Michael Stamper v. Cumberland MacHinery Movers and Industrial Services, Inc. ( 2021 )

RENDERED: DECEMBER 3, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2020-CA-0889-MR
MICHAEL STAMPER APPELLANT
APPEAL FROM MADISON CIRCUIT COURT
v. HONORABLE JEAN CHENAULT LOGUE, JUDGE
ACTION NO. 17-CI-00434
CUMBERLAND MACHINERY
MOVERS AND INDUSTRIAL
SERVICES, INC. APPELLEE
OPINION
REVERSING AND REMANDING
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BEFORE: COMBS, GOODWINE, AND LAMBERT, JUDGES.
GOODWINE, JUDGE: Michael Stamper (“Stamper”) appeals the Madison
Circuit Court’s summary judgment in favor of Cumberland Machinery Movers and
Industrial Services, Inc. (“Cumberland”) on grounds that Cumberland was entitled
to up the ladder immunity from Stamper’s claims. After careful review, we reverse
and remand.
Okonite Company, Inc. (“Okonite”) is a manufacturer of medium
voltage cable in Richmond, Kentucky. Stamper has been employed by Okonite for
thirty years.
In 2016, Okonite expanded its Richmond, Kentucky facility including
construction of a concrete foundation and installation of a cable strander. Okonite
contracted with Denham-Blythe Company, Inc. (“Denham-Blythe”) to construct
the concrete foundation, referred to as the “pit” throughout this action. Okonite
separately contracted with Cumberland to install the strander in the pit after
Denham-Blythe completed its work on the project. Cumberland was to provide the
machinery and labor for installation of the strander. Cumberland was contracted to
work under the supervision of a technician provided by Okonite. Okonite
contracted with Wolfgang Kittel (“Kittel”) to supervise Cumberland’s installation
of the strander. Kittel did not supervise any Okonite employees, including
Stamper, because only Cumberland employees were assigned to the installation.
After completing the concrete foundation, Denham-Blythe erected
wooden barriers around the pit. The project was then turned over to Cumberland
to begin installation of the strander under Kittel’s supervision. At some point
during installation, a portion of the wooden barrier was removed to allow parts of
the strander to be moved into the pit. Yellow caution tape was put in place where
the wooden barrier had been.
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On August 24, 2016, Stamper was instructed by his supervisor to help
another Okonite employee, Wayne Simpson (“Simpson”) torque a coupling on the
strander. When Stamper reached the pit, he leaned over to ask Simpson how he
could help. Stamper mistakenly thought he was leaning on a railing but was,
instead, leaning on the caution tape. Stamper fell forward into the pit, injuring
himself. The only individuals in the pit at that time were other Okonite employees.
When Stamper fell, Cumberland employees were approximately 150 feet away
from the pit working on a separate section of the project.
It is undisputed that Stamper received workers’ compensation benefits
from Okonite’s insurance carrier for his injuries. He also filed suit against
Cumberland and Denham-Blythe alleging negligence based on removal of the
wooden barriers.
Cumberland moved for summary judgment asserting the exclusivity
provision of the Kentucky Workers’ Compensation Act entitled it to “up the
ladder” immunity from Stamper’s claim. The trial court granted the motion.
Specifically, the trial court determined Cumberland was a subcontractor of
Okonite, Stamper’s direct employer, and, as such, was entitled to immunity. The
trial court denied Stamper’s subsequent motion to alter, amend, or vacate the
judgment. This appeal followed.
The standard of review on appeal when a trial court
grants a motion for summary judgment is whether the
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trial court correctly found that there were no genuine
issues as to any material fact and that the moving party
was entitled to judgment as a matter of law. The trial
court must view the evidence in the light most favorable
to the nonmoving party, and summary judgment should
be granted only if it appears impossible that the
nonmoving party will be able to produce evidence at trial
warranting a judgment in his favor. . . . Because
summary judgment involves only legal questions and the
existence of any disputed material issues of fact, an
appellate court need not defer to the trial court’s decision
and will review the issue de novo.
