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SMITH v. OGDEN ALLIED SERVS.

January 5, 1994

THOMAS G. SMITH, Plaintiff,
v.
OGDEN ALLIED SERVICES, INC., et al., Defendants.



The opinion of the court was delivered by: JOYCE HENS GREEN

 Plaintiff, Thomas G. Smith ("Smith"), initiated this diversity action alleging that defendants' negligence was the proximate cause of his slip-and-fall injuries. Plaintiff seeks compensatory damages for his medical expenses and recovery for loss of wages, wage-earning capacity, pain, and physical anguish. Defendant Ogden Allied Services, Inc. ("Ogden"), filed a motion for summary judgment in which it asserted that the applicable statute of limitations bars this action. Defendants Gerald D. Hines ("Hines") and Hines Consolidated Investments, Inc. ("HCI"), jointly filed a motion to dismiss, which adopts and incorporates by reference Ogden's motion for summary judgment. For the reasons explained below, both motions are granted.

 Plaintiff alleges that on August 11, 1989, he "slipped and fell on a wet marble floor in the common receptionist area" of the law firm of Hogan & Hartson. Complaint P 6. Smith, then an employee of Hogan & Hartson who worked as a computer technical support specialist, claims that the floor had been mopped just prior to his accident and that defendants *fn1" negligently failed "to warn tenants and/or invitees of the dangerous and slippery condition of the floor with the appropriate signs and/or barriers." Id. PP 6, 7.

 Smith subsequently made a claim with his employer for workers' compensation benefits. Hogan & Hartson made voluntary payments of compensation from the date of the injury until January 29, 1990. Plaintiff then filed a claim for workers' compensation pursuant to the District of Columbia Workers' Compensation Act of 1979. On April 3, 1991, the Hearings and Appeals Examiner issued a Compensation Order requiring Hogan & Hartson to pay compensation from January 30, 1990, through September 29, 1990, the date Smith began a new job.

 On January 21, 1992, Liberty Mutual Insurance Co., as subrogee for Hogan & Hartson, filed suit against Ogden in the Superior Court of the District of Columbia for reimbursement of the benefits paid to Smith. The parties ultimately settled the Superior Court lawsuit. On April 3, 1992, plaintiff filed the instant complaint.

 II. Discussion

 In viewing a motion to dismiss, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). At this stage, the Court must accept as true the factual allegations of the complaint, Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984), and draw from them all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974).

 Summary judgment, in contrast, is appropriate when there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). "The inquiry performed is the threshold inquiry of determining whether there is a need for trial--whether, in other words, there are any genuine issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In considering a motion for summary judgment, the "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. At the same time, however, Rule 56 places a burden on the nonmoving party to "go beyond the pleadings and by her own affidavits, or by the 'depositions, answers to interrogatories, and admissions on file,' designate 'specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 To resolve this diversity case, the Court must apply the substantive law of the District of Columbia. See Edwards v. Consolidated Rail Corp., 567 F. Supp. 1087 (D.D.C.), aff'd, 236 U.S. App. D.C. 135, 733 F.2d 966 (D.C. Cir.), cert. denied, 469 U.S. 883, 83 L. Ed. 2d 189, 105 S. Ct. 252 (1983). Under the District of Columbia Workers' Compensation Act (the "Act"), D.C. Code §§ 36-301 et seq. (1988), an employee injured at work is not required to choose immediately between filing a workers' compensation claim and suing an allegedly liable third party. See Cunningham v. George Hyman Constr. Co., 603 A.2d 446 (D.C. 1992). Once the employee accepts a workers' compensation award, however:

 
Acceptance of such compensation . . . shall operate as an assignment to the employer of all rights of the person entitled to compensation to recover damages against such third person unless such person shall commence an action against such third person within 6 months after such award.

 D.C. Code § 36-335(b) (1981) (emphasis added). Thus, six months after the injured employee accepts a workers' compensation award, that employee's right to sue an allegedly liable third party are exclusively held by the employer. The employee does not assign his entitlement to recovery, however, because if the employer successfully sues the third party, eighty percent of any recovery above the employer's costs must be paid to the employee. D.C. Code § 36-335(e).

 Defendants rely on the District of Columbia Court of Appeals' interpretation of this provision in Cunningham v. George Hyman Construction Co., 603 A.2d 446 (D.C. 1992), to assert that Smith's claim is time-barred. The facts of Cunningham are relatively simple. Theodore Cunningham was injured in October 1984. He filed a workers' compensation claim, and in April 1986, he received a final order awarding damages for his temporary total disability. Cunningham subsequently received an award for permanent partial disability in October 1988. In the interim, Cunningham initiated his lawsuit against the general contractor in September 1987--more than six months after the award for temporary disability but prior to the award for permanent disability.

 The court framed the issue on appeal as "precisely when that six-month period begins to run." 603 A.2d at 447. The plaintiff argued that it could not begin to run until after he received full compensation for all compensable injuries. Defendant, on the other hand, argued that it began to run as soon as plaintiff accepted any award. Id. After considerable analysis, the District of Columbia Court of Appeals--relying on the plain language of the ...


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