JAMES DAVID STOKES AND CINDY STOKES v. JIM SKAGGS, INC. AND UNDERWRITERS SAFETY & CLAIMS
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RENDERED: December 10, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002278-MR
JAMES DAVID STOKES AND
CINDY STOKES
APPELLANTS
APPEAL FROM CALDWELL CIRCUIT COURT
HONORABLE BILL CUNNINGHAM, JUDGE
ACTION NO. 96-CI-00202
v.
JIM SKAGGS, INC. AND
UNDERWRITERS SAFETY & CLAIMS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND JOHNSON, JUDGES.
GUIDUGLI, JUDGE.
James David Stokes and Cindy Stokes (Stokes)
appeal from an order of the Caldwell Circuit Court entered
August 7, 1998, which granted summary judgment in favor of Jim
Skaggs, Inc. (Skaggs).
We affirm.
On September 21, 1995, Stokes and a co-worker were
engaged in boring a hole under a highway for the installation of
sewer lines.
While they were in the hole, employees of Skaggs
detonated an explosive device which caused rocks and other debris
to fly through the hole, causing injury to Stokes.
It appears
that Stokes and his co-worker had informed Skaggs’ employees of
their presence in the area and asked that they receive warning
prior to the detonation of explosives.
One of Skaggs’ own
employees testified that no warning was given prior to
detonation.
Stokes’ medical bills were paid by workers’
compensation, and it also appears that he received approximately
one month of temporary total disability payments while he was off
work.
On September 17, 1996, Stokes filed a complaint against
Skaggs seeking damages for injuries and other alleged losses
resulting from the blasting incident.
In its answer, Skaggs
claimed protection under the exclusivity provisions of Kentucky’s
Workers’ Compensation Act.
Skaggs filed a motion for summary judgment on March 25,
1998.
In its motion, Skaggs alleged that on the date of the
accident Stokes was an employee of K & Y Construction Company
(K & Y).
Skaggs stated that it had a contract with the Princeton
Water and Waste Water Commission for the highway project, and
that it had subcontracted a portion of the work to K & Y.
Skaggs
argued that as a contractor, it was entitled to protection under
the exclusivity of liability provisions of KRS 342.690.
In his
response, Stokes argued that there was no evidence that Skaggs
was, in fact, a contractor aside from a “self-serving” affidavit
of Jim Skaggs.
Stokes further alleged that even if Skaggs was a
contractor, KRS 342.690 provides relief from the exclusive
liability provisions if an injury is caused by wilful and
unprovoked physical aggression of an employer.
In support of his
argument, Stokes alleged that Skaggs’ employees were untrained
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and improperly equipped and that they failed to follow federal
and state safety standards regarding warnings to be given during
blasting procedures.
In response to Stokes’ allegations, Skaggs
filed a reply containing the contract between Skaggs and the
commission.
On May 21, 1998, the trial court entered an order
granting summary judgment in favor of Skaggs.
On June 5, 1998, Stokes filed a motion requesting that
the order granting summary judgment be altered, amended, or
vacated.
As grounds for the motion, Stokes alleged that the
order was premature due to the fact that it was entered before a
scheduled hearing on the matter had occurred.
In the
alternative, Stokes argued that summary judgment was improper due
to the existence of an issue of genuine material fact.
In
support of his argument, Stokes submitted the affidavit of Karl
White, his co-worker on the date of the accident.
In the
affidavit, White stated:
...
2. I was and am not a permanently
contracting individual or company with K & Y
and was and am not a full-time employee of K
& Y. I am my own employer.
3. I did regularly but not exclusively
contract with K & Y and/or Jim Skaggs, Inc.,
during times relevant to the lawsuit and the
present time. My method of operation
required that I submit bids on each job,
including any Jim Skaggs, Inc., jobs. I
provided my own employee benefits for myself
and/or others that may have been employed by
me from time to time. I made bids and worked
on projects individually as well as with
other companies and Jim Skaggs, Inc., and K &
Y. I was paid on a per-job basis. I was not
paid on an hourly basis.
