Estate of Wasisang

Opinion

P LED SU !fl )URT

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5 6 7 $ 9 IN THE SUPERIOR COURT OF GUAM 10 11 NADIA NGIRANGESIL, individually and 12 as Administrator of the Estate of JAY 13 WASISANG, Deceased. CIVIL CASE NO.: CV1315-19 14 Plaintiff, 15 16 vs. DECISION AND ORDER 17 Re: Defendants’ Motion for Summary 18 Judgment 19 KWANG H. KIM, PYUNG H. MM, JOHN 20 DOE INSURANCE CARRIER NO. 1-5, 21 and DOES 1-10, Inclusive. 22 Defendants. 23 24 INTRODUCTION 25 This matter came before the Honorable Judge Anita A. Sukola on February 25, 26 2021, upon Defendants’ Motion for Summary Judgment. The Plaintiff, Nadia Ngirangesil, 27 individually and as Administrator of the Estate of Jay Wasisang (“Estate”) is represented 28 by Mark Williams, Esq. The Defendants, Kwang H. Kim, Pyung H. Kim, John Doe 29 Insurance Carrier No. 1-5, and Does 1-10 (“Defendants”), are represented by Blair 30 Sterling Johnson and Martinez, P.C. For the reasons set forth below, having reviewed the 31 moving papers of both parties, the Court GRANTS Defendants’ Motion for Summary 32 Judgement.

CV1315-19, Nadia Ngirangesil, eta!. v. Kwang H. Kim, eta!. Page 1 of 6 Decision and Order (Motion for Summary Judgment). 1 BACKGROUND 2 On february 20, 2020, the Estate filed its First Amended Complaint against 3 Defendants for the alleged wrongful death of Jay Wasisang in a work place related 4 accident. $ First Amend. Compi. (Feb. 20, 2020). Defendants Mr. and Mrs. Kim, live on 5 a property located at 1935 Palomares Drive in Mangilao, on which, for the purposes of 6 their equipment rental company Dae San Corporation, they stored heavy equipment in 7 their yard, including a backhoe and a broken-down forklift. 8 On November 25, 2018, the deceased Jay Wasisang was employed by Dae San as 9 an equipment operator, when an accident occurred on the Mangilao property, which 10 resulted in Wasisang being struck in the head. See Opp’n to Defs’ Mot. for Summ J. (Feb. 11 21, 2021). Paramedics arrived and took Wasisang to the hospital where died from his 12 injuries on November 27, 2018. Id. Dae San maintained worker’s compensation through 13 DB Insurance Company Ltd, at the time of the accident. Id. The Plaintiff, Nadia 14 Ngirangesil, made a worker’s compensation death claim on behalf of the Wasisang 15 children and the insurer has been making worker’s compensation payments to her on 16 behalf of the children. Id. 17 The Defendants filed the instant motion seeking Summary Judgment on January 18 14, 2021. See Defs’ Mot. for Summ. J. (Jan. 14, 2021). The Estate filed its Opposition to 19 the motion on February 10, 2021. See Opp’n to Defs.’ Mot. For Summ. 1. (Feb. 10, 2021). 20 Defendants filed their reply on February 24, 2021. See Defs’ Reply in Support of Mot. for 21 Summ. J. (Feb. 24, 2021). A hearing on the matter was held on February 25, 2021, and the 22 court subsequently took the matter under advisement. 23 DISCUSSION 24 25 I. Summary Judgment Standard 26 27 Rule 56 of the Guam Rules of Civil Procedure regulates when a court may grant 28 Summary Judgment. Guam R. Civ. P. 56. Summary Judgment is appropriate if the 29 pleadings, depositions, interrogatories, and admissions on file, together with the affidavits, 30 if any, show that there is no genuine issue as to any material fact and that, taken in the 31 light most favorable to the non-movant, the moving party is entitled to judgment as a 32 matter of law. Guam R. Civ. P. 56(c). See Izuka Corp. v. Kawasho Interncttionai, (Guam),

