Response to Motion for Summary Judgment

IN THE CIRCUIT COURT FOR BALTIMORE CITY

RICHARD DENNISON
– Plaintiff,

DISNEY THEATRICAL PRODUCTIONS
– Defendant,

CIVIL ACTION NO.:

Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment

Plaintiff, Richard Dennision, by and through his counsel, Laura G. Zois, John B. Bratt and Miller & Zois, LLC, hereby files Plaintiff’s Opposition to Defendants’ Motion For Summary Judgment (click on link to see Defendant’s motion). Defendants’ Motion must be denied because there are material facts in dispute and Defendants are not entitled to judgment as a matter of law. [See Defendant’s Motion for Summary Judgment for

Introduction

Plaintiff Richard Dennision was catastrophically injured on September 5, 2005. At the time of the accident, he was working as a laborer and was breaking down the set of the touring production of The Lion King after its run at the Hippodrome Theater in Baltimore City, Maryland. He was injured while pushing a large deck cart which was carrying over 1,100 pounds of material. The deck cart was a large vertical box that was manufactured by Defendant Hudson Scenic Studios, (hereinafter referred to as Hudson), designed by Hudson and Defendant Buena Vista Theater Group, Ltd. (hereinafter “BVTG”), and owned and provided to Plaintiff by BVTG.

The Plaintiff was directed to push the deck cart down Baltimore Street to a waiting tractor trailer. At the time of the accident, Baltimore Street’s pavement had numerous areas immediately outside the loading dock that were uneven. After getting the deck cart out into the street, the deck cart became unstable, toppled over, and crushed the Plaintiff.

Defendant BVTG is moving for summary judgment on the theory that it was the Plaintiff’s co-employer, and therefore, Plaintiff is barred from suing BVTG because of the worker’s compensation exclusivity of remedy statute. BVTG is wrong for two reasons. First, BVTG was not an employer of Plaintiff and is not entitled to utilize the defense of exclusivity of remedy. Second, Defendant BVTG is not entitled to judgment as a matter of law because Plaintiff was a casual employee, and worker’s compensation exclusivity of remedy does not apply to casual employees.

Argument

I. LE § 9-509 Exclusivity of Remedy Does Not Apply To BVTG Because The Plaintiff Was Not Its Employee.

BVTG argues that it was Plaintiff’s employer; however, it had no employment relationship with him. BVTG had a contract with Hippodrome Foundation, Inc. (hereinafter “HFI”) to use the Hippodrome Theater to put on a production of The Lion King. Exhibit 1 (A). Pursuant to the contract between BVTG and HFI, HFI was required to provide the use of the theater and to obtain some of the labor needed for the production. In turn, HFI then contracted with an entity known as Theater Management Group, Maryland (hereinafter “TMGMD”). Exhibit 2 (A). The contract between HFI and TMGMD authorized TMGMD to “subcontract out hiring labor for the Hippodrome Theater.” Exhibit 2, ¶ 7.

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TMGMD then contracted with a local Union, Local 19 of the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of The United States And Canada, AFL-CIO (hereinafter, “the Union”). TMGMD agreed to use union labor for all productions at the Hippodrome Theater, including the production of The Lion King. Exhibit 3 (B).

BVTG was not a party to the agreement between HFI and TMGMD. BVTG was not a party to the agreement between TMGMD and the Unions. BVTG had no direct relationship with TMGMD, and no relationship at all with the Union or the Plaintiff.

“[T]he determination of the employer/employee relationship is properly based on five factors.” Great Atlantic & Pacific Tea Co., Inc. v. Imbraguglio, 346 Md. 573, 590, 697 A.2d 885, 893 (1997). “They include (1) the power to select and hire the employee, (2) the payment of wages, (3) the power to discharge, (4) the power to control the employee’s conduct, and (5) whether the work is part of the regular business of the employer.” Id. at 590-91, 697 A.2d at 893-94. The application of the fact in this case clearly indicate that there was no employment relationship between BVTG and Plaintiff Dennision.

a. The power to select and hire.

