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Rodrigues-Novo v. Recchi America

November 13, 2003

JOAO RODRIGUES-NOVO, ET AL., APPELLANTS,
v.
RECCHI AMERICA, INC., ET AL., APPELLEES.



Appeal from the Superior Court of the District of Columbia (No. CA-3703-00) (Hon. Linda K. Davis, Trial Judge)

Before Terry and Steadman, Associate Judges, and Nebeker, Senior Judge.

ORDER OF CERTIFICATION

Appellant Joao Rodrigues-Novo was injured in a construction accident while working at the Branch Avenue Metro Station in Prince George's County, Maryland. *fn1 At the time of the accident, Rodrigues-Novo was employed by Pessoa Construction, Inc. ("Pessoa"). Pessoa was a subcontractor of appellee Recchi America, Inc. ("Recchi"). Recchi, in turn, was a contractor working for the Washington Metropolitan Area Transportation Authority ("WMATA"), which owned the site.

Appellant Rodrigues-Novo and his wife filed suit in the District of Columbia Superior Court against Recchi, WMATA, and supervisor Leroy Barnes *fn2 alleging negligence in the supervision, maintenance, and inspection of the loader and construction site, which negligence they claimed caused their damages. The trial court granted summary judgment to both defendants, on the ground that under the Maryland law of workers' compensation they were "statutory employers" and hence immune from suit. An appeal has been taken to this court challenging that conclusion.

The answer to this question of law will be determinative of this appeal *fn3 and it appears to this court that as to WMATA, there is no controlling appellate decision, constitutional provision or statute of Maryland. *fn4 Furthermore, the issue is one of general importance, given the extensive ongoing activities of WMATA in Maryland. Accordingly, pursuant to D.C. Code § 11-723(h) (2001), the Maryland Uniform Certification of Questions of Law Act, Md. Code Ann., Cts. & Jud. Proc. § 12-601 et seq. (2002 Repl.), and Rule 8-305 of the Maryland Court of Appeals, we hereby respectfully certify to the Maryland Court of Appeals the following question of law: Whether, in the circumstances of this case, *fn5 WMATA *fn6 was a "statutory employer" under the Maryland Workers' Compensation Act and hence immune from suit alleging negligence.

I.

The Maryland Workers' Compensation Act grants immunity from suit in tort to employers who are required to carry workers' compensation insurance. Md. Code Ann., Lab. & Empl. § 9-509(a) (1999 Repl.). Thus, if an employer falls within the statutory definition, immunity is a defense to any tort claim brought by an injured employee. However, this basic tenet of the workers' compensation system does not preclude an injured employee from pursuing a tort claim against third parties who are not their employers, but who may be liable for their injuries. See Md. Code Ann., Lab. & Empl. § 9-902(c); Brady v. Ralph Parsons Co., 520 A.2d 717, 723 (Md. 1987).

The Act sets forth who is considered an employer, commonly referred to as a "statutory employer," as follows:

(a) In general - A principal contractor is liable to pay a covered employee or the dependents of the covered employee any compensation that the principal contractor would have been liable to pay had the covered employee been employed directly by the principal contractor if:

(1) the principal contractor undertakes to perform any work that is part of the business, occupation, or trade of the principal contractor;

(2) the principal contractor contracts with a subcontractor for the execution by or under the subcontractor of all or part of the work undertaken by the principal contractor; and

(3) the covered employee is employed in the execution of that work.

Md. Code Ann., Lab. & Empl. ยง 9-508. Such statutory employers are immune from suit in the same manner as a direct employer. Sections 9-508 (b), ...


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