GREG BEAVER (D/B/A BEAVER CONSTRUCTION COMPANY) V. 59. TOYOTA MOTOR MANUFACTURING, KENTUCKY, INC. V. HONORABLE ROBERT G. JOHNSON,
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RENDERED: MARCH 19, 2009
TO BE PUBLISHED
2006-SC-000813-DG
GREG BEAVER
(D/B/A BEAVER CONSTRUCTION COMPANY)
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APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NOS . 2005-CA-001471-MR
AND 2005-CA-001487-MR
McCRACKEN CIRCUIT COURT NO . 04-CI-00237
KEVIN OAKLEY AND
CRAWFORD ELECTRIC, INC .
APPELLEES
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
REVERSING
We accepted discretionary review to decide whether a construction
manager or its project superintendent must have a written contract with the
injured worker's direct employer in order to be considered a contractor and
qualify for up-the-ladder immunity' from tort liability for the worker's workIn Kentucky, "up-the-ladder immunity" refers to a contractor's immunity from tort
lawsuits where the plaintiff was injured at work and workers' compensation
benefits are the plaintiff's exclusive remedy under Kentucky Revised Statutes
(KRS) 342.690 . See General Elec . Co. v. Cain, 236 S.W.3d 579, 585 (Ky. 2007) ("If
premises owners are `contractors' as defined in KRS 342 .610 (2) (b), they are deemed
to be the statutory, or 'up-the-ladder,' employers of individuals who are injured
while working on their premises and are liable for workers' compensation benefits
unless the individuals' immediate employers . . . have provided workers'
compensation coverage . If deemed to be `contractors,' the owners, like any other
employers, are immune from tort liability [exclusive remedy immunity] with respect
V C,
related injury claim . We hold that a formal written contract between the
injured worker's direct employer and the alleged tortfeasor is not essential to
establish up-the-ladder immunity from tort claims . This holding reaffirms and
conforms to long-standing precedent established in United Engineering and
Construc tors, Inc . v. Branham . 2
I. FACTS .
Kevin Oakley was an employee of Crawford Electric when he was injured
while working on Sunrise Hospitality's construction site. Oakley fell from a
forklift operated by Greg Beaver, the project superintendent. Crawford Electric
had a contract with Sunrise Hospitality to perform electrical work at the
construction site . Sunrise Hospitality was responsible for paying Crawford
Electric for its work.
Sunrise Hospitality also had a written contract with Whitaker
Construction Management, LLC, for Whitaker to act as the construction
manager for the project. According to the written contract between Sunrise
and Whitaker and testimony from Whitaker's representative, Whitaker
recommended some subcontractors to Sunrise Hospitality; but Sunrise
Hospitality contracted directly with Crawford Electric on its own initiative . And
Whitaker agreed with Sunrise Hospitality to act on Sunrise Hospitality's behalf
to verify that subcontractors on the job-such as Crawford Electric-performed
to work-related injuries whether or not the immediate employer actually provided
workers' compensation coverage .") .
550 S.W.2d 540 (Ky. 1977) .
adequately before Whitaker approved payment to the subcontractor by Sunrise
Hospitality.
Whitaker's owner, Jeffrey Whitaker, could not oversee the project on a
day-to-day basis, so he hired Greg Beaver of Beaver Construction Company to
be a project superintendent to supervise the Sunrise Hospitality job site and to
make regular progress reports to Whitaker . Beaver testified by deposition that
Whitaker had the right to control the details of the project, and it paid Beaver
weekly for his work on the job . Whitaker did not withhold taxes on Beaver's
paycheck . Whitaker and Beaver did not have this arrangement in writing. And
neither Whitaker nor Beaver had a written contract with Crawford Electric .
