Opinion
CIVIL ACTION NO. 3:01cv-536-S
February 24, 2003
MEMORANDUM-OPINION
The matter is before the court on motion of the defendant, Anheuser-Busch, Inc., for summary judgment pursuant to Fed.R.Civ.P. 56. DN 19. Defendant contends that Plaintiff, Harry Waterbury's claims are barred by the exclusive remedy provision of the Kentucky Workers' Compensation Act, KRS 342.690(1).
Background
The facts in this case are undisputed. Anheuser-Busch is in the business of brewing and selling beer, and owns a warehouse in Louisville, Kentucky. Affidavit of William R. Dyer, attached as Exhibit 1 to defendant's motion for summary judgment. The warehouse is used to store canned, bottled and keg beer for delivery to distributors and wholesalers, as well as to store CO2 canisters used to dispense beer from beer wagons. Id. The CO2 canisters are necessary to dispense Anheuser-Busch beer from beer wagons set up at various outdoor events. Id.
Anheuser-Busch had a contract with Helget Gas to supply Anheuser-Busch with the CO2 canisters. Helget Gas contracted with Apollo Express to transport the canisters. Apollo Express then contracted with Connection Company/TSF, Ltd to transport the canisters to Anheuser-Busch's warehouse.
Waterbury was employed by Connection Company/TSF. He claims that he was injured while unloading CO2 canisters at Anheuser-Busch's warehouse.
Anheuser-Busch maintains that Waterbury's claims are barred by the Kentucky Workers' Compensation Act, which provides immunity from civil liability to an employee's direct employer and to all other entities in the contractual chain (contractors, subcontractors, etc.) so long as (1) the employee's direct employer has procured workers' compensation coverage, and (2) the other entities can establish they have contracted to perform work "of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession of such person." KRS 342.610(2)(b).
Waterbury concedes that his employer contracted with Anheuser-Busch for the delivery of the CO2 canisters. However, he maintains that the delivery of the CO2 canisters was not part of Anheuser-Busch's regular or recurrent business or trade.
Analysis
A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law. Adickes v. S.H. Kress Co., 398 U.S. 144, 151-60, 90 S.Ct. 1598, 16 L.Ed.2d 142 (1970); Felix v. Young, 536 F.2d 1126, 1134 (6th Cir. 1976). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party. Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the non-moving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968). The evidence must be construed in a light most favorable to the party opposing the motion. Bohn Aluminum Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir. 1962).
The plaintiff has raised no material issues of fact. The only issue before us is whether, as a matter of law, the delivery of CO2 canisters was a part of the regular or recurrent business of Anheuser-Busch. Therefore, summary judgment is appropriate in this case.
Under the Kentucky Workers' Compensation Act, worker's compensation is the exclusive remedy available to an employee injured on the job, and the employer is immune from civil liability for such injury. KRS 342.690(1). Under the provisions of KRS 342.610(2), this immunity flows "up the ladder" from an employee's direct employer to all other entities in the contractual chain (contractors, subcontractors, subcontractors, etc.) so long as (1) the employee's direct employer has procured workers' compensation coverage, and (2) the "up the ladder" entity can establish they have contractually agreed "to have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession of such person." KRS 342.610(2).
It is undisputed that Connection Company/TSL, Waterberry's direct employer, secured worker's compensation coverage. Therefore, whether the delivery of the CO2 canisters was part of Anheuser-Busch's regular or recurrent business or trade is determinative of whether they will be immune from civil liability to Waterbury.
Kentucky courts have broadly interpreted what constitutes a regular or recurrent part of a person's business or trade. See Fireman's Fund Insurance Co. v. Fletcher, 705 S.W.2d 459 (Ky. 1986) (holding that performing rough carpentry work was part of developer's business even though they never performed it themselves); Smothers v. Tractor Supply Co., 104 F. Supp.2d 715 (W.D.Ky. 2000) (holding that delivery of merchandise to a tractor supply store was a regular element of the retail operation); Daniels v. LGE, 933 S.W.2d 821 (Ky.App. 1996) (finding that EPA emissions tests performed nine times per year were a regular part of LGE's business); Granus v. North American Phillips Lighting Corp., 821 F.2d 1253 (6th Cir. 1987) (holding that the re-bricking of a glass melting furnace was part of routine maintenance necessary for the overall manufacturing operations at a glass making factory); Thompson v. The Budd Co., 199 F.3d 799 (6th Cir. 1999) (finding that changing the heating filter was a regular part of the maintenance of a business stamping auto parts).
Anheuser-Busch is in the business of selling beer. Since 1988, CO2 canisters have been delivered, unloaded and stored at Anheuser-Busch's warehouse. These canisters are used in the summer months to dispense Anheuser-Busch beer from beer wagons at various outdoor events. The unloading of delivery carrying CO2 canisters used to dispense beer is a regular and recurrent part of Anheuser-Busch's business of selling beer. Therefore, Anheuser-Busch is a contractor for purposes of KRS 342.610(2).
Because Anheuser-Busch is a contractor in the contractual chain between Anheuser-Busch, Helget Gas, Apollo Express and Connection Company/TSL, Ltd., and because Connection Company/TSL, Ltd. properly procured workers's compensation insurance for its employee Harry Waterbury, Anheuser-Busch is immune from civil liability to plaintiff, Harry Waterbury.
Motion having been made and for the reasons set froth above and the court being sufficiently advised, the motion of defendant, Anheuser-Busch, for Summary Judgment will be GRANTED by separate order.