# Carcaise v. Cemex, Inc.

> District Court, W.D. Pennsylvania · August 23, 2002 · 217 F. Supp. 2d 603

URL: https://www.frixlaw.com/law-library/cases/2484780

## Case

- **Full name:** David J. CARCAISE, Et Al., Plaintiffs, v. CEMEX, INC., Defendant/Third Party Plaintiff, v. Industrial Contracting and Erecting, Inc., Third Party Defendant; Cemex, Inc., Plaintiff, v. Industrial Contracting and Erecting, Inc., Defendant/Third Party Plaintiff, Minserco, Inc., Third Party Defendant
- **Court:** District Court, W.D. Pennsylvania
- **Decided:** August 23, 2002
- **Citations:** 217 F. Supp. 2d 603; 2002 U.S. Dist. LEXIS 18227; 2002 WL 1963911
- **Precedential status:** Published
- **Opinion:** Opinion by Caiazza
- **Judges:** Caiazza
- **Cited by:** 17 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2484780

## Opinion text

ORDER
CAIAZZA, Chief United States Magistrate Judge.
For the reasons stated below, Industrial Contracting and Erecting, Inc.’s Motion to Consolidate the above-captioned cases (see Doc. 18 in Civil Action No. 01-859
and
Doc. 4 in Civil Action No. 02-1240) will be denied,
1
as will its Request for a Hearing regarding the same (see Doc. 24 in Civil Action No. 01-859).
David J. Carcaise (“Mr.Carcaise”) and his wife (collectively “the Carcaises”) filed the first of the above-referenced cases on May 15, 2001, asserting subject matter jurisdiction based on diversity of citizenship.
See generally
Compl. (Doc. 1 in Civil Action No. 01-859). In said action (hereinafter
“Carcaise
”), the Plaintiffs assert claims against Cemex, Inc. (“Cemex”) based on harms incurred when a “drag-line” allegedly owned by Cemex “suddenly fell down an approximately 70-foot embankment.”
See id.
at ¶¶ 9-10. The drag-line was “an extremely large machine used to strip tons of earth and coal in ... strip mining,” and Mr. Carcaise was “working within the cab” of the dragline when it fell.
See generally id.
at ¶¶ 8-10.
At the time of the accident, Mr. Carcaise was “engaged in the course of his duties” as an employee of Minserco, Inc. (“Minser-co” or “the Employer”).
See generally id.
¶ 7. Minserco has not been, nor could it be, named as a defendant in
Carcaise.
This is so because Mr. Carcaise’s injuries occurred in Pennsylvania, and the Commonwealth’s Workers’ Compensation Act pro
*605
vides Ms exclusive remedy against the Employer.
See
Compl. at ¶¶ 7, 10 (accident occurred in “Lawrence County, Pennsylvania”);
see also Murray v. Gencorp, Inc.,
979 F.Supp. 1045, 1049 (E.D.Pa.1997) (Pennsylvania’s Workers’ Compensation Act “is applicable to all injuries occurring within th[e] Commonwealth”) (citation and internal quotations omitted);
Warnick v. Harsco Corp.,
1999 WL 695591 , *1 (E.D.Pa. Sept.9, 1999) (“The Pennsylvania worker’s compensation scheme provides the exclusive remedy for an employee, against an employer, when the employee is injured in the scope of [his] employment.”)
{citing
77 Pa.Stat. § 481(a)).
On September 24, 2001, and with leave of court, Cemex filed a Third Party Complaint against Industrial Contracting and Erecting, Inc. (“I.C.E.”). The Third Party Complaint alleges that, pursuant to a contract with Cemex, I.C.E. “disassemble[d], transported] and reassemble[d] the drag-line in question from McHenry, Kentucky” to the jobsite in Pennsylvania.
See generally
3d Party Compl. (Doc. 11 in Civil Action No. 01-859) at ¶ 12. Cemex alleges that I.C.E. did so “in a careless, reckless and negligent manner [that] may have caused and/or contributed to the ... drag-line accident.”
See generally id.
at ¶22. Based on these and other allegations Ce-mex avers that, if it is liable to the Car-caises, I.C.E. is liable to Cemex “under theories of indemnity and/or contribution .... ”
See generally id.
at ¶ 27.