Following Oakley's injury, he filed a personal injury lawsuit against
Beaver in circuit court. Oakley alleged that Beaver's negligence on the jobsite
caused Oakley's injuries . Beaver moved for summary judgment, asserting that
KRS 342 .690(1) gave him up-the-ladder immunity from liability for Oakley's
claims . Beaver argued that Whitaker functioned as the general contractor on
KRS 342.690(1) states :
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, his legal representative, husband
or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover
damages from such employer at law or in admiralty 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 342.6 10, whether or not the
subcontractor has in fact, secured the payment of compensation. The liability of
an employer to another person who may be liable for or who has paid damages on
account of injury or death of an employee of such employer arising out of and in
the course of employment and caused by a breach of any duty or obligation owed
by such employer to such other shall be limited to the amount of compensation
and other benefits for which such employer is liable under this chapter on account
of such injury or death, unless such other and the employer by written contract
this construction site and that he was only acting as Whitaker's employee or
representative on the job site, resulting in up-the-ladder immunity for Beaver.
Oakley countered that Sunrise Hospitality was the general contractor and that
Beaver was not entitled to up-the-ladder immunity .
The trial court granted summary judgment in Beaver's favor agreeing
with Beaver that he was Whitaker's representative on this jobsite.4 The trial
court concluded that as a representative of the general contractor, Beaver was
immune from liability for Oakley's personal injuries .
The Court of Appeals reversed this summary judgment holding that
Beaver was not entitled to up-the-ladder immunity . The Court of Appeals
stated, "it is apparent that there was no contractor/ subcontractor relationship
between Whitaker/Beaver and Crawford Electric since neither Whitaker nor
Beaver contracted with Crawford Electric ." Based on language used in the
written contract between Sunrise Hospitality and Whitaker, the Court of
Appeals concluded that Whitaker was not a contractor but, rather, "a
Construction Manager . . . NOT a Constructor." The Court of Appeals further
distinguished the case from the holding in Branham,5 on the basis that the
have agreed to share liability in a different manner. The exemption from liability
given an employer by this section shall also extend to such employer's carrier and
to all employees, officers or directors of such employer or carrier, provided the
exemption from liability given an employee, officer or director or an employer or
carrier shall not apply in any case where the injury or death is proximately caused
by the willful and unprovoked physical aggression of such employee, officer or
director .
The depositions taken show that everyone deposed regarded Whitaker or Beaver as
the contractor or general contractor.
550 S .W.2d 540 .
defendant seeking immunity in Branham was a "constructor," unlike Whitaker,
and that "the party who stood to benefit from the `up the ladder' doctrine
contracted with the subcontractor ; whereas, neither Whitaker nor Beaver did
so in this case ."
Because we conclude that the Court of Appeals erred in reversing the
trial court, we reverse the holding of the Court of Appeals and reinstate the
trial court's summary judgment.
II. ANALYSIS.
Under Kentucky law, unless a worker has expressly opted out of the
workers' compensation system, the injured worker's recovery from the
employer is limited to workers' compensation benefits. The injured worker is
not entitled to tort damages from the employer or its employees for workrelated injuries .6 And, in this context, the term
employer is
construed broadly
to cover not only the worker's direct employer but also a contractor? utilizing
the worker's direct employer as a subcontractor.$ But if "some other person
6
KRS 342.690(1) provides, in pertinent part, that "[i]f 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 . . . on account of such injury or death." It also provides that "[t]he
exemption from liability given an employer by this section shall also extend . . . to
all employees . . . of such employer . . . ."
KRS 342 .690(1) further states that "[f]or purposes of this section, the term
`employer' shall include a `contractor' covered by subsection (2) of KRS 342 .6 10,
whether or not the subcontractor has in fact, secured the payment of
compensation ."
KRS 342 .610(2) provides that "[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 for the purposes
of this section be deemed a contractor, and such other person a subcontractor."
than the employer" may be legally responsible for the worker's on-the-job
injuries, the worker may assert a tort claim against that other person and
attempt to recover damages .9 The issue we must address in this appeal is
whether the evidence of record definitely establishes Beaver as a representative
of Oakley's statutory employer such that Beaver is entitled to up-the-ladder
immunity or whether Beaver may still be "some other person than the
employer" who would not enjoy immunity from possible tort liability. Based on
our review of the evidence in this case, we conclude that the trial court properly
ruled that Beaver was entitled to up-the-ladder immunity .
