STATE OF WIAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. CV-05-336 /
* CHARLES S. HILL, * - - Plaintiff * - -. v. * - 'ORDER
COOPER TIRE & RUBBER CO.,
This case comes before the Court on Defendant Cooper Tire & Rubber
Co.'s Motion to Dismiss, and in the alternative, Motion for Joinder of a Party.
FACTUAL BACKGROUND
Chronos kchardson (Chronos) employed Plaintiff Charles Hill (fill), a
Maine resident, as a service technician. Chronos contracted with Defendant
Cooper Tire & Rubber (Cooper Tire) to provide services. Cooper Tire is a foreign
corporation that sells its products in Maine through 25 Maine dealers. On
August 31,1999, Hill was worhng in a warehouse owned by Cooper Tire in
Albany, Georgia. On that day, Hill was h t by a forklift operated by a Cooper
Tire employee. As a result, he sustained injuries to his back, legs, and knees.
Sometime thereafter, Hill obtained workers' compensation benefits in
Maine from Chronos' insurance carrier, Chubb Insurance Co. (Chubb). (Def.
Objection to Motion to Intervene, 4). On June 6, 2005, Chubb initiated a lawsuit
against Cooper Tire on behalf of Hill. The Complaint seeks recovery for
negligence in accordance with the doctrines of vicarious liability and/or
respondeat superior (Count I), and negligent supervision and training (Count 11).
Hill retained h s own attorney and filed a motion to intervene, whch was granted by the Court. On July 19,2005, Defendant filed a motion to dismiss
pursuant to M.R. Civ. P 12(b)(6),or in the alternative, improper venue / forum
non conveniens. On July 29,2005, Defendant filed a motion for joinder of
Chronos Richardson as a necessary party to the action.
DISCUSSION
a. Forum Non Conveniens
Preliminarily, Cooper Tire contends that it is entitled to a motion to dismiss
based on Maine being an inconvenient forum. Generally speahng, unless the
balance is strongly in favor of the defendant, the plaintiff's choice of forum
should rarely be disturbed unless the plaintiff's goal is to "vex, harass or oppress
the defendant." MacLeod v. MacLeod, 383 A.2d 39/42 (Me. 1978). Factors to \\ consider when engaging in this balancing test are: the private interest of the
litigant; the relative ease of access to sources of proof; availability of witnesses;
possibility of view of premises; and all other practical problems that make trial of
a case easy, expeditious and iEexpensive." Id.
Here, although the forklift accident occurred in Georgia, Plaintiff is a
resident of Maine. He has received worker's compensation under Maine laws for
i~juriessustained from the accident. F~rtb~errnore, there is no evidence that
Hill's aim in filing this action in Maine was to harass or oppress Cooper Tire.
Cooper Tire is a large corporation that travels frequently to Maine to sell its
products. In balancing the factors, it is clear that defending t h s action in Maine
is not prejudicial to Cooper Tire.
Cooper Tire's core arguments are that Georgia law controls t h s tort
action. Accordingly, Cooper Tire argues that dismissal is warranted because Hill is barred from recovery under Georgia's statute of limitations, and because
Cooper Tire is entitled to statutory immunity pursuant to Georgia's workers'
compensation law. O.C.G.A. § 34-9-8.
b. Statute of Limitations
"Under traditional choice of law rules, the forum state generally applies its
own statute of limitations to a cause of action, even though it may apply the
substantive law of another state." Otrellette v. Strrrrn, Xzrger 6Co., 466 A.2d 478,
482 (Me. 1983).
c. Tort Immunity Pursuant to O.C.G.A. 5 34-9-8.
In determining which law to apply, the court utilizes the "most significant
contacts and relationships test." Collirzs v. Tritrs, Inc., 663 A.2d 570, 572 (Me.
1995).' The aim of this test is to "isolate the issue, [ ] identify the policies
' Section 145 of the Restatement (Second) of Conflict of Laws enunciates the "general principle" of the most significant contacts and relationship test:
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in f3 6.
