FLUOR CONSTRUCTION INTERNATIONAL, INC . V. LARRY KIRTLEY ; GARDNERS SERVICE COMPANY ; ROBERT L . WHITTAKER, DIRECTOR OF SPECIAL FUND ; HON . DONALD G . SMITH, ADMINISTRATIVE LAW JUDGE ; AND WORKERS' COMPENSATION BOARD
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RENDERED : APRIL 24, 2003
TO BE PUBIcMHED
FLUOR CONSTRUCTION
INTERNATIONAL, INC.
V.
APPEAL FROM THE COURT OF APPEALS
2000-CA-2572-WC
WORKERS' COMPENSATION BOARD NO . 95-30526
LARRY KIRTLEY ; GARDNERS SERVICE
COMPANY ; ROBERT L. WHITTAKER,
DIRECTOR OF SPECIAL FUND ; HON.
DONALD G. SMITH, ADMINISTRATIVE
LAW JUDGE ; AND WORKERS'
COMPENSATION BOARD
APPELLEES
OPINION OF THE COURT BY JUSTICE WINTERSHEIMER
REVERSING AND REMANDING
This appeal is from an opinion of the Court of Appeals affirming a decision of the
Workers' Compensation Board which dismissed the appeal by Fluor Construction
International from an opinion and award of the Administrative Law Judge granting
Kirtley benefits for a 10% occupational disability due to work-related asbestosis .
Kirtley filed a workers' compensation claim in January 1996 against Gardners
Service Corporation and Fluor. He alleged that he had developed asbestosis after
being exposed to asbestos for several years while working for various contractors at a
plant operated by the Tennessee Valley Authority.
The certificates of service on the pleadings indicate that pleadings initially were
mailed to Fluor at a Drakesboro, Kentucky address . The pleadings and orders
continued to show service on Fluor at the same address until June 1996. No service is
indicated on Fluor again until June 1998, when service of a prehearing order and
memorandum was attempted via certified mail at the Drakesboro address . That order
was returned as undeliverable but was later successfully delivered in December 1998 at
a Russellville, Kentucky address. Attempts were made to serve several motions and
orders on Fluor at addresses in Drakesboro, Kentucky; Russellville, Kentucky;
Paducah, Kentucky; and Nashville, Tennessee . Certified mail receipts indicate that at
least some of the motions and orders which were sent to the Russellville address were
received by someone who signed as an agent of Fluor. In November 1999, counsel for
Kirtley notified the ALJ that the proper address for Fluor was in Irvine, California .
On November 19, 1999, the ALJ issued an order directing Fluor to notify him
within ten days of the date of the order whether it would seek additional proof in which
to defend the claim. All subsequent pleadings indicate service on Fluor at the Irvine,
California address. No response to the order of the ALJ was received .
The ALJ issued an opinion and award on February 22, 2000, awarding Kirtley
benefits for a 10% occupational disability and finding Fluor solely responsible for the
employer's portion of the award . Service of the opinion and award was noted for Fluor
at an Irvine, California address. Counsel for Fluor entered an appearance on February
23, 2000, and also filed a brief before the ALJ on that date . Fluor filed a petition for
reconsideration which was overruled by the ALJ on March 30, 2000. This order
indicates service on Fluor, but not on its counsel. Apparently, counsel for Flour did not
find out about the existence of the order until May 5, 2000, when he called to inquire
about it. On May 8, he filed a motion for the order to be set aside and to reissue it so
that his appeal would be timely. The ALJ granted the motion without objection on May
30, and Fluor filed a notice of appeal to the Board on June 9, 2000 .
The Board raised the issue of its jurisdiction to hear the appeal sua sponte,
stating that, failure to file a timely notice of appeal is a jurisdictional defect that is fatal to
the appeal . It further stated that the fact that counsel for Fluor was not served with a
copy of the order or petition for reconsideration does not excuse it from filing a timely
notice of appeal . In dismissing the appeal the Board applied CR 77.04(4), which states :
Failure of the trial court to require service of notice of entry
of any judgment or order under this rule or the failure of the
clerk to serve such notice, or the failure of a party to receive
notice, shall not affect the validity of the judgment or order,
and does not affect the time to appeal or relieve or authorize
the court to relieve a party for failure to appeal with the time
allowed, except as permitted in Rule 73 .02(1) .
CR 73 .02(1) allows the trial court, upon a showing of excusable neglect, to
extend the time for taking an appeal for not more than 10 days from the expiration of
the original time .
The Court of Appeals reluctantly affirmed . It could find no relief for Fluor in
existing law, but stated that if the Kentucky Supreme Court, the General Assembly, or
the writers of the Administrative Regulation deem this problem to be antithetical to the
administration of justice, perhaps one of those bodies will remedy this situation . This
appeal followed .
On November 21, 2002, this Court rendered Kurtsinger v. Board of Trustees of
Kentucky Retirement Systems, Ky., 90 S.W.3d 454 (2002), which presents a similar
issue. The pertinent facts in that case are as follows : Counsel for Kurtsinger timely filed
a CR 59.05 motion . On June 29, 2000, the circuit court entered an order denying the
motion . Counsel for Kurtsinger was omitted from the distribution list and did not receive
service . When counsel eventually learned of the denial, the time to appeal had expired .
Nevertheless, the circuit judge granted the CR 60 .02 motion filed by counsel for
Kurtsinger to vacate the June 29, 2000 order. Later, the circuit judge also entered an
order denying a CR 59.05 motion to alter, amend or vacate summary judgment. On
August 28, 2000, Kurtsinger filed a notice of appeal . The Court of Appeals dismissed
the appeal, citing Stewart v. Kentucky Lottery Corp. , Ky.App., 986 S.W.2d 918 (1998).
On appeal, this Court acknowledged the latent conflict that exists between CR
60 .02 and CR 77 .04. That if the latter rule is applied literally, where appellate rights are
implicated, the former rule is unavailable . We further acknowledged that CR 60.02 is a
mistake correcting rule that allows the trial judge broad discretion . Ultimately, we
reversed the Court of Appeals and held that pursuant to CR 60.02 the trial judge acted
within his broad discretion in vacating his original order and entering a new one .
Here, although the ALJ did not cite KRS 342.125 in granting the motion by Fluor,
we believe that statute offers the same relief in this situation as would CR 60.02. Cf.
Campbell v. Universal Mines , Ky., 963 S .W .2d 623 (1998) ; Wheatley v. Bryant Auto
Service , Ky., 860 S.W .2d 767 (1993). Pursuant to the same rationale in Kurtsinger,
supra, we hold that the ALJ did not abuse his discretion in granting the motion by Fluor.
Therefore, the decision of the Court of Appeals is reversed and this case is
remanded to the Workers' Compensation Board for further proceedings consistent with
this opinion .
All concur.
COUNSEL FOR APPELLANT :
James G . Fogle
Janet K. Martin
FERRERI & FOGLE
333 Guthrie Green, Suite 203
Louisville, KY 40202
COUNSEL FOR APPELLEES :
Harry R. Hinton
258 South Main Street
P.O . Box 830
Madisonville, KY 42431
Philip J . Reverman
BOEHL STOPHER & GRAVES
Capital Holding Center, Suite 2300
400 West Market Street
Louisville, KY 40202-3354
David W. Barr
Kentucky Labor Cabinet
Division of Special Fund
1047 US Hwy 127 South, Suite 4
Frankfort, KY 40601
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