In Branham, we reversed a judgment for a plaintiff upon concluding that
the defendant was a contractor entitled to up-the-ladder immunity for the
subcontractor's employee's injuries despite recognizing that the plaintiff's direct
employer might not technically be regarded as a subcontractor of the defendant
outside the workers' compensation context.l 0 Branham was injured while
operating equipment leased by E. B . Lowman to United Engineers and
9
10
KRS 342 .700(1) states: "[w]henever an injury for which compensation is payable
under this chapter has been sustained under circumstances creating in some other
person than the employer a legal liability to pay damages, the injured employee
may either claim compensation or proceed at law by civil action against the other
person to recover damages, or proceed both against the employer for compensation
and the other person to recover damages, but he shall not collect from both." We
note that in this case, Oakley has received workers' compensation benefits from his
direct employer (Crawford Electric) and these benefits would have to be recouped if
he were to receive tort damages from Beaver .
Branham , 550 S.W.2d at 547 ("Whether that arrangement justifies the inflexible
label of "subcontract" as it might be considered apart from the compensation
statutes we need not decide. Under those statutes, however, we think that it
does. . . . In the "up-the-ladder" context we construe the relationship between
United [defendant] and Lowman [plaintiff's direct employer] to have been that of
contractor and subcontractor.").
Constructors, Inc., for a construction project on premises owned by the Armco
Steel Corporation .'' Armco had a contract with United for construction and
had contracted with Lowman itself to lease equipment and an operating crew
that included Branham. 1 2 Technically, there was no written contract between
United and Lowman. But United's superintendent had actually negotiated the
lease with Lowman; and the rental agreement was signed by United, acting
through that superintendent "as agent for Armco ." 13
As the Court of Appeals recognized and perhaps unduly emphasized,
some distinctions exist between the contracts at issue in Branham and the
case now before us . In Branham, the defendant at issue (United) was referred
to as a "constructor" in the written contract with the premises owner . By
contrast, Whitaker was referred to as a "Construction Manager who is NOT a
Constructor" in the written contract with the premises owner, Sunrise
Hospitality. Under the terms of the contract with Armco in Branham, United
took on an active, hands-on role at the construction site, 14 as well as serving as
"purchasing agents" responsible for contracting to purchase construction
equipment and materials . In the instant case, during the pre-construction
phase, Whitaker's role was largely consultative under the written contract: for
Id. at 541 .
Id. at 542 .
Id. at 542-43 .
Id. at 542 . ("As `Constructors' it agreed, when so ordered and directed by Armco,
to execute `with our own forces the construction, and install the machinery and
equipment, subletting (our emphasis) parts of the work when it is your advantage
to do so, and turn the completed section or sections of the work over to you when
ready for regular use."') .
example, it would recommend whom to hire for certain types of work ; although,
Sunrise Hospitality actually independently contracted for different aspects of
the overall project, such as electrical work for which it hired Crawford Electric .
But, in the construction phase, Whitaker also had the responsibilities of
management, coordinating the work of various parties involved, and making
sure that tasks were completed in accordance with plans and specifications . 15
Whitaker delegated the actual day-to-day supervision of the construction
project to Beaver, apparently through an oral agreement.
Distinguishing the holding in Branham, the Court of Appeals concluded
up-the-ladder immunity was not available to Beaver in this case. It stated that
"in Branham the party who stood to benefit from the `up the ladder' doctrine
contracted with the subcontractor; whereas, neither Whitaker nor Beaver did
so in this case." But judging from the paperwork alone, the party (United)
claiming up-the-ladder immunity in Branham did not, in fact, have a contract
with the subcontractor at issue there (Lowman) because United's
superintendent signed the contract with Lowman as the agent for Armco ; but
United was not a named party to the contract. 16 Nevertheless, despite the lack
of a direct written contract between subcontractor and contractor in Branham,
15
16
The contract referred to those providing different specified services, such as the
electrical services provided by Crawford Electric as "Contractors" ; however, as
explained in latter parts of this opinion, it appears that Whitaker/Beaver
essentially functioned as contractors, and Crawford Electric and others providing
specific services functioned as subcontractors under prior precedent, such as
Branham, which focuses on function and substance rather than the exact
language used in written contracts in determining who is a "contractor" for
purposes of "up-the-ladder" immunity .
