Meece v. Cluster et al
Filing
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MEMORANDUM OPINION & ORDER: (1) Defendant's Joint Motion for Summary Judgment 37 is GRANTED; (2) This case is DISMISSED AND STRICKEN from the Court's docket; and (3) The Court will enter a Judgment contemporaneously with this Order. Signed by Judge David L. Bunning on 11/27/2018.(KRB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 17-18-DLB-CJS
BRYAN MEECE
v.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
WILLIAM CUSTER, et al.
DEFENDANTS
** ** ** ** **
This matter is before the Court on Defendants William Custer and Savannah
Woodworking and Installation, Inc.’s ripe Joint Motion for Summary Judgment. (Doc. #
37). For the reasons set forth herein, Defendants’ motion is granted.
I.
FACTUAL BACKGROUND
The facts in this case are undisputed.
Plaintiff Bryan Meece (“Meece”) was
employed by TrueBlue, the corporate parent of staffing firm Labor Ready (a/k/a
PeopleReady, Inc.). (Doc. # 37-1 at 2). Labor Ready had been hired by Savannah
Woodworking & Installation, Inc. (“Savannah”) to provide temporary employees “to assist
with a shipment of fixtures to a Homegoods store in Florence, Kentucky.” (Doc. # 37-2 at
2).
The contract between Labor Ready and Savannah notes that the temporary
employees would be compensated at $16.25 per hour for “Clean Up” and “Debris
Removal.”
(Doc. # 37-3).
TrueBlue carried workers’-compensation insurance in
compliance with Kentucky Law. (Doc. # 37-2).
Meece was one of the TrueBlue employees assigned to work temporarily for
Savannah. (Doc. # 37-4 at 2). On February 16, 2016, Meece was working at Homegoods
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in Florence “assist[ing] with final delivery of the fixtures” into the store. (Doc. # 37-2 at 2);
see also (Doc. # 1 at ¶ 6). Specifically, he was helping to both unload shelving from
tractor trailers on the Homegoods loading dock and reload furniture into a tractor trailer.
(Doc. # 1 at ¶¶ 6-9). Meece and another employee “were shifting skids with a pallet at
the rear of a tractor trailer” and William Custer (“Custer”) was using a forklift to remove
the materials from the tractor trailer. Id. at ¶ 8. At some point, Meece was stacking
furniture to be loaded back into a tractor trailer and Custer backed the forklift into Meece.
Id. at ¶¶ 9-10. The accident shattered Meece’s ankle, and “Meece went into shock” as a
result of the injury. Id. at ¶ 10.
II.
PROCEDURAL BACKGROUND
Plaintiff Meece filed suit against Custer, Savannah, and Homegoods, Inc. on
February 13, 2017. (Doc. # 1). His Complaint included five causes of action—(1) a
negligence claim against Custer, (2) a negligence per se claim against Savannah, (3) a
negligence claim under a theory of respondeat-superior liability against Savannah, (4) a
negligent-entrustment claim against Homegoods, and (5) a punitive-damages claim
against Savannah. Id. Homegoods filed its Answer on March 13, 2017, (Doc. # 8), and
Savannah filed its Answer the following day. (Doc. # 10). Homegoods was dismissed
with prejudice on July 26, 2017, pursuant to an Agreed Order of Dismissal. (Doc. # 25).
Custer filed his Answer on September 5, 2017. (Doc. # 31).
On April 30, 2018, remaining Defendants, Custer and Savannah, jointly moved for
summary judgment on all claims. (Doc. # 37). Having been granted an extension of time
to respond to the Motion, (Doc. # 43), Meece filed his Response to the Motion on May 29,
2018 (Doc. # 44). Custer and Savannah filed separate replies on June 12 and 13, 2018,
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respectively. (Docs. # 45 and 46). The Motion is now ripe for the Court’s review.
III.
ANALYSIS
A.
Standard of Review
Summary judgment may be granted when there is no genuine issue of material
fact, and an issue can be decided as a matter of law. Fed. R. Civ. P. 56(a). It is the job
of the Court to consider the evidence presented and determine if there is a genuine issue
which requires the matter to proceed to trial. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 249 (1986). In doing so, the Court is not to “weigh the evidence and determine the
truth of the matter.” Id.
The “moving party bears the burden of showing the absence of any genuine issues
of material fact.” Miller v. Maddox, 866 F.3d 386, 389 (6th Cir. 2017). In order to succeed
on a motion for summary judgment, the non-moving party must then put forth evidence
showing there is a genuine issue of material fact which requires a trial. Anderson, 477
U.S. at 250. A court should find that “there is no issue for trial unless there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id.
