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Ruben Perez, Michael Moore, and Brigette Moore v. Vezer Industrial Professionals

September 26, 2012

RUBEN PEREZ, MICHAEL MOORE, AND BRIGETTE MOORE, PLAINTIFFS,
v.
VEZER INDUSTRIAL PROFESSIONALS, INS., A CALIFORNIA CORPORATION AND DOES 1-50 INCLUSIVE, DEFENDANTS.
VEZER INDUSTRIAL PROFESSIONALS, INC., THIRD-PARTY PLAINTIFFS,
v.
PINPOINT HOLDINGS, INC., A CORPORATION; B2 GOLD, A CANADIAN CORPORATION THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Through the present lawsuit, Plaintiffs Ruben Perez and Michael Moore (hereinafter "Plaintiffs" unless otherwise specified)*fn1 seek damages for personal injuries they sustained in a motor vehicle accident that occurred while they were working at a Nicaragua mining site whose construction was being managed by Defendant Vezer Industrial Professionals, Inc. ("Vezer"). The Court's jurisdiction in this matter is premised on diversity of citizenship under 28 U.S.C. § 1332(a).

Plaintiffs claim Vezer's alleged negligence contributed to the cause of the subject accident Now before the Court are three different motions for summary judgment. Vezer has separately moved for summary judgment as to the claims being asserted by Moore and by Perez. Alternatively, Vezer seeks summary adjudication both as to the individual claims being pursued by both Plaintiffs, as well as to Plaintiffs' employment status with Vezer and whether the accident occurred while Plaintiffs were in the course and scope of that employment. Plaintiffs, for their part, also seek summary judgment as to the case as a whole. They go on to request summary adjudication as to employment status of J.J. Ocon, the individual who operated the vehicle at the time of the subject accident. Plaintiffs further ask the Court to determine as a matter of law that Ocon was in the course and scope his alleged employment with Vezer when the incident took place and Vezer accordingly had a duty to prevent foreseeable injures to Plaintiffs. For the reasons set forth below, summary judgment will be denied.

The parties' alternative requests for summary adjudication, however, will be granted in part and denied in part as set forth below.*fn2

BACKGROUND

In September of 2008, Plaintiffs, who are both millwrights for heavy equipment, were contacted by Third Party Defendant Pinpoint Holdings, Inc. ("Pinpoint"), an employment agency, about doing work for Vezer at a remote mining site in the mountains near La Libertad, Nicaragua. Vezer had been hired by the mine's owner, Cross Defendant Central Sun Mining ("Central Sun") to install new equipment. According to Plaintiffs, Vezer agreed to provide lodging, food and transportation, as well as a monthly wage and travel allowance, in return for Plaintiff's specialized labor in installing the equipment.

On the evening of October 4, 2008, after the mine cafeteria apparently ran out of food, Plaintiffs claim they were instructed by Vezer personnel to go into a nearby town for dinner. Central Sun had contracted with a local company, Aubert Transportation, to provide all transportation services needed by the mine workers. One of those drivers retained by Aubert for that purpose proceeded to take Moore and Perez into the nearby town of San Pedro for dinner.

What occurred after dinner remains in significant dispute.

J.J. Ocon testified that he received a call between 9:00 p.m. and 10:00 p.m. asking that he pick Plaintiffs up in San Pedro (Ocon had not initially driven Plaintiffs to San Pedro). According to Plaintiffs, Ocon was driving them back to the mine from dinner when the pickup he was operating swerved off the steep roadway. Perez testified there was a total of only four people in the vehicle at the time. Perez Dep., 5:7-15. Both Plaintiffs sustained serious injuries as a result of the incident, which occurred between midnight and 1:00 a.m., and there is some indication that one or both may have suffered certain memory lapses as a result thereof. See, e.g., Plaintiff Moore's Response to Vezer's Statement of Undisputed Material Facts, No. 7, which indicates that Moore "suffered a devastating injury and has no recollection of the accident.")

Other witnesses offer a starkly different version of what happened. Ocon, for his part, claims Plaintiff Perez demanded that he transport as many as twelve other people, over Ocon's objection, first to a gas station to purchase liquor and food, and then to a discotheque in another town, Juigalpa. See Vezer's Statement of Additional Material Facts in Opposition to Plaintiff's Motion, Nos. 12, 15. Ocon goes on to claim that Vezer instructed him to turn in the direction opposite from the mine before stopping at the gas station, with the accident itself occurring later on a roadway heading away from the mine. Id. at 14.

Ocon further testified that although he wanted to return to the mine (a 10:00 p.m. curfew was in place) rather than go to a disco in Juigalpa, Perez threatened to have him fired if he failed to follow Perez's demands. Id. at 5, 7, 15. The accident undisputedly occurred well after the applicable mine curfew.*fn3

Other witnesses, which included certain of the additional passengers riding in the back of the pickup, also confirmed that the truck operated by Ocon was en route to Juigalpa, and not back to the mine, when the subject incident occurred. Those witnesses further corroborated Ocon's testimony that there were as many as fifteen people riding on the truck at the time of the accident. See, e.g., Plaintiffs' Response to Vezer's Statement of Undisputed Material Facts, No. 29 and evidence cited therein.

The cause of the accident is also in dispute. Ocon claims that two tires blew just beforehand, apparently because the vehicle was overloaded. According to Ocon, he received a citation for the excessive weight associated with that overloading, but not for speeding or for intoxication, despite other evidence cited to suggest that Ocon was also speeding and/or under the influence of alcohol when the incident ...


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