DAVID TRENT v. LAKE CUMBERLAND RESORT, INC.
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RENDERED:
OCTOBER 13, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2005-CA-001935-MR
DAVID TRENT
APPELLANT
APPEAL FROM PULASKI CIRCUIT COURT
HONORABLE DAVID TAPP, JUDGE
ACTION NO. 04-CI-00198
v.
LAKE CUMBERLAND RESORT, INC.
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BARBER AND VANMETER, JUDGES; EMBERTON,1 SENIOR JUDGE.
BARBER, JUDGE:
This matter is before the court regarding a
summary judgment order by the Pulaski Circuit Court.
The order
dismissed a personal injury claim by Appellant, David Trent,
against Appellee, Lake Cumberland Resort, Inc., (LCR).
The
trial court concluded Trent’s claim was barred by KRS
342.690(1), the exclusive remedy provision of the Kentucky
Workers’ Compensation Act (Act).
1
Senior Judge Thomas D. Emberton sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
The primary question for our court is whether LCR is a
“contractor” for purposes of the Act.
the protection of KRS 342.690(1).
If so, LCR is entitled to
Following a review of the
record, we believe LCR was a “contractor.”
Thus, we affirm.
Background
LCR developed a gated community consisting of more
than one hundred homes.2
A person would buy a lot from LCR and
have it build a home thereon for an established price.3
Individuals were given allowances for certain aspects of the
home.
If someone exceeded an allowance given, he or she would
be required to pay the difference at closing.
Purchasers were given an allowance by LCR for the
cabinetry in their home.
LCR always recommended Whitis Cabinets
for cabinet installation, but individuals were able to use
anyone they chose.
The majority of purchasers did in fact use
Whitis as their cabinet supplier.
Cabinetry installed by Whitis
was custom-built for the particular home based on purchasers’
preferences.
On May 28, 2003, Trent, a Whitis employee, fell into a
cold air return hole in the floor while installing cabinets in a
home being built by LCR for a third party.
covered by a piece of cardboard.
The return had been
Trent injured his left ankle
2
Most of the homes were used as vacation homes.
3
An individual could buy a lot only, but such purchases were rare.
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and knee.
Trent filed a workers’ compensation claim against
Whitis and received benefits for his injuries.
Trent then filed a personal injury claim against LCR.
Following limited discovery, LCR filed a motion for summary
judgment arguing workers’ compensation exclusivity.
court agreed and granted summary judgment to LCR.
The trial
Trent now
appeals to our court.
Scope of Review
The standard of review on appeal when a trial court
grants a motion for summary judgment is whether the trial court
correctly found there were no genuine issues as to any material
fact and that the moving party was entitled to judgment as a
matter of law.
Hallahan v. The Courier-Journal, 138 S.W.3d 699,
704 (Ky.App. 2004), (citing Palmer v. International Assoc. of
Machinists, 882 S.W.2d 117, 120 (Ky. 1994)).
The movant bears
the initial burden of convincing the court by evidence of record
that no genuine issue of fact is in dispute, and then the burden
shifts to the party opposing summary judgment to present “at
least some affirmative evidence showing that there is a genuine
issue of material fact for trial.”
Id. at 705, (citing
Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d
476, 482 (Ky. 1991)).
The party opposing summary judgment
cannot rely on their own claims or arguments without significant
evidence in order to prevent summary judgment.
-3-
Hallahan, supra,
138 S.W.3d at 705.
The court must view the record in the light
most favorable to the nonmovant and resolve all doubts in his
favor.
Id., (citing Commonwealth v. Whitworth, 74 S.W.3d 695,
698 (Ky. 2002)).
In order for summary judgment to be proper, the movant
must show that the adverse party cannot prevail under any
circumstances.
Motorists Mutual Insurance Co., supra 149 S.W.3d
at 439, (citing Paintsville Hospital Co. v. Rose, 683 S.W.2d
255, 256 (Ky. 1985)).
Summary judgment is appropriate “if the
pleadings, depositions, answers to interrogatories,
stipulations, and admissions on file, together with the
affidavits,4 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.”
Motorists Mutual Insurance Co. v.
Grange Mutual Casualty Co., 149 S.W.3d 437, 439 (Ky.App. 2004),
(citing CR 56.03).
The focus should be on what is of record
rather than what might be presented at trial.
Hallahan, supra,
138 S.W.3d at 705, (citing Welch v. American Publishing Co. of
Kentucky, 3 S.W.3d 724, 730 (Ky. 1999)).
Our court need not
defer to the trial court’s decision on summary judgment and
shall review the issue de novo because only legal questions are
involved.
Id.
