Dunn v. Corning Incorporated
Filing
38
MEMORANDUM OPINION & ORDER: (1) GRANTING dft's 25 MOTION for Summary Judgment; (2) pla's claims are DISMISSED WITH PREJUDICE. Signed by Judge Joseph M. Hood on 11/22/13.(KJR)cc: COR,REW,JC,D
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].
Defendant
filed
a
Supplemental
Memorandum [D.E. 34], as ordered by the Court, and Plaintiff
filed
a
Supplemental
fully
briefed,
and
Response.
the
Court
[D.E.
37].
being
This
otherwise
matter
being
sufficiently
advised, 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 filed a Motion for Summary Judgment [D.E. 25]
claiming that it is entitled to the exclusive remedy protection
of the Kentucky Workers’ Compensation Act. There is no dispute
that
Comstock
Brothers
and
Corning
Incorporated
were
each
covered by workers’ compensation insurance policies at the time
of Plaintiff’s injuries. [D.E. 25-7; 25-8]. After the briefing
period for Defendant’s Motion for Summary Judgment, the Court
allowed additional time for discovery and ordered the parties to
file
supplemental
regularity
or
memorandums
recurring
on
nature
the
of
limited
running
issue
of
electrical
the
power
within Defendant Corning Incorporated’s business. [D.E. 32].
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
2
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
party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
III. Analysis
The evidence establishes that running electrical power was
a
regular
or
Therefore,
recurring
Defendant
is
task
within
entitled
to
Defendant’s
the
business.
exclusive
remedy
protection provided by the Kentucky Workers’ Compensation Act,
and
summary
recovery
judgment
under
the
is
appropriate.
Kentucky
Workers’
The
exclusiveness
Compensation
Act
established by 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.
3
of
is
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
such
occurring
customary
However,
person.”
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 the exclusive remedy protection if
the particular task being performed by Plaintiff was a regular
4
or
recurrent
independent
task
performed
contractors.
See
by
Defendant’s
Doctors’
employees
Assocs.
v.
or
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).”).
Analyzing
Plaintiff,
the
the
facts
evidence
in
the
establishes
light
that
most
favorable
running
to
electrical
power was a regular or recurring part of Defendant’s business.
As the Court noted in its previous Order, it is undisputed that
Plaintiff
was
injured
while
running
electrical
power
to
the
cullet crusher pit. [D.E. 32 at 4-5]. However, the Court ordered
additional discovery and supplemental memorandums because the
Court
found
question
that
of
neither
whether
party
had
Plaintiff’s
adequately
particular
addressed
task,
the
running
electrical power, was a regular or recurring part of Defendant’s
business. [D.E. 32 at 4].
Supplemental discovery establishes that running electrical
power is a regular or recurring, if not daily, activity within
Defendant’s business. Clifton G. Ross, the head of maintenance
at
Defendant’s
affidavit1
1
that
Harrodsburg
running
plant,
electrical
stated
in
power
“was
a
supplemental
a
basic
task
Plaintiff asserts that the Court should not rely on the
supplemental affidavit from Ross because Plaintiff did not have
5
performed
during
daily
the
by
time
the
that
Supervisor,
whether
progress
not.”
or
electricians
I
held
rebuilds
[D.E.
34-1
the
or
at
the
position
expansion
at
1].
Corning
He
of
Electrical
projects
further
facility
were
stated
in
that
“Corning electricians are routinely called upon to run conduit
and wire multiple times a week in the normal operation of the
plant.” Id. Importantly, Ross stated that “[t]he work of running
conduit and/or running electrical power being performed by Steve
Dunn
in
performed
the
cullet
daily
by
crusher
the
pit,
Corning
is
the
same
electricians
type
as
part
of
work
of
the
supervisor
of
normal plant operations.” Id. at 3.
Mark
Hewlett,
the
current
electrical
Defendant’s Harrodsburg plant, was deposed during the additional
time given for discovery. Hewlett was not employed by Defendant
at the time Plaintiff was injured. [D.E. 34-3 at 8]. Hewlett
testified that “it’s a very frequent task for us to have to
conduit,
but
not
as
much
as
a
complete
[sic]
entirely
new
rebuild, similar to what 136 and 137 was or Weigh/Mix 3. Those
were
completely
basically
brand
new
installation
and
you’re
a chance to question Ross on the issues contained in the
affidavit. However, the Court opened the additional discovery
period to both parties. [D.E. 32 at 7-8]. If Plaintiff wished to
question Mr. Ross further on the limited issue specified in the
Court’s previous order, he was free to seek leave from the Court
to do so. See Fed. R. Civ. P. 30.
