RONNIE LEE SIZEMORE v. D.W. WILBURN, INC., AND DIAMOND ELECTRICAL INC.
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RENDERED:
AUGUST 23, 2002; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-001427-MR
RONNIE LEE SIZEMORE
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DANIEL J. VENTERS, JUDGE
ACTION NO. 00-CI-00444
v.
D.W. WILBURN, INC.,
AND DIAMOND ELECTRICAL INC.
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER, COMBS, AND JOHNSON, JUDGES.
BARBER, JUDGE:
The Appellant, Ronnie Lee Sizemore (“Sizemore”),
seeks review of a summary judgment entered in favor of the
Appellees, D.W. Wilburn, Inc.(“Wilburn”), and Diamond Electrical,
Inc., (“Diamond”).
Finding no error, we affirm.
On May 12, 1999, Sizemore, an employee of Simplex Time
Recorder, was injured in the course and scope of his employment
while installing a fire alarm component.
Sizemore pursued
workers’ compensation benefits for these injuries.
He also filed
a complaint in the Pulaski Circuit Court against Wilburn and
Diamond for negligence.
Wilburn and Diamond filed answers
raising the exclusive remedy provision of the Kentucky Workers’
Compensation Act, KRS 342.690, as a bar to Sizemore’s claims.
On March 29, 2000, Wilburn filed a motion for summary
judgment on the ground that it was immune from tort liability
under the Kentucky Workers’ Compensation Act, KRS Chapter 342.
Wilburn maintained that it was the general contractor on a
project at Hopkins Elementary School in Somerset, Kentucky, that
Diamond was the electrical subcontractor, and Diamond
subcontracted part of its electrical work to Simplex.
Sizemore’s
particular job included installing conduit lines at the
elementary school.
Wilburn contended that the electrical lines
necessary to provide power to the school and the
addition/renovation thereto had to be enclosed by conduit lines,
as a matter of safety, as a regular and recurrent part of
Wilburn’s business as a general contractor.
Diamond filed a
motion for summary judgment, adopting the memorandum of law filed
by Wilburn.
On May 4, 2001, Sizemore filed a response, stating that
he had “no reason to dispute” that Wilburn was the general
contractor and that Diamond was the electrical subcontractor of
Wilburn; however, Sizemore asserted that he had no information
that Simplex was the subcontractor of Diamond, or that the
installation of fire alarm systems was a regular or recurrent
part of Diamond’s business.
Sizemore contended that this
constituted a question of fact making summary judgment improper.
On June 1, 2001, the trial court granted summary
judgment in favor of Wilburn and Diamond:
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Both Defendants urged the Court to grant
summary judgment on the basis of KRS
342.610(2)(b), and KRS 342.690(1). The
former statute provides that the employer
liable for workers’ compensation benefits to
an injured employee includes a contractor who
has contracted with another person, or firm,
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’ the contractor. KRS 342.700(2) makes it
clear that a principal contractor, such as
D.W. Wilburn, Inc., is liable for workers’
compensation benefits to an employee (such as
Sizemore) injured while in the employment of
any intermediate or subcontractors engaged
upon the subject matter of the contract.
Thus, D.W. Wilburn, Inc. and Diamond
Electrical, Inc. would be liable to Sizemore
for workers’ compensation benefits if he was
injured while engaged in the subject matter
of the contract, and if the work he was
performing is ‘of a kind which is a regular
or recurrent part of the work of the trade,
business, occupation, or profession of D.W.
Wilburn, Inc. or Diamond Electrical, Inc.
KRS 342.690(1) provides that liability of’
any such contractor or subcontractor covered
by KRS 342.610(2) is limited to the recovery
of workers’ compensation benefits under KRS
chapter 342.
In support of their demand for summary
judgment, the Defendants claim, obviously,
that there is no genuine issue as to any
material fact relevant to the claim that the
Plaintiff cannot seek tort recovery against
the contractor and subcontractor, the socalled ‘up the ladder’ theory of immunity
from tort liability. There is no genuine
issue as to the fact that Ronnie Lee Sizemore
was an employee of Simplex Time Recorder,
that he was injured on the job, and that he
was awarded workers’ compensation benefits.
There is no genuine issues to the fact that
Simplex Time Recorders was the subcontractor
of Diamond Electric, Inc., who in turn was a
subcontractor of D. W. Wilburn, Inc. There
is no genuine issue as to the fact that all
of the parties were engaged in the
construction of an addition to a school
building in Somerset, Kentucky, and that D.
W. Wilburn, Inc. was the general contractor
for that job. It is the Plaintiff’s
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contention that summary judgment is not
appropriate because there is a genuine issue
of fact about whether or not the work being
done by the Plaintiff (the installation of a
fire alarm system) is ‘of a kind which is a
regular or recurrent part of the work of the
business of’ either Defendant, Diamond
Electric, Inc. or D. W. Wilburn, Inc.
To constitute a genuine issue of material
fact, one of two circumstances must exist.
One circumstance occurs when conflicting
evidence as to a material issue of fact
exists. The fact cannot be determined until
the conflict [sic] in the evidence is
resolved, ordinarily through trial. The
other circumstance is when the evidence which
exists, though not in conflict, reasonably
gives rise to two competing inferences.
Neither situation seems to exist here. There
is no suggestion in the pleadings that
conflicting evidence exists on the question
of what work the Plaintiff was doing when he
was injured. There is no suggestion in the
record that any evidence can be established
which places into controversy the issue of
what the business of D. W. Wilburn, Inc. and
Diamond Electric, Inc. is. It also appears
to the Court that there is [sic] no competing
inferences which arise from the known facts.
The question is whether or not the
installation of a fire alarm system is a
regular or recurrent part of the work of
constructing an addition to a school building
and supplying and installing the electrical
systems and components of such an addition.
One could not reasonably infer that the
installation of a fire alarm system is not a
regular part of the work of constructing a
school addition. . . . . That is, without
dispute, the kind of work that is a regular
part of the construction of any building, but
especially a school building because the law
requires alarm systems in school buildings.
The Court concludes that there is no
reasonable grounds for dispute, . . . .
. . . .
The case of Goldsmith v. Allied Building
Components, Inc., Ky., 833 S.W.2d 378 (1992)
. . . heavily relied upon by the Plaintiff
[involves] . . . circumstances . . . [which
are] substantially different.
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. . . .
. . . . There is no ambiguity about the
business of D. W. Wilburn, Inc., Diamond
Electric, Inc. or the work being performed by
Ronnie Lee Sizemore from which a genuine
issue of fact can arise.
The Court concludes that the Defendants are
entitled to summary judgment as a matter of
law.
Sizemore filed a notice of appeal to this Court on June
28, 2001.
On appeal, Sizemore argues that he was not, “as a
matter of law,” performing a regular or recurrent part of the
appellees’ business or trade; that “regular or recurrent” is a
question of fact; and that summary judgment was improper because
there was a material issue of fact in regard to the regular or
recurrent business of the appellees.
The trial court thoroughly
analyzed the issues and correctly applied the law.
We cannot
improve upon the trial court’s reasoning and adopt it as our own.
Hence, we affirm the judgment of the Pulaski Circuit
Court entered June 1, 2001.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE, D.W.
WILBURN, INC.:
John P. Chappell
London, Kentucky
Jon R. Fritz
Robert F. Duncan
Jackson & Kelly, PLLC
Lexington, Kentucky
BRIEF FOR APPELLEE, DIAMOND
ELECTRIC, INC.:
Gregg E. Thornton
Licha H. Farah, Jr.
Clark, Ward & Cave
Lexington, Kentucky
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