Dunn v. Corning Incorporated

Filing 32

MEMORANDUM OPINION & ORDER: (1) Dft's 25 Motion for Summary Judgment is TAKEN UNDER ADVISEMENT. (2) Parties shall have an add'l 30 days to conduct discovery on limited issue of the regularity or recurring nature of running electrical pow er within Dft's business. (3) Dft shall have 14 days after the time for add'l discovery in which to supplement its 25 Motion for Summary Judgment. (4) Pla shall have 14 days from the date Dft supplements its Motion to supplement his Response. Clerk shall resubmit this motion at the conclusion of the add'l briefing period. Signed by Judge Joseph M. Hood on September 18, 2013. (AWD) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
STEVE DUNN,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CORNING INCORPORATED,
Defendant.

Civil Case No.
5:13-cv-8-JMH-REW
MEMORANDUM OPINION
AND ORDER

***
This matter is before the Court upon Defendant’s Motion for
Summary Judgment. [D.E. 25]. Plaintiff filed his Response [D.E.
28], and Defendant filed a Reply. [D.E. 30]. This matter being
fully briefed, it is now ripe for the Court’s review.
I. Factual and Procedural Background
This suit was removed to this Court from the Circuit Court
of

Mercer

County,

Kentucky,

on

the

basis

of

diversity

jurisdiction, pursuant to 28 U.S.C. § 1441. [D.E. 1]. Plaintiff
asserts

claims

compensatory

of

and

negligence
punitive

per

damages

se
for

and

negligence,

injuries

he

seeking

sustained

while working at Defendant’s Harrodsburg, Kentucky manufacturing
plant.

[D.E.

1-1].

Plaintiff’s

employer,

Comstock

Brothers

Electric Company, LLC, was hired as an independent contractor by
Defendant to perform electrical work at its manufacturing plant
for the 2012 calendar year. [D.E. 25-4, 25-5]. While working for

Comstock Brothers at Defendant’s manufacturing plant, Plaintiff
was injured when he was struck in the head. [D.E. 28, at 2].
Plaintiff

was

attempting

to

exit

the

cullet

crusher

pit

at

Defendant’s plant when the exit hatch swung back and hit him in
the head, causing Plaintiff to fall down the ladder and into the
cullet crusher pit. Id. Defendant has filed a Motion for Summary
Judgment [D.E. 25] claiming that it is entitled to the exclusive
remedy

protection

There

is

no

Incorporated

of

the

dispute
were

Kentucky

that

each

Workers’

Comstock

covered

by

Compensation

Act.

Brothers

and

Corning

workers’

compensation

insurance policies at the time of Plaintiff’s injuries. [D.E.
25-7, 25-8].
II. Standard of Review
A motion for summary judgment may only be granted “if the
movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “On summary judgment the inferences to be
drawn from the underlying facts . . . must be viewed in the
light most favorable to the party opposing the motion.” U.S. v.
Diebold, Inc., 369 U.S. 654, 655 (1962). “The plain language of
Rule

56(c)

mandates

the

entry

of

summary

judgment,

after

adequate time for discovery and upon motion, against a party who
fails to make a sufficient showing to establish the existence of
an element essential to that party’s case, and on which that
2

party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
III. Analysis
Defendant failed to provide evidence on which the Court can
determine

whether

recurring

task

Plaintiff

within

its

was

engaged

business,

and,

in

a

regular

therefore,

at

or
this

time, Defendant may not be granted summary judgment based on the
exclusive remedy protection provided by the Kentucky Workers’
Compensation
Kentucky

Act.

Workers’

The

exclusiveness

Compensation

Act

of

recovery

under

is

established

by

the
KRS

342.690:
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 342.610.
KRS

342.690(1).

A

contractor

is

defined

as

“[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,

342.610(2).
repeatedly.
happening

at

“Recurrent

or

profession
simply

Regular

generally

fixed

intervals.

of

means

means

person.”

occurring

customary

However,
3

such

neither

or

KRS

again

or

normal,

or

term

requires

regularity or recurrence with the preciseness of a clock or
calendar.” Daniels v. Louisville Gas & Elec. Co., 933 S.W.2d
821, 824 (Ky. Ct. App. 1996).
Kentucky courts determine whether the work being performed
by an injured plaintiff was regular or recurrent by assessing
the

regularity

of

the

particular

task

being

performed

when

injured. In General Electric Co. v. Cain, the Kentucky Supreme
Court analyzed the individual tasks a plaintiff, Rehm, performed
for each of the multiple defendants. 236 S.W.3d 579, 592-605
(Ky.

2007).

Likewise,

the

Kentucky

Court

of

Appeals,

when

assessing whether an electrical cooperative was a contractor,
focused on the individual task of “repairing a power line.”
Reichwein v. Jackson Purchase Energy Corp., 397 S.W.3d 413, 418
(Ky. Ct. App. 2012). Thus, Defendant can only be considered a
“contractor” for purposes of exclusive remedy protection if the
particular task being performed by Plaintiff was a regular or
recurrent task performed by Defendant’s employees or independent
contractors. See Doctors’ Assocs. v. Uninsured Employers’ Fund,
364 S.W.3d 88, 92 (Ky. 2011) (“A contractor that never performs
a particular job with its own employees can still come within
KRS 342.610(2)(b).”).
Based

on

the

evidence

Plaintiff’s

specific

regular

recurring

or

task,
part

presented,
running
of
4

it

is

unclear

electrical

Defendant’s

power,

business.

whether
was
It

a
is

undisputed that Plaintiff was injured while running electrical
power to the cullet crusher pit. [D.E. 25-2, at 56; D.E. 28, at
3-4].