Thus, “[a] mere scintilla of evidence” in favor of the non-moving party will not defeat
summary judgment. Id. at 252.
In considering a summary-judgment motion, a court is required to view the
evidence in light most favorable to the non-moving party and draw reasonable inferences
in their favor. Hamilton Cty. Educ. Ass’n v. Hamilton Cty. Bd. of Educ., 822 F.3d 831, 835
(6th Cir. 2016).
B.
Applicable Law
A federal court sitting in diversity must apply the substantive law of the state in
which it is sitting. See Hanna v. Plumer, 380 U.S. 460, 465-66 (1965) (explaining Erie
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R.R. Co. v. Tompkins, 304 U.S. 64 (1938)). The Court must look to the controlling
decisions of the state’s highest court and determine how that high state court would have
ruled on the issue before the federal court. Allstate Ins. Co. v. Thrifty Rent-A-Car Sys.,
Inc., 249 F.3d 450, 453 (6th Cir. 2001); Meridian Mut. Ins. Co. v. Kellman, 197 F.3d 1178,
1181 (6th Cir. 1999) (citing Erie R.R. Co., 304 U.S. 64). In carrying out this task “[t]he
Court may use the decisional law of the state’s lower courts, other federal courts
construing state law, restatements of law, law review commentaries, and other
jurisdictions on the ‘majority’ rule in making this determination.” Meridian Mut. Ins. Co.,
197 F.3d at 1181 (citing Grantham & Mann v. Am. Safety Prods., 831 F.2d 596, 608 (6th
Cir. 1987)).
This personal-injury case comes before the Court on diversity jurisdiction. (Doc. #
1-1). Thus, the Court must look to Kentucky state law and court decisions, as well as
other relevant materials, to determine if summary judgment should be granted in favor of
Defendants Savannah and Custer.
C.
Kentucky’s up-the-ladder immunity provisions require the Court to
grant summary judgment.
In Kentucky, workers’ compensation is an exclusive remedy for workers injured on
the job, “unless a worker has expressly opted out of the workers’ compensation system.”
Beaver v. Oakley, 279 S.W.3d 527, 530 (Ky. 2009); Ky. Rev. Stat. § 342.690(1). In
practice, this means that workers who are entitled to workers’ compensation are generally
unable to recover in negligence suits brought against their employers for on-the-job
injuries. Beaver, 279 S.W.3d at 530. This immunity for employers extends to contractors,
Ky. Rev. Stat. § 342.690(1); Ky. Rev. Stat. § 342.610(2), with the purpose being “to
discourage a contractor from subcontracting work that is a regular or recurrent part of its
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business to an irresponsible subcontractor in an attempt to avoid the expense of workers’
compensation benefits.” Gen. Elec. Co. v. Cain, 236 S.W.3d 579, 585 (Ky. 2007). Thus,
a contractor is immune from tort liability resulting from injuries to the employees of their
subcontractor if (1) the subcontractor employing the injured worker ensures workers’
compensation for its employees and (2) the work being performed by the injured
employee is “of a kind which is a regular or recurrent part of the work of the trade, business
occupation, or profession” of the contractor. Ky. Rev. Stat. § 342.610(2) (emphasis
added). This protection from liability for employers, including contractors, is known as
up-the-ladder immunity.
Beaver, 279 S.W.3d at 528 n.1.
Up-the-ladder immunity
extends, by statute, to employees of the employer or contractor, as well. Ky. Rev. Stat.
§ 342.690(1).
Up-the-ladder immunity is an affirmative defense, and, therefore, a contractor
wishing to avoid liability on this ground must prove both elements of Ky. Rev. Stat. §
342.610(2).
Cain, 236 S.W.3d at 585.
As the presence or absence of workers’
compensation benefits is often straightforward, the key issue in determining the
application of up-the-ladder immunity is typically whether the worker was injured doing
work that was a “regular or recurrent” part of the contractor’s business. Ky. Rev. Stat. §
342.610(2). ‘“Recurrent’ simply means occurring again or repeatedly. ‘Regular’ generally
means customary or normal, or happening at fixed intervals. However, neither term
requires regularity or recurrence with the preciseness of a clock or calendar.” Daniels v.
Louisville Gas and Elec. Co., 933 S.W.2d 821, 824 (Ky. Ct. App. 1996). In other words,
“regular or recurrent” work is “work that the business repeats with some degree of
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regularity, and it is of a kind that the business or similar businesses would normally
perform or be expected to perform with employees.” Cain, 236 S.W.3d at 588.