6
wiring everything from scratch. So that’s a lot more pipe and
wire than would normally be on a regular rebuild.” [D.E. 34-3 at
5-6].
In
regard
to
running
conduit,
Mr.
Hewlett
further
testified:
Q: And how frequently do the Corning electricians run
power or run conduit?
A: Almost every day. Almost every day I’ve got someone
running conduit or pulling wire.
[D.E. 34-3 at 5]. . . .
Q: We talked about conduit. I mean, does Corning use a
lot of conduit?
A: Yes. We use thousands of feet a year, multiple
thousands of feet a year of conduit.
[D.E. 34-3 at 6]. . . .
Q: And is all of the conduit used there at the Corning
facility put in by the electricians?
A: Yes. Either our electricians or our contract
electricians, yes. [D.E. 34-3 at 6].
Finally:
Q: Within the last week that you’ve held these
meetings, have you had assignments to run conduit?
A: Yes.
Q: Even though no rebuild project is going on?
A: Yes. We run conduit every week and almost every
day.
[D.E. 34-3 at 8]. This evidence firmly establishes that the
type of work Plaintiff was performing when injured was a
regular or recurrent part of Defendant’s business.
Plaintiff claims that he was not working on a regular or
recurrent
part
of
Defendant’s
business
“because
(1)
of
the
magnitude of the electrical work required by such an expansion
project and (2) the expansion project required work with high
7
voltages which Corning’s electricians were unable to do.” [D.E.
37 at 2].
Plaintiff is correct that the work he was completing when
injured
was
necessitated
by
a
large-scale
expansion
project.
However, the evidence shows that the actual work being performed
was no different than the work that is performed at the plant on
a daily basis. Clifton Ross testified in his deposition:
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 14]. The evidence shows, and there has been no
dispute,
based
on
that
Plaintiff
the
evidence
was
running
previously
electrical
identified,
power,
was
which,
performed
almost daily at the Harrodsburg plant.
Plaintiff first claims this was not regular or recurring
work because Clifton Ross testified that the regular employees
of Defendant could not handle the scope of the project. [D.E. 37
at 4]. Ross did make that statement, but not because the project
required
work
not
typically
performed
by
Corning
employees.
Rather, the amount of the regular or recurring work was simply
so abundant that the project could not be completed in a timely
8
fashion without the manpower provided by outside contractors.
Mr. Ross testified to the following:
Q: Now, was Mr. Dunn – why would Corning – Corning had
electricians, correct?
A: That’s correct.
Q: Were their electricians capable of doing the work
that Mr. Dunn was doing?
A: Yes.
Q: Why did Corning get – bring in Mr. Dunn’s employer,
his company to do the work?
A: Our work is cyclical.
Q: Right.
A: We – we have upswings and downswings. When – when
we have an increase in workload or a surge, we bring
in – we contract with different companies, local
companies to bring in electricians to work with our –
our crew to – to perform the work. Basic – basically
we can’t have a shop big enough to perform the surge
work and then have people sitting around in the
downtimes.
[D.E. 25-2 at 12-13].
Mr.
Hewlett,
the
current
electrical
supervisor,
also
testified to the cyclical nature of the work typically performed
by Corning electricians.
Q: And is there some sort of ebb and flow to the work
of the electricians?
A: Yes.
Q: Are there time periods where they are busier?
A: Yes. We have rebuilds on all of our lines. Usually
a production line will go three to five years and then
it will require to be refurbished. And we oversee that
and do a lot of the work, but we have to bring in a
fairly large contract labor force when we do the
rebuilds. Also we do a lot of project work, different
types of project work, outside of rebuild activities.
So we’re either doing project work or rebuild most of
the year.
9
[D.E. 34-3 at 3]. Thus, the testimony shows that the work Mr.
