United States District Court, District of Columbia
LAKYSHA S. TRUESDALE, Plaintiff
MOUNTAIN PRODUCTIONS, INC., et al., Defendants
CONDER, INC., Third-Party Defendant
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
case concerns the death of a man who fell while helping to
construct a concert stage at Robert F. Kennedy Memorial
Stadium. Plaintiff, the decedent's daughter, has brought
this lawsuit alleging that several of the businesses involved
in the construction of that stage were negligent in failing
to provide the proper protective equipment to prevent her
father's fall. Two of the Defendants, Mountain
Productions, Inc. (“Mountain”) and It's My
Party, Inc. (“IMP”), have filed third-party
complaints against the decedent's employer, Conder, Inc.
(otherwise known as Charm City Crewing Company). Presently
before the Court are Conder's motions to dismiss those
third-party complaints. Upon consideration of the pleadings,
relevant legal authorities, and the record as a whole, the
Court will GRANT Conder's  Motion to Dismiss the
Third-Party Complaint by Mountain, but DENY Conder's 
Motion to Dismiss the Third-Party Complaint by IMP.
filed this action against Defendants Mountain, IMP and
Washington Convention and Sports Authority in the Superior
Court of the District of Columbia. Compl., ECF No. 1-2.
Plaintiff alleged that on June 30, 2015, her father, James L.
Truesdale, was working to construct a concert stage at the
Robert F. Kennedy Memorial Stadium at a jobsite controlled by
one or more of the Defendants. Id. ¶ 11. Mr.
Truesdale was a day laborer employed by Conder, a company
that was not named as a Defendant in Plaintiff's lawsuit.
Id. ¶ 12. He fell from a platform while working
and died eight days later. Id. ¶¶ 13, 15.
Plaintiff alleges that the Defendants failed to ensure that
the platform from which her father fell had
“appropriate fall protection equipment and/or other
necessary systems in place to prevent the employees of
subcontractors from falling off of heights greater than six
feet, which is required, inter alia, by federal OSHA
regulations.” Id. ¶ 14. Plaintiff
asserted two counts against the Defendants: one for
“negligence; wrongful death” and another for
“negligence; Survival Act.” Id.
¶¶ 16-24. Defendant IMP removed Plaintiff's
lawsuit to this Court. See Notice of Removal, ECF
IMP and Mountain then filed third-party complaints against
the decedent's employer, Conder. See Def.
It's My Party, Inc.'s Third-Party Compl. Against
Conder Inc., ECF No. 17 (“IMP Compl.”); Def.
Mountain Production, Inc.'s Third-Party Compl. Against
Conder Inc., ECF No. 19 (“Mountain Compl.”). In
its third-party complaint, IMP alleges that Conder entered
into an agreement with IMP “to provide employees and/or
agents to build the concert stage . . . and to provide
vetting, training, instruction, supervision and oversight,
including but not limited to onsite supervision of these
employees and/or agents.” IMP Compl. ¶¶ 4,
14. IMP also states that “[p]ursuant to the terms of
the Agreement, [Conder] agreed to indemnify IMP for any
negligence by [Conder] occurring during [Conder's]
operations pertaining to the Concert, and to add IMP as an
additional insured to [Conder's] commercial general
liability insurance policy.” Id. ¶ 15.
IMP alleges that it had an ongoing relationship with Conder
and that the two businesses had entered into numerous similar
agreements in the past. Id. ¶ 17. IMP claims
that it was Conder's duty and responsibility to provide
fall protection equipment or other necessary systems to
prevent falling-not IMP's. Id. ¶ 22. IMP
asserts causes of action against Conder for breach of
contract and implied indemnity. Id. ¶¶
Mountain has also asserted causes of action against Conder
for breach of contract and implied indemnity. Mountain Compl.
¶¶ 22-32. However, the factual allegations
underlying those claims are different than IMP's.
Mountain alleges that it “entered into a contract with
IMP and/or one of its affiliates to provide staging for a
pending concert, whereby IMP would provide local labor for
work to be done at RFK from on or about June 28 to July 7,
2015.” Id. ¶ 12. Mountain does not claim
that it contracted with Conder. Instead, Mountain alleges
that “[u]pon information and belief, on or before June
25, 2015, IMP contracted with [Conder] to provide vetting,
training, instruction, supervision, oversight, and employees
to perform work at RFK from on or about June 28 to July 7,
2015, whereby Mountain was an intended beneficiary of this
contract.” Id. ¶ 13. Mountain also states
that “[b]y providing employees to work at RFK from June
28 to July 7, 2015, Mountain had a special relationship with
[Conder] by virtue of the day-to-day interaction and
decision-making between the parties regarding the work at
RFK.” Id. ¶ 15.
has moved to dismiss both of these third-party complaints
under Federal Rule of Civil Procedure 12(b)(6).
to Rule 12(b)(6), a party may move to dismiss a complaint
(including a third-party complaint) on the grounds that it
“fail[s] to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). The Federal Rules of
Civil Procedure require that a complaint contain
“‘a short and plain statement of the claim
showing that the pleader is entitled to relief, ' in
order to ‘give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests.'”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
“[A] complaint [does not] suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S.
at 557). Rather, a complaint must contain sufficient
factual allegations that, if true, “state a
claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570. “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678. In evaluating a Rule
12(b)(6) motion to dismiss for failure to state a claim, a
court must construe the complaint in the light most favorable
to the plaintiff and accept as true all reasonable factual
inferences drawn from well-pleaded factual allegations.