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4. I provided specialized equipment and
labor for limited specialized work on each
job I successfully bid, including that for
Jim Skaggs, Inc., and K & Y.
5. The work I provided for Jim Skaggs, Inc.,
was never a regular and recurrent part of the
work performed by Jim Skaggs, Inc. Jim
Skaggs, Inc., has and never had any of the
boring equipment necessary to perform the
boring work which I performed for Jim Skaggs,
Inc., and other companies and projects that I
bid.
On June 26, 1998, the trial court entered an order vacating its
order of May 21, 1998.
The order noted that a hearing on the
matter has been held on June 19, 1998, and that the issue was
under further consideration.
On August 17, 1998, the trial court once again entered
an order granting summary judgment in favor of Skaggs.
court stated in part:
Even though Plaintiff has provided Karl
White’s affidavit, it remains uncontroverted
that James Stokes was an employee of K & Y
Construction which was a subcontractor of Jim
Skaggs, Inc. Therefore, there is no material
issue of fact involving whether K & Y was a
subcontractor of Jim Skaggs, Inc. Since the
requirements of KRS 342.610(2)(a) have been
fulfilled it is not necessary to determine
whether the the [sic] subcontractor’s work
was a regular and recurrent part of Jim
Skaggs, Inc.’s work.
Since James Stokes is the employee
of subcontractor K & Y Construction, which
has paid workman’s compensation benefits to
Stokes, then KRS 342.690 is invoked. It is
an undisputed fact that these benefits have
been paid to Stokes....KRS 342.690 states
that “[if an employer secures payment of
compensation as required by this chapter, the
liability of such employer under this chapter
shall be exclusive....” A contractor has no
a liability in tort to an injured employee of
a subcontractor because the contractor is
liable for workers’ compensation benefits to
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The trial
the employee if the subcontractor, his
employer, has not secured those benefits.
The contractor’s potential liability for
workers’ compensation benefits relieves the
contractor from tort liability under KRS
342.690. Fireman’s Fund Ins. Co. v. Sherman
& Fletcher, 705 S.W.2d 459 (1986).
...
The exclusive remedy provision of
KRS 342.690 has a “willful and unprovoked
physical aggression” clause which amounts to
an exception to the general rule which
absolves the contractor from liability. The
Plaintiff contends that the failure to warn
of the upcoming blast amounts to an act of
“willful and unprovoked aggression” as
described by the statute. Russell v. Able,
931 S.W.2d 460 (Ky. Ct. App. (1996), involved
actual physical contact between the parties
and can be distinguished from the failure to
warn of the impeding blast which is at issue
in the case. The record contains no evidence
that the current case could be considered to
involve an act of wilful physical aggression.
Therefore, there is no issue of material fact
concerning the exception to the exclusive
remedy provided by KRS 342.690.
This appeal followed.
Stokes first disputes the trial court’s entry of
summary judgment on the ground that K & Y was a subcontractor of
Skaggs, thus giving Skaggs the status of contractor for the
purpose of KRS 342.690.
Stokes maintains:
It appears from Carl’s Affidavit that Carl
contracted with K & Y to perform the work and
hired David. Appellee may or may not have
been aware of the relationship between K & Y
and Carl. Nevertheless, a clear conclusion
that a trier of fact could draw from Carl’s
Affidavit, is that he and David were not
employees of K & Y but were independent
contractors retained by K & Y do to this type
of work on a job by job basis.
We note that summary judgment is proper when it appears that the
opposing party cannot produce evidence at trial warranting
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judgment in his favor.
Paintsville Hospital Co. v. Rose, Ky.,
683 S.W.2d 255, 256 (1985).
In considering Stokes’ argument, we not only considered
the affidavits of Skaggs and White, but also the deposition of
James Stokes.
In his deposition, Stokes indicated that at the
time of the accident he was employed by K & Y as an hourly
employee, and further testified that his medial bills and TTD
benefits were paid by K & Y’s compensation carrier.
First, Stokes’ argument that he was an independent
contractor as opposed to an employee of K & Y is without merit.