(2) Contacts to be taken into account in applying the principles of i3 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of the parties, and
(d) the place where the relationshp, if any, between the parties is centered. embraced in the laws in conflict, and finally to examine the contacts with the
respective jurisdictions to determine w h c h jurisdiction has a superior interest in
having its policy or law applied." Id. Here, the specific issue is whether
Georgia's workers' compensation law, which provides tort immunity for a
principal contractor in certain situations, should apply to this action. O.C.G.A. §
34-9-8. Although Maine has an interest in the case because Hill is a resident of
Maine, the injury occurred in Georgia, on Cooper Tire's property, and was
caused by Cooper Tire's employee. Accordingly, it is clear that Georgia has a
profound interest in protecting the expectations of Georgian contractors and
employees subject to this law.
Georgia's workers' compensation statute provides that a claim for
compensation shall first be presented to the immediate employer, but that if the
immediate employer is not subject to the Workers' Compensation Act "then such
claim may be directly presented to and instituted against the intermediate or
principal contractor." O.C.G.A. 5 34-9-8(c) (emphasis added). T h s statute applies
"only in cases where the injury occurred on, in, or about the premises on which
the principal contractor has undertaken to execute work or which are otherwise
under h s control or management." O.C.G.A. 5 34-9-8(d).
In interpreting this statute, the Georgia Supreme Court has held that
"owners or entities merely in possession or control of the premises would not be
subject to workers' compensation liability as statutory employers, except in the
isolated situation where that party also serves as a contractor for yet another entity and hires another contractor to perform the work on the premises."'
Manning v. Georgia Power Conzpavzy, 252 Ga. 404, 434 (Ga. 1984). Because h s
"secondary liability imposed under t?.us Code section is predicated upon the
existence of the principal contractor-subcontractor relationshp, t h s provision of
the Compensation Act is not intended to cover all employers who let out work
on contract but is limited to those who contract to perform certain work, such as
the furnishing of goods and service, for another, and then sublet in whole or part
such work." Modli7~v. Black and Decker Ma7ltfacttlring Co., 170 Ga. App. 477,479
(Ga. App.
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STATE OF WIAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DOCKET NO. CV-05-336 /
* CHARLES S. HILL, * - - Plaintiff * - -. v. * - 'ORDER
COOPER TIRE & RUBBER CO.,
This case comes before the Court on Defendant Cooper Tire & Rubber
Co.'s Motion to Dismiss, and in the alternative, Motion for Joinder of a Party.
FACTUAL BACKGROUND
Chronos kchardson (Chronos) employed Plaintiff Charles Hill (fill), a
Maine resident, as a service technician. Chronos contracted with Defendant
Cooper Tire & Rubber (Cooper Tire) to provide services. Cooper Tire is a foreign
corporation that sells its products in Maine through 25 Maine dealers. On
August 31,1999, Hill was worhng in a warehouse owned by Cooper Tire in
Albany, Georgia. On that day, Hill was h t by a forklift operated by a Cooper
Tire employee. As a result, he sustained injuries to his back, legs, and knees.
Sometime thereafter, Hill obtained workers' compensation benefits in
Maine from Chronos' insurance carrier, Chubb Insurance Co. (Chubb). (Def.
Objection to Motion to Intervene, 4). On June 6, 2005, Chubb initiated a lawsuit
against Cooper Tire on behalf of Hill. The Complaint seeks recovery for
negligence in accordance with the doctrines of vicarious liability and/or
respondeat superior (Count I), and negligent supervision and training (Count 11).
Hill retained h s own attorney and filed a motion to intervene, whch was granted by the Court. On July 19,2005, Defendant filed a motion to dismiss
pursuant to M.R. Civ. P 12(b)(6),or in the alternative, improper venue / forum
non conveniens. On July 29,2005, Defendant filed a motion for joinder of
Chronos Richardson as a necessary party to the action.
DISCUSSION
a. Forum Non Conveniens
Preliminarily, Cooper Tire contends that it is entitled to a motion to dismiss
based on Maine being an inconvenient forum. Generally speahng, unless the
balance is strongly in favor of the defendant, the plaintiff's choice of forum
should rarely be disturbed unless the plaintiff's goal is to "vex, harass or oppress
the defendant." MacLeod v. MacLeod, 383 A.2d 39/42 (Me. 1978). Factors to \\ consider when engaging in this balancing test are: the private interest of the
litigant; the relative ease of access to sources of proof; availability of witnesses;
possibility of view of premises; and all other practical problems that make trial of
a case easy, expeditious and iEexpensive." Id.
