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Harvey Huihui, et al v. T.A.B. Retail Remodeling

February 9, 2012

HARVEY HUIHUI, ET AL.,
PLAINTIFF,
v.
T.A.B. RETAIL REMODELING, INC.; LOWE'S HI, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge

ORDER GRANTING DEFENDANT LOWE'S HIW, INC.'S MOTION FOR SUMMARY JUDGMENT

Before the Court is Defendant Lowe's HIW, Inc.'s ("Lowe's") Motion for Summary Judgment ("Motion"), filed on November 2, 2011. None of the other parties in this case responded to the Motion. The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i ("Local Rules"). After careful consideration of the Motion and the relevant legal authority, Lowe's Motion is HEREBY GRANTED for the reasons set forth below.

BACKGROUND

Plaintiffs Harvey Huihui and Harvey Huihui, Jr. (collectively "Plaintiffs") filed the instant action on July 26, 2010 in state court. Lowe's removed the action on August 27, 2010, with the consent of Defendant T.A.B. Retail Remodeling, Inc. ("T.A.B."). Hawaii Employers' Mutual Insurance Company, Inc. ("HEMIC") filed its Complaint in Intervention on July 20, 2011. [Dkt. no. 36.]

The Complaint alleges that, on or about July 21, 2009, Plaintiffs were both hired by Altres Staffing, Inc. to work at Lowe's Kailua-Kona store ("the Store"). During that time period, Lowe's and T.A.B. had a contract under which T.A.B. performed renovation services at the Store. At approximately 1:00 a.m. on July 21, 2009, Plaintiffs were stacking shelves at the Store while two of T.A.B.'s employees were operating a scissor lift in the same area. The T.A.B. employees allegedly failed to exercise due care in operating the scissor lift and pinned Harvey Huihui's left knee against the shelving. This caused him severe injury. Harvey Huihui, Jr. apparently did not see the pinning, but ran to his father's assistance when he heard his father's screams. [Complaint at ¶¶ 12-16.]

The Complaint alleges the following claims: negligence against Lowe's and T.A.B. ("Count I"); negligent supervision and training against Lowe's and T.A.B. ("Count II"); loss of consortium by Harvey Huihui, Jr., presumably against Lowe's and T.A.B. ("Count III"); and a respondeat superior claim against Lowe's and/or T.A.B. ("Count IV"). Plaintiffs seek special and general damages; prejudgment interest; attorneys' fees and costs; and any other appropriate relief.

Along with the instant Motion, Lowe's filed its separate and concise statement of facts in support ("Lowe's CSOF") on November 2, 2011. Lowe's states that, in June 2009, it began a project aimed at "Remerchandising" the Store ("the Remerch Project"). Lowe's contracted with T.A.B. to work on the Remerch Project. [Lowe's CSOF, Decl. of Shawna Wilson ("Wilson Decl."), at ¶¶ 5, 8.] Shawna Wilson's declaration states, in pertinent part:

9. As the project manager for the Remerch Project, I would provide a work list to TAB's crew lead at the beginning of each shift. This work list would provide the general Remerch Project tasks for the crew to work on to keep them on schedule toward the goal of completing the Remerch Project on time.

10. Although I gave TAB's crew lead the work list of tasks, TAB had full supervision, discretion and control of its employees regarding the manner in which the Remerch Project tasks were to be performed and completed.

11. Neither I nor any other Lowe's manager or employee directed TAB's employees on how to perform the tasks needed to complete the Remerch Project, including the transfer of items and operation of scissor lifts.

12. Neither I nor any other Lowe's manager or employee controlled the manner in which any tasks were to be performed by TAB in connection with its work on the Remerch Project.

13. Plaintiff Harvey Huihui, Plaintiff Harvey Huihui, Jr., and the individuals who were operating the scissor lift which allegedly collided with Mr. Huihui were not employees of Lowe's. [Id. at ¶¶ 9-13.] Gary Brian Whitley, T.A.B.'s Chief Executive Officer, confirmed that T.A.B. contracted with Lowe's "as an independent third-party vendor to provide product services to Lowe's on an ongoing basis." [Lowe's CSOF, Decl. of Gary Brian Whitley ("Whitley Decl."), at ¶¶ 1, 4.] The In-Store Services Agreement, effective January 1, 2009, between Lowe's and T.A.B. ("the ISSA Contract") is attached to the Whitley Declaration as Exhibit 1. [Dkt. no. 64-3.] The ISSA Contract governed T.A.B.'s work on the Remerch Project. [Whitley Decl. at ¶ 5.]

In pertinent part, the ISSA Contract provides:

2.6 ISSG's Personnel*fn1 . Neither ISSG, nor ISSG Personnel[ ] are employees of Lowe's; all such individuals shall for all purposes be ISSG's employees. ISSG shall have the sole authority to hire, fire, direct, control, discipline, reward, evaluate, schedule, supervise, promote, suspend and/or terminate ISSG's personnel. In addition, ISSG shall be solely responsible for the acts of ISSG personnel, whether of commission or omission, and for all other charges and liabilities arising out of the employer-employee relationship or other contractual relationship including, without limitation, liabilities under any civil rights laws, wages and hour laws, equal employment opportunity acts, any union, welfare and pension contributions and the expense of prosecuting, defending or complying with the award in any arbitration proceeding. . . . . 13.1 Independent Contractor. The parties are acting independently hereunder, and this Agreement shall not be construed as constituting either party as a partner, joint venturer or fiduciary of the other or to create any other form of legal association that would impose liability on one party for the act or failure to act of the other or as providing either party with the right, power or authority (express or ...


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