Stokes himself testified that he was an hourly employee and if he
was, as he claims, an independent contractor he would not have
been entitled to the workers’ compensation benefits he received.
Stokes cannot be an employee of K & Y for purposes of workers’
compensation on one hand and an independent contractor on the
other for the purpose of maintaining a civil action.
Secondly, there is no evidence in the record to support
Stokes’ allegation that K & Y was not a subcontractor of Skaggs.
Having reviewed White’s affidavit, which is somewhat cryptic in
nature, there is nothing in it which refutes Skaggs’ allegations.
If anything, White’s affidavit supports Skaggs’ claims in that he
alleges that he was required to submit bids on Skaggs’ jobs,
provided benefits for himself and other employees, and was paid
on a per-job basis.
At no point does White clearly deny being a
subcontractor of Skaggs.
Once Skaggs meets the initial burden of
showing a non-existence of a genuine issue of material fact, the
burden shifts to Stokes to “present at least some affirmative
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evidence” of the existence of a genuine issue of material fact.
Hibbitts v. Cumberland Valley National Bank & Trust Co., Ky.
App., 977 S.W.2d 252, 253 (1998).
We do not believe that White’s
affidavit satisfies this burden.
Next Stokes argues that the trial court erred in
finding that his injury was not caused by wilful or unprovoked
physical aggression on behalf of Skaggs.
We disagree.
Under KRS 342.690(1):
The exemption from liability given an
employer by this section shall also extend to
such employer’s ...employees, officers or
directors,...provided the exemption from
liability given an employee, officer, or
direction or an employer or carrier shall not
apply in any case where the injury...is
proximately caused by the wilful and
unprovoked physical aggression of such
employee, officer or director.
In Russell v. Able, Ky. App., 931 S.W.2d 460 (1996), this
provision was construed to allow an action for negligence and
battery against an injured worker’s co-employee.
As Skaggs points out on appeal, Stokes has failed to
show an act of physical aggression on behalf of Skaggs’
employees.
We interpret this section to require some kind of
physical contact before it applies as in the Russell case, where
the claimant was injured when her co-worker came up behind her
and placed her knee behind the claimant’s knee, causing her to
fall.
We believe that absent some kind of physical contact, the
exception to KRS 342.690(1) does not apply.
Finally, Stokes argues that the 1996 amendments to the
worker’s compensation act are unconstitutional.
In addressing
the same issue on Skaggs’ motion for summary judgment, the trial
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court noted that Stokes had failed to give notice of his
constitutional challenge to the state attorney general as
required by KRS 418.075.
Compliance with KRS 418.075 is
mandatory, and in the absence of the required notification the
trial court is without jurisdiction to rule on the issue.
See
Maney v. Mary Chiles Hospital, Ky., 785 S.W.2d 480 (1990).
Because the trial court properly refused to rule on this issue
there is nothing for us to review.
Stokes’ notification of the
attorney general on appeal does not cure his earlier failure to
do so.
Having considered the parties’ arguments on appeal, the
order of the Caldwell Circuit Court is affirmed.
DYCHE, JUDGE, CONCURS.
JOHNSON, JUDGE, CONCURS IN RESULT AND FILES SEPARATE
OPINION.
JOHNSON, JUDGE, CONCURRING: I concur in the result
reached by the Majority Opinion, but choose to write separately.
I disagree with the discussion by the Majority on page 9 of its
opinion wherein it refers to a “physical contact” requirement.
KRS 342.690(1) makes no reference to “physical contact.”
It
appears obvious to me that an injury could be “proximately caused
by the wilful and unprovoked physical aggression” of an employee
without “physical contact” occurring, e.g., the wilful and
unprovoked throwing of an explosive device that caused the loss
of hearing.
However, I do not believe the appellants’ claim
comes under KRS 342.690(1) exception because I do not believe
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there is any evidence to support a finding that the blasting was
done in a manner to constitute wilful, physical aggression.
I
agree that the actual blasting was wilful; however, the physical
aggression upon Stokes was at worst negligent and not wilful.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Harold M. Johns
Elkton, KY
Richard L. Walter
Paducah, KY
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