Id. at 543 .
we recognized that United functioned as the contractor on the construction site
as a practical matter and was, thus, entitled to up-the-ladder immunity,
stating:
the Lowman agreement's being put in the name of Armco as
principal was strictly a matter of formality, and again merely a
facet of the financial arrangement between Armco and United . It
was United that decided where, when and what equipment was
needed, and it was United's officer who negotiated and actually
executed the rental agreement with Lowman . . . . The cold fact is
that United, the party obligated to do the work for which the crane
was needed, was the real party in interest, and we do not think the
question of whether Lowman was a subcontractor under United
can be made to stand or fall on the basis of the paper work. 17
Like the instant case, we found in Branham that the paperwork obscured
the reality of the functional contractor/ subcontractor relationship . We noted
that "[t]he paper relationship between Armco and United obviously was
designed for the purpose of placing upon Armco the burden of financing the
project from beginning to end" before finding that "[i]n substance, United was
its prime contractor ." 18 In fact, Armco (the premises owner) apparently
contracted directly with those providing specific services and presumably was
also responsible for payment on those contracts, 19 just as Sunrise Hospitality
directly contracted with and was responsible for paying subcontractors like
Crawford Electric in this case.
17
18
19
Id. at 542. ("Important to the argument that United was an agent rather than a
contractor for Armco is this provision of the proposal : `You (Armco) will have full
control of all purchases and of the letting of all contracts . All contracts and orders
placed by us (United) will be in your name, signed by us as Agents for you ."') .
In the instant case, it also appears that the written contract with
Crawford Electric was put in the premises owner's (Sunrise Hospitality's) name
as a formality and as "a facet of the financial arrangement between" Whitaker
and Sunrise Hospitality, the entity directly responsible for paying
subcontractors for their work . And like the facts in Branham , it fell to the
alleged contractor-Whitaker, acting through Beaver-to superintend or
coordinate the worksite. Following the holding in Branham , Beaver is entitled
to up-the-ladder immunity because our precedent makes clear that we must
construe the role of contractor in a practical and functional-not
hypertechnical--way .20 The deposition testimony in this case demonstrates
that Whitaker actually functioned as the contractor and Beaver as Whitaker's
representative 2 l even though they may not have established the type of written
20
21
Id. at 547 ("Whether that arrangement justifies the inflexible label of `subcontract'
as it might be considered apart from the compensation statutes we need not
decide . Under those statutes, however, we think that it does. Beyond cavil, part of
the package delivered by Lowman to United consisted of the services of two men.
United in turn had contracted to perform those services for Armco . In the 'up-theladder' context[,] we construe the relationship between United and Lowman to have
been that of contractor and subcontractor . United therefore was not `some other
person than the employer' under KRS 342 .700(1) or its precursor, KRS 342 .055 .") .
Oakley has suggested that perhaps Beaver might have been an independent
contractor rather than Whitaker's employee. But he has pointed to no proof to
refute Beaver's and Whitaker's testimony that Whitaker was the boss and Beaver
the employee and that, ultimately, Whitaker had the right to control over the
project. And the right to control details of the work performed is the key
consideration in determining whether one is an employee or independent
contractor . Ratliff v. Redmon, 396 S.W.2d 320, 327 (Ky. 1965) . So we are satisfied
that the trial court correctly determined that Beaver was Whitaker's employee and
entitled to up-the-ladder immunity.