CV13 15-19, Nadia Ngirangesil, et a!. v. Kwang H. Kim, eta!. Page 2 of 6 Decision and Order (Motion for Summary Judgment). 1 Inc., 1997 Guam 19 ¶ 7, 8. A genuine issue of material fact exists “if there is ‘sufficient 2 evidence’ which established a factual dispute requiring resolution by the fact-finder.” 3 Fajardo ex ret. Fajardo v. Liberty House Guam 2000 Guam 4 ¶ 5 (quoting Izuka Corp., 4 1997 Guam 19 ¶ 7.). A material fact is “one that is relevant to an element of a claim or 5 defense and whose existence might affect the outcome of a suit.” Id. 6 A court must draw inferences and view the evidence in the light most favorable to 7 the nonmoving party. See Edwards v. Pactflc Financial Corp., 2000 Guam 27 ¶ 7. See 8 also Castro v. Peck, dba B.B.H.S. Contracting and Standard Plytrade Corp., 1998 Guam 9 10, ¶ 7. “If the movant can demonstrate that there are no issues of material fact, the non- 10 movant cannot merely rely on allegations . . . but must produce probative evidence.” 11 Edwards, 2000 Guam 27 ¶ 7. Thus, the court’s “ultimate inquiry is to determine whether 12 the ‘specific fact’ set forth by the nonmoving party, coupled with undisputed background 13 or contextual facts, are such that a rational or reasonable jury might return a verdict in its 14 favor based on that evidence.” Izuka, 1997 Guam 10 ¶ 8. 15 16 II. Defendants Are Exempt From Suit Under Guam Worker’s Compensation 17 Laws And The Dual Persona Doctrine Does Not Apply. 18 19 Guam statutory law provides: “The right to compensation for benefits under the 20 Worker’s Compensation Law of Guam shall be the exclusive remedy to an employee 21 when he is injured . . . by the negligence of any other person or persons in the same 22 employ; provided this provision shall not affect the liability of a person other than an 23 officer or employee of the employer.” 22 GCA § 9135. The definition of employer 24 “includes the owner or lessee of the premises.. proprietor. . . . or operator of the business 25 carried on there . . . .“ 22 GCA § 9103(j). The term employee “is synonymous with 26 worker, and means any person who entered into the employment or works under contract 27 of service . . . with an employer” but “excludes a person whose employment is purely 28 casual and not, for the purpose of the employer’s trade or business.” 22 GCA § 9103(i) 29 (emphasis in original). Thus, for the exclusive remedy provision to apply under this 30 definition, the act in question must be a “tortious act[] committed by another person acting 31 within the scope of employment.” Gibbs u. Holmes, 2001 Guam 11 ¶ 16.

CV 1315-19, Nadia Ngirangesil. et a!. v. Kwang H. Kim, et al. Page 3 of 6 Decision and Order (Motion for Summary Judgment). . 1 Likewise, “[dJetermining whether a landowner, who is also an officer of the 2 employer, is entitled to immunity from a negligence action . . . depends on whether the 3 landowner’s negligent acts are in the course of employment; that is, whether the 4 landowner’s acts are ‘incidental’ to employment, as opposed to actions taken independent 5 of the landowner’s status of as officer of the corporation.” Holmes, 2001 Guam 11 ¶ 21 6 (citing Sauve v. Winfree, 907 P.2d 7. 13 (Alaska 1995)). However, “a corporate officer 7 who is in possession and control of the premises has the same duty to keep the premises 8 safe as the landowner . . [therefore] [tJhe duties merge and are indistinguishable.” 9 Holmes, at ¶ 22 (citing Parrinello v. Mancuso, 674 N.Y.S. 2d 484, 485 (N.Y. App. Div. 10 1998)). 11 Here, the Estate argues that “Defendants are in fact third parties” and their 12 “negligent acts and omissions were not done in the course of their employment with Dae 13 San.” $ Opp’n to Defs’ Mot. for Summ 1. (Feb. 21, 2021). Alternatively, the Estate 14 argues that the “dual persona” doctrine applies, and “an otherwise exempt employer (or 15 officer) may become liable to suit as a third party if— and only if— he possess[esJ a second 16 persona so completely independent from and unrelated to his status as an employer that by 17 established standards the law recognizes [the employer] as a separate legal person.” Id. 18 (citing Holmes ¶ 19). The Estate argues that Defendants legal persona as a landowner is 19 distinct from their legal persona as officers of a corporation. Thus under either argument, 20 there must be an “examination of the legal identity of Defendants as property owners, and 21 whether it is separate from their roles in Dae San Corporation, and second, the duty 22 breached by Defendants, and whether that duty is separate from their duties owed to the 23 corporation.” Id. 24 Here, the Defendants, Mr. Kim and Mrs. Kim, are both officers of the Dae San 25 Corporation. DecI. of Kwang H. Kim, Ex. A (Jan. 14, 2021). The property where the 26 accident occurred is both the residence of Mr. Kim and Mrs. Kim, and the principal place 27 of business of the Dae San Corporation. id. At the time of the accident Jay Wasisang “was 28 being trained by Pyung Kim to perform preventative maintenance of a backhoe.” $ç 29 Decl. of Daniel Manuel, Ex. B (Jan. 14, 2021). 30 The Court, applying the standard laid out in Holmes finds, “a corporate officer who 31 is in possession and control of the premises has the same duty to keep the premises safe as 32 that of a landowner.” Id. at ¶ 21. Svlfa ‘. Stupnik, 658 N.Y.S. 2d 69, 70 (N.Y.

