DANIEL L. CAIN AND MARY HELEN CAIN, HIS WIFE; JOHN T. CAIN AND BECKY CAIN, HIS WIFE; AND VINCENT J. BECKER AND KATHLEEN BECKER, HIS WIFE v. GENERAL ELECTRIC COMPANY
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RENDERED:
DECEMBER 19, 2003; 2:00 p.m.
TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2002-CA-001843-MR
DANIEL L. CAIN AND MARY HELEN CAIN,
HIS WIFE; JOHN T. CAIN AND BECKY CAIN,
HIS WIFE; AND VINCENT J. BECKER AND
KATHLEEN BECKER, HIS WIFE
v.
APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DENISE CLAYTON, JUDGE
ACTION NOS. 97-CI-006559, 97-CI-006560, AND 97-CI-006564
GENERAL ELECTRIC COMPANY
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING IN PART
AND REMANDING
** ** ** ** **
BEFORE:
JUDGE.2
JOHNSON AND PAISLEY,1 JUDGES; AND JOHN D. MILLER, SENIOR
JOHNSON, JUDGE:
Daniel and Mary Cain, John and Becky Cain, and
Vincent and Kathleen Becker have appealed from an order of the
1
This opinion was prepared and concurred in prior to Judge Paisley’s
retirement effective December 1, 2003.
2
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
Jefferson Circuit Court entered on July 18, 2002, which granted
summary judgment in favor of General Electric Company (GE) as to
their asbestos-related products liability and premises liability
claims.3
Having concluded that GE was entitled to a judgment as
a matter of law as to John and Becky’s products liability claim,4
we affirm in part.
Having further concluded that the trial
court erred in its determination that GE had secured workers’
compensation coverage as required by the statute and that the
work performed by Daniel, John, and Vincent at Appliance Park in
Louisville, Kentucky, was of a kind which was a regular or
recurrent part of the work of GE’s business, we reverse in part,
and remand.
Daniel, John, and Vincent all suffer from asbestosrelated illnesses as a result of being exposed to asbestos over
the course of their respective employment.
In their complaints,
Daniel, John, and Vincent alleged, inter alia, that they were
exposed to asbestos over a 34-year period spanning from 1950 to
1984, during which they performed various jobs on the premises
of GE’s Appliance Park in Louisville, Kentucky.
Daniel, John,
and Vincent further alleged that they were exposed to asbestos-
3
Daniel and Mary Cain, John and Becky Cain, and Vincent and Kathleen Becker
filed separate complaints in which they named several defendants, including
GE. The claims of Mary Cain, Becky Cain, and Kathleen Becker were
derivative. This appeal concerns only the claims brought against GE.
4
Daniel and Mary Cain and Vincent and Kathleen Becker chose not to appeal the
trial court’s ruling with respect to their products liability claims.
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related products that were manufactured, distributed, sold
and/or installed by multiple defendants, including GE, at
various job sites.
None of the three men were ever employed by
GE.
Daniel Cain testified in his deposition that he first
worked at Appliance Park in 1950, while employed by James E.
Smith & Son.
Daniel explained that he was a plumber and a
gasfitter and that he helped install the plumbing during the
initial construction of Appliance Park in the early 1950’s.
Daniel stated that after the construction was completed, he
remembered working at Appliance Park on another occasion;
however, he could not remember exactly what kind of work he
performed, when he performed it, or how long it took to perform
the tasks he was assigned.
John Cain testified in his deposition that over the
course of his career as a plumber and a pipefitter, he worked at
Appliance Park on several occasions.
John stated that he first
worked at Appliance Park in August 1967, while employed by John
L. Zehnder Company.
John testified that from August 1966, until
February 1967, he assisted in the installation of a furnace used
by GE to bake enamel-coated appliance parts.
John stated that
he also worked at Appliance Park for a 12-month period starting
in 1969, while employed by James E. Smith & Son.
John testified
that he assisted in the installation of the underground plumbing
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system, gas lines, water lines, and glass piping for a new
building that was being constructed.
John further testified
that he worked at Appliance Park “a couple of times a year” over
a two-to-three-year period during the early 1970’s, while
employed by Roark Mechanical & Systems.
John stated that he
performed “pipefitting work” in several buildings during this
period.
In addition, John testified that during a six-week
period in 1974, while he was working at Calvert Cliffs Nuclear
Power House in Prince Frederick, Maryland, he assisted in the
installation of several steam pipes leading to and from two
turbines manufactured by GE which he believed were insulated
with asbestos.