BVTG did not have “the power to select and hire” the Plaintiff. In fact, the opposite was true. BVTG was obligated to accept whatever labor the Union provided pursuant to its contract with TMGMD. The agreement attached hereto as Exhibit 3 (B) is between the union and TMGMD, and states that TMGMD is the “employer” of all union labor provided under the agreement. Exhibit (2) (A), P. 1. Plaintiff Dennision was provided to TMGMD pursuant to Article 2, Section A of the agreement, entitled “Referral of Casual Workers.” Id., P. 3. The agreement obligated TMGMD to contact the union when workers were needed, and to allow the union to “fill all work calls with persons who are called to work under the UNION’s formal referral procedures….” Id. BVTG was not a party to the agreement for the provision of workers, and it did not grant BVTG the right to select or hire any of the stagehands the Union provided. Michael T. Carey, III, BVTG’s corporate representative, testified that although he had “heard of” TMGMD, he had no direct dealings with them, and had no knowledge of what functions TMGMD performed. Exhibit 4, P. 175, L. 5-13.

Moreover, the agreement between BVTG and HFI for use of the theater provided that “all Production Labor” would be “contracted and/or arranged for by” HFI. Exhibit 1 (A), P. 3. HFI was also obligated to abide by the terms of “all applicable guild or union contracts….” Exhibit 1 (A), P. 11. The agreement provided that HFI and BVTG were independent parties and that neither party should “be deemed to be the agent of the other for any purposes whatsoever.” Exhibit 1 (A), P. 20. Neither party had the ability “to make representations on behalf of the other party or to obligate or bind the other party in any manner whatsoever….” except as “expressly provided” in the agreement. Id.

It is undisputed that the agreement between BVTG and HFI did not give BVTG the right to select and hire production labor. According to Mr. Carey, he submitted a document with the number of crew members needed to HFI, and then HFI arranged with the Union for whatever labor was needed. He had no personal involvement at all in deciding who the crew members where or how
they were selected, he merely provided HFI with a number of people needed. Exhibit 4, P. 40, L. 9-13; P. 174, L. 17-21.

Mr. Carey described the process by which local stagehands were provided for the production. He testified that in each town, the production was provided with “local union stagehands” and that those stagehands were “total strangers to Buena Vista.” Exhibit 4, P. 186, L. 3-7. Mr. Carey testified that there were contractual provisions dictating that BVTG would be provided with “qualified stagehands.” Exhibit 4, P. 187, L. 3-12. Mr. Carey agreed that it was the responsibility of the Union to determine who was a qualified stagehand. Exhibit 4, P. 188, L. 16-20. He also testified that BVTG did not review the qualifications or experience of the stagehand, and that: “we, we assume that when we get to a theater that the, the rider has been, you know, the terms of the rider have been met and they’ve provided us with qualified stagehands.” Exhibit 4, P. 189, L. 16-19.

He agreed, contrary to the assertions in his Affidavit, that he did not have the power to discipline the stagehands. Exhibit 4, P. 190, L. 3-21. The undisputed evidence, including the testimony of BVTG own corporate designee, is that BVTG has no power to select and hire.

b. Payment of wages.

It is undisputed that BVTG did not pay any direct wages to Plaintiff Dennision. BVTG’s weak attempt to claim some payment to Plaintiff Dennision is three steps removed from any direct payment of wages. BVTG had an agreement with HFI, and BVTG agreed to reimburse HFI, at a later date, for the costs HFI incurred in securing and providing production labor. Because it cannot, BVTG does not allege that it, or even HFI, paid any direct wages to Plaintiff.