4
“Affidavits” in CR 56.03 includes any other pertinent materials which will
assist the court in adjudicating the merits of the motion. Conley v. Hall,
395 S.W.2d 575, 583 (Ky. 1965).
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Legal Authority
The exclusivity of liability applicable to workers’
compensation is established in KRS 342.690(1), which states, in
relevant part:
If an employer secures payment of
compensation 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 . . . entitled to recover damages
from such employer at law . . . 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.
Kentucky Revised Statute 342.610(2)
states, in part:
A contractor who subcontracts all or
any part of a contract and his carrier shall
be liable for the payment of compensation to
the employees of the subcontractor unless
the subcontractor primarily liable for the
payment of such compensation has secured the
payment of compensation as provided for in
this chapter. . . . 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 shall for the
purposes of this section be deemed a
contractor, and such other person a
subcontractor.
The purpose of the provision of KRS 342.610 that a
contractor is liable for compensation benefits to an employee if
a subcontractor who does not secure compensation benefits is to
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prevent subcontracting to irresponsible people.
Fireman’s Fund
Insurance Company v. Sherman & Fletcher, 705 S.W.2d 459, 461
(Ky. 1986), (citing Elkhorn-Hazard Coal Land Corp. v. Taylor,
539 S.W.2d 101, 103 (Ky. 1976)).
The Kentucky Supreme Court construed “contractor” as
used in KRS 342.610 to mean that a person who engages another to
perform a part of the work which is a recurrent part of his
business, trade, or occupation.
Id. at 462.
Even though he may
never perform that particular job with his own employees, he is
still a contractor if the job is one that is usually a regular
or recurrent part of his trade or occupation.
Id.
Analysis
We believe Fireman’s Fund Insurance Company v. Sherman
& Fletcher, 705 S.W.2d 459 (Ky. 1986) is analogous to the matter
before us.
In that case, John Sherman and Raymond Fletcher,
individually and as partners, owned and developed a residential
construction complex consisting of twenty-one townhouses.
They
contracted with others for most of the construction work.
Elder, Inc. was a framing subcontractor engaged to do the rough
framing carpentry.
David H. George was an employee of Elder who
was killed when a concrete block wall at the construction site
collapsed.
Elder paid workers’ compensation benefits to the
estate of George.
It was held that the estate could not seek
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recovery for wrongful death against Sherman & Fletcher pursuant
to KRS 342.690(1).
Travis states his case is different from Fireman’s
Fund because cabinet installation is not a regular or recurrent
part of the work of LCR.
Specifically, he argues that cabinet
installation is not necessary to the construction of a home and
that LCR never installed cabinetry themselves.
We find no merit
with either argument.
Travis first claims cabinetry is unnecessary to the
building of a home comparing it to appliance installation.
Whitis was more than a mere supplier of a product.
It provided
a professionally installed custom cabinet for homeowners.5
Moreover, Lowell Davis, Chief Financial Officer and Controller
for LCR, testified that all of the homes within the gated
community had cabinetry.6
Travis failed to present any evidence
of any home that had no cabinetry.
As such, we believe cabinet
installation is a job that is a regular and recurrent part of
LCR’s trade, (i.e., home construction).
Travis then argues there was no evidence introduced
that LCR ever installed cabinets in any of the homes it
constructed so it was not a regular or recurrent part of its
5
See Cliff Fuson, Resort’s Construction Superintendent, deposition, May 25,
2005, at p.2 and Chester L. Holsomback, former Whitis employee working with
Trent on day of injury, deposition, May 25, 2005, at p.2-5.
6
Lowell Davis deposition, May 25, 2005, at p.6.
-7-
work.
As stated earlier, it is not necessary that LCR perform
that particular job with its own employees.
See Fireman’s Fund,
supra, 705 S.W.2d at 462.
Additionally, all invoices incurred for work performed
on a home were paid by LCR.7
LCR ensured that anyone who was not
an LCR employee had the appropriate workers’ compensation
insurance.8
LCR provided a one-year builder’s warranty on all
homes it constructed.9
Also, homeowners report any problems with
their home to LCR, not the installer.
These are all additional
factors indicative that LCR is a contractor.
Conclusion
Based on the foregoing, we believe LCR is a
“contractor” as defined by KRS 342.610(2) entitled to the
protection of KRS 342.690(1), the exclusive remedy provision of
the Act.
Therefore, we affirm the Pulaski Circuit Court’s order
granting summary judgment to LCR.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Teddy L. Flynt
Salyersville, Kentucky
Roberta K. Kiser
Lexington, Kentucky
7
Invoices listed Resort as the customer/purchaser.
8
Lowell Davis deposition, May 25, 2005, at p.8.
9
Lowell Davis deposition, May 25, 2005, at p.24.
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