Dunn was performing was not outside the expertise or typical
duties of Corning employees. Plaintiff was performing work that,
but for the demand for electrical work at the Harrodsburg plant,
would have been performed by Corning employees. The testimony
also establishes that not only was running electrical power a
regular or recurring part of Defendant’s business, but hiring
outside
contractors
to
perform
the
task
was
a
regular
of
Mark
or
recurring part of Defendant’s business.
Plaintiff
relies
on
the
testimony
Hewlett,
Corning’s electrical supervisor, for the proposition that the
large expansions were unique “because you are wiring everything
from scratch” [D.E. 37 at 4] (quoting [D.E. 34-3 at 5-6]), and
that necessitates more wire. [D.E. 34-3 at 5-6] (“[T]hat’s a lot
more . . . wire than would normally be on a regular rebuild.”).
However, the running of electric power always includes wire. See
[D.E. 34-1 at 1] (“Corning electricians are routinely called
upon to run conduit and wire multiple times a week in the normal
operation of the plant.”) (emphasis added); [D.E. 34-3 at 5]
(“Running conduit is something that all electricians do. I mean,
that’s one of their primary goals is to get conduit and wiring
from point A to point B.”). Furthermore, Hewlett testified that
“there’s nothing unique about the task of running conduit. . . .
10
Running conduit and pulling wire through conduit, like I said
before, is a similar process no matter where you’re doing it.”2
[D.E. 34-3 at 6]. Thus, Hewlett’s testimony establishes that the
electrical work being performed by Plaintiff was not a type of
work that would have been out of the ordinary, despite the fact
that it was necessitated by an expansion project.
Plaintiff also claims that the work was not regular or
recurring
because
Comstock
was
brought
in
to
work
on
high
voltage lines. [D.E. 37 at 7]. The evidence does not support
this
contention.
Plaintiff
relies
on
the
deposition
of
Mr.
Hewlett for the proposition that Plaintiff’s employer was hired
to
work
on
high
voltage
lines.
[D.E.
37
at
6-7].
However,
Plaintiff fails to include the testimony from Mr. Hewlett where
he indicated that Mr. Ross was the most knowledgeable as to
which contractor was hired to perform which part of the project,
and that he would defer to Ross if Ross stated that a contractor
other than Comstock was working on the main power feed. [D.E.
34-3 at 10]. Mr. Ross previously stated in his deposition:
A: It – on Weigh/Mix 3 for the electrical portion
which Steve was working on, we did most of the
2
The Court takes note of Plaintiff’s hearsay objection to this
testimony given by Hewlett. However, as the current electrical
supervisor, Mr. Hewlett’s testimony is based upon his personal
knowledge of the task of running conduit and the tasks
Defendant’s electricians perform on a daily basis.
11
electric for that project. The only part of the
project that we did not do was the main power feed –
Q: Okay.
A: -- to the new facility.
Q: So you brought in an outside contractor, Comstock,
his employer, or others?
A: We brought in – we brought in Ready Electric –
Q: Okay.
A: -- to install the – the main power feed for the –
Q: Okay.
A: -- for the Weigh/Mix 3 expansion.
Q: That’s what Mr. Dunn was working on.
A: No. Mr. Dunn was working in the cullet crushing
area.
[D.E.
25-2
at
13].
Thus,
the
most
knowledgeable
person,
according to Mr. Hewlett, has offered testimony that Plaintiff
was not working on high voltage electrical lines. Instead, that
work was being performed by another contractor that did not
employ Plaintiff. Thus, the evidence shows that Plaintiff was
performing
a
task
that
was
a
regular
or
recurring
part
of
Defendant’s business. Plaintiff’s arguments that the magnitude
of the work was greater than normal and that the work involved
high voltage lines are without merit, and Defendant is entitled
to
the
exclusive
remedy
protection
of
the
Kentucky
Workers’
Compensation Act.
V. Conclusion
Accordingly, for the foregoing reasons, IT IS ORDERED:
(1)
that Defendant’s Motion for Summary Judgment [D.E. 25]
be, and the same hereby is, GRANTED;
12
(2)
that Plaintiff’s claims be, and the same hereby are,
DISMISSED WITH PREJUDICE.
This the 22nd day of November, 2013.
13
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