The Sixth Circuit, in a case strikingly similar to the one before the Court, developed
a three-part test (the Black test) to determine what type of work is “regular and recurrent”
under Kentucky’s up-the-ladder framework. Black v. Dixie Consumer Prods. LLC, 835
F.3d 579, 585 (6th Cir. 2016). The plaintiff in Black was employed by a trucking company
and was responsible for delivering raw materials to the Dixie factory in Bowling Green,
Kentucky, where Dixie would take the raw materials and turn them into paper goods. Id.
at 581. Upon arriving at the Dixie plant, Black helped to unload the raw materials from
the truck, during which time his foot was run over by a forklift driven by one of Dixie’s
employees. Id.
The question before the Black court was whether Dixie, as a contractor who hired
Black’s employer as a subcontractor, was entitled to up-the-ladder immunity from Black’s
tort claim. Id. at 581-82. In determining whether work performed by a subcontractor,
such as Black’s employer, is regular and recurrent, the Black test considers three factors:
(1) whether the subcontractor was hired to perform the work during which the injury
occurred; (2) whether the subcontractor’s work was a customary or usual part of the
contractor’s business, or work that the contractor repeats “with some degree of regularity;”
and (3) whether the work was that which the contractor “or a similar business would
normally perform or be expected to perform with employees.”
Id. at 585 (internal
quotation marks and citations omitted). If all three inquiries are answered affirmatively,
the Sixth Circuit finds the “regular and recurrent” requirement to be met. Id.
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Here, the answers to the second and third inquiries of the Black test are clear. The
Black Court found unloading raw materials at the Dixie factory to be “a customary, usual
or normal part of business” that is repeated with some regularity because “[u]nless Dixie
entered the business of producing raw paper . . . it necessarily needed to receive and
unload regular deliveries of paper” in order to carry out its production of paper goods. Id.
(internal quotations and citations omitted). Similarly, Savannah, as a company that
installs display fixtures at stores, must move shelving materials and furniture on a regular
and recurrent basis in order to carry out its business. (Doc. # 37-2 at 1). Thus, the second
prong of the Black test is met.
Additionally, the Black court found that the delivery services provided by Black’s
employer “is work that a company similar to Dixie might very well handle or be expected
to handle with its own private fleet” even if Dixie never used its own employees to perform
deliveries and unloading of raw materials. Black, 835 F.3d at 587. Here, the situation is
analogous; a company similar to Savannah might use its own employees to unload
materials, load furniture and other materials on to trucks, and clean up debris, rather than
hiring temporary employees like Meece to carry out the work. Therefore, the third prong
of the Black test is met.
The first factor of the Black test is a closer call for the Court; namely, whether the
work being performed by Meece when he was injured is work that Meece’s employer,
Labor Ready, was “hired to perform.” Id. at 585 (quoting Cain, 236 S.W.3d at 588).
Meece was injured while stacking “a bundle or furniture . . . to be returned to the [tractor]
trailer.” (Doc. # 1 at ¶ 9). As pointed out by Meece in his brief, the contract between
Labor Ready and Savannah, a subcontractor and contractor, respectively, lists the job
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duties of the temporary employees as “Clean Up, Debris Removal.” (Docs. # 37-3 and
44 at 5). In contrast, the manager of Savannah stated in her affidavit that the temporary
employees were hired to “assist with a shipment of fixtures to a Homegoods store in
Florence, Kentucky,” more generally. (Doc. # 37-2 at 2).
The Kentucky Supreme Court requires that the Court “must construe the role of
contractor in a practical and functional—not hypertechnical—way.” Beaver, 279 S.W.3d
at 532. While “work assumed by contract or required by law” may be “regular and
recurrent,” the Kentucky Supreme Court has found that “the test [to determine whether
an entity is a contractor] is relative.” Cain, 236 S.W.3d at 588.
In one of the Kentucky Supreme Court’s more recent published cases dealing with
up-the-ladder immunity, that Court found “the main question at issue [in a seminal up-theladder immunity case] . . . 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).” Beaver, 279 S.W.3d at 534 n.28 (discussing
Fireman’s Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 462 (Ky. 1986)).
Additionally, the Black court in addressing the “hired to perform” prong of the test found
that “[i]t matters not that the carriage agreement does not spell out every step of the
‘transport and deliver[y]’ . . . [w]hat matters is what Black acknowledges: He was
“[w]orking and helping in the transportation of freight’ while unloading the rubber mats”
which is when he was injured. Black, 835 F.3d at 585 (citations omitted). These cases
suggest that the presence of a contract is not necessary for work to be “regular or
recurrent,” and that the exact wording of a contract is not critical to the determination of
whether an entity is a contractor under the up-the-ladder immunity provisions. See supra.