Here, although the forklift accident occurred in Georgia, Plaintiff is a
resident of Maine. He has received worker's compensation under Maine laws for
i~juriessustained from the accident. F~rtb~errnore, there is no evidence that
Hill's aim in filing this action in Maine was to harass or oppress Cooper Tire.
Cooper Tire is a large corporation that travels frequently to Maine to sell its
products. In balancing the factors, it is clear that defending t h s action in Maine
is not prejudicial to Cooper Tire.
Cooper Tire's core arguments are that Georgia law controls t h s tort
action. Accordingly, Cooper Tire argues that dismissal is warranted because Hill is barred from recovery under Georgia's statute of limitations, and because
Cooper Tire is entitled to statutory immunity pursuant to Georgia's workers'
compensation law. O.C.G.A. § 34-9-8.
b. Statute of Limitations
"Under traditional choice of law rules, the forum state generally applies its
own statute of limitations to a cause of action, even though it may apply the
substantive law of another state." Otrellette v. Strrrrn, Xzrger 6Co., 466 A.2d 478,
482 (Me. 1983).
c. Tort Immunity Pursuant to O.C.G.A. 5 34-9-8.
In determining which law to apply, the court utilizes the "most significant
contacts and relationships test." Collirzs v. Tritrs, Inc., 663 A.2d 570, 572 (Me.
1995).' The aim of this test is to "isolate the issue, [ ] identify the policies
' Section 145 of the Restatement (Second) of Conflict of Laws enunciates the "general principle" of the most significant contacts and relationship test:
(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in f3 6.
(2) Contacts to be taken into account in applying the principles of i3 6 to determine the law applicable to an issue include:
(a) the place where the injury occurred,
(b) the place where the conduct causing the injury occurred,
(c) the domicil, residence, nationality, place of the parties, and
(d) the place where the relationshp, if any, between the parties is centered. embraced in the laws in conflict, and finally to examine the contacts with the
respective jurisdictions to determine w h c h jurisdiction has a superior interest in
having its policy or law applied." Id. Here, the specific issue is whether
Georgia's workers' compensation law, which provides tort immunity for a
principal contractor in certain situations, should apply to this action. O.C.G.A. §
34-9-8. Although Maine has an interest in the case because Hill is a resident of
Maine, the injury occurred in Georgia, on Cooper Tire's property, and was
caused by Cooper Tire's employee. Accordingly, it is clear that Georgia has a
profound interest in protecting the expectations of Georgian contractors and
employees subject to this law.
Georgia's workers' compensation statute provides that a claim for
compensation shall first be presented to the immediate employer, but that if the
immediate employer is not subject to the Workers' Compensation Act "then such
claim may be directly presented to and instituted against the intermediate or
principal contractor." O.C.G.A. 5 34-9-8(c) (emphasis added). T h s statute applies
"only in cases where the injury occurred on, in, or about the premises on which
the principal contractor has undertaken to execute work or which are otherwise
under h s control or management." O.C.G.A. 5 34-9-8(d).
In interpreting this statute, the Georgia Supreme Court has held that
"owners or entities merely in possession or control of the premises would not be
subject to workers' compensation liability as statutory employers, except in the
isolated situation where that party also serves as a contractor for yet another entity and hires another contractor to perform the work on the premises."'
Manning v. Georgia Power Conzpavzy, 252 Ga. 404, 434 (Ga. 1984). Because h s
"secondary liability imposed under t?.us Code section is predicated upon the
existence of the principal contractor-subcontractor relationshp, t h s provision of
the Compensation Act is not intended to cover all employers who let out work
on contract but is limited to those who contract to perform certain work, such as
the furnishing of goods and service, for another, and then sublet in whole or part
such work." Modli7~v. Black and Decker Ma7ltfacttlring Co., 170 Ga. App. 477,479
(Ga. App. 1984)) (adopted by Manning ZJ. Georgia Pozuer Co, 252 Ga. 404 (Ga. 1984).
