Wyatt v. Potomac Electric Power Co.

GILBERT, Chief Judge. Ray B. Wyatt 1 attempted in the Circuit Court for Prince George’s County to make an end run around the Workmen’s Compensation Act’s statutory employer provisions 2 so as to maintain an action of negligence against Potomac Electric Power Company (Pepeo). Wyatt’s efforts failed in the circuit court (Levin, J.). Undaunted by that defeat, Wyatt has carried the fray to this Court where he again endeavors to avoid the statutory barrier.

The Facts Wyatt was employed by Johnson Control, Inc., which had been hired by Pepeo as subcontractor to perform certain revamping and retrofitting of the electrical control instrument system at Pepco’s Chalk Point Power Plant. During the course of the renovation work, Wyatt, an electrician and welder, slipped and fell down a staircase while he was carrying a roll of welding cable. Wyatt injured his left leg, and he asserts that injury occurred because Pepeo improperly designed or maintained the stair. As a result, Wyatt sued Pepeo for $1,000,000, which sum was subsequently ⁶¹⁶ raised to $1,050,000 when the loss of consortium claim was added.

Pepeo asseverated that it was immune from a suit in negligence, inasmuch as it was the “statutory employer” of Wyatt at the time of the occurrence. Pepeo subsequently moved for summary judgment, which was granted. This appeal ensued. The Law Md.Ann.Code art. 101, § 62 provides, in pertinent part: “When any person as a principal contractor, undertakes to execute any work which is a part of his trade, business or occupation which he has contracted to perform and contracts with any other person as subcontractor, for the execution by or under the subcontractor, of the whole or any part of the work undertaken by the principal contractor, the principal contractor shall be liable to pay to any workman employed in the execution of the work any compensation under this article which he would have been liable to pay if that workman had been immediately employed by him.” Whenever § 62 applies, the principal contractor 3 is considered the “statutory employer” of the subcontractor’s employees.

The employee’s exclusive remedy is under the Workmen’s Compensation Act, and the principal contractor is not liable in tort to the employee. Honaker v. W.C. & A.N. Miller Development Co., 285 Md. 216, 221 , 401 A.2d 1013, 1016 (1979) (Honaker II). Honaker made transpicuous that § 62 applies when four factors coalesce: 1) A principal contractor 2) has contracted to perform work 3) that is part of his trade, business or occupation ⁶¹⁷ 4) and has contracted with a subcontractor for the execution by or under the subcontractor of all or part of the work. See Honaker I, 278 Md. at 460, 365 A.2d at 291 (1976).

Wyatt’s attack is focused on Honaker I’s fourth element, there being no dispute as to the other three Honaker factors. The parties agree that Pepeo is a “principal contractor” who has undertaken to supply electricity to the public. Wyatt charges that the particular type of work that his immediate employer Johnson was performing for Pepeo did not constitute all or part of Pepco’s business. In short, Wyatt argues that Pepco’s business is furnishing electricity to the public, and that Johnson was not performing any part of that undertaking.

Wyatt avers that Pepco’s business is limited to the everyday activities and operations of the power plant and its related equipment, all of which serve to provide electricity to Pepco’s customers. A reading of the decisions of the Court of Appeals makes pellucid that certain functions have been held, for the purpose of § 62, to be considered necessary and essential to the “principal contractor’s” business. For example, in State, Use of Reynolds v. City of Baltimore, 199 Md. 289 , 86 A.2d 618 (1952), the work of erecting hoists was determined to be a necessary and essential part of the actual excavation of a water tunnel and, consequently, a part of the business of the defendant. Further, the Honaker II Court held that inasmuch as any structure must have a roof on it before it may be considered to be a house, the building of a roof was part of the business of a defendant who had contracted to build a house.

(See also W.C.