GLENDON BURGESS RICHARDSON AND DODSON INSURANCE GROUP v. SABATASSO FOODS
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RENDERED:
DECEMBER 22, 2000; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001454-MR
GLENDON BURGESS RICHARDSON AND
DODSON INSURANCE GROUP
APPELLANTS
APPEAL FROM BOONE CIRCUIT COURT
HONORABLE JOSEPH J. BAMBERGER, JUDGE
ACTION NO. 95-CI-00277
v.
SABATASSO FOODS
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND McANULTY, JUDGES.
KNOPF, JUDGE:
Glendon Richardson, an employee of Industrial
Security Service, Inc. (ISS), suffered serious injuries while
performing security guard duties at the production facility of
Sabatasso Foods, Inc., in Boone County Kentucky.
Asserting that
Sabatasso had breached its duty to provide a safe workplace,
Richardson sued Sabatasso.1
By summary judgment entered May 27,
1999, the Boone Circuit Court dismissed Richardson’s complaint on
1
The other party to this appeal, Dodson Insurance Group,
provided workers’ compensation benefits to Richardson on behalf
of ISS. It intervened in Richardson’s suit to protect its
subrogation interest.
the ground that, under the exclusive-liability provisions of KRS
Chapter 342, Sabatasso was immune from liability.
Richardson
appeals from that judgment and contends both that Sabatasso is
not immune from liability and that a material factual dispute
should have precluded summary judgment.
Being unpersuaded by
either of these contentions, we affirm.
The facts underlying this appeal are not disputed.
Near the time of Richardson’s injury, in April 1994, Sabatasso
was a subsidiary of a large frozen-food manufacturer.
It
employed hundreds of workers over three shifts in the large scale
production of frozen pizza.
To protect its product, its
equipment, and its facilities, Sabatasso required anyone entering
the plant to pass through either of two guarded gates.
No one
was to enter without clearance from the security guard, who
maintained a log, and shipping trucks needed clearance to exit.
Since at least 1992, Sabatasso had contracted with ISS to provide
these security services at the gates as well as to patrol the
entire facility during the second and third shifts.
While
screening traffic at what was apparently the main gate,
Richardson was struck by an exiting van and suffered injury to
his back.
He received workers’ compensation benefits through
ISS.
Richardson filed negligence-based claims against the
driver of the van and against Sabatasso in April 1995.2
In April
1996, Sabatasso moved for summary judgment on the ground that, as
a contractor/statutory employer under the workers’ compensation
2
The driver of the van and Richardson have since settled.
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laws, it was immune from tort liability.
The trial court denied
the motion, and nearly three years’ of discovery ensued.
In May
1999, on the eve of trial, Sabatasso renewed its motion for
summary judgment, and this time the trial court agreed with it
that KRS 342.610 and 342.690 operate to bar Richardson’s claim.
It is from that determination that Richardson has appealed.
KRS 342.610(2)(b) defines "contractor," in pertinent
part, as
[a] person who contracts with another . . .
to have work performed of a kind which is a
regular or recurrent part of the work of the
trade, business, occupation, or profession of
such person.
Section 342.690(1) then provides, in part, as follows:
If an employer secures payment of
compensation as required by this chapter, the
liability of such employer under this chapter
shall be exclusive and in place of all other
liability of such employer to the employee .
. . and anyone otherwise entitled to recover
damages from such employer at law or in
admiralty on account of such injury or death.
For purposes of this section, the term
"employer" shall include a "contractor"
covered by subsection (2) of KRS 342.610,
whether or not the subcontractor has in fact,
secured the payment of compensation.
In other words, if Sabatasso is a contractor, under KRS
342.610, then under KRS 342.690 it is immune from the tort
liability Richardson asserts.3
As noted, Sabatasso is to be
3
This assumes, of course, that Sabatasso “secure[d] payment
of compensation as required by” the workers’ compensation
chapter. See KRS 342.340 and Davis v. Turner, Ky., 519 S.W.2d
820 (1975); Matthews v. G & B Trucking, Inc., 987 S.W.2d 328
(1998); Becht v. Owens Corning Fiberglass Corporation, 196 f.3d
650 (6th Cir. 1999) (citing Gordon v. NKC Hosps., Inc., 887
S.W.2d 360, 362 (Ky. 1994)). We have not been referred to
Sabatasso’s proffer of evidence on this basic element of its
(continued...)
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deemed a contractor for the purposes of these statutes if its
contract with ISS was for work that “is a regular or recurrent
part” of Sabatasso’s business.
Richardson concedes that the
security services ISS provided Sabatasso were regular.
they seem to have been continual.
Indeed,
He denies, however, that they
formed a part of Sabatasso’s business.
We disagree.