Plaintiff was paid his wages from TMGMD and/or the Union. The Maryland Worker’s Compensation Commission entered a Wage Order finding that Plaintiff was employed by TMGMD, and that TMGMD paid him wages. Exhibit 3 (A); Exhibit 7. This is supported by a wage correction form filed in the workers compensation proceeding, wherein TMGMD asked for a correction to the amount that it had paid Plaintiff. Exhibit 5. At his deposition, Plaintiff testified that he was paid in the form of a check drawn upon “Local 19”. Exhibit 6, P. 122, L. 14-15. There is no evidence that BVTG paid any wages to Plaintiff Dennision.

c. The power to discharge.

The contract between BVTG and HFI required HFI to obtain and furnish all production labor. Exhibit 1 (A), P. 3. HFI and BVTG were independent parties. Nothing HFI did could bind BVTG, and nothing BVTG did could bind HFI. Exhibit 1 (A), P. 20. Neither party could “be deemed to be the agent of the other for any purposes whatsoever.” Id.

HFI contracted with TMGMD for management of the Hippodrome Theater, and granted TMGMD “absolute discretion to hire, promote, supervise, direct and train its employees at the Hippodrome, to fix their compensation and fringe benefits, and, generally, to establish and maintain all policies relating to employment.” Exhibit 2 (A), § 12.1.

BVTG admits that it had no right to discipline Plaintiff Dennision; therefore, BVTG cannot credibly claim that since HFI had a right to establish employment policies that the right somehow flowed to BVTG. Further attenuating BVTG’s rights, HFI subcontracted its rights and duties to TMGMD. Exhibit 3, P.2. Additionally, the contract between TMGMD and the Union specifically states that TMGMD had the power to dismiss any employee for cause, within certain limitations. Exhibit 2 (A), P. 5 (emphasis added). TMGMD had the ability to reject referred workers who were “not competent or able to satisfactorily perform the work intended….” Id., P. 4. TMGMD was required, in writing, to state the reasons it rejected any stagehand the union provided, and to provide the written reasons for rejection to the union within “five working days.” Id.

Michael Carey’s Affidavit is the only evidence that BVTG had any right to discharge Plaintiff. That Affidavit is self serving and is contradicted by Mr. Carey’s previous testimony under oath that he lacked the power to discipline the stagehands, Exhibit 4, P. 190, L. 9-20, as well as by the terms of the contract between TMGMD and the Union.

d. The power to control the work.

BVTG did not have the right to control the work being done by Plaintiff Dennision. BVTG argues that it had the power to control Plaintiff’s work based solely on the testimony of Plaintiff and that of its own corporate representative. BVTG is wrong because the Union contract under which Plaintiff was employed gave TMGMD the exclusive right to direct the work to be performed.

The Union was “the sole and exclusive bargaining representative with respect to rates of pay, hours, and other conditions of employment for all employees….” of TMGMD working as stagehands at the Hippodrome Theater, including Plaintiff. Exhibit 3 (B), P. 1. Only the Union had the ability to negotiate Plaintiff’s conditions of employment. The contract dictated the length of Plaintiff’s work week and pay period, and the timing and length of Plaintiff’s meal period. Exhibit 3 (B), P. 9, 19. The contract obligated the union workers to do the work “deemed necessary by the EMPLOYER…” during load-out. Exhibit 3 (B), P. 9. The contract designated TMGMD as the “employer.” Exhibit 3 (B), P. 1.

The contract between TMGMD and the union gave TMGMD “the exclusive right at all times to determine its staffing requirements and the direction of the work to be performed….” Exhibit 3 (B), P. 4 (emphasis added). Similarly, the Operating Agreement for the management of the Hippodrome Theater granted TMGMD “absolute discretion to hire, promote, supervise, direct and train its employees at the Hippodrome, to fix their compensation and fringe benefits, and, generally, to establish and maintain all policies relating to employment.” Exhibit 2 (A), § 12.1 (emphasis added). BVTG had no right to control Plaintiff’s work as a matter of law.

e. The regular business of the employer.