This work performed by John on premises not
owned by GE was the basis for his products liability claim.
Vincent Becker testified in his deposition that over
the course of his career as an ironworker, he worked at
Appliance Park on a regular basis while employed by various
contractors.5
Vincent stated that he assisted in the initial
construction of Appliance Park, and, more specifically, that he
helped install the insulation and mezzanine floors in several of
the buildings.6
Vincent testified that he used “asbestos
5
Vincent was unable to remember the exact dates that he worked at Appliance
Park, however, he testified that he worked at Appliance Park “off and on”
until he retired in 1984. Vincent also stated that he spent a couple of days
working at a GE facility in Evansville, Indiana, however, he was unable to
remember exactly what kind of work he performed.
6
Vincent also stated that he removed machinery from several of the buildings.
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sheet/blankets” on a regular basis during the time that he
worked at Appliance Park.
On July 17, 2002, the trial court entered an order
granting summary judgment in favor of GE as to the products
liability and premises liability claims filed by the appellants.
As to their products liability claims, the trial court found
that Daniel, John, and Vincent had failed to demonstrate that
they were exposed to any asbestos-related products manufactured
or distributed by GE.
As to their premises liability claims,
the trial court concluded as a matter of law that the work
performed by Daniel, John, and Vincent at Appliance Park was of
a kind which was a regular or recurrent part of the work of GE’s
business.7
Consequently, the trial court concluded that GE was
an “up-the-ladder” employer and therefore pursuant to KRS8
342.690(1), it was immune from liability on these tort claims.9
This appeal followed.
John and Becky argue on appeal that the trial court
erred by granting summary judgment as to their products
liability claim against GE.
In addition, Daniel and Mary, John
7
The trial court placed a great deal of emphasis on the fact that the work
performed by Daniel, John, and Vincent “was necessary to enable GE to
manufacture its products[.]”
8
Kentucky Revised Statutes.
9
On August 14, 2002, the appellants filed a motion for clarification
regarding the order entered on July 17, 2002. On August 20, 2002, the trial
court entered an order stating that the order entered on July 17, 2002, was
final and appealable.
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and Becky, and Vincent and Kathleen argue that the trial court
erred by granting summary judgment as to their respective
premises liability claims against GE.
The standard of review governing an appeal of a
summary judgment is well-settled.
We must determine whether the
trial court erred in concluding that there was no genuine issue
as to any material fact and that the moving party was entitled
to a judgment as a matter of law.10
Summary judgment is
appropriate “if the pleadings, depositions, answers to
interrogatories, stipulations, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled to
a judgment as a matter of law.”11
In Paintsville Hospital Co. v.
Rose,12 the Supreme Court of Kentucky held that for summary
judgment to be proper, the movant must show that the adverse
party cannot prevail under any circumstances.
The Court has
also stated that “the proper function of summary judgment is to
terminate litigation when, as a matter of law, it appears that
it would be impossible for the respondent to produce evidence at
the trial warranting a judgment in his favor.”13
10
Scifres v. Kraft, Ky.App., 916 S.W.2d 779, 781 (1996).
11
Kentucky Rules of Civil Procedure (CR) 56.03.
12
Since factual
Ky., 683 S.W.2d 255, 256 (1985).
13
Steelvest, Inc. v. Scansteel Service Center, Inc., Ky., 807 S.W.2d 476, 480
(1991).
-6-
findings are not at issue,14 there is no requirement that the
appellate court defer to the trial court.
“The record must be
viewed in a light most favorable to the party opposing the
motion for summary judgment and all doubts are to be resolved in
his favor.”15
Furthermore, “a party opposing a properly
supported summary judgment motion cannot defeat it without
presenting at least some affirmative evidence showing that there
is a genuine issue of material fact for trial.”16
In a products liability action, the plaintiff has the
burden of establishing legal causation.17
In Bailey v. North
American Refractories Co.,18 this Court noted that “‘legal
causation may be established by a quantum of circumstantial
evidence from which a jury may reasonably infer that the product
was a legal cause of the harm.’”19
In Holbrook, supra, the
former Court of Appeals explained that “the essence of the test
concerning the sufficiency of plaintiff’s circumstantial
evidence concerning causation is that the proof must be
14
Goldsmith v. Allied Building Components, Inc., Ky., 833 S.W.2d 378, 381
(1992).