10
contract with Oakley's direct employer that was customarily expected in a
contractor-subcontractor relationship . 22
We do recognize, in contrast to Branham, two distinct ladders of written
contracts in the case before us : the construction management contract
between Sunrise Hospitality and Whitaker (with Whitaker's separate oral
contract with Beaver) versus Sunrise Hospitality's contract with Crawford
Electric for electrical services . But both Whitaker and Crawford Electric had
contracts with the same party (Sunrise Hospitality) for the same purpose :
performing work on the hotel construction site. By the terms of its contract
with Sunrise Hospitality, Whitaker had the responsibility of superintending or
coordinating the work on the construction site, including overseeing the work
of Crawford Electric to determine if it had performed its job satisfactorily so
that it should be paid by Sunrise Hospitality. Much of this responsibility was
delegated to Beaver. Given the terms of Whitaker's contract with Sunrise
Hospitality (with the appropriate focus on actual function and substance rather
than simply on form, as established by Branham for purposes of this type of
proceeding), we think it fair to say that there was a contract-in a broad
sense-between Whitaker and Beaver and Crawford Electric for Whitaker and
22
(8th ed. 2004) defines a contractor as "[a] party to a
contract" or "more specif. [specifically], one who contracts to do work or provide
supplies for another." It further defines a general contractor as "[o]ne who
contracts for the completion of an entire project, including purchasing all
materials, hiring and paying subcontractors, and coordinating all the work."
BLACK'S LAW DICTIONARY
Beaver to supervise Crawford Electric's work and certify completion of the work
before Crawford Electric could be paid by Sunrise Hospitality .
23
Oakley argues that we would dismiss clear statutory language if we
recognize up-the-ladder immunity in favor of an alleged contractor who did not
contract with another to perform work because KRS 342 .610(2) states that "[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 for the purposes of this section
be deemed a contractor, and such other person a subcontractor." Although not
expressly discussed in Branham , the statutes at issue (KRS 342 .610 and
KRS 342 .690) were substantially the same at the time of the Branham opinion
thirty years ago in that a contractor was described as one who contracts with
another to perform work of a regular and recurrent nature;24 and exclusive
23
24
LAw DICTIONARY (8th ed. 2004) recognizes that a contract may not
necessarily always mean a legally enforceable agreement in all contexts because it
includes the following as one of several alternative definitions of contract : "Loosely,
an unenforceable agreement between two or more parties to do or not to do a thing
or set of things; a compact <when they finally agreed, they had a contract> ." In the
instant case, it seems that Crawford Electric had agreed to perform electrical work
on the construction site ; and Whitaker and Beaver agreed to supervise and
coordinate the worksite and to advise Sunrise Hospitality when Crawford Electric
and others had satisfactorily completed work. In that sense, there was a contract
whether or not they had a legally enforceable agreement for purposes of a breach of
contract suit.
In 1977, the then-existing version of KRS 342 .610(2) provided, in pertinent part,
that: "[a] person who contracts with another . . . (b) 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 ." (emphasis added).
BLACK'S
remedy immunity was also extended to a contractor .25 Branham shows that
this statutory language of contracts does not demand evidence of formal
written contracts26 between a defendant and the plaintiff's direct employer for
the defendant to have up-the-ladder immunity but, rather, shows that
contracts might be found in this context when the facts show that the
defendant is effectively functioning as the contractor . Although the reasoning
in Branham does not explicitly address the statutory language of contracts, the
reasoning of the case seems to imply that United and Lowman contracted with
each other at least in a broad sense for the purposes of determining whether
up-the-ladder immunity is available, even if the evidence would not establish a
binding contract for purposes of a breach of contract action, for instance .27
25
26
27
In 1977, the then-existing version of KRS 342 .690(1) (exclusiveness of liability)
provided, in pertinent part, that "[lor purposes of this section, the term `employer'
shall include a `contractor' covered by KRS 342 .6 10, whether or not the
subcontractor has in fact, secured the payment of compensation ."