BVTG concedes that its regular business is “to present live theater including touring Broadway productions.” Defendants’ Motion at P. 7. BVTG’s regular business is not owning, maintaining or staffing theaters, or obtaining, selecting or providing production labor. That is why it contracted with HFI. The contract with HFI obligates HFI to “maintain and operate the Theater”, including:

1. 1. - Providing and staffing the Box Office
    - Providing administrative staff and personnel
    - Providing and maintaining all utilities
    - Providing and maintaining all general and necessary maintenance for the Theatre
    - Providing and maintaining dressing rooms, medical services, and laundry
    - Providing and maintaining theater rigging
    - Providing and maintaining lighting and sound equipment
    - Obtaining and renewing all permits and licenses
    - Securing and providing all local musicians
    - Fulfilling and complying with all applicable guild or union contracts
    - Contracting and arranging for all production labor.
    - Providing and operating concessions an coat check
    - Producing and providing programs at each performance
    - Paying state and local admissions taxes

Exhibit 1 (A), P. 5, 8, 9, 10, 11, 13, 14. “Production labor” included stagehands, such as Plaintiff. In contrast, under the agreement BVTG retained certain rights and obligations, including:

1. 1. - Operating all merchandise sales facilities located in and in fro
      nt of the theatre
    - Control of complimentary tickets for marketing and sponsorship
    - Control of all advertising, marketing and publicity matters
    - Control of performance and rehearsal footage
    - Modifying ticket prices
    - Entering into corporate sponsorship agreements
    - Use and control of the names “Buena Vista Theatrical Group, Ltd.”, “Disney” and of any characters, designs, logos or trademarks of The Walt Disney Company.

Exhibit 1 (A), P. 14, 15, 16, 17, 20. The agreement between BVTG and HFI makes it apparent that BVTG’s regular business is, as it concedes, “to present live theater including touring Broadway productions.” Defendants’ Motion at P. 7. It is just as clear that that BVTG is not in the business of owning, operating and maintaining theaters or obtaining and providing “production labor.” BVTG’s business is making money off of an artistic product. It provided and controlled everything relating to the artistic, advertising and marketing aspects of the touring production of The Lion King. It could not handle the facility responsibilities itself, which is why it had to contract that work out to HFI in the first place. BVTG needed HFI to provide the physical needs of the production such as facilities, maintenance, and non-artistic manual labor, such as Plaintiff. BVTG’s regular business is not loading trucks, which was the work TMGMD hired Plaintiff to do.

f. Conclusion.

The above analysis of the five factors determinative of an employer/employee relationship illustrates that: 1) BVTG did not have the power to select or hire Plaintiff Dennision, that was a privilege held by TMGMD and the Union; 2) BVTG did not make any payment of wages to Plaintiff Dennision, that was done by TMGMD and the Union; (3) BVTG did not have the power to discharge, only TMGMD had that power; (4) BVTG did not have the power to control the Plaintiff’s conduct, only TMGMD had that power; and (5) Providing manual labor for a production and managing a theater are not part of the regular business of BVTG, which is why BVTG needed to contract with HFI to perform those functions.

At a minimum, there are disputed material facts sufficient to bar the entry of summary judgment. “If there is evidence to support an inference that more than one individual or company controls or directs a person in the performance of a given function, the question whether an employer-employee relationship exists is a question of fact to be determined by the jury.” Mackall v. Zayre, 293 Md. 221, 230, 443 A.2d 98, 103 (1982).

II. Under The National Labor Relations Act, Only TMGMD Had The Power To Control Plaintiff.

It is undisputed that Plaintiff was hired by TMGMD under a contract with Local 19 of the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of The United States and Canada, AFL-CIO. Exhibit 3 (B), P.1. That agreement recognized the union as “the sole and exclusive bargaining representative with respect to rates of pay, hours, and other conditions of employment…” for all employees working as stagehands at the Hippodrome Theater. Id.