15
16
Steelvest, 807 S.W.2d at 480.
Id. at 482.
ed. 1995).
See also 7 Philipps, Kentucky Practice, CR 56.03, p. 321 (5th
17
Holbrook v. Rose, Ky., 458 S.W.2d 155, 157 (1970).
18
Ky.App., 95 S.W.3d 868, 872-73 (2001).
19
Id. (quoting Holbrook 458 S.W.2d at 157).
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sufficient to tilt the balance from ‘possibility’ to
‘probability.’”20
In Bailey, supra, this Court was presented with an
appeal from a summary judgment that had been granted in favor of
North American Refractories (NARCO) in an asbestos-related
products liability action.
John Bailey and several other
aggrieved parties, all of whom suffered from asbestos-related
illnesses, alleged that they had been exposed to asbestosrelated products manufactured by NARCO over the course of their
respective careers.
Each appellant introduced evidence
indicating that they had been employed by Armco Steel (Armco)
during a time period in which asbestos-related products were in
use at Armco’s plant in Ashland, Kentucky.
NARCO admitted to
selling asbestos-containing products to Armco during the period
that the appellants were employed by Armco.21
In addition, the
appellants introduced evidence illustrating precisely how
certain asbestos-containing products manufactured by NARCO were
used at the plant.
In particular, the appellants submitted the
testimony of an Armco employee, which indicated that asbestoscontaining materials manufactured by NARCO were mixed by workers
at the plant resulting in the release of dust particles into the
20
Holbrook, 458 S.W.2d at 158.
21
Bailey, 95 S.W.3d at 871.
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air.22
The appellants also submitted an affidavit from Dr.
Arthur L. Frank, who stated that “‘[o]nce released into the air,
asbestos fibers . . . often remain airborne for long periods of
time and travel substantial distances from the point of their
liberation.’”23
Dr. Frank opined that “‘each asbestos-containing
material . . . installed . . . [at] the Armco Steel plant was a
substantial contributing factor in the induction of the
asbestosis . . . contracted by Armco Steel plant workers.’”24
Dr. Frank further opined that “‘no safe level of asbestos
exposure has [ever] been documented.’”25
Notwithstanding the
extensive amount of circumstantial evidence introduced by the
appellants, the Boyd Circuit Court entered an order granting
summary judgment in favor of NARCO.
In Bailey, this Court reversed the trial court on the
grounds that genuine issues of material fact existed as to
whether NARCO’s asbestos products were a substantial factor in
causing the appellants’ asbestos-related illnesses.
More
specifically, this Court concluded that in light of the facts
before it, “Dr. Frank’s expert testimony created a sufficient
‘quantum of circumstantial evidence’ to raise a factual issue as
22
Id. at 872.
23
Id.
24
Id.
25
Id. at 873.
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to legal causation” [footnote omitted].26
In reaching this
conclusion, the Court relied primarily upon Dr. Frank’s theory
that, once released into the air asbestos fibers could travel
for long periods of time and substantial distances, and his
opinion that the asbestos-containing materials manufactured by
NARCO were a substantial contributing factor to the appellants’
diseases.27
The evidence presented by John and Becky in the case
sub judice stands in stark contrast to the evidence presented by
the appellants in Bailey.
As previously discussed, John
testified in his deposition that he believes he was exposed to
asbestos-related materials during a six-week period in 1974.
During this time while John was working at Calvert Cliffs
Nuclear Power House in Prince Frederick, Maryland, he assisted
in the installation of several steam pipes leading to and from
two turbines manufactured by GE.28
Notwithstanding, John has
failed to introduce any evidence indicating that he was exposed
to asbestos during the time that he worked at Calvert Cliffs
Nuclear Power House.
26
Id. at 872.
27
Id. at 872-73.
28
John has failed to introduce any evidence in support of his contention that
the turbines at Calvert Cliffs Nuclear Power House were either manufactured
by GE or insulated with asbestos. Nevertheless, since John has appealed from
an order granting summary judgment in favor of GE, we will assume that the
turbines located at Calvert Cliffs were manufactured by GE and that they were
insulated with asbestos.
-10-
Thus, the case sub judice is distinguishable from
Bailey, since John has failed to demonstrate that he was exposed
to any dust particles during the time in which he worked at
Calvert Cliffs Nuclear Power House.
