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Oakes v. Repcon, Inc.

United States District Court, D. Kansas

March 10, 2017

DANIEL T. OAKES, Plaintiff,
v.
REPCON, INC., Defendant.

          MEMORANDUM AND ORDER

          GERALD L. RUSHFELT, U.S. MAGISTRATE JUDGE

         Plaintiff Daniel T. Oakes filed this action in the District Court of McPherson County, Kansas. His petition alleges negligence of Defendant Repcon, Inc., causing him personal injury while he was doing contract work on its premises. Defendant removed the case to this Court. The parties have consented to jurisdiction of the magistrate judge for further proceedings.[1]

         The matter is before the Court on Defendant's Motion for Summary Judgment.[2] After the initial briefing, and pursuant to Federal Rules of Civil Procedure 56(f), the Court ordered abbreviated, additional briefing to determine, if possible, the applicability of K.S.A. § 16-121(b). After reviewing the supplemental briefs, the Court ordered yet more briefing, particularly to provide any relevant facts necessary to determine if the statute applies.”[3] The parties responded, as directed. For the following reasons, the Court now denies the motion for summary judgment, but leaves open the issue of the applicability of K.S.A. Sec. 16-121(b).

         I. Factual Background

         The uncontroverted facts are relatively sparse. Plaintiff is a tungsten inert gas (“TIG”) welder. On April 14, 2015, Defendant contracted with him to perform work at its oil refinery in McPherson, Kansas. To accept this work, Plaintiff signed the following documents (collectively, the “Agreements”):

• Continuing Subcontract Agreement - Small Contractor (ECF 19-1);
• Subcontract Agreement - Small Contractor (ECF 19-2); and
• Contract Amendment (ECF 24-2).

         On May 18, 2015, an argon tank weighing 700 pounds crushed Plaintiffs hand, suffering numerous injuries, including the amputation of a finger.

         Relevant to the instant motion is the Agreements' indemnification provision that provides:

21. LIABILITY AND INDEMNITY: Subcontractor shall be solely responsible for tools, equipment, and personal property owned, rented or leased by Subcontractor or any of his subcontractors or the employees of either which are not to be incorporated in the work. Subcontractor agrees to indemnify, defend and hold harmless Contractor, its directors, officers, employees, representatives and agents and Owner, its directors, officers, employees, representatives and agents from and against all claims, losses, costs and expenses (including legal fees and Court costs) which subcontractor, its agents, officers, directors, employees, representatives, affiliates, successors, and assigns may suffer or suffer or be liable for, caused by, resulting from, arising out of, or occurring in connection with the execution of the work or terms provided for in this agreement, even though such loss, cost, damage, injury or expense may be attributable to the joint, concurrent, comparative or contributory negligence of Contractor or Owner, or their agents, servants or employees.

(ECF 19-3 at 7, ¶ 21 (emphasis in original).)

         II. Summary Judgment Standard

         “Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue disputes of material fact and that the moving party is entitled to judgment as a matter of law.” Water Pik, Inc. v. Med- Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed. R. Civ. P. 56(a). A factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). “The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be ...


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