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LABORERS' PENSION FUND v. LITGEN CONCRETE CUTTING

March 22, 1989

LABORERS' PENSION FUND and LABORERS' WELFARE FUND OF THE HEALTH AND WELFARE DEPARTMENT OF THE CONSTRUCTION AND GENERAL LABORERS' DISTRICT COUNCIL OF CHICAGO AND VICINITY, and THE LABORERS' DISTRICT COUNCIL OF CHICAGO AND VICINITY, Plaintiffs,
v.
LITGEN CONCRETE CUTTING & CORING CO., an Illinois corporation, and WILLIAM R. LITGEN, Defendants



The opinion of the court was delivered by: DUFF

 BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 Judicial development of the law is usually slow. There are a number of reasons for this: some types of disputes do not arise as frequently as others; similar types of disputes will encompass different facts, allowing for different modes of disposition. A statute of limitations can bar claims raised in one suit, but not the other; parties' differing assessments as to the merits of their case can result in early settlement for one case and trial for the other.

 Against this backdrop, the dispute presently before this court affords it a unique opportunity to explain a relatively recent decision of this court, as well as develop the law within it further. In October 1988, two funds, the Laborers' Pension Fund and the Laborers' Welfare Fund of the Health and Welfare Department of the Construction and General Laborers' District Council of Chicago and Vicinity, and the Laborers' District Council filed suit in this court to recover over $ 2.2 million in delinquent fringe benefit contributions and unpaid wages from Litgen Concrete Cutting and Coring Company. They also sought to recover the money from Litgen's president and 40% shareholder, William R. Litgen. Their complaint consists of six counts. Counts 1, 2, and 6 charge that Litgen Concrete alone is liable for the unpaid amounts. Counts 3, 4, and 5 claim that William is liable.

 William has moved for summary judgment on all of the counts pending against him. Under the Federal Rules of Civil Procedure, a court must grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with . . . affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. Once a party moves for summary judgment,

 
an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response . . . must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.

 Rule 56(e).

 The uncontested facts are as follows: George and William Litgen incorporated Litgen Concrete on April 6, 1979. George and William are officers and directors of Litgen Concrete, along with Brent Zanini. The Litgen brothers each hold 40% of Litgen Concrete's shares, while Zanini holds the rest. There is no evidence that any of these individuals uses his personal funds to pay corporate expenses, or vice versa. The corporation is in good standing. The officers swear, and there is no evidence to the contrary, that Litgen Concrete properly maintains its corporate records, has adequate capital to operate as a going concern, and can meet its financial obligations.

 On February 11, 1983, one of Litgen Concrete's supervisors, Michael O'Hara, signed a "Memorandum of Joint Working Agreement" with the Laborers' District Council. O'Hara signed on behalf of Litgen Concrete, which the Agreement lists as the "Employer." The plaintiffs contend that the Agreement was a collective bargaining agreement that obligated Litgen Concrete and William Litgen to make the payments in dispute in this case. Litgen Concrete and William deny this.

 Based on the undisputed facts, William claims that this court cannot hold him liable to the plaintiffs under Count 3, 4, or 5. The court will examine Count 4 first. There the plaintiffs contend that William "is obligated to make contributions pursuant to 29 U.S.C. [§ ] 1145 [(1982)]" to the Welfare and Pension Funds. Additionally, the plaintiffs allege that William is liable for an extension of credit in violation of 28 U.S.C. § 1106(a) (1) (B).

 This court discussed the scope of liability under § 1145 just three months ago in Plumbers' Pension Fund, Local 130, U.A. v. Niedrich, 701 F. Supp. 651 (N.D. Ill. 1988). In Niedrich, a union pension fund sued the president and secretary of a dissolved corporation for unpaid contributions to various union funds. The union brought suit under both § 1145 and § 301 of the Labor Management Relations Act ("LMRA"), codified at 29 U.S.C. § 185. The union contended that under both statutes the principals of the dissolved corporation were liable for the corporation's contractual obligations to the union's funds.

 In considering the union's arguments, this court looked directly at the language of § 1145, which states:

 
Every employer who is obligated to make contributions to a multi-employer plan . . . under the terms of a collective bargaining agreement shall, to the extent not inconsistent with law, make such contributions in accordance with the terms and conditions of such . . . agreement.

 In light of this language and the legislative history of § 1145, this court rejected the union's claims of broad liability under this provision. Instead, the court held that in cases involving employers who are corporations, "unless there are grounds to pierce the corporate veil or the corporation is the alter ego of the controlling individual, that individual is not liable under ...


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