Boyd et al v. John Doe Defendant(s) et al
Filing
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MEMORANDUM OPINION AND ORDER: Messer's motion for summary judgment, R. 73 , is GRANTED. Signed by Judge Amul R. Thapar on 10/15/2014. (RCB)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
SIMON BOYD, et al.,
Plaintiffs,
and
KENTUCKY EMPLOYER’S MUTUAL
INSURANCE COMPANY,
Intervenor Plaintiff,
v.
JOHN DOE DEFENDANT(S), et al.,
Defendant(s).
MESSER CONSTRUCTION COMPANY,
Third-Party Plaintiff,
v.
ELLIOTT CONTRACTING, INC.,
Third-Party Defendant.
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Civil No. 13-136-ART
MEMORANDUM OPINION
AND ORDER
*** *** *** ***
When is a tort claim for a workplace injury not a valid cause of action? The answer
in Kentucky is when the Workers’ Compensation Act forecloses the tort claim. The Act
shields general contractors from liability for an employee’s common law tort claims for
workplace injuries when a subcontractor provides workers’ compensation payments. But is
this true even where the general contractor only assigns an ancillary or unimportant task to
the subcontractor? Under the plain terms of the Act, the importance of the subcontractor’s
job is not relevant to establishing the general contractor’s immunity from suit.
BACKGROUND
Plaintiff Simon Boyd (“Boyd”) seeks compensatory and punitive damages for injuries
that he sustained while working on a construction job spearheaded by Defendant Messer
Construction Company (“Messer”). See R. 73-2 at 5–6 (Complaint). His wife, Beth Boyd,
seeks damages for loss of consortium. Id. The parties do not dispute the following facts.
Messer was involved in constructing the Pikeville Medical Center.
See R. 73-2 at 2
(Complaint ¶ 4); R. 73-3 at 10–11 (Deposition of Robby Cashen, Senior Superintendent at
Messer).
(“Elliott”).
Messer subcontracted part of its work on the project to Elliott Contracting
R. 73-3 at 53.
Specifically, Messer tasked Elliott with installing heating,
ventilation, and air conditioning (HVAC), plumbing, and electrical systems. Id. Elliott
carried out its subcontract through its employees, one of whom was Simon Boyd. See R. 732 at 2 (Complaint ¶ 4); R. 73-2 at 18. On January 14, 2013, Boyd returned from a break at
work, walked into a dark area of the construction site, and fell six feet into an elevator shaft.
R. 73-2 at 2 (Complaint ¶ 4). Boyd collected worker’s compensation payments from Elliott.
R. 73-4 at 5 (Exhibit 4 – Answers to Interrogatories). Because Messer and Elliott were in a
contractor-subcontractor relationship, the Kentucky Workers’ Compensation Act bars the
Boyds’ claims against Messer.
DISCUSSION
To prevail on summary judgment, Messer must show that there is no genuine issue of
material fact concerning its immunity from tort liability under Kentucky law. See Fed. R.
2
Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (holding that summary
judgment is appropriate when the moving party is entitled to judgment as a matter of law).
Under the Kentucky Workers’ Compensation Act (“Act”), an employer who has secured
workers’ compensation is immune from an employee’s civil action. See Ky. Rev. Stat. Ann.
§ 342.690(1) (West 2014). An “employer” includes a contractor who subcontracts portions
of its projects. Id.; see also Labor Ready., Inc. v. Johnston, 289 S.W.3d 200, 204–05 (Ky.
2009) (noting that a principal contractor is immune from a tort claim by a subcontractor’s
employee if both are operating under the Act) (citing McEvilly v. L.E. Myers Co., 211 Ky. 31
(1925)). Such a contractor is not liable to an injured employee for any payments where its
subcontractor “has secured the payment of compensation.” Ky. Rev. Stat. Ann. § 342.610.
Neither party disputes that Elliott secured and paid workers’ compensation insurance to
Boyd. See R. 73-1 at 2; R. 77. Accordingly, Messer’s liability to Boyd turns on whether
Messer is a “contractor” under the Act.
I.
Messer is a “Contractor” Shielded From Liability by the “Up-The-Ladder”
Immunity Provisions of the Kentucky Workers’ Compensation Act.
Whether Messer is a contractor under the Act turns on whether it assigned to Elliott
work that is “of a kind which is a regular or recurrent part of the work of [its] trade, business,
occupation, or profession.” Ky. Rev. Stat. Ann. § 342.610(2)(b). On this point, both parties
seem to agree—at least initially. Messer and Boyd both acknowledge that “regular or
recurrent” work is “of a kind that the business . . . would normally . . . be expected to
perform with employees.” See R. 73-1 at 4; R. 77 at 3. They even cite to the same Kentucky
Supreme Court case for this rule: General Electric Co. v. Cain, 236 S.W.3d 579, 588 (Ky.
2007). But that is the extent to which the parties share common ground. Boyd claims that
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Elliott’s jobs to install HVAC, plumbing, and electrical systems are not “regular or
recurrent” parts of Messer’s business since Messer habitually contracts those jobs away.
R. 77 at 3 (citing to R. 73-3 at 57–58 (Cashen Deposition)).
In his argument, Boyd
highlights this apparent Catch-22: If Messer never performs a job using its own employees,
how can the job possibly ever be considered a “regular or recurrent” part of its business such
that Messer is a contractor under the Act?