Forbes v. Dixon Electric, Inc., 332 S.W.3d 733, 736 (Ky. App. 2010) (internal
quotation marks and citation omitted).
On appeal, Stamper argues Cumberland was not entitled to up the
ladder immunity because it cannot be considered his employer for workers’
compensation purposes and, as such, could not have been liable for Stamper’s
workers’ compensation benefits.
“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 work-related injuries.”
Beaver v. Oakley, 279 S.W.3d 527, 530 (Ky. 2009) (footnote omitted). An
employer’s liability is exclusive:
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
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other liability of such employer to the employee[.] For
purposes of this section, the term “employer” shall
include a “contractor” covered by subsection (2) of KRS
342.610[.]
KRS1 342.690(1) (emphasis added). Within the statute, “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.” Beaver, 279
S.W.3d at 530 (citing KRS 342.610(2)).
The purpose of this provision is to extend immunity up the ladder
from the subcontractor who employs an injured worker to the entity which
contracted with the subcontractor. Cabrera v. JBS USA, LLC, 568 S.W.3d 865,
869 (Ky. App. 2019). Immunity is available only for “injuries sustained during
work performed in the service of the entity seeking to assert the defense.” Huff v.
Southern States Somerset Cooperative, Incorporated, 632 S.W.3d 343, 351 (Ky.
App. 2021) (citations omitted). This is because “a contractor may only assert this
defense if it was potentially liable under the workers’ compensation scheme;
without such potential liability, there is no sense in extending ‘up the ladder’
protection.” Id. at 350. If someone other than one who qualifies as the worker’s
employer for workers’ compensation purposes is legally responsible for the injury,
the worker may proceed with a civil action against that person or entity. KRS
1
Kentucky Revised Statutes.
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342.700(1). Therefore, we must determine whether Cumberland qualifies as
Stamper’s statutory employer.
In Huff, this Court extensively cites to the unpublished opinion of the
United States District Court for the Western District of Kentucky in McMillen v.
Ford Motor Company, No. CIV. A. 307-CV-309-S, 2009 WL 5169871 (W.D. Ky.
Dec. 20, 2009).2 In McMillen, the worker was employed by Comstock, a
subcontractor of Ford. Huff, 632 S.W.3d at 350 (citation omitted). McMillen’s
work was almost exclusively for Ford and was completed on Ford’s premises but,
at the time of his injury, McMillen was performing work for Comstock and, on this
basis, Ford was not entitled to up the ladder immunity. Id. Similarly, the Court in
Huff determined Somerset, the contractor, did not qualify for immunity because
Huff was not working on its behalf or on its premises at the time of his injury. Id.
at 352.
Herein, Stamper was working on Okonite’s premises when he was
instructed by his supervisor, an Okonite employee, to go to the pit to assist
Simpson, an Okonite maintenance worker, in applying grease to a coupling. The
work was completed on Okonite’s behalf. No Cumberland employees were
working in the pit at the time of Stamper’s injuries. Nothing in the record indicates
2
After briefing was completed, Stamper moved to cite to Huff as supplemental authority. The
motion was granted and, upon order of the Court, the parties filed supplemental briefs on the
applicability of Huff to this matter.
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Cumberland was in any way supervising or otherwise involved with Stamper’s
work at the time of his injuries. Because Stamper was working for Okonite, not
Cumberland, at the time of the incident, Cumberland could not be liable for
Stamper’s workers’ compensation benefits. See Huff, 632 S.W.3d at 350 (citations
omitted). Therefore, Cumberland is not entitled to up the ladder immunity.
Based on the foregoing, the judgment of the Madison Circuit Court is
reversed and remanded for proceedings consistent with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT: BRIEFS FOR APPELLEE:
Kyle R. Salyer Robert E. Maclin, III
Tyler J. Wicker Drake W. Staples
Paintsville, Kentucky Lexington, Kentucky
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