Moreover, John has failed
to introduce any evidence indicating that the insulation
associated with the turbines at the Calvert Cliffs Power House
was ever disturbed in such a manner that could have resulted in
the release of asbestos fibers into the air.29
In addition, John
has not proffered any expert testimony similar to the evidence
presented in Bailey to establish a causal connection between his
illness and his alleged exposure to asbestos.
Accordingly, we
cannot conclude in John’s products liability action that he has
“created a sufficient ‘quantum of circumstantial evidence’ to
raise a factual issue as to legal causation.”30
Thus, the trial
court correctly concluded that GE was entitled to a summary
judgment as a matter of law in respect to John and Becky’s
products liability claim.
Daniel and Mary, John and Becky, and Vincent and
Kathleen also contend that the trial court erred by granting
29
In fact, John testified in his deposition that “pains were taken” to keep
the rooms in which the turbines were located clean and free of dust.
30
Bailey, 95 S.W.3d at 873. See also Harris v. Owens-Corning Fiberglas
Corp., 102 F.3d 1429, 1431-32 (7th Cir. 1996) (in order to establish
causation “plaintiff ‘must produce evidence sufficient to support an
inference that he inhaled asbestos dust from the defendant’s product’”)
(quoting Peerman v. Georgia-Pacific Corp., 35 F.3d 284, 287 (7th Cir. 1994));
and Parks v. A.P. Green Industries, Inc., 754 N.E.2d 1052, 1056 (Ind.App.
2001).
-11-
summary judgment as to their respective premises liability
claims against GE.
two-fold.
The appellants’ argument in this respect is
First, the appellants contend that GE has failed to
establish, as required by KRS 342.690(1), that it had secured
workers’ compensation coverage which included Daniel, John, and
Vincent.
Second, the appellants contend that a genuine issue as
to a material fact exists concerning whether the work Daniel,
John, and Vincent performed at Appliance Park was of a kind
which was a regular or recurrent part of the work of GE’s
business.
We agree in part with the appellants’ contention that
GE was required to prove that workers’ compensation coverage had
been secured on Daniel, John, and Vincent.
From our review of
the record, we conclude that there is a genuine issue as to a
material fact concerning the extent of GE’s workers’
compensation coverage or whether the contractors for whom
Daniel, John, and Vincent were working had secured coverage on
them.
We begin our analysis by noting that it is wellestablished that workers’ compensation statutes are to be
interpreted in a manner consistent with their munificent and
beneficent purpose.31
KRS 342.690(1) states, in relevant part,
31
See Dick v. International Harvester Co., Ky., 310 S.W.2d 514, 515 (1958)
(“[w]e approach [this issue] under the influence of the remedial principle of
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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[.] . . . 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.
KRS 342.610(2) defines a “contractor” for purposes of KRS
342.690(1) as follows:
A person who contracts with another . . .
(b) [t]o 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 . . .
shall . . . be deemed a contractor, and such
other person a subcontractor [emphases
added].
Furthermore, KRS 342.340(1) provides:
Every employer . . . shall either
insure and keep insured his liability for
compensation hereunder in some corporation,
association, or organization authorized to
transact the business of workers’
compensation insurance in this state or
shall furnish to the commissioner
satisfactory proof of his financial ability
to pay directly the compensation in the
amount and manner and when due as provided
for in this chapter.
workmen’s compensation and the development and progress of legislation to
accomplish its humane and beneficent purpose”).
-13-
Thus, in order for GE to rely on the exclusivity provision of
KRS 342.690(1), it must establish that workers’ compensation
coverage was provided for Daniel, John, and Vincent.
Nevertheless, GE contends that it is entitled to
invoke the exclusivity provision of KRS 342.690(1) by simply
obtaining workers’ compensation coverage as required by KRS
342.340(1).
We reject this argument.
It is well-established
that KRS 342.610(2) was enacted primarily to “discourage owners
and contractors from hiring financially irresponsible
contractors and subcontractors[,]” in an attempt to eliminate
the expense of workers’ compensation coverage.32
That is to say,
the purpose of the statute is not to shield owners or
contractors from potential tort liability; but rather, to
protect the employees of contractors or subcontractors in the
event of a work-related injury.
Had the Legislature intended
the former result, surely it would have simply omitted the
phrase “of a kind which is a regular or recurrent part of the
work of the trade, business, occupation, or profession of such
person[.]”
The “regular or recurrent” provision contained in
KRS 342.610(2) was intended by the Legislature as a limitation,
not an expansion, of the immunity granted to employers under KRS
342.690(1).
