United States District Court, S.D. Ohio, Eastern Division
CAROL A. WILSON, Administrator, et al., Plaintiffs,
FIORITTO CONSTRUCTION, LLC, Defendant.
Deavers, Magistrate Judge.
OPINION AND ORDER
C. SMITH, JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court upon the Supplemental Brief to the
Motion for Summary Judgment of Plaintiffs Carol A. Wilson,
Administrator, and Trustees of the Ohio Operating Engineers
Health and Welfare Plan, the Ohio Operating Engineers Pension
Fund, the Ohio Operating Engineers Education and Training
Fund, and the Ohio Operating Engineers Apprenticeship Fund
(“Plaintiffs' Motion for Summary Judgment”)
(Doc. 19). Defendant Fioritto Construction, LLC declined to
file a brief opposing any of Plaintiffs' new evidence or
arguments and the time to do so has now expired.
reasons that follow, Plaintiffs are entitled to judgment in
the amount of $17, 034.04 in delinquent fringe benefit
contributions, $5, 594.77 through July 15, 2018 plus $8.00
for each day thereafter that payment remains outstanding in
interest, and $5, 594.77 through July 15, 2018 plus $8.00 for
each day thereafter that payment remains outstanding in
are the Administrator and Trustees of the Ohio Operating
Engineers Health and Welfare Plan, the Ohio Operating
Engineers Pension Fund, the Ohio Operating Engineers
Education and Safety Fund, and the Ohio Operating Engineers
Apprenticeship Fund (the “Funds”). The Funds are
jointly administered, multiemployer fringe benefit programs
established for the benefit of employees of contractors who
perform work pursuant to the “Ohio Highway Heavy
Agreement Effective May 1, 2010 through April 30, 2013”
between the International Union of Operating Engineers, Local
18 and its Branches (AFL-CIO) (the “Union”) and
the Labor Relations Division of the Ohio Contractors
Association (Doc. 13-1, Collective Bargaining Agreement
(“CBA”)). The Funds provide health and welfare,
retirement, and other fringe benefits to their beneficiaries.
(Doc. 1, Compl. ¶¶ 2-3).
Fioritto Construction, LLC is in the business of heavy
highway construction and typically has four to five
employees. (Doc. 14-7, Fioritto Dep. at 9). Shortly after it
was formed in 2011, Defendant entered into a one-page
“AGREEMENT - Highway Heavy Construction” with the
Union (Doc. 1, PAGEID #12) on March 14, 2011, whereby
Defendant agreed to adopt all terms of the CBA, including
obligations to contribute to the Funds.
commenced this action under 29 U.S.C. §§ 1145 and
1132 on April 14, 2017. (Doc. 1, Compl.). Plaintiffs seek to
recover the amount of unpaid delinquent fringe benefit
contributions owing for three of Defendant's employees
“in the amount of $17, 034.04, plus accumulated
interest charges in the amount of $3, 968.26 calculated
through November 30, 2017, plus late charges of $8.40 per day
thereafter and statutory interest in the amount of $3, 968.26
calculated through November 30, 2017, plus late charges of
$8.40 per day thereafter as long as the judgment remains
unpaid, ” in addition to attorneys' fees and costs.
(Doc. 13, Mot. at 9).
moved on November 30, 2017 for summary judgment on all of
their claims (other than attorneys' fees and costs, which
Plaintiffs indicate they will seek in a post-judgment
motion). On May 10, 2018, this Court entered an Order finding
Defendant liable for delinquent fringe benefit contributions
as to Defendant's employees Tom Yelling and Thomas
Fioritto, but the Court was unable to determine whether a
payment made in January 2017 extinguished liability as to
outstanding contributions attributable to Defendant's
employee Mario Finelli. The Court was also unable to
calculate the total amount owing or the associated interest
or liquidated damages to which Plaintiff may be entitled.
(Doc. 18). The Court therefore ordered Plaintiffs to submit a
supplemental brief, along with admissible evidence, to
support the amount claimed. (Id.). Plaintiffs did so
on June 6, 2018. (Doc. 19). Defendant was given until June
20, 2018 to oppose Plaintiffs' supplemental brief but has
not done so.
Liability as to contributions on behalf of Mario
Court is satisfied by Carol Wilson's affidavit describing
the Funds' standard practice of crediting post-audit
contribution payments toward the oldest outstanding hours.
(Doc. 19-1). The Court also recognizes that this practice was
expressly approved of in Bunn Enters., Inc. v. Ohio
Operating Eng'rs Fringe Ben. Programs, No.
2:13-CV-357, 2013 WL 3147956, at *11 (S.D. Ohio June 19,
2013) (Marbley, J.). Accordingly, the Funds were permitted to
credit (at least a portion of) the January 12, 2017 payment
that Defendant designated for Mario Finelli (whose hours
accrued beginning April 2016) to hours accrued by other
employees in March 2016. As a result, Defendant's January
12, 2017 payment representing the amount of outstanding
unpaid contributions attributable to Mario Finelli did not
extinguish Defendant's liability as to Mr. Finelli.
Plaintiffs are therefore entitled to judgment on liability as
to Mr. Finelli's unpaid contributions.
that remains at this stage is to calculate the amount owing
to Plaintiffs representing the total amount of delinquent