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The guidance provided by the Kentucky Supreme Court in Beaver and Black
persuade the Court to construe the “hired to perform” prong of the Black test broadly. In
doing so, the Court reads the contract for “clean up” and “debris removal” broadly and
finds that Meece was undertaking work that could be considered “clean up” or “debris
removal” when stacking “a bundle of furniture . . . against the building to be returned to
the trailer.” (Doc. # 1 at ¶ 9); see also (Doc. # 37-3). To do otherwise would exalt form
over substance. The Court, therefore, finds that Meece was undertaking work he was
“hired to perform” when he was injured by the forklift. (Doc. # 37-3).
Plaintiff’s argument that this prong of the Black test is not met, and therefore there
can be no immunity for Savannah because Meece was doing work he was not contracted
to perform, is misguided. Plaintiff’s argument artificially narrows the scope of the relevant
inquiry and mischaracterizes the allegations in his Complaint. In his Response to the
Motion for Summary Judgment, Plaintiff does not accurately summarize the facts in his
Complaint; he asserts that “Bryan was run over by a forklift operated by William Custer
while inside a tractor trailer unloading skids of materials for the Homegoods store in
Florence.” (Doc. # 44 at 2) (citing Doc # 1 at ¶¶ 6-10) (emphasis added). Plaintiff’s
Complaint clearly alleges, however, that Meece was preparing to load “a bundle of
furniture” into the tractor trailer when he was injured. (Doc. # 1 at ¶ 9). Meece does not
contest the facts as laid out in his Complaint, but merely misrepresents the facts in an
apparent attempt to bolster his argument.
As all three prongs of the Black test are met, the court finds that Meece was
performing “regular or recurrent” work of Savannah when he was injured. Therefore,
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Savannah is considered a contractor potentially entitled to immunity under the up-theladder immunity provisions. Ky. Rev. Stat. § 342.610(2)
The Court’s conclusion is consistent with the purpose of the up-the-ladder
immunity provisions—to ensure contractors hire responsible subcontractors that provide
workers’ compensation for their employees. Cain, 236 S.W.3d at 585. Here, see infra,
Savannah did hire a subcontractor that provided workers’ compensation benefits as the
law intended it to do.
Moreover, this result is consistent with Kentucky Supreme Court precedent dealing
with temporary employees and up-the-ladder immunity. The Kentucky Supreme Court
has specifically held that “a company that contract[s] with a temporary labor service for
temporary employees [is] a contractor for the purposes of Chapter 342;” thus, a company
hiring temporary employees is immune “from a temporary employee’s tort action.” Labor
Ready, Inc. v. Johnston, 289 S.E.3d 200, 201 (Ky. 2009) (citing U.S. Fid. & Guar. Co. v.
Tech.l Minerals, Inc., 934 S.W.2d 266 (Ky. 1996)). This result makes sense—“[a]s a
practical matter, if the statute [Ky. Rev. Stat. § 342.610(2)] . . . allow[ed] a common law
civil action against an employer who obtains a temporary employee through a temporary
services company, no employer in his right mind would hire such an employee . . . [which
would] destroy the temporary services industry.” U.S. Fid. & Guar. Co., 934 S.W.2d at
269.
The second requirement a contractor must prove to be granted up-the-ladder
immunity is that the subcontractor provided workers’ compensation for its employees. Ky.
Rev. Stat. § 342.610(2). Here, this requirement is easily met. The contract between
Labor Ready and Savannah states clearly that Labor Ready is responsible for providing
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“workers’ compensation insurance as required by law for temporary workers.” (Doc. #
37-3). In fact, Meece took full advantage of those benefits after his injury. (Doc. # 44 at
2).
As both requirements of Ky. Rev. Stat. § 342.610(2) are met—Savannah is a
contractor under law, and Savannah’s subcontractor (Labor Ready/TrueBlue) guaranteed
workers’ compensation for Meece—Savannah is entitled to up-the-ladder immunity from
Meece’s claim. Additionally, as an employee of Savannah, Custer is also entitled to that
same immunity. Ky. Rev. Stat. § 342.690(1).
IV.
CONCLUSION
For the reasons articulated herein, IT IS HEREBY ORDERED that:
(1)
Defendants’ Joint Motion for Summary Judgment (Doc. # 37) is GRANTED;
(2)
This case is DISMISSED and STRICKEN from the Court’s docket; and
(3)
The Court will enter a Judgment contemporaneously with this Order.
This 27th day of November, 2018.
K:\DATA\ORDERS\Cov2017\17-18 Order on MSJ.docx
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