This authority stems from the National Labor Relations Act. 14 Penn Plaza LLC v. Pyett, 2009 U.S. Lexis 2497, 129 S.Ct. 1456, 1461 (2009). “In this role, the Union has exclusive authority to bargain on behalf of its members over their rates of pay, wages, hours of employment, or other conditions of employment.” Id. “As the employees’ exclusive bargaining representative, the Union ‘enjoys broad authority in the negotiation and administration of [the] collective bargaining contract.” Id. at 1465. The exercise of management functions is a proper subject of collective bargaining. NLRB v. American National Ins. Co., 343 U.S. 395, 409, 72 S.Ct. 824, 832 (1952).

Here, the power to control Plaintiff’s work was granted exclusively to TMGMD. The contract between TMGMD and the union gave TMGMD “the exclusive right at all times to determine its staffing requirements and the direction of the work to be performed ….” Exhibit 3 (B), P. 4. If BVTG wanted the power to control the Plaintiff in the conduct of his work, that right would have had to be obtained through negotiation with the union, as Plaintiff’s collective bargaining agent. Instead, the union granted that right exclusively to TMGMD. BVTG had no right to control the Plaintiff in the performance of his duties as a matter of law, and consequently has no right to entry of summary judgment.

III. If Plaintiff Was An “Employee”, Worker’s Compensation Exclusivity Does Not Apply To Him Because He Was A Casual Employee.

Casual employees are not “covered employees” under the Maryland Worker’s Compensation law. Md. Labor & Employment Code Ann. § 9-205. Plaintiff would only be subject to the exclusivity provision of the Maryland Worker’s Compensation law if he was a “covered employee”. Md. Labor & Employment Code Ann. § 9-509.

The determination of whether an individual is a casual employee must be made on the facts of each case. Leonard v. Fantasy Imports, 66 Md.App. 404, 409, 504 A.2d 660 (1985).

Maryland courts have identified several factors to be considered in making this determination. These factors include the 1) duration of the employment, 2) the frequency of the employment, 3) whether future or ongoing employment is contemplated, 4) the nature of the employer’s work, 5) and the scope and purpose of the hiring. Id.at 410-13, 504 A.2d at 663-65. “[I]f the particular employment during which the injury occurs is of short duration, of a temporary or sporadic nature, and not pursuant to any agreement whereby there is a continuous obligation by the claimant to work for the employer, that employment can be said to be casual.” Id. at 413, 504 A.2d at 665.

The contract between HFI and BVTG required HFI to supply production labor, including stagehands. HFI contracted with TMGMD to fulfill that portion of the contract. Plaintiff’s employment was governed by a contract between his union and TMGMD. That contract provided that when TMGMD needed certain categories of employees, it was obligated to obtain them from the union. This agreement applied to all productions held at the Hippodrome Theater, not just The Lion King. Exhibit 3 (B), P. 1. The contract specifically states that it applies to “REFERRAL OF CASUAL WORKERS” and provides a specific procedure by which these casual workers were to be obtained by TMGMD. Exhibit 3 (B), P. 3.

This is also supported by Plaintiff’s deposition testimony. He would be contacted by the union when there was a need for workers, would be told his hours, whether he would be working load-in or load-out, or whether he would be working all of the scheduled performances. Exhibit 6, P. 42, L. 19 to P. 43, L. 3. He would be contacted off of a union seniority list, with those with the most seniority contacted first. Exhibit 6, P. 107, L. 13-20. Pursuant to this procedure,

Plaintiff had worked on different kinds of performances at various venues since 2001. Exhibit 6, P. 46, l. 5-11. Plaintiff did not recall having worked at the Hippodrome prior to September, 2005. Id. He worked only one day on The Lion King, for load-out. Exhibit 6, P. 49, L. 10-13.

This is further supported by the deposition testimony of Michael Carey, who said that in each town the production went to, they would be provided with stagehands by the local union, and that these stagehands were essentially strangers to BVTG. Exhibit 4, P. 186, L. 3-7.