On September 21, 2001, the same day Cemex moved in
Carcaise
to join I.C.E. as a third party defendant, Cemex caused the Prothonotary for the Court of Common Pleas of Lawrence County, Pennsylvania to issue upon I.C.E. a Writ of Summons.
See
Writ of Summons (attached as Ex. B to Notice of Removal in Civil Action No. 02-1240). Nine months later, on June 21, 2002, Cemex filed a Complaint against I.C.E. in the same Common Pleas Court.
See
Compl. (attached as Ex. A to Notice of Removal in Civil Action No. 02-1240). Shortly thereafter, I.C.E. removed the case to this court on the basis of diversity jurisdiction.
See generally
Notice of Removal in Civil Action No. 02-1240 at ¶¶ 5-6.
In the removed action, docketed at Civil Action No. 02-1240 (and at times hereinafter referred to as
“Cemex”),
Cemex asserts claims against I.C.E. based on the same “incident” in which Mr. Carcaise was injured,
ie.,
when “the dragline slid down” the seventy-foot embankment.
See generally
Compl. in Civil Action No. 02-1240 at ¶ 10. Cemex states claims against I.C.E. for negligence and breach of contract, and it alleges “damage to its property and business in excess of $12,000,000.00.... ”
See id.
On July 19, 2002, I.C.E. filed a Third-Party Complaint in
Cemex,
joining Minser-co as the Third Party Defendant.
See
3d Party Compl. (Doc. 3 in Civil Action No. 02-1240). Among other things, Cemex alleges that Minserco’s “operation of the dragline was performed in a careless, reckless and negligent manner which caused and/or contributed to the occurrence of the dragline accident.”
See generally id.
at ¶ 17.
Finally, on July 25, 2002, I.C.E. filed duplicate Motions for Consolidation in
Car-caise
and
Cemex. See
Doc. 18 in Civil Action No. 01-859; Doc. 4 in Civil Action No. 02-1240. I.C.E. urges that consolidation is appropriate under Federal Rule of Civil Procedure 42(a), stating:
The above-captioned ... actions clearly involve common questions of law and fact.... [0]ne event — the dragline accident of September 24, 1999 — gave rise to both actions.... The accident allegedly resulted in the injuries and/or damages claimed by both Plaintiffs. The
*606
common questions of law and fact all relate to the causation of the accident and the necessary apportionment of liability among potential joint tortfeasors, if applicable.... [E]ach case will involve the same witnesses and evidence.... Further Cemex and [I.C.E.] ha[ve] asserted several common defenses in these actions, including contributory and/or comparative negligence, misuse, and assumption of known risk.
See
Br. in Supp. of Mot. for Consolidation (Doc. 7 in Civil Action No. 01-859) at unnumbered p. 4. I.C.E. also asserts that “no prejudice to any party Plaintiff will result from a joint trial of these actions,” and counsel posits that “it is highly unlikely that consolidation ... would result in an unreasonably complicated trial or jury confusion from multiple ... theories of liability. ...”
See id.
at un-numbered p. 6-7.
The court completely disagrees with 1.C.E.’s assertions regarding prejudice, trial complication, and jury confusion. As an initial matter, both the Carcaises and the Third-Party Defendant in Civil Action No. 02-1240, Minserco, have made compelling arguments that they will be unduly prejudiced if the cases are consolidated. As highlighted by the Carcaises’ counsel, the litigants in
Carcaise
have already engaged in substantial discovery in the year-plus that the case has been pending.
See generally
Pis.’ Br. in Opp’n to Mot. for Consolidation (Doc. 21 in Civil Action No. 01-859) at 4. Without recapitulating each of counsel’s assertions, it suffices to say that the Carcaises have identified substantial bases for concern regarding undue hardship and delay.
See, e.g., id.
at 7 (in
Carcaise,
“thousands of ... documents have been exchanged!,] ... nine depositions have ... taken place,” and a discovery deadline of February 20, 2003 has been established (after multiple extensions), while in
Cemex
“no discovery has occurred”). Minserco echoes similar concerns regarding prejudice.
See
Resp. in Opp’n to Mot. to Consolidate (Doc. 8 in Civil Action No. 02-1240) at ¶ 10 (asserting that, of ten depositions already taken in
Carcaise,
counsel attended only four, and at none of them was Minserco a party of record).