See In re United Mine Workers of Am. Employee Benefit
Plans Litig., 854 F.Supp. 914, 915 (D.D.C. 1994).
The D.C. Workers' Compensation Act and Myco, Inc. v.
Super Concrete Co.
main legal principle underlying Conder's motions to
dismiss is that as the decedent's employer, Conder was
liable for his fall regardless of fault pursuant to the
District of Columbia's Workers' Compensation Act
(“WCA”). The remedies provided for by the WCA are
exclusive. The WCA states that “[t]he liability of an
employer prescribed in § 32-1503 [i.e., for
compensation for injury or death without regard to fault]
shall be exclusive and in place of all liability of such
employer to the employee, his legal representative, spouse or
domestic partner, parents, dependents, next of kin, and
anyone otherwise entitled to recover damages from such
employer at law on account of such injury or death.”
D.C. Code § 32-1504(a). No party in this case disputes
that this exclusivity would bar Plaintiff herself from suing
Conder, which she has not done. However, Conder claims that
this exclusivity goes a step further, and also prevents
Third-Party Defendants from recovering against it.
Third-Party Defendants disagree.
foundational case on this topic is Myco, Inc. v. Super
Concrete Co.. In Myco, the District of Columbia
Court of Appeals addressed “the effect of the District
of Columbia's Workers' Compensation Act on the right
of a third party to indemnity from the employer of an injured
worker seeking recovery in tort from that third party.”
565 A.2d 293, 294 (D.C. 1989). In that case, Super Concrete
Co. had contracted with Myco, Inc. for Myco to work on a
power washer on Super Concrete's premises. Id.
Later, an employee of Super Concrete was killed while using
the washer. Id. The deceased employee's wife
filed a workers compensation claim, and Super Concrete's
insurer paid death benefits to his estate. Id. The
wife later filed a wrongful death action against Myco
claiming that Myco's negligence had caused her
husband's death. Id. Myco filed a third-party
complaint against Super Concrete seeking indemnification.
Id. at 294-95. The trial court dismissed the
third-party complaint and the Court of Appeals affirmed.
Myco court acknowledged that although “nothing
precludes [an] employee from seeking injury-related damages
from [a] third-party tortfeasor[, ] . . . when the third
party, to protect against an adverse monetary judgment, seeks
indemnity from the employer for having contributed to or
caused the injury for which the employee seeks damages, that
cause of action runs head-on into the exclusivity provision
of the [WCA].” Id. at 296-97. That being said,
the Myco court noted two circumstances where
indemnification is allowed despite the exclusivity of the
WCA. First, with respect to claims based on express
indemnification agreements-which were not actually at issue
in Myco-the court noted that “[i]t is well
settled in most jurisdictions that when the third party's
claim against the employer is for indemnity pursuant to an
express contractual provision, the exclusivity provisions of
workers' compensation laws do not bar the
indemnification.” Id. at 297. Second, the
Court determined that “implied indemnification”
is also available, despite the exclusivity of the WCA, in
situations where the third party and the employer
“‘stand in a special legal relationship that
carries with it the obligation . . . to indemnify the third
party.'” Id. at 299 (quoting Larson,
Third-Party Action Over Against Workers' Compensation
Employer, 1982 Duke L. J. 483, 505-06). “In order
to establish the right to this particular type of implied
indemnity, the obligation must arise out of a specific duty
of defined nature-separate from the injury to the
employee-owed to the third party by the employer.”
Id. In other words, “when the indemnity is
based on a special legal relationship existing separate and
apart from any liability which the employer might have had to
the injured employee, indemnity is allowed.”
Id. Examples of such relationships include bailors
and bailees, lessors and lessees and principals and agents.
Id. The Myco court held that the
relationship between Myco and Super Concrete was not
sufficient and that Myco's claim was accordingly barred.
on the preceding law, the viability of the third-party
complaints in this case depends on whether the Third-Party
Defendants have plausibly pled the existence of an express
indemnification agreement or the type of “special
relationship” that could support a claim for implied
indemnity. The following sections of the Court's Opinion
address whether the Third-Party Defendants have done so.