Joshuah Selby et al. v. Michael Baird et al.
No. 2017-421-Appeal.
Supreme Court of Rhode Island
November 5, 2020
(PC 13-5839)
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email: opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published.
O P I N I O N
Justice Flaherty, for the Court. The plaintiffs, Joshuah Selby and his wife, Jessica Selby, appeal from a Superior Court entry of summary judgment against them and in favor of the defendants, Michael P. Baird, Mike‘s Professional Tree Services, Inc. (MPTS), and John Rossi, with respect to Mr. Selby‘s personal injury claims.1 Those claims arise from a serious injury that plaintiff suffered while he was engaged as a foreman for a tree removal crew. This appeal came before the Court for oral argument pursuant to an order directing the parties to show cause why the issues raised in this appeal should not summarily be decided. After hearing the
arguments of counsel, and after thoroughly examining the record, we conclude that cause has not been shown and that this case may be decided without further briefing or argument. For the reasons set forth in this opinion, we affirm the judgment of the Superior Court.
I
Facts and Travel
On the morning of Friday, November 19, 2010, plaintiff arrived at 123 Priscilla Drive, Cranston, to begin his job as a foreman for a tree removal crew.2 With him were five other employees, all of whom he directed. The plaintiff and the rest of the crew were at that location because the owner of the residence, Eugene Mollicone,3 had contracted with MPTS, which is owned by Mr. Baird, for tree removal and trimming services.
Upon arrival, plaintiff spoke with Mr. Mollicone about the work that was to be done that day. The plaintiff informed Mr. Mollicone where plaintiff would position the trucks to complete the job and how long the job would take. Following this interaction, plaintiff set up the job site and was about to begin the day‘s work when one of his workers informed him that Mr. Mollicone‘s wife needed to get to
her car, which was in the garage and was blocked by the equipment that had just been set up in the driveway. The plaintiff and the rest of the crew then broke down the equipment, waited for Mrs. Mollicone to remove her car from the garage, and then proceeded to put the equipment back in place.
As the crew was setting up the equipment for the second time, plaintiff was positioned behind one truck, called a “bucket truck.” Unbeknownst to plaintiff, the vehicle began to roll backward, and it pinned plaintiff between it and a dump truck. Then, in an apparent attempt to remove the truck from atop plaintiff, the crew set the truck in motion, causing plaintiff further injury. As a result of the undeniably serious injuries he suffered in the accident, plaintiff has undergone multiple surgeries, skin grafts, and other procedures, and he has sustained a permanent disability.
day of the accident, had been negligent. In September 2015, defendants collectively filed a motion for summary judgment.
However, the motion was not heard until August 2016, almost a year after it was filed, as a result of several continuances granted to plaintiff. Indeed, on the day that the motion for summary judgment was at last scheduled to be heard, plaintiff had yet to file an objection to the motion, provide a memorandum of law, or submit any affidavits or exhibits that would contest the facts brought forth by defendants.5
The central dispute between plaintiff and defendants on summary judgment was whether plaintiff was employed by MPTS, as defendants asserted, or whether plaintiff was, in fact, an employee of Mulch-N-More, a related but nevertheless distinct entity, as plaintiff insisted. The identity of plaintiff‘s employer was critical because, as both parties seemed to agree, if plaintiff was an employee of MPTS while he was working at the Cranston residence performing tree removal services, his tort claims against defendants would be barred by the exclusivity provision of the
To support the contention that plaintiff was an employee of MPTS, defendants submitted a considerable amount of evidence. That evidence included deposition testimony in which plaintiff admitted (1) to being employed by MPTS; (2) that his
job with MPTS involved cutting, trimming, and removing trees; (3) that the machinery that injured him was owned by MPTS on the day of the accident; and (4) that he wore an MPTS T-shirt and, over that, an MPTS sweatshirt. Aside from that deposition testimony, defendants submitted an MPTS safety form and a training acknowledgment form, both on MPTS letterhead, that detailed the company‘s safety discipline policy. The plaintiff acknowledged that he had signed those documents. The defendants further submitted a statement taken by the Cranston police in which Mr. Mollicone, the property owner, acknowledged that he hired MPTS to accomplish the work that was to take place that day. The defendants also submitted photographs of a crane that had been on the scene, on which “Mike‘s Professional Tree Service” was clearly written. Further, defendants submitted two affidavits. The first was an affidavit of Mr. Rossi, whom plaintiff referred to as a “co-worker,” in which Mr. Rossi swore that plaintiff was an employee of MPTS. The second was an affidavit submitted by Mr. Baird, who averred that MPTS is incorporated “to engage in the general tree servicing, trimming and removal business“; that he hired plaintiff in 1997 to work for MPTS; that on the day of the accident plaintiff was a foreman working for MPTS; and that “Joshuah Selby was an employee of Mike‘s Professional Tree Services.”
Mulch-N-More. Second, he argued that the deposition of Mr. Baird, which never became part of the record, but which the hearing justice agreed to read before making her decision, indicated that plaintiff was employed by Mulch-N-More, which is also a company owned by Mr. Baird.6 Finally, he argued that the hearing justice should take judicial notice of the Workers’ Compensation Court‘s alleged determination that plaintiff was employed by Mulch-N-More.7 The thrust of plaintiff‘s argument was that Mr. Baird controlled both MPTS and Mulch-N-More; that Mulch-N-More was the entity by which plaintiff was paid and the entity that processed his workers’ compensation claim; and that those facts in and of themselves created an ambiguity as to what entity was plaintiff‘s employer, thereby making the case inappropriate for resolution by summary judgment.