The evidence shows that Plaintiff’s employment as a stagehand was “of short duration, of a temporary or sporadic nature, and not pursuant to any agreement whereby there is a cont
inuous obligation… to work for the employer….”Leonard, at 413, 504 A.2d at 665. If Plaintiff was employed by BVTG at all, “the brief service he was undertaking to render… had no relation to any engagement between them in the past or future.” Id. at 410, 504 A.2d at 663. “In view of its restricted scope and purpose, it must be regarded as casual within the meaning of the Maryland statute.” Id.

It is clear that under these circumstances, Plaintiff would be considered a casual employee, and therefore would not be subject to the exclusive remedy provisions of the workers’ compensation law. At a minimum, a dispute of material fact is generated as to whether Plaintiff would be considered a casual employee. Accordingly, Defendants’ motion should be denied.

IV. Plaintiff Is Not Estopped From Arguing Casual Employee Status.

Prior to remand, the Hon. Richard D. Bennett of the U.S. District Court dismissed TMGMD from this litigation. He ruled that Plaintiff was precluded from arguing that worker’s compensation exclusivity did not apply to his claims against TMGMD because of judicial estoppel. Essentially, Judge Bennett’s ruling was that because Plaintiff had taken the position in his worker’s compensation claim that he was a covered employee of TMGMD, he was precluded from using the casual employee doctrine to argue that TMGMD was not entitled to worker’s compensation exclusivity.

“Judicial estoppel, also known as the ‘doctrine against inconsistent positions’ and ‘estoppel by admission’, prevents ‘a party who successfully pursued a position in a prior legal proceeding from asserting a contrary position in a later proceeding.’” Gordon v. Posner,142 Md.App. 399, 424, 790 A.2d 675, 689 (2002). There are two reasons the doctrine of judicial estoppel exists. Id. at 425, 790 A.2d at 690. First, is “the principle that a litigant should not be permitted to lead a court to find a fact one way and then contend in another judicial proceeding that the same fact should be found otherwise.” Id. “The second reason for estoppel is to protect the party seeking the estoppel.” Id. This is because estoppel “preserves the relationship between the parties to the prior litigation.” Id.

Several factors typically inform the decision whether to apply the doctrine in a particular case: First, a party’s later position must be “clearly inconsistent” with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled[.]” Absent success in a prior proceeding, a party’s later inconsistent position introduces no “risk of inconsistent court determinations,” and thus poses little threat to judicial integrity. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.

Id. at 427, 790 A.2d at 690 (emphasis in original). “Judicial estoppel is inapplicable unless the party had, or was chargeable with, full knowledge of the facts and another will be prejudiced by his action.” Chaney Ent. Ltd. Partnership v. Windsor, 158 Md.App. 1, 42, 854 A.2d 233, 257 (2004).

BVTG appears to be attempting to lay the groundwork for an argument that Plaintiff should be precluded from taking the position herein that if he was an employee of BVTG at all, he was a casual employee to whom worker’s compensation exclusivity did not apply. However, the factors Maryland courts use in applying the doctrine of judicial estoppel indicate that judicial estoppel is inapplicable to the circumstances presented here, with respect to BVTG.

First, the only position Plaintiff took in the worker’s compensation proceeding was that he was a covered employee of TMGMD. Plaintiff has never contended that he was an employee of BVTG, casual or otherwise.

BVTG was not a party to the worker’s compensation case. BVTG did not file any pleadings, was not represented by counsel, and did not appear at any hearings. BVTG had no relationship, contractual or otherwise, with TMGMD. BVTG’s corporate representative testified in this case that although he had “heard of” TMGMD, he had no direct dealings with them, and had no knowledge of what functions TMGMD performed. Exhibit 4, P. 175, L. 5-13.

Plaintiff’s worker’s compensation claim form named TMGMD as his employer. Exhibit 3 (A). He received worker’s compensation benefits from TMGMD, not BVTG. Plaintiff has never taken the position in any prior proceeding that he was BVTG’s employee. Whether Plaintiff was an employee of BVTG was never at issue in the worker’s compensation case, was never litigated in that case, and was never the subject of any judicial or administrative determination.