Much more important, however, are concerns regarding the results of consolidating
Carcaise
with an action in which the alleged negligence of Minserco, Mr. Car-caise’s employer at the time of the accident, is at issue.
See
discussion
supra
(noting joinder of Minserco in
Cemex
as Third Party Defendant). As noted above, Pennsylvania’s Workers’ Compensation Act provides Mr. Carcaise’s exclusive remedy against Minserco.
See
discussion
supra.
Indeed, said Employer enjoys statutory immunity not only from direct claims by the Carcaises, but also from claims of derivative liability by Cemex and/or I.C.E.
See
Pa.Stat. § 481(b) (hereinafter “Section 481(b)”) (“[i]n the event injury or death to an employe is caused by a third party, then such employe ... may bring [his] action at law against such third party,
but the employer ... shall not be liable to a third party for damages, contribution, or indemnity in any action at law
”) (emphasis added).
2
Not only is Minserco immune from direct and/or derivative liability in
Carcaise,
it cannot even be joined for the purposes of apportioning its alleged liabili
*607
ty. The Pennsylvania Supreme Court in
Heckendorn v. Consolidated Rail Corp.,
502 Pa. 101 , 465 A.2d 609 (1983) held precisely the same, and this remains the law of Pennsylvania.
See Heckendorn,
465 A.2d at 610 (expressly rejecting notion that “statutorily immune” employer “may nonetheless be joined by [a] third party [tort-feasor] for the purpose of apportioning the employer’s negligence with the negligence of the third party”);
Derro v. Lisle Corp.,
1992 WL 20322 , *2 (E.D.Pa. Jan.31, 1992) (an “employer may not be joined as an additional defendant, even for the purpose of apportioning liability”)
(citing Heckendom
).
3
If this court were to consolidate the two actions in question, the consolidation would have the practical effect of joining Minser-co into
Carcaise
for the purpose, or with the result, of apportioning liability. Indeed, this is one of the very bases upon which I.C.E. seeks consolidation.
See
discussion
supra
(stating that “common questions of law and fact” exist regarding “the necessary apportionment of liability among potential joint tortfeasors”);
see also id.
(“Cemex and [I.C.E.] ha[ve] asserted several common defenses in these actions, including
contributory and/or comparative negligence
”) (emphasis added). In this magistrate judge’s view, granting I.C.E.’s request for consolidation would be to create an end-run around Pennsylvania law prohibiting the joinder of Minserco in
Car-caise.
Even assuming the requested consolidation would not run afoul of
Hecken-dorn
(a proposition neither asserted nor shown by the movant), the court has grave concerns regarding the likely trial complications and jury confusion that would result from the same. For in
Carcaise,
the fact-finder may not consider the alleged comparative negligence of the Employer in apportioning liability between the potential tortfeasors. On the other hand, Pennsylvania law provides no indication that Minserco cannot be found comparatively negligent in
Cemex
regarding the alleged property and other damages suffered as a result of the dragline incident. If there is some way that these competing standards can be accounted for in a single trial and effectively explained to a jury, I.C.E. has failed to show the same.
To further complicate matters, numerous federal courts have held that, even though an employer cannot be joined for the purposes of asserting or apportioning liability, non-employer defendants may introduce evidence of the employer’s alleged negligence in an effort to show it was the sole legal cause of the plaintiffs injuries.
See, e.g., Kern v. Nissan Indus. Equip. Co.,
801 F.Supp. 1438, 1445 (M.D.Pa.1992) (“statutory immunity of [an] employer does not
per se
preclude admission of employer or co-worker negligence in a suit against a third party” because defendant may “argue that [an immune party’s] actions [were] wholly responsible for the plaintiffs injuries”) (citations omitted);
Derro,
1992 WL 20322 at *6 (“Even though § 481(b) prohibits a third party, when sued by an employee, from joining
*608
an employer in the action, the third party can still defend against the employee’s suit by proving at trial that the employer’s actions, rather than those of the third party, were the proximate and legal cause of the injury.”) (citation omitted);
Orion Ins. Co., Ltd. v. United Tech. Corp.,
475 F.Supp. 607, 610 (E.D.Pa.1979) (same);
Albrecht v. Pneuco Mach. Co.,
448 F.Supp. 851 , 854 n. 2 (E.D.Pa.1978) (same). This approach enjoys support under Pennsylvania state court precedent, and the Court of Appeals for the Third Circuit has confirmed (if not endorsed) this conclusion.