The pertinent issue for h s motion is whether Cooper Tire was the
principal contractor, and therefore entitled to tort immunity pursuant to
O.C.G.A. 5 34-9-8. A motion to dismiss for failure to state a claim tests the legal
sufficiency of the complaint. Plimpton v. Gerrnrd, 668 A.2d 882,885 (Me. 1995).
Dismissal for failure to state a claim is appropriate only where it appears beyond
doubt that the plaintiff is entitled to no relief under any set of facts which he
might prove in support of his claim. Dtrtil 27. Btlrns, 674 A.2d 910, 911 (Me. 1996).
'In Modlin v. Black and Decker Mant$actt~ri~zgCo.,170 Ga. App. 477, 479 (Ga. 1984) (affirmed and adopted by Manning v. Georgia Pozver Company, 252 Ga. 404,434 (Ga 1984), the appellate court expounded on the legislative"intent of the statute. "An owner who h r e s a contractor to perform work on the owner's premises is not ordinarily in the position to appreciate and control the risks of injury; the owner ordinarily does not supervise the work; and the owner ordinarily has no input in the hring practices of the main contractor. Because the contractor, rather than the owner, is in the position to realize and control the risks of injury, it is unfair to subject an owner, merely because he has hired the contractor, to workers' compensation liability. Similarly, it wrongs an injured worker to deprive h m of his common law remedies against an owner, where the owner's fault causes the injury, merely because the owner also happens to be an employer with three or more employees and the owner has hired a contractor to perform work on its premises." Id. See Thrash and Blank, Evoltrtioii of the Statutory Employer Rtrle, 19 Ga. St. B. J. 172 (1983)." In Manning v. Georgia Power Co, the Georgia Supreme Court discussed the
issue of principal contractor pursuant to O.C.G.A.5 34-9-8. 252 Ga. 404 (Ga.
1984). In that case, the plaintiff worked as a painter for a painting company,
which was under contract with Georgia Power Company to paint certain
structures owned by it. Id. at 404-05. When a volt conductor on the power
company's property injured the plaintiff, he obtained workers' compensation
benefits from the painting company and filed a tort claim against the power
company. Id. at 405. The Georgia Supreme Court found that the power
company was not the principal contractor with regard to the painting of its own
structures, but rather was merely an owner on whose property the plaintiff was
injured. Id. at 406. Accordingly, the court held that the power company was
neither liable for workers' compensation benefits nor immunized from tort
liability. Id.
The Manning decision is in line with Georgia law regarding an employer's
duty to an independent contractor. "The employer of an independent contractor
owes the contractor's employees the ubiquitous duty of not imperiling their lives
by h s own affirmative acts of negligence." Llnited States v. Aretz, 248 Ga. 19, 24
(£3) (I)(Ga. 1981). T h s case is similar to the facts in Manlzi~zg.It is clear here that Cooper Tire
is the owner of the premises where Hill was injured. The question then becomes
whether Cooper Tire was also the principal contractor. The pleadings indicate
that Hill's immediate employer, Chronos, contracted to work for Cooper Tire.
Whle Hill was workng on Cooper Tire's premises, he was injured by the alleged
negligence of a Cooper Tire employee. hlanning suggests that if Chronos was hired to perform cosmetic services such as painting, or services unrelated to
Cooper Tire's role as a contractor, then Cooper Tire would not be a principal
contractor under O.C.G.A. S 34-9-8. Furthermore, this statute seems to apply to
employers who contract to perform work, and then subsequently sublet that
work to another contractor. That is not the case here. Cooper Tire was not a
contractor hired to perform work. It hired Chronos to perform the work.
Therefore, if Cooper Tire was merely Chronos' employer as Hill contends, it is
clear under Georgia law that Cooper Tire had a duty to not imperil the lives of
Chronos' employees by its own negligence.
The motion to dismiss based on forum non conveniens is DENIED.
The motion to dismiss based on Georgia's 2-year statute of limitations is
DENIED.
The motion to dismiss based on statutory immunity is DENIED.
Cooper Tire's Motion for the joinder of Chronos
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