Plaintiff’s position in this case that he was not BVTG’s employee, and that if he was, he was a casual employee, raises no risk of inconsistent determinations. No determination was ever made on this issue – it simply was never a part of the prior proceeding. Second, there is no risk of creating the perception that Plaintiff misled either the Worker’s Compensation Commission or this Court because the only position he has taken with respect to any employment relationship with BVTG is the position he takes herein. Finally, there is no risk of Plaintiff obtaining an unfair advantage over BVTG if not estopped. BVTG was not a party to the worker’s compensation proceeding. Plaintiff never sought or received benefits from BVTG as a result of that proceeding. The issue of whether Plaintiff had any employment relationship with BVTG is being litigated for the first time in this Court. Under any reasonable analysis, judicial estoppel cannot be construed to bar Plaintiff from relying upon the casual employee doctrine in this case.

The Court of Appeals of Maryland’s holding in Mackall v. Zayre Corp., 293 Md. 221, 443 A.2d 98 (1982) is illustrative on this point. Mackall had filed a worker’s compensation case in which she alleged, and the Worker’s Compensation Commssion held, that she was a covered employeed of a company named Alden Millinery. Id., at 223, 443 A.2d at 99. Mackall subsequently filed a third-party negligence action against Zayre. Id. Zayre was not a party to the worker’s compensation case. Zayre defended the third party case on the basis that is was MacKall’s co-employer, and should be entitled to the protection of worker’s compensation exclusivity. Id. at 224, 443 A.2d at 99-100. Mackall argued that Zayre should be estopped from taking that position. Id. at 227, 443 A.2d at 101. The Court of Appeals of Maryland held that estoppel did not apply because the issue of Zayre’s status as an employer was not actually litigated in the worker’s compensation case:

The relevant issue actually litigated in the workmen’s compensation proceeding was Alden’s status as an employer and the fact determined there was that Alden was Mackall’s employer. Zayre’s status as Mackall’s employer was not in issue and, therefore, was not determined in the workmen’s compensation proceeding. The issue presented in the subsequent tort action was Zayre’s status as Mackall’s employer, and the fact to be determined was whether Zayre, as well as Alden, was her employer. Accordingly, under the applicable principle of collateral estoppel, Zayre was not prevented, in the subsequent tort action, from litigating its status as Mackall’s employer.

Id. at 228
-29, 443 A.2d at 102. Maryland courts “frequently address” the concerns presented by both judicial estoppel and equitable estoppel “under the unified label of judicial estoppel.” Gordon v. Posner, 142 Md.App. 399, 426, 790 A.2d 675, 690 (2002). Under the Zayre analysis, it is clear Plaintiff is not estopped because he took no position in the prior proceeding with repect to BVTG, and the issue of BVTG’s status as his employer was not litigated in that case. Therefore, the casual employee doctrine applies to prevent preclusion of Plaintiff’s claims against BVTG on the basis of worker’s compensation exclusivity.

V. Conclusion

Summary judgment may not be entered in this case because there are disputed material facts and because Defendants are not entitled to judgment as a matter of law. First, by virtue of the contract between TMGMD and the union, TMGMD had the “exclusive right at all times to determine…the direction of the work to be performed….” Exhibit 3 (B), P. 4. Moreover, under federal law only TMGMD, as a matter of law, had the power to direct the Plaintiff in the performance of his work. Because Maryland law holds the right of control to be determinative of an employment relationship, summary judgment must be denied. Second, even if there were an employment relationship between Plaintiff and BVTG, Plaintiff was a casual employee to whom worker’s compensation did not apply, and is not estopped from asserting that position against BVTG. Accordingly, Plaintiff respectfully requests that Defendants’ Motion for Summary Judgment be denied.

Respectfully submitted,
Miller & Zois, LLC

John B. Bratt
Laura G. Zois
1 South St, #2450
Baltimore, MD 21202
(410) 779-4600
Attorneys for the Plaintiff

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