32
To hold otherwise would contravene the very purpose
Elkhorn-Hazard Coal Land Corp. v. Taylor, Ky., 539 S.W.2d 101, 103 (1976).
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of the Workers’ Compensation Act, which is to aid injured or
deceased workers, or their dependents.
The record indicates that GE submitted an affidavit
from the Deputy Commissioner of the Department of Workers’
Claims demonstrating that it had secured workers’ compensation
insurance during the time that Daniel, John, and Vincent worked
at Appliance Park.
However, the mere fact that GE had workers’
compensation coverage during the relevant time period does not
establish that it had the appropriate coverage, i.e., while some
workers may have been covered, workers such as Daniel, John, and
Vincent may not have come within the coverage.
Consequently,
the evidence presented at this stage of the proceedings was
insufficient to support the trial court’s finding that GE had
secured workers’ compensation coverage as required by the
statute.
Regardless, based on our disposition of the “regular
or recurrent” issue, there is no need for additional proof or
for the trial court to make a factual finding as to whether GE
met the statutory requirement of providing workers’ compensation
coverage on Daniel, John, and Vincent or of hiring contractors
which provided such coverage.
We now turn to the question of whether, pursuant to
KRS 342.610(2), GE contracted with another “to have work
performed of a kind which is a regular or recurrent part of the
work of [its] business[.]”
More specifically, we must determine
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whether the work performed by Daniel, John, and Vincent at
Appliance Park comes within the coverage of the statute.
The
resolution of this issue turns upon the application of KRS
342.690(1) and KRS 342.610(2).33
In Fireman’s Fund Insurance Co. v. Sherman &
Fletcher,34 the Supreme Court of Kentucky was asked to interpret
the “regular or recurrent” provision contained in KRS
342.610(2).
The case arose out of the death of an employee of a
framing subcontractor, Elder, Inc.
A contract existed between
Sherman & Fletcher and Elder whereby Elder agreed to perform the
rough framing carpentry work for Sherman & Fletcher on a
townhouse construction project.
Sherman & Fletcher was in the
building construction business.
The Supreme Court concluded
that “rough framing carpentry is work of a kind which is a
regular or recurrent part of the work of the occupation or trade
of building construction[.]”35
Consequently, the Supreme Court
held that pursuant to KRS 342.690, Sherman & Fletcher was immune
33
The exclusive remedy provision of KRS 342.690 is an affirmative defense,
which must be pled and proven by the employer. Gordon v. NKC Hospitals,
Inc., Ky., 887 S.W.2d 360, 362 (1994). Thus, GE bears the burden of
establishing that the work performed by Daniel, John, and Vincent was of a
kind which was a regular or recurrent part of the work of its business.
34
Ky., 705 S.W.2d 459 (1986).
35
Id. at 461.
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from tort liability for claims arising out of the death of
Elder’s employee.36
In Daniels v. Louisville Gas & Electric Co.,37 this
Court concluded that emissions testing required by the EPA
constituted a regular or recurrent part of a coal-fired electric
plant’s business.38
In arriving at this conclusion, the Court
explained that “‘[r]ecurrent’ simply means occurring again or
repeatedly” and that “‘[r]egular’ generally means customary or
normal, or happening at fixed intervals.”39
The Court noted,
however, that “neither term requires regularity or recurrence
with the preciseness of a clock or calendar.”40
In sum, the
Court reasoned that since the testing was mandated by the EPA,
it fell within the definition of regular or recurrent.
Aside from Fireman’s Fund and Daniels, Kentucky law is
rather undeveloped as to what work is of a kind which is a
regular or recurrent part of the work of a particular business.41
36
Id. at 462.
37
Ky.App., 933 S.W.2d 821 (1996).
38
Id. at 822.
39
Id. at 824.
40
Id.
41
We are aware of only one other published opinion in which a Kentucky state
court specifically addressed the “regular or recurrent” issue. In Tom
Ballard Co. v. Blevins, Ky.App., 614 S.W.2d 247, 249 (1980), this Court
concluded that the work of transporting coal was of a kind which was a
regular or recurrent part of the work of the business of coal mining.
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However, several federal courts have addressed the issue.42
For
the most part, the federal courts have broadly applied Fireman’s
Fund and Daniels to create an expansive interpretation of the
definition of “contractor” as it appears in KRS 342.610(2).