See Tsamas v. Jones & Laughlin Steel Corp.,
262 Pa.Super. 417 , 396 A.2d 1241, 1244-45 (1978) (“[Njothing in Section [481](b) precludes a defendant from defending at trial on the theory that the conduct of the plaintiffs employer was the legal cause of the injury. In other words, if there is no fault on the defendant’s part, it will not be held liable.”) (citations omitted), aff
'd,
488 Pa. 513 , 412 A.2d 1094 (1980);
Van Buskirk v. Carey Canadian Mines, Ltd.,
760 F.2d 481 , 493 n. 8 (3d Cir.1985) (addressing Superior Court’s holding that, “even though the Workmen’s Compensation Act limited the amount of recovery available from the employer, it did not preclude any argument that the employer was in fact solely responsible”) (citation omitted).
Presuming Cemex and/or I.C.E. will be permitted to introduce evidence of Minser-co’s alleged negligence in attempting to show it was the sole legal cause of Mr. Carcaise’s injuries,
4
the potential for undue complication and jury confusion multiplies exponentially. On the one hand, the jury would be instructed it may consider evidence of the Employer’s negligence to determine whether it was the sole, proximate cause of Mr. Carcaise’s injuries. On the other hand, the jury would have to understand that it may
not
consider such evidence within the context of comparative fault, nor would it be able to apportion liability based on the same. Superimposed upon these considerations would be an instruction that the jury can and should determine whether Minserco was comparatively negligent within the context of Ce-mex’s property damage and related claims, and that apportionment of liability
is
appropriate within this context.
The aforementioned scenario presents far too great a potential for jury confusion and trial complication for this magistrate judge to endorse. In addition, opening the door to the jury’s improper consideration of the Employer’s alleged negligence within the contexts of comparative fault and apportionment of liability would improperly tread on the well-established principles in
Heckendom.
5
For these reasons, as
*609
well as the others stated above, I.C.E.’s Motion to Consolidate will be denied.
In denying the Motion to Consolidate, the court is mindful of “the risk of inconsistent adjudications of common factual and legal issues.”
See generally Carpenter v. GAF Corp.,
1994 WL 47781 , *1 (6th Cir. Feb.15, 1994) (identifying same as one factor to consider in deciding whether to consolidate) (citation and internal quotations omitted). Relatedly, this court cannot rule out the possibility that findings on liability in the first-tried action may have preclusive effect in the second.
See generally Nelson v. Heslin,
806 A.2d 873, 875 (Pa.Super.2002) (“[t]he doctrine of collateral estoppel, ... sometimes referred to as issue preclusion, operates to prevent questions of law or issues of fact which have once been litigated and adjudicated finally ... from being relitigated in a subsequent suit”) (citations omitted).
6
Nevertheless, the court concludes the prejudice, trial complication, and jury confusion that would result from the requested consolidation easily outweighs the factors favoring the same. In addition, the court remains unconvinced that it properly may consolidate the two cases without running afoul of the well-established principles in
Heckendorn .
The movant has failed to show otherwise, and this reason alone warrants a denial of the requested consolidation.
For all of the reasons stated above, Industrial Contracting and Erecting, Inc.’s Motion for Consolidation
(see
Doc. 18 in Civil Action No. 01-859
and
Doc. 4 in Civil Action No. 02-1240) is hereby DENIED, as is its Request for a Hearing regarding the same
(see
Doc. 24 in Civil Action No. 01-859).
7
IT IS SO ORDERED.
1
. Pursuant to the Referral Orders entered by the District Court
(see
Doc. 2 in Civil Action No. 01-859
and
Doc. 2 in Civil Action No. 02-1240), this magistrate judge has the authority to rule on the request to consolidate as a non-dispositive motion.
See Trafalgar Power, Inc. v. Aetna Life Ins. Co.,
131 F.Supp.2d 341, 343 (N.D.N.Y.2001) (motion for consolidation is one for “non-dispositive relief”);
cf. also Bergman v. City of Atlantic City,
860 F.2d 560, 563 (3d Cir.1988) (leaving undisturbed on appeal magistrate judge’s order "consolidating actions] for all purposes of discovery and trial”) (citation omitted).
2
. Section 481(b) specifies a sole exception to this rule, namely where contribution or indemnity is "expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which [gives] rise to the action.”
