MYERS (RONALD) VS. BLUE DIAMOND COAL COMPANY, ET AL.
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RENDERED: NOVEMBER 7, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-001778-MR
RONALD MYERS
v.
APPELLANT
APPEAL FROM PERRY CIRCUIT COURT
HONORABLE WILLIAM ENGLE III, JUDGE
ACTION NO. 04-CI-00522
BLUE DIAMOND COAL COMPANY AND
JAMES RIVER COAL COMPANY
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: KELLER AND TAYLOR, JUDGES; GUIDUGLI,1 SENIOR JUDGE.
GUIDUGLI, SENIOR JUDGE: Ronald Myers was employed by Private
Investigations and Counter Intelligence, Inc. (PICI), which provided temporary
labor to Blue Diamond Coal Company (Blue Diamond). Blue Diamond was the
contract mining company engaged by James River Coal Company (James River) to
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Senior Judge Daniel T. Guidugli sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
operate the mine where Myers was working. Myers was operating a machine
called a battery scoop when the canopy on the machine came loose and a bolt
struck him, injuring his head and neck. He was taken to the hospital, kept for
observation overnight, and released.
Myers filed an action naming Blue Diamond and James River as
defendants alleging negligence and violations of federal and state mine safety
regulations. After limited discovery, Blue Diamond and James River filed a
motion for summary judgment. The trial court conducted a hearing on the motion
and determined that the work being performed by Myers “at the time of the
accident was a regular and recurrent part of the work or trade of the Defendants.”
The trial court determined that Myers offered nothing to contradict this. Based on
that determination, the trial court found there was no genuine issue of material fact.
The trial court found the action was barred by provisions of Kentucky Revised
Statutes (KRS) 342.610 and KRS 342.690 and granted the request for summary
judgment. Myers then sought our review. We agree with the trial court’s
determination and reasoning and affirm.
“The standard of review on appeal of a summary judgment is whether
the circuit judge correctly found that there were no issues as to any material fact
and that the moving party was entitled to a judgment as a matter of law.” Pearson
ex rel. Trent v. Nat’l Feeding Systems, Inc., 90 S.W.3d 46, 49 (Ky. 2002).
Summary judgment cannot be defeated absent “some affirmative evidence
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indicating that there is a genuine issue of a material fact.” Id. Myers was unable to
provide any contradicting evidence that his employment “at the time of the
accident was a regular and recurrent part of the work or trade of the Defendants.”
That uncontested fact made it impossible for Myers to prevail at trial and summary
judgment was appropriate.
Summary judgment is appropriate when it is impossible for the party
opposing the motion “to produce evidence at the trial warranting a judgment in his
favor.” Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.
1991). No amount of additional discovery would have enabled Myers to overcome
the uncontroverted fact that his employment was a regular and recurrent part of the
work or trade of the defendants. As the trial court correctly determined, Myers’
only recovery was through the Workers’ Compensation procedures established by
KRS 342.610 and KRS 342.690.
Myers would have us extend the holding of Hargis v. Baize, 168
S.W.3d 36 (Ky. 2006), to include situations as here where there is some evidence
that but for violations of state and federal mine safety rules and regulations, the
injury may not have occurred. We remain bound by the holding of the Kentucky
Supreme Court, and our review of Myers’ accident convinces us that Hargis does
not apply to his claim. In Hargis, the widow of a truck driver sought damages for
a wrongful death claim when her husband was killed because of violation of
regulations regarding how a load was secured to a shipping vehicle. The Supreme
Court reviewed the Kentucky Occupational Safety And Health Act (KOSHA) and
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found “a violation of KOSHA does not affect the exclusive remedy provision of
the Workers’ Compensation Act. KRS 342.690(1).” Id. at 45. The Court also
found that “KOSHA, itself, does not create a private right of action for a violation
of one of its provisions.” Id. The Supreme Court went on to hold, however, that a
violation of KOSHA was actionable by a person for whose benefit it was enacted if
the right of action arises from a source independent of KOSHA. Id.
Had Myers been an employee of either coal company, his action
would have been barred by the exclusive remedy of the Workers’ Compensation
Act. Id. at 42. Although Myers’ role in relation to the coal companies was acting
as an independent contractor, he was in actuality an employee of PICI and his
remedy as an employee of that company is through the Workers’ Compensation
Act. KRS 342.690. We therefore believe Hargis to be distinguishable in this case
because Myers was protected under the umbrella of the Workers’ Compensation
recovery statutes. Summary judgment in favor of the coal companies was
appropriate in this instance.
The judgment of the Perry Circuit Court is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEES:
Thomas W. Moak
Prestonsburg, Kentucky
Billy R. Shelton
Lexington, Kentucky
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