Ceco Corp. v. Maloney

404 A.2d 935, 1979 D.C. App. LEXIS 432

• Court: District of Columbia Court of Appeals
• Decided: July 24, 1979
• Docket: 13575
• Status: Published

Opinions

KERN, Associate Judge:

The Statement of the Case in appellant’s brief describes accurately the background of this appeal.

This case involves alleged injury and damage sustained by the male plaintiff, Nathaniel Maloney, on August 7, 1973, when as an employee of a general contractor, Hyman Construction Company, and engaged in construction of the Library of Congress Annex in the District of Columbia, he sustained a twisting injury to his knee while allegedly walking on concrete formwork/decking erected by the defendant here, Ceco Corporation, a subcontractor engaged in the construction of decking or formwork for cement flooring. The intervenor-plaintiff, Maryland Casualty Company, was the Workmen’s Compensation carrier for the Hy-man Construction Company and paid plaintiff Maloney benefits in the total amount of $34,808.43. Plaintiffs’ case alleged that Ceco Corporation had not secured a plywood board on the decking. (Maryland Casualty Company did not participate in the trial.)

The case was tried before a jury and Judgment entered in favor of the male plaintiff against Ceco Corporation upon the jury’s verdict in the amount of $136,-000.00. Thereafter, the defendant Ceco filed a Motion for Judgment Notwithstanding the Verdict and/or New Trial, which Motion was denied by the court. [Appellant’s brief at 3.]

Appellant challenges the propriety of certain rulings by the trial court made before and during the trial which, it asserts, were erroneous and therefore require reversal of the judgment.

First, the claim is made that it was error for the court to refuse to continue the trial in order to enable counsel to take the depositions of appellees’ two expert witnesses. The record reflects that at the pretrial conference the court “granted leave to [appellant] to take the deposition of plaintiff’s so-called experts,” but the court also directed that discovery should not affect the trial date. (Record at 34.) It is conceded that a date for taking the depositions of appellees’ two experts had been set prior to trial and that appellant’s counsel cancelled this date. Only four days then remained before trial was to begin and efforts to reschedule the depositions were unsuccessful since the witnesses were unavailable on these particular days. Appellant requested that the trial'be postponed but both the calendar control judge and the trial judge denied its motion for continuance.

We are unable to say that the trial court clearly abused its discretion in refusing to postpone the trial, Harris v. Akindulureni, D.C.App., 342 A.2d 684, 685 (1975), given the facts that (1) it was appellant’s counsel who cancelled the deposition of the witnesses on the date scheduled; (2) the scheduling of the depositions was so close to the date of the trial as to put the parties on notice that effecting a rescheduling of the depositions before trial would be extremely difficult; and (3) the relative lack of complexity of their testimony, thereby enabling counsel to subject them to adequate cross-examination during trial without the need to have had pretrial discovery.¹

Next, appellant contends that the court erred in ruling that the jury might consider as evidence relevant to the standard of care to be met by appellant Occupational Safety and Health Administration (OSHA) Regulation, 1926.701,² District of Columbia Safety Regulation 11-21011 and American Concrete Industry (ACI) Recommended Practices-Provisions 1.1.2,1.2.1.³ It argues that they were inapplicable, by their express terms, to the factual situation in the instant case. Specifically, appellant argues that the OSHA Regulation and the ACI Recommendations requiring that form-work erected must support the concrete and persons engaged in pouring it were not applicable to the injury of appellee Maloney because he fell “prior to the concrete being poured.” (Brief at 26.) However, the record contains testimony from which the jury might have concluded that concrete was in fact being poured at the time of the accident in the immediate area of appellee’s fall. [Supp. Record II at 10, 13, 15, 30-31, 38, 45, 50; Supp. Record at 44, 46-47, 82, 90, 102.]