The

head

Harrodsburg

of

Defendant’s

manufacturing

maintenance

plant,

Clifton

department

Ross,

at

stated

in

the
an

affidavit that the “cullet crushers are routinely maintained and
rebuilt

as

necessary

to

support

demands

of

the

production

process.” [D.E. 25-9, at 2]. While this statement establishes
that a cullet crusher pit requires some degree of recurring or
regular

maintenance,

it

does

not

establish

that

running

electrical power is part of that maintenance. The parties do not
point to, and the Court cannot find, any description of the
routine

maintenance

and

rebuilding

Ross

refers

to

in

his

affidavit, or any other evidence as to how often Defendant is
required

to

Defendant

run

electrical

emphasizes

that

power
it

as

has

part
an

of

its

in-house

business.
electrical

department and that its employees within that department were
working alongside Plaintiff at the time of his injury. [D.E. 30,
at 4]. However, this does not inform the Court of the tasks
those

electrical

department

employees

regularly

perform,

including, whether they routinely run electrical power.
Furthermore,
deposition,

Ross

on

at

testified

least
that

two

instances

Plaintiff

was

during
injured

his
while

working on an expansion project, not a rebuild. First, Ross
testified:
5

A:
So – so you have recurring maintenance projects,
rebuilds.
Q:
Uh-huh.
A:
And then you have things like the Weigh/Mix 3,
which is – which is, you know, basically an expansion,
an addition or – or increase in capacity.
Q:
That’s what Steve Dunn was working on when he was
injured.
A:
That’s what Steve Dunn was working on when he was
injured, right.
[D.E. 25-2, at 25]. Then, later in the deposition:
Q:
And the cullet crusher pit that Dunn was working
in the day of his injury was a new space.
A:
No, it was not. It – it was the original pit that
was built when the first cullet crush –
Q:
Okay.
A:
– was put in.
Q:
But it was part – but his work there was to aid
in the construction of Weigh/Mix 3.
A:
Yes.
Q:
And you had to – I assume that you had to tie in
electrical from there to the Weigh/Mix 3 project.
A:
Yes. He –
Q:
Okay.
A:
He was running – running electrical power.
[D.E. 25-2, at 55-56]. Ross’ statements in his deposition imply
that Plaintiff’s task was necessitated by an expansion project,
Weigh/Mix 3, which Ross testified was the first of its kind
during his eleven years working for Defendant. [D.E. 25-2, at
26-31].
At this stage of the litigation, and based on the evidence
presented,

the

Court

cannot

find

that

Plaintiff

was

injured

while performing a task that was a regular or recurring part of
Defendant’s business. See U.S. v. Diebold, Inc., 369 U.S. 654,
655 (1962) (“On summary judgment the inferences to be drawn from
6

the underlying facts . . . must be viewed in the light most
favorable to the party opposing the motion.”). The issue before
the Court, whether Defendant qualifies as a “contractor” under
KRS 342.610(2), is one that is appropriate for determination as
a matter of law. See Rehm v. Navistar Int’l, No. 2002-CA-1399MR, 2005 Ky. App. LEXIS 48, at *10 (Ky. Ct. App. Feb. 25, 2005),
aff’d

and

rev’d

236

S.W.3d

579

(Ky.

2007)

(“[W]hen

the

underlying facts are undisputed, the question of whether certain
work is of a kind which is a regular or recurrent part of the
work of a particular business, trade or occupation, becomes a
question of law for the court to decide.”). However, neither
party

has

provided

the

Court

with

the

facts

it

needs

to

affirmatively answer the question of whether running electrical
power

was

a

task

that

is

a

regular

or

recurrent

part

of

Defendant’s business. Therefore, summary judgment for Defendant
is

improper

at

this

time,

and

the

parties

are

ordered

to

supplement their briefing on this issue.
IV. Conclusion
Accordingly, based on the foregoing, IT IS ORDERED:
(1)

that Defendant’s Motion for Summary Judgment [D.E. 25]

be, and the same hereby is, TAKEN UNDER ADVISEMENT;
(2)

that the parties shall have an additional thirty (30)

days from the date of this Order in which to conduct discovery
on the limited issue of the regularity or recurring nature of
7

running electrical power within Defendant Corning Incorporated’s
business;
(3)

that Defendant shall have fourteen (14) days after the

time for additional discovery in which to supplement its Motion
for Summary Judgment [D.E. 25] on the issue of the regularity or
recurring nature of running electrical power within Defendant
Corning Incorporated’s business;
(4)

that Plaintiff shall have fourteen (14) days from the

date Defendant supplements its Motion to supplement his Response
to Defendant’s Motion for Summary Judgment [D.E. 28] on the
issue

of

electrical

the

regularity

power

within

or

recurring

Defendant

nature

Corning

of

running

Incorporated’s

business. The Clerk shall resubmit this motion to the Court at
the conclusion of the additional briefing period.
This the 18th day of September, 2013.

8