Richardson’s contention is twofold.
He argues first
that Sabatasso’s business is the marketing of food products, not
security services, and thus that ISS can not be the sort of subcontractor envisioned by the statute.
Implicit in this argument
is the contention that no sub-contractor supplying a product or
service ancillary to what the contractor markets would come
within the statute.
this result.
Our appellate courts have already rejected
In Tom Ballard Co. v. Blevins, Ky., 614 S.W.2d 247
(1980), a sub-contractor providing delivery services to a coal
mining company was held to be within the statute, and in Daniels
v. Louisville Gas and Electric Co., Ky. App., 933 S.W.2d 821
(1996), LG&E was deemed a contractor/statutory employer of
workers providing ancillary emissions-testing services.4
3
(...continued)
defense, but, in as much as Richardson does not dispute the point
and there is no apparent reason to doubt it, we may assume that
the record supports the trial court’s judgment. CR 59.06; Miller
v. Commonwealth, Department of Highways, Ky., 487 S.W.2d
931(1972); Clay v. Clay, Ky., 424 S.W.2d 583 (1968).
4
See also Thompson v. The Budd Company, 199 F.3d 799 (6th
Cir. 1999) (ancillary maintenance services within the statute); 4
Larson’s Workers’ Compensation Law § 70.06D7 (2000) (criticizing,
in the discussion of Wilson v. A-I Indus., Inc., 451 So. 2d 1251
(La. Ct. App. 1984), the result for which Richardson contends).
-4-
Richardson next contends that, even if ancillary
services may sometimes be deemed “regular or recurring part[s]”
of a contractor’s business, the security services at issue here
are too far removed from Sabatasso’s main business--food
production--to bring Richardson’s claim within the workers’
compensation act.
Only “integral” services, he maintains, have
that effect, and ISS’s services are not integral.
While it may be true, as Richardson suggests, that
“Kentucky cases have not mapped precisely the contours of section
342.610,”5 the territory is broader than he would have it.
The
plain language of the statute, whatever its ultimate scope,
clearly refers, we believe, to an on site aspect of the
business’s operation important enough to require around-the-clock
manpower.
Both Sabatasso’s production facility, with its
accumulation of costly tools and equipment, and its product, an
item meant for human consumption, require the protection ISS
provides.
That protection is a “regular part” of Sabatasso’s
business, making Sabatasso a contractor with respect to ISS.
Cf.
United States Fidelity & Guaranty Company v. Technical Minerals,
Inc., Ky., 934 S.W.2d 266 (1996); Thompson v. The Budd Company,
199 F.3d 799 (6th Cir. 1999); Sharp v. Ford Motor Company, 66 F.
Supp. 2d 867 (1998); and see 4 Larson’s Workers’ Compensation Law
§§ 70.06[7] and 70.06D[7] (annotating exclusive-liability cases
in which a security service is the alleged sub-contractor).
5
Thompson v. The Budd Company, 199 F.3d 799, 805 (6th Cir.
1999).
-5-
Finally, noting the familiar rule that summary judgment
is inappropriate where material issues of fact are in dispute,
Goldsmith v. Allied Building Components, Inc., Ky., 833 S.W.2d
378 (1992), Richardson contends that the ultimate question of
fact as to whether ISS’s services were a regular or recurrent
part of Sabatasso’s business should be submitted to a jury.
Richardson is correct, of course, that, such ultimate decisions
are often submitted to a jury, in conjunction with the court’s
instructions, to be decided in light of the jury’s resolution of
underlying factual disputes.
When, as in this case, however,
there is no genuine dispute concerning the underlying facts, such
ultimate questions may properly be addressed by the court as
matters of law.
Steelvest v. Scansteel Service Center, Inc.,
Ky., 807 S.W.2d 476 (1991); Holladay v. Peabody Coal Company,
Ky., 560 S.W.2d 550 (1977).
The trial court did not err, therefore, by deeming this
matter ripe and appropriate for summary judgment, nor did it err,
for the reasons discussed above, by concluding that Sabatasso is
immune from Richardson’s suit under the exclusive liability
provisions of the workers’ compensation laws.
We affirm,
accordingly, the May 27, 1999, judgment of the Boone Circuit
Court.
DYCHE, JUDGE, CONCURS.
McANULTY, JUDGE, CONCURS WITH RESULT.
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BRIEFS FOR APPELLANT GLENDON
BURGESS RICHARDSON:
BRIEF FOR APPELLEE:
John F. McLaughlin
Ralph F. Mitchell
Rendings, Fry, Kiely & Dennis,
L.L.P.
Cincinnati, Ohio
David B. Sloan
Suzanne Cassidy
O’Hara, Ruberg, Taylor, Sloan
& Sergent
Covington, Kentucky
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