Appellant contends it was error for the court to admit the D.C. Safety Regulation which requires “[a]ny material serving as a workplace . . . be . secured . . . [so] that it cannot . slide, [or] otherwise move about . in any manner to endanger employees” as evidence relevant to the standard of care to be met by appellant. It argues that the large plywood board upon which appellee Mahoney stepped and which was not secured, thereby causing him to fall, was not “serving as a workplace” within the meaning of the Regulation. This was contradicted, though, by evidence credited by the jury that this board was a part of the decking erected for the purpose of pouring concrete by appellee and his crew. (Supp. Record at 39, 44, 82, 85, 94, 106-07; Supp. Record II at 11, 13, 15, 40, 45, 50, 53.) Accordingly, the Regulation was relevant to the instant case and properly admitted into evidence.⁴

Finally, appellant complains that the trial court, by allowing Maryland Casualty not to participate at trial and by precluding reference to its presence as a party in the case, violated Super.Ct.Civ.R. 17(a). This Rule requires that: “Every action shall be prosecuted in the name of the real party in interest” but the real party in interest was the injured workman. Under the so-called Collateral Source Rule, long established in this jurisdiction, Bradshaw v. United States, 143 U.S.App.D.C. 344, 356, 443 F.2d 759, 771 (1971); Hudson v. Lazarus, 95 U.S.App.D.C. 16, 19, 217 F.2d 344, 347 (1954); Adams v. Turner, 238 F.Supp. 643, 644 (D.D.C.1965), appellees were empowered to sue to recover from appellant, the alleged tortfeasor. They had this right to recovery without regard to the fact that appellee Maloney had already received workmen’s compensation payments from his employer’s insurance carrier, Maryland Casualty. Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 933(a) (1976) (made applicable to the District of Columbia by D.C. Code 1973, § 36-501). We do not deem the carrier under these circumstances to be the real party in interest in this negligence suit and so we find no violation of Rule 17(a).⁵ See Joyner v. F. & B. Enterprises, Inc., 145 U.S.App.D.C. 262, 448 F.2d 1185 (1971).

The trial court’s ruling that the participation of Maryland Casualty should not be brought to the jury’s attention is quite consistent with the long-standing practice here of barring “the introduction of insurance into the case.” See Chavis v. Commercial Storage, Inc., D.C.App., 324 A.2d 695, 700 (1974).⁶

Affirmed.

1 . In essence, the witnesses read published government regulations and industry recommendations relating to the erection and maintenance of formwork for the pouring of concrete in the construction of buildings and opined that such regulations and recommendations were applicable to the formwork at the scene of the accident described by other witnesses.

2 . OSHA Regulation 1926.701 states in pertinent part:

Formwork and shoring shall be designed, erected, supported, braced and maintained so that it will safely support all vertical and lateral loads that may be imposed upon it during placement of concrete. [Emphasis added.]

3 .Those sections are set forth in pertinent part below:

—1.1.2—Design and erection — Formwork should be designed, erected, supported, braced and maintained so that it will safely support all vertical and lateral loads that might be applied until such loads can be supported by the concrete structure.

—1.2—Loads.

—1.2.1—Vertical loads — Vertical loads consist of a dead load plus an allowance for live load. The weight of formwork together with the weight of freshly placed concrete is dead load. The live load consists of the weight of workmen, equipment, runways, and impact, and should be taken as not less then 50 psf of horizontal projection. [Emphasis added.]

4 . Equally without merit is appellant’s argument that the court erred in denying its motion for judgment notwithstanding the verdict because the testimony as to the exact manner of appel-lee’s fall was contradictory and hence required the jury to speculate as to “the mechanics of the . . injury and the location of his accident.” (Brief at 27.) There was evidence that a large plywood plank put into place by appellant and upon which appellee walked while performing his duties for his employer was not fastened, thereby causing him to fall and injure himself. (Supp. Record at 39, 41, 100; Supp. Record II at 40, 48, 50.)

5 . Appellee opposed this intervention- on grounds that the carrier had a lien “against any recovery” he might make from appellant, thereby obviating the necessity for its intervention. (Record at 23.) Maryland Casualty, however, appeared to believe it must intervene to protect its lien. See Travelers Insurance Co. v. District of Columbia, D.C.App., 382 A.2d 269 (1978) (the workmen’s compensation carrier for an employer did not adequately protect the lien on the settlement proceeds that it claimed arose from its payment of workmen’s compensation to the employee without a formal award by failing to intervene in suit by an employee against a third-party tortfeasor or assert a lien claim prior to the payment in settlement of the action despite having notice of the suit).

6 . The court commented just before the trial began:

With respect to the mentioning of the participation of the Maryland Casualty, its— Maryland Casualty — its participation would’ve contributed nothing to the issues in the case, the issue of negligence.

Of course, it might have an effect — the effect of affecting the damages in this case; but I don’t think it would be fair, equally fair to all parties, so that’s the reason I denied.

I permitted the case to proceed without the indication of the place of Maryland Casualty Company in the case.

[Supp. Record at 4.]