However, the approach followed in the majority of these federal
cases interpreting KRS 342.610(2) runs counter to the basic
principles that most courts have traditionally adhered to in
interpreting the coverage and immunity provisions contained in
workers’ compensation acts.
As the Sixth Circuit Court of
Appeals stated in Boggs v. Blue Diamond Coal Co.:43
The dominant purpose of the movement to
adopt workmen’s compensation laws in the
early decades of this century was Not to
abrogate existing common law remedies for
the protection of workmen. It was to
provide social insurance to compensate
victims of industrial accidents because it
was widely believed that the limited rights
of recovery available under the common law
42
See, e.g., Thompson v. The Budd Co., 199 F.3d 799 (6th Cir. 1999)(holding
that changing the filters in a heating, ventilation, and air conditioning
system was “part” of the business of stamping automotive parts); Granus v.
North American Philips Lighting Corp., 821 F.2d 1253, 1257 (6th Cir. 1987)
(holding that the renovation of a glass melting furnace was a regular and
recurrent part of the manufacturing operations at a glass making factory);
Smothers v. Tractor Supply Co., 104 F.Supp.2d 715, 718 (W.D.Ky. 2000)
(holding that the transporting of merchandise from a storage facility to a
retail store was “part” of a tractor supply store’s retail operation); and
Sharp v. Ford Motor Co., 66 F.Supp.2d 867, 869-70 (W.D.Ky. 1998)(holding that
loading and unloading vehicles from railcars was a regular and recurrent part
of the business of manufacturing and distributing automobiles). But see
Davis v. Ford Motor Co., 244 F.Supp.2d 784, 789 (W.D.Ky. 2003)(holding that a
mere purchaser of goods is not a statutory contractor of the seller under KRS
342.610(2)); and Gesler v. Ford Motor Co., 185 F.Supp.2d 724, 728 (W.D.Ky.
2001)(holding that the demolition, removal, and replacement of an anticorrosion system for automobiles was not a regular or recurrent part of the
business of designing, manufacturing, and selling automobiles).
43
590 F.2d 655 (6th Cir. 1979), cert. denied 444 U.S. 836, 100 S.Ct. 71, 62
L.Ed.2d 47 (1979).
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at the turn of the century were inadequate
to protect them [emphasis original].
. . .
Employers generally opposed the
movement for “reform”; labor generally
favored it. Workmen’s compensation laws
were adopted as a compromise between these
contending forces. Workmen were willing to
exchange a set of common-law remedies of
dubious value for modest workmen’s
compensation benefits schedules designed to
keep the injured workman and his family from
destitution.
Since the adoption of workmen’s
compensation laws, common law tort
principles have been modified gradually.
Liability has expanded. The defenses of
contributory negligence, assumption of the
risk and the fellow servant rule have been
narrowed or abolished. But workmen’s
compensation benefits have remained low, and
the compromise which extended immunity from
common-law liability to employers has
remained in place.
. . .
Courts have responded by liberally
construing the coverage provisions of
workmen’s compensation acts while narrowly
construing the immunity provisions.44
The justification for this approach has been explained as
follows:
“[T]here is no strong reason of compensation
policy for destroying common law rights
. . . [and] [e]very presumption should be on
the side of preserving those rights, once
basic compensation protection has been
assured . . . . The injured employee has a
44
Id. at 658-59.
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right to be made whole not just partly whole
. . . . [A]ll the reasons for making the
wrongdoer bear the costs of his wrongdoings
still apply, including the moral rightness
of this result as well as the salutary
effect it tends to have as an incentive to
careful conduct and safe work practices.”45
Thus, when a person, who has contracted with another to have
work performed of a kind which is a regular or recurrent part of
the work of the person, claims immunity from liability in a tort
action based on workers’ compensation being the exclusive remedy
pursuant to KRS 342.690(1) and KRS 342.610(2), the entitlement
to such protection should be strictly construed.
We hold that the work performed by Daniel, John, and
Vincent at Appliance Park was not of a kind which was a regular
or recurrent part of the work of GE’s business.46
As previously
45
Id. at 660 (quoting 2A Larson, The Law of Workmen’s Compensation, § 72.50
at 14-95 (1976)). See also Roberts v. Sewerage & Water Board of New Orleans,
634 So.2d 341, 346 (La. 1994)(“[b]ecause workers’ compensation benefits have
lagged far behind the expansion of liability and the curtailment of tort
defenses, courts have responded by liberally construing the coverage
provisions of workers’ compensation acts while narrowly construing the
immunity provisions”); and Larson’s, Workers’ Compensation Law, Vol. 3 §
47.42(a)(1997)(“[i]f this seems to be lack of perfect symmetry, it should be
remembered that there also is not perfect symmetry in what is at stake in the
two situations: The first is a matter of providing protective statutory
benefits, while the second is a matter of destroying valuable common-law
rights that have existed for centuries”).
