-1, et seq. Defendant PCA argues that plaintiff is not a seaman under the Jones Act, 46 App. U.S.C. § 688, and not entitled to a maintenance and cure remedy. It moves for summary judgment to dismiss the complaint on the grounds that this Court has no jurisdiction to consider plaintiff's administrative claims.
Defendant Powell-Duffryn has filed cross-claims against defendant PCA for contribution, common law indemnification, contractual indemnification, and breach of contract. PCA moves to dismiss them; Powell-Duffryn contends that they should not be dismissed because PCA did not assert any arguments to support its motion. Powell-Duffryn moves for summary judgment on its cross-claims against PCA.
A. Summary Judgment Standard
Summary judgment is appropriate where the moving party establishes that "there is no genuine issue of fact and that [it] is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). A factual dispute between the parties will not defeat a motion for summary judgment unless it is both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant and it is material if, under the substantive law, it would affect the outcome of the suit. See Anderson, 477 U.S. at 248. The moving party must show that if the evidentiary material of record were reduced to admissible evidence in court, it would be insufficient to permit the non-moving party to carry its burden of proof. See Celotex v. Catrett, 477 U.S. 317, 318, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
Once the moving party has carried its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts in question." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). The opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. See Sound Phillip Ship Building Co. v. Bethlehem Steel Co., 533 F.2d 96, 99 (3d Cir. 1976), cert. denied, 429 U.S. 860 (1976). At the summary judgment stage the court's function is not to weigh the evidence and determine the truth of the matter, but rather to determine whether there is a genuine issue for trial. See Anderson, ...