The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter comes before the Court on defendant Kenneth Beemer's Motion for Summary Judgment (Doc. 28) to which plaintiffs Central Laborers' Pension, Welfare & Annuity Funds ("Central Laborers") filed a response in opposition (Doc. 33). This action is pending against Kenneth Beemer and W.C. Beiser Concrete Company, Inc. ("Beiser"), however, only Beemer has filed for summary judgment at this time.
As defendant Beemer has filed for summary judgment, the Court construes the facts in the light most favorable to the non-moving party, Central Laborers. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Central Laborers' Pension, Welfare & Annuity Funds are three separate funds maintained by the Central Laborers to provide various services to laborers within its geographic region. The Pension Fund provides support to retired and active laborers and is supported by negotiated employer contributions negotiated through collective bargaining agreements. The Annuities Plan operates similarly through negotiated employer contributions.
The Welfare Fund works with local unions to provide health insurance benefits. These three funds together form the Central Laborers' Pension, Welfare & Annuity Funds which has brought suit. (http://www.central-laborers.com).
W.C. Beiser entered into a Participation Agreement on May 27, 1993 with Central Laborers' to contribute to the funds on behalf of its employees. The Participation Agreement (Doc. 23-1) called for the creation of a trust composed of the Central Laborers' Pension Fund and the Central Laborers' Welfare Fund. Beiser agreed to make monthly contributions to the Funds "(1) on behalf of all Employees.(2) for all jobs within the geographical jurisdiction of the Funds.(3) for the employment on all job classifications." (Doc. 23-1). The Participation Agreement further bound Beiser to the "Trust Agreements" including the Restated Agreement and Declaration of Trust (Doc. 23-3). The Participation Agreement also required liquidated damages to be paid in the event of non-payment of the required contribution.
Central Laborers allege that from May 1993 to the present, Beiser requested employees from various local labor unions which fall in the geographic jurisdiction of Central Laborers to do work on its construction sites. The employees did the work requested by Beiser but Beiser then failed to make the contributions required and failed to properly report the hours the employees worked. Central Laborers claim upon reviewing its own documents and the records submitted by Beiser, Beiser owes the Funds $24,359.07 which it has so far refused to pay. It further alleges that defendant Kenneth Beemer is personally liable for this amount because he is an employer as defined under ERISA and a signatory to the Participation Agreement.
Central filed this lawsuit pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA" 29 U.S.C. § 1132, 1145) against W.C. Beiser Concrete Company Inc. and Kenneth Beemer in his individual capacity on August 12, 2010. Four months later, Central moved for an entry of default against both defendants (Doc. 9). Beiser and Beemer then both filed a motion to set aside default and a motion to dismiss as to Kenneth Beemer (Doc. 11). This Court granted Beiser's motion as to the set aside of default but denied Beemer's motion to dismiss (Doc. 15). On June 2, 2011, Central filed an amended complaint (Doc. 23) which is the controlling pleading in this proceeding. Beemer then filed the present motion for summary judgment (Doc. 28).
In his motion, Beemer argues there is no theory under which Beemer can be held personally liable for the alleged non-payment (Doc. 23). Beemer states the only language giving rise to any potential personal liability is the language in the Restated Trust (Found at Doc. 23-3). The Restated Trust imposes personal liability on the officers of the corporation if an audit discloses a willful violation of trust requirements and the officer "supervised the completion of the report forms, signed report forms or can be determined to have had personal knowledge of such conduct..." (Doc. 23-3, p. 22). Beemer argues there is no evidence to support a willful violation of the trust agreement and even if there were, Beemer did not sign the forms, supervise the employees who prepared them, or have willful knowledge of the alleged wrong. Beemer also argues he signed the Participation Agreement in his capacity as an officer of the corporation.
Central Laborers argue in its Response in Opposition (Doc. 33) that a genuine issue of fact exists as to whether Beemer is personally liable. In support of this, Central Laborers argue Beemer is contractually liable based upon both 1.) the Restated Trust agreement which directly states there is personal liability for a willful violation if the officer signed the form, supervised the signing of the form, or had personal knowledge of the violation and 2.) the Participation Agreement which states the "employer" is liable. In support of this argument, Central Laborers state Beemer admitted in his motion for summary judgment he knew payment did not accompany the report forms and therefore willingly violated the Restated Trust.