See id.
Here, neither Cemex nor I.C.E. provides any indication that the Employer owes a contractual duty of contribution or indemnity.
3
. In
Heckendom,
the Supreme Court rejected the notion that Pennsylvania’s Comparative Negligence Act, 42 Pa. Cons.Stat. § 7102, "reflected] a legislative intent to permit joinder of an employer as an additional defendant for the purpose of apportioning fault.”
See id.
at 611-12. The Court found precisely the opposite, highlighting that the Comparative Negligence Act permits an apportionment between
“all defendants against whom recovery is allowed." See id.
at 612
(quoting
42 Pa. Cons. Stat. § 7102 , emphasis in original). Because the Workers' Compensation Act expressly
disallows
recovery from the employer, the Court found that the two statutes could "be read in full and complete harmony.”
See id.
at 107 (citations and internal quotations omitted).
4
. To be sure, there is at least some room for the Plaintiffs to argue that evidence of the Employer’s alleged negligence has no place in
Carcaise. See, e.g., Leonard v. Harris Corp.,
290 Pa.Super. 370 , 434 A.2d 798, 802 (1981) ("Prior to [the enactment of Section 481(b)], the third party defendant was able to join the employer and present evidence to a jury concerning the employer’s negligence. This evidence might exonerate the third party from all liability by proving the employer’s negligence alone had caused the injury or it might result in a determination that the employer and third party were jointly liable. However, the enactment of Section [48 l](b) has foreclosed the adjudication of the liability of the employer.”) (citations omitted). This magistrate judge expressly declines to state an opinion on the matter, however, until it is properly made the subject of an
in limine
or other appropriate motion.
5
. Under the Comparative Negligence Act, the trier of fact "apportion[s] liability on a percentage basis
among those defendants on the record against whom recovery is allowed." See Kelly v. Carborundum Co.,
307 Pa.Super. 361 , 453 A.2d 624, 627 (1982) (emphasis added, citation and internal quotations omitted),
aff'd,
504 Pa. 238 , 470 A.2d 969 (1984). Because the Workers' Compensation Act disallows recovery from the employer, the employ
*609
er's comparative liability is subtracted from the equation, thereby potentially requiring third-party tortfeasor(s) to “pay more than [their] proportionate part of the [employee's] loss....”
See Heckendorn v. Consolidated Rail Corp.,
293 Pa.Super. 474, 481 , 439 A.2d 674 (1981) (affirming opinion referenced above). If this conclusion seems counter-intuitive to those familiar with the law, it would be even more so for lay persons on the jury.
Cf., e.g., Derro,
1992 WL 20322 at *6 ("[although the philosophy of comparative negligence would [direct the] inclusion of an employer's negligence in calculating the amounts to be paid by each tortfeasor,” Section 481(b) “forbids such an interpretation,
however logical it may seem
”) (citation omitted, emphasis added). The potential for jury confusion is only exacerbated, moreover, by Minserco's potential comparative liability regarding Cemex's property and related damages.
6
. In raising the issue of collateral estoppel, this magistrate judge does not mean to suggest that Minserco can or should defend allegations in
Carcaise
that its purported negligence was the sole legal cause of the Plaintiffs' injuries. As the court has made abundantly clear, Pennsylvania law prohibits the joinder of Minserco in that case.
See
discussion
supra; see also generally Derro,
1992 WL 20322 at *5 ("One of the purposes behind the enactment of employer immunity was to prevent the uncertain drain ... caused by employer contribution costs and
legal defense expenses
that had resulted from third-party actions in the past.”) (citations and internal quotations omitted, emphasis added). Thus, even assuming Cemex and/or I.C.E. convinces a jury in
Carcaise
that Min-serco's alleged negligence was the sole legal cause of the accident, such a finding could have no preclusive effect in
Cemex. See Nelson,
2002 WL 1729796 at *3 (for collateral estoppel to apply, "[t]he party against whom [it] is asserted” must have had "a full and fair opportunity to litigate the issue in the prior action”) (citations omitted).
7
. Having already carefully weighed the factors both favoring and disfavoring the requested consólidation, the court sees no bene
*610
fit to conducting a hearing. In addition, this magistrate judge sees no justification for giving I.C.E. an additional opportunity to argue matters implicated by its own request for consolidation.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2484780. Public record. Not legal advice.