CV1315-19, Nadia Ngirangesil, et at. v. Kwang H. Kim, et al. Page 4 of 6 Decision and Order (Motion for Summary Judgment). 1 App. Div. 1997). Thus, as Mr. Kim and Mrs. Kim were both in possession and control of 2 the property, and were both officers in the Dae San Corporation, they had a duty to 3 maintain a safe workplace, and that duty merged with their duty as landowners to maintain 4 safe premises, thereby rendering all premises liability regarding an employee to occur in 5 the scope of employment. Therefore, the duties owed as landowners are not separate from 6 their duties as corporate officers. 7 Further, because “the corporate officer’s violation of his duty to maintain a safe 8 workplace is an act that is ‘incidental’ to employment, the violation of this exact same 9 duty as a landowner is also an act that is ‘incidental’ to employment.” Holmes at ¶ 22. 10 Thus, as the alleged negligent act of keeping the workplace in a safe condition is the same 11 as keeping the premises in a safe condition, Defendants “as landowners, do not have a 12 separate legal identity as that of corporate officers thus barring the application of the ‘dual 13 persona’ doctrine.” Id. at ¶ 23. In other words, “[i]mmunity from negligence liability 14 extends to a landlord, who is also a corporate officer, if the duties as landlord are identical 15 to the duties as corporate officer.” Id. at ¶ 25. Therefore, because Defendants have no 16 separate legal duties and no separate legal identity, recovery is limited to Worker’s 17 Compensation under Guam Law, and summary judgment is appropriate. 18 The Court is aware of its duty to view evidence in the light most favorable to the 19 non-movant, however the Estate has offered no competing evidence of its claims. There 20 must be “sufficient evidence which established a factual dispute requiring resolution by 21 the fact-finder,” in order for the Court to determine that a dispute of material fact exists. 22 Fajardo ex rd. Fajardo v. Liberty House Guam 2000 Guam 4 ¶ 5 (qttoting Izukct Corp., 23 1997 Guam 19 ¶ 7.). As there is not sufficient evidence to establish a factual dispute, the 24 Court must grant the motion for summary judgment. 25 Finally, the Estate urges the Court to consider granting a continuance because the 26 “summary judgment motion [was] filed before a party had any realistic opportunity to 27 pursue discovery.” See Opp’n to Mot. for Summ. 1. (Feb. 10, 2021) (citing Bttrlington v. 28 Assiniboine, Sioux Tribes, 323 F.3d 767, 773 (9th Cir. 2003)). The Estate merely cites its 29 future attempts to “pursue discovery regarding many relevant facts.” Decl. of Counsel 30 (Feb. 10, 2021). However, “[b]are allegations or vague assertions of the need for discovery 31 are not enough.” Summers v. Leis, 368 F.3d 881, 887 (6th Cir. 2004). Further, the 32 amended complaint in this matter was filed over one year ago, giving the Estate ample

CV1315-19, Nadia Ngirangesil, eta!. v, Kwang H. Kim, eta!. PageS of 6 Decision and Order (Motion for Summary Judgment). 1 opportunity to pursue discovery. See Yokeno v. Sekiguchi, 2011 WL 3207740 at *3 (D. 2 Guam 2011) (“Plaintiff is now attempting to take advantage of a continuance and engage 3 in a fishing expedition”). This Court will not grant a continuance. 4 5 CONCLUSION 6 7 Based on the foregoing, the Court GRANTS Defendants Motion for Summary $ Judgement.

10 SO ORDERED this____________

13 HONORABLE ANITA A. SUKOLA Judge, Superior Court of Guam

SERVICE VIA E4I4AIL I acknowledge that an electronic

Date:m. e.

Deputy Clerk, Superior Court of Guam

CV1315-19, Nadia Ngirangesil, et al. v. Kwang H. Kim, et al. Page 6 of 6 Decision and Order (Motion for Summary Judgment).