Of course, Kentucky has long recognized that some contracts are validly made
orally rather than in writing. The fact that, in some cases, an oral contract may
not be legally enforceable under certain circumstances under the Statute of Frauds
does not mean that a contract cannot be made orally. See, e.g., Bennett v. Horton ,
592 S.W .2d 460, 463 (Ky. 1979) ("The statute of frauds does not lend itself to the
issue of whether there is or is not a contract in existence . Its design and purpose
is to prevent the enforcement of a contract unless, by reason of some exception, the
statute of frauds would be found not applicable") ; Motorists Mut. Ins . Co. v. Glass,
996 S .W .2d 437, 445 (Ky. 1997) ("It has long been the law of this Commonwealth
that the fact that a compromise agreement is verbal and not yet reduced to writing
does not make it any less binding .") .
Although we express no opinion on the technicalities of whether contracts (in the
sense of legally enforceable agreements) between United and Lowman in Branham
or Whitaker/Beaver and Crawford Electric in this case might be established by
implication, we note that contracts may be implied from facts and circumstances
as well expressly made . See Dorton v. Ashland Oil 8s Refining, Co . ,303 Ky . 279,
281, 197 S .W.2d 274, 275 (1946) ("An express contract is one wherein all the terms
and conditions between the parties are set forth, while in an implied contract some
one or more of the terms or conditions are implied from the conduct of the parties.
13
In the past, we have used alternate language in case law such as one
who engages another to perform work . 28 Beaver argues that the word engages
suggests "a much broader interpretation of who may be a `contractor' instead of
focusing strictly upon whether any actual paperwork exists to make this
determination (as the Court of Appeals has done in this case) ." While we
certainly do not ignore the statutory requirement of "contracts," we construe
this term broadly in this context to ensure that workers' compensation
coverage is provided29 allowing injured workers to recover benefits quickly
without having to show fault.
Given our precedent in Branham and the proof presented to the trial
court showing that Whitaker functioned as the contractor and Beaver his
representative, no genuine issue of material fact remained ; and the trial court
28
29
The former speaks for itself, while a contract implied in fact is one inferred from
the circumstances or acts of the parties.") .
Fireman's Fund Ins . Co. v. Sherman 8s Fletcher, Inc . , 705 S.W.2d 459, 462 (Ky.
1986) (construing KRS 342 .610's definition of a contractor as one "who contracts
with another to do work of a kind which is a recurrent part of the work of the
trade" to signify that "a person who engages another" to perform such work is a
contractor-however, the main question at issue there was whether the work
performed was regular and recurrent, seemingly not whether the "contractor" (a
developer) had a "contract" with the plaintiff's direct employer (a carpentry
company)) (emphasis added) .
Matthews v. G 8v B Trucking, Inc. , 987 S .W.2d 328, 330 (Ky.App . 1998) ("To have
protection of the Workers' Compensation Act, KRS 342 .690 requires an employer to
secure payment of compensation as a condition of benefiting from the exclusive
liability provision . KRS 342.610 and KRS 342.690(1) ensure that an injured
employee will be able to collect benefits, even if the worker's immediate employer
has failed to obtain coverage .") (citation omitted) .
14
properly granted Beaver summary judgment, 3° based on up-the-ladder
immunity . Thus, the Court of Appeals erred in reversing its judgment .
III . CONCLUSION .
For the foregoing reasons, we reverse the Court of Appeals and reinstate
the summary judgment granted by the trial court.
All sitting . All concur .
30
Kentucky Rules of Civil Procedure (CR) 56 .03 ("The judgment sought shall be
rendered forthwith 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") ; Steelvest, Inc. v. Scansteel Service
Center, Inc . , 807 S .W.2d 476, 482 (Ky. 1991) ("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.") .
15
COUNSEL FOR APPELLANT :
Bradley D . Harville
Suite 1706
One Riverfront Plaza
401 West Main Street
Louisville, Kentucky 40202
COUNSEL FOR APPELLEES :
Mark H. Edwards
Megibow 8v Edwards
111 South Sixth Street
P. O. Box 1676
Paducah, Kentucky 42002-1676
Richard Brent Vasseur
Boswell, Sims 8v Vasseur, PLLC
425 South Sixth Street
P. O. Box 1265
Paducah, Kentucky 42002-1265
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