In a bench decision, the hearing justice determined that there was no genuine issue of material fact as to the identity of plaintiff‘s employer, which she found to
be MPTS. Therefore, she granted summary judgment in favor of defendants. The plaintiff filed a timely appeal.8
On appeal, plaintiff maintains that, because he was paid by Mulch-N-More and it was that entity which processed his workers’ compensation claim, there exists a genuine issue of material fact as to the identity of plaintiff‘s employer. Therefore, he argues, summary judgment was granted in error. The plaintiff also contends that Mr. Baird committed fraud by allowing plaintiff to be insured under the workers’ compensation policy of Mulch-N-More while he was in reality an employee of MPTS.9
II
Standard of Review
“This Court reviews a decision granting a party‘s motion for summary judgment de novo.” Boudreau v. Automatic Temperature Controls, Inc., 212 A.3d 594, 598 (R.I. 2019). “Examining the case
III
Discussion
seeks recovery for the same injuries on which his or her workers’ compensation claim was based.” LaFreniere v. Dutton, 44 A.3d 1241, 1244 (R.I. 2012) (quoting Manzi v. State, 687 A.2d 461, 462 (R.I. 1997) (mem.)). “[A]n ‘important objective of the [Workers’ Compensation] [A]ct was to curtail litigation by injured employees who elected to take advantage of its expedited procedure for obtaining compensation for work-related injuries.” Id. at 1244-45 (quoting Sorenson v. Colibri Corp., 650 A.2d 125, 129 (R.I. 1994)).
The defendants argue that they are immune from suit under
In Deus, the plaintiff‘s mother was severely injured when she fell down a flight of stairs while she was performing cleaning duties for defendant church. Deus, 820 A.2d at 975. The plaintiff received workers’ compensation benefits on his mother‘s behalf from the Diocesan Service Corporation (DSC), an entity that had been formed to provide administrative and accounting services, including workers’ compensation insurance, to employees such as the defendant. Id. After his mother received workers’ compensation benefits, the plaintiff filed a negligence action against the church for failing to properly maintain the stairway. Id. The plaintiff
argued that his mother was not an employee of the defendant church but was instead employed by DSC, even though the defendant was listed as Mrs. Deus‘s employer on her W-2 forms. Id.
This Court affirmed summary judgment in favor of the defendant based on the exclusivity provision in the workers’ compensation statute. Deus, 820 A.2d at 976. We explained that “[t]he determinative factor in the existence of an employer-employee relationship is the employer‘s right to exercise control and superintendence over his employees.” Id. (quoting Sorenson, 650 A.2d at 129). The Court noted that it was the church that determined the plaintiff‘s mother‘s hours, supervised her work activities, paid her wages, and had the authority to terminate her employment. Id. The Court held that the mere fact that DSC provided certain employee benefits to her, such as workers’ compensation benefits, did not negate the church‘s status as her employer. Id.
provision of the
It is our opinion that the case before us intersects with our holdings in Sorenson and Deus. In Sorenson, the Court determined that, while the employment agency paid the plaintiff‘s salary and employment benefits, it was the defendant that exercised dominion and control over the plaintiff because it supervised him, was solely responsible for instructing him on how and where work was to be performed, supplied necessary tools and equipment, determined the amount of time that the plaintiff would be required to work, and had the right to refuse the plaintiff as an employee. Sorenson, 650 A.2d at 127. In Deus, the Court brought the standard into
even sharper focus when it determined that the church had control and superintendence over the plaintiff because it controlled her hours, had hiring and firing authority over her, and supervised her. Deus, 820 A.2d at 976. In Deus, the DSC‘s only role was to administer employee benefits on behalf of plaintiff. Id.
Here, as in Sorenson and Deus, it is uncontroverted that Mulch-N-More‘s sole role with respect to the plaintiff‘s employment was an administrative function of providing paychecks and benefits such as workers’ compensation benefits. MPTS alone had dominion and control over the plaintiff. Thus, we conclude that the hearing justice properly determined that the plaintiff was employed by MPTS. We therefore hold that the hearing justice correctly granted the defendants’ motion for summary judgment.
IV
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the Superior Court and remand the papers in this case to the Superior Court.
STATE OF RHODE ISLAND
SUPREME COURT – CLERK‘S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
| Title of Case | Joshuah Selby et al. v. Michael Baird et al. |
| Case Number | No. 2017-0421-Appeal. (PC 13-5839) |
| Date Opinion Filed | November 5, 2020 |
| Justices | Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ. |
| Written By | Associate Justice Francis X. Flaherty |
| Source of Appeal | Providence County Superior Court |
| Judicial Officer from Lower Court | Associate Justice Maureen B. Keough |
| Attorney(s) on Appeal |
For Plaintiffs: Timothy A Williamson, Esq. Tara L. Fontaine, Esq. For Defendants: Scott M. Carroll, Esq. |
SU-CMS-02A (revised June 2020)
Notes
“[I]n Mr. Baird‘s deposition, there were all questions where he indicated that Mr. Selby, through paycheck, payroll company, insurance documents, OSHA, W-2 and W-4 forms, and Workers’ Compensation, he had indicated to third parties that Mr. Selby was, indeed, in fact an employee of Mulch-N-More and not Mike‘s Professional Tree.”