46
The appellants contend that the determination of whether certain work is of
a kind which is a regular or recurrent part of the work of a particular
business, trade or occupation, presents a question of fact for a jury to
decide. We disagree. When the underlying facts are undisputed, the question
of whether certain work is of a kind which is a regular or recurrent part of
the work of a particular business, trade or occupation, becomes a question of
law for the court to decide. The underlying facts in the case sub judice are
not in dispute. It is the legal interpretation of those facts that is in
dispute. The appellants’ reliance on Goldsmith, 833 S.W.2d at 378 is
misplaced. The underlying facts in Goldsmith were disputed, and, as such,
summary judgment was inappropriate. See Daniels, 933 S.W.2d at 824. See
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discussed, Daniel testified in his deposition that he helped
install the plumbing during the initial construction of
Appliance Park.47
John testified in his deposition that he
assisted in the installation of a new furnace and that he
assisted in the installation of the underground plumbing system,
gas lines, water lines, and glass piping for a new building that
was being constructed at Appliance Park.
John also stated that
he performed “pipefitting work” in several of the buildings at
Appliance Park.
Vincent testified in his deposition that he
helped install the insulation and mezzanine floors in several of
the buildings at Appliance Park.
Vincent also stated that he
removed machinery from several of the buildings on various
occasions.
We cannot accept GE’s contention that the various
tasks performed by Daniel, John, and Vincent were a regular or
recurrent part of its work of manufacturing household
appliances.
It is obvious that the work of installing new
plumbing, gas and water lines, piping, insulation, and flooring
is work of a kind which is a regular or recurrent part of the
also Schuck v. John Morrell & Co., 529 N.W.2d 894, 897 (S.D. 1995) (mixed
questions of law and fact arise when the historical facts are admitted or
established, the rule of law is undisputed, and the issue is whether the
facts satisfy the statutory standard).
47
Daniel was able to remember one other occasion when he worked at Appliance
Park, however, he was unable to remember any details concerning the nature or
duration of the work he performed.
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work of a business which constructs buildings.48
It is
undisputed for purposes of this appeal that GE is in the
business of manufacturing household appliances.
Obviously, the
building construction business is distinct and separate from the
business of manufacturing household appliances.
Moreover, the
installation of a furnace or the removal of machinery and
equipment is not work of a kind which is a regular or recurrent
part of GE’s work of manufacturing household appliances.49
Based on the foregoing reasons, the order granting
GE’s motion for summary judgment is affirmed as to John and
Becky’s products liability claim, but reversed in part as to
Daniel and Mary’s, John and Becky’s, and Vincent and Kathleen’s
premises liability claims, and this matter is remanded to the
Jefferson Circuit Court for further proceedings consistent with
this Opinion.
ALL CONCUR.
48
See, e.g., Fireman’s Fund, 705 S.W.2d at 462.
49
As previously discussed, the trial court placed a great deal of emphasis on
the fact that the work performed by Daniel, John, and Vincent “was necessary
to enable GE to manufacture its products[.]” We take issue with this line of
reasoning as we are convinced that such an approach would lead to absurd
results. For example, compliance with local, state, and federal laws
regarding the reporting of income is a prerequisite to the successful
operation of any legitimate business. Consequently, most large corporations
hire independent accounting firms to audit their financial records on a
regular basis. Under the trial court’s reasoning, the argument follows that
a household appliance manufacturer, such as GE, would be deemed an “up-theladder” employer with respect to an auditor employed by an independent
accounting firm hired to audit the company’s financial records. To construe
the Legislature’s intentions in enacting KRS 342.690(1) and KRS 342.610(2) in
such a manner would be absurd.
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BRIEF FOR APPELLANTS:
Joseph D. Satterly
Kenneth L. Sales
Louisville, Kentucky
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Scott T. Dickens
Louisville, Kentucky
ORAL ARGUMENT FOR APPELLANTS:
Kenneth L. Sales
Louisville, Kentucky
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