Luckily, the Kentucky Supreme Court has already spoken to this issue. A business
that never actually performs a particular job with its own employees “can still come within
KRS 342.610(2)(b).” Doctors’ Assocs., Inc. v. Uninsured Employers’ Fund, 364 S.W.3d 88,
92 (Ky. 2011) (quoting Fireman’s Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459,
462 (Ky. 1986)). As long as the company contracts away a job it is expected to perform—
even if it never actually performs the job—the company can be considered a “contractor”
that reassigned “regular or recurrent” work. Id. For example, installing HVAC, plumbing,
and electrical systems are jobs that a construction company is expected to perform. See
Cain, 236 S.W.3d at 587–88 (citing Arthur Larson and Lex K. Larson, Larson’s Workers’
Compensation Law, § 70.06[3] (2006)). And Messer is such a construction company. See R.
73-1 at 60 (Cashen Deposition).
Accordingly, as a matter of law, installing HVAC,
plumbing, and electrical systems are Messer’s “regular or recurrent” jobs. By reassigning
these jobs to Elliott, Messer falls under the Act’s definition of “contractor.”
Still, Boyd disagrees. In an attempt to raise a genuine issue of material fact, Boyd
proposes a novel requirement for a contractor-subcontractor relationship under Kentucky
law.
He claims that Elliott should have performed work that was “fundamental and
essential” to the construction project in order for Messer to be considered a contractor under
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the Act. And Boyd claims that Elliott did not perform such “fundamental or essential” work
in the Pikeville Medical Center construction project because some portions of the medical
center did not require heating and ventilation systems. R. 73-1 at 4–5 (pointing to testimony
from the Cashen deposition to indicate that the parking garage did not require a heating and
ventilation system). Because all of Elliott’s services were not needed in all areas of the
construction project, Boyd argues that Elliott’s work was “ancillary” to the construction in
this matter. Id. So, says Boyd, Messer did not contract with Elliott to perform the type of
work that would allow Messer to be considered a contractor under the Act.
Boyd’s point has no merit. First, as a matter of common sense, it cannot be that a
contractor under the Act must require its subcontractors to perform their jobs in every nook
and cranny of a construction site. Two companies can form a contractor-subcontractor
relationship even if the subcontractor, for example, only installs plumbing in the bathrooms
and not in areas that need no plumbing.
Moreover, Boyd cites no law to support his claim that a company must subcontract
“essential” work in order to be considered a contractor under the Act. The plain language of
the Act clearly does not include such a requirement. See Ky. Rev. Stat. § 342.610(2)(b)
(defining a contractor as a business that contracts with another to have work performed that
is merely “a regular or recurrent part” of its business). And where the language of the statute
is clear, a court must interpret the statute based on the text alone. Revenue Cabinet v.
O’Daniel, 153 S.W.3d 815, 819 (Ky. 2005) (noting that if the meaning of a statute is plain,
then “the court cannot base its interpretation on any other method or source”). It is a cardinal
principle of statutory interpretation that courts “are not at liberty to supply words, insert
phrases, or make additions to statutory language to cure a possible omission.”
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Commonwealth v. Harrelson, 14 S.W.3d 541, 545–546 (Ky. 2000). And the Court would
have to read an extra requirement into the plain language of the Act if it denied Messer’s
status as a contractor on the basis of delegating “unimportant” jobs to Elliott. Such a
construction would undoubtedly violate the basic rule against adding words or phrases to a
statute and would tread on the prerogative of the legislature to write statutes. See JP Morgan
Chase Bank, N.A. v. Longmeyer, 275 S.W.3d 697, 702 n.10 (Ky. 2009) (noting that courts
are not “empowered to rewrite statutes to suit our notion of sound public policy when the
General Assembly has clearly and unambiguously established a different notion”).
Accordingly, no “genuine issue of material fact” exists about Messer’s status as a contractor.
II.
The Boyds Cannot Prevail on Their Direct or Derivative Claims Against Messer,
a Statutory Employer.
A general contractor is a “statutory employer” under the Kentucky Workers’
Compensation Act.
See Doctors’ Associates, Inc. v. Uninsured Employers’ Fund, 364
S.W.3d 88, 91 (Ky. 2011) (explaining that under Ky. Rev. Stat. § 342.610(2)(b), an up-theladder general contractor is considered the statutory employer of its subcontractor's
employees). Because Messer is a general contractor, it is an employer—and Boyd is its
employee—as a matter of law. See also R. 77 at 1 (agreeing that Boyd was an employee of
Elliott). And as long as an employee receives workers’ compensation payments, the Act
shields both direct and statutory employers from tort liability. Id. (citing Ky. Rev. Stat.
§ 342.690(1)).
Boyd has not marshalled any facts that would call into question this
conclusion, so Messer is entitled to judgment as a matter of law. See Celotex, 477 U.S. at
323. Accordingly, Messer is immune to Boyd’s tort claims.
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Because Messer is shielded from liability for Simon Boyd’s direct tort claims due to
up-the-ladder immunity, it is also immune to Beth Boyd’s derivative claims. See Ky. Rev.
Stat. Ann. § 342.690(1) (finding that workers’ compensation is an exclusive remedy that
replaces the tort liability an employer would have to an injured employee’s wife); see also
Hardin v. Action Graphics, Inc., 57 S.W.3d 844 (Ky. 2001) (holding that claims for loss of
consortium are barred by the provisions of Ky. Rev. Stat. Ann. § 342.690(1)). Accordingly,
Messer faces no common-law liability in this action.
CONCLUSION
Messer’s status as a general contractor provides immunity from tort liability under the
Kentucky Workers’ Compensation Act. This is true whether the work assigned to Elliot is
ancillary or not. Because the Boyds failed to raise any factual issue that would call into
question Messer’s status as a contractor shielded by up-the-ladder immunity, summary
judgment is proper.
Accordingly, Messer’s motion for summary judgment, R. 73, is
GRANTED.
This the 15th day of October, 2014.
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