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Miller v. NEP Group, Inc.

United States District Court, D. Kansas

May 16, 2017

NEP GROUP, INC., Defendants.



         Plaintiff brought suit alleging he sustained an injury to his right foot while helping to take down a large video screen at the Kansas Speedway in Kansas City, Kansas. Kansas law provides that an employee may not recover twice from an employer for an injury that is covered by workers' compensation. Before the court is Defendants' Joint Motion for Summary Judgment based on the exclusive remedy provision of the Kansas Workers' Compensation Act (“KWCA”) (Doc. 102). The motion is fully briefed and the Court is prepared to rule.[1] For the reasons stated below, the Court grants the motion for summary judgment.


         Summary judgment is appropriate if the moving party demonstrates “that there is no genuine dispute as to any material fact” and that it is “entitled to judgment as a matter of law.”[2]In applying this standard, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.[3] “There is no genuine [dispute] of material fact unless the evidence, construed in the light most favorable to the non-moving party, is such that a reasonable jury could return a verdict for the non-moving party.”[4] A fact is “material” if, under the applicable substantive law, it is “essential to the proper disposition of the claim.”[5] A dispute of fact is “genuine” if “there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.”[6]

         The moving party initially must show the absence of a genuine dispute of material fact and entitlement to judgment as a matter of law.[7] In attempting to meet this standard, a movant who does not bear the ultimate burden of persuasion at trial need not negate the nonmovant's claim; rather, the movant need simply point out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.[8]

         Once the movant has met the initial burden of showing the absence of a genuine dispute of material fact, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.”[9] The nonmoving party may not simply rest upon its pleadings to satisfy its burden.[10] Rather, the nonmoving party must “set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant.”[11] In setting forward these specific facts, the nonmovant must identify the facts “by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”[12] To successfully oppose summary judgment, the nonmovant must bring forward more than a mere scintilla of evidence in support of his position.[13] A nonmovant may not create a genuine issue of material fact with unsupported, conclusory allegations.”[14]

         Finally, summary judgment is not a “disfavored procedural shortcut”; on the contrary, it is an important procedure “designed to secure the just, speedy and inexpensive determination of every action.”[15]


         As an initial matter, the Court notes that Plaintiff's vexatious method of controverting Defendants' statement of material facts has unduly burdened the Court's time. Defendants asserted fourteen material facts in support of their motion for summary judgment. Yet Plaintiff took thirty-eight pages to deny all but three partial facts, arguing: 1) the cited record did not support the contention; 2) the cited testimony did not authenticate the identified exhibit; and/or 3) the cited support contained inadmissible hearsay. Plaintiff also claimed in many instances that other evidence controverted the stated contention. Plaintiff then presented a statement of additional facts (“SOAF”) that mostly contained immaterial facts or required unreasonable inferences.

When deciding a summary judgment motion, the Court may consider evidence submitted, if admissible in substance, even if it would not be admissible, in form, at the trial. A party may properly authenticate a document “through a supporting affidavit or deposition excerpt from anyone with personal knowledge of the facts contained in the exhibit.”[16]

         An affidavit is not required to authenticate every document submitted for consideration at summary judgment.[17] Documents produced during discovery that are on the letterhead of the opposing, producing party are authentic per se under Rule 901 of the Federal Rules of Evidence.[18] “The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances” may also satisfy the authentication requirement.[19] An exhibit may also qualify as “self-authenticated” under Fed.R.Evid. 902.

         Plaintiff claims that Exhibits A, B, C, and D were not properly authenticated. The Court disagrees. First, Plaintiff acknowledged that various deponents identified and referenced these exhibits during their depositions, albeit with different exhibit names. Second, these exhibits were produced during discovery and either are on business letterheads or contain distinctive characteristics that satisfy the authentication requirement. The Court finds Plaintiff's authentication arguments disingenuous.

         With respect to hearsay, the Court may consider hearsay testimony in support of summary judgment if the evidence may ultimately be presented at trial in an admissible form. Deposition testimony or sworn affidavits are admissible to the extent the content of the statement is based on personal knowledge.[20] To the extent the content of any such statement is obviously not substantively within the personal knowledge or perception of the witness, the Court disregards the same, as statements of mere belief in an affidavit or deposition testimony must be disregarded.[21] Business records produced during discovery and those that may be authenticated by the custodians of records are excepted from the hearsay rule.[22] Moreover, the Court can consider these records to the extent they are not offered for the truth of the matter asserted.[23]With these principles in mind, the Court overrules the hearsay objections to Exhibits A-D because they are business records produced during discovery.

         Local Rule 56.1(e) states “all responses [to statements of uncontroverted facts] must fairly meet the substance of the matter asserted.”[24] After reviewing and considering Plaintiff's responses to paragraphs 1, 2, 3, 4, 7, 9, 10, 11, 12, 13, and 14 of Defendants' statement of material facts (“SOMF”), the Court finds Plaintiff has failed to comply with this rule. For example, SOMF 1 simply asserts that Screenworks was performing work at the Speedway on October 7, 2013. Plaintiff denied SOMF 1even though his own sixty additional facts would support the asserted fact. Plaintiff inexplicably denied other benign SOMFs, but the Court will not belabor this point.

         Instead, with the above rules of law and principles of application in mind, the following material facts are either uncontroverted or, if controverted, are construed in the light most favorable to Plaintiff. Defendant Screenworks, LLC is in the entertainment business, providing LED screens for use in outdoor events across the nation.[25] During the relevant time, Screenworks and Motor Racing Network, Inc. (“MRN”) had an agreement that says Screenworks shall be the sole supplier of large screen video displays for MRN events held at various venues, including the Kansas Speedway in Kansas City, Kansas. As part of its business, Screenworks builds the screens, provides technical support during events, and takes down the screens provided at these events. Screenworks sends its employees to these jobs, but also hires local stagehands to assist with building and tearing down the screens.

         In early October 2013, Screenworks supplied a large screen for a racing event at the Kansas Speedway. Screenworks' work order for this event indicated: build the screen on October 1; tech screen on October 2-6; and load out (i.e., tear down the screen) on October 7. For this particular job, Screenworks sent several of its employees, including Defendant Jeffrey Smith, an LED technician, to Kansas Speedway. Screenworks also hired stagehands from the Kansas City chapter of International Alliance of Theatrical and Stage Employees Local 31 (“IATSEL31”) to assist Smith with building and tearing down the screen, and loading equipment onto its trucks. Plaintiff was one of these stagehands.

         IATSEL31 is a referral hall that provides stagehand labor for production companies such as Screenworks.[26] It receives jobs by phone or email, and dispatches its members to the event site. Whoever requests the stagehands is responsible for communicating the tasks to be completed and the safety protocols for that particular job.[27] Screenworks and IATSEL31 have an understanding that Screenworks will pay the stagehands an agreed hourly rate plus 45% for “Employers FICA and Missouri State Unemployment tax, Retirement, Workmen's Compensation Insurance…. (sic)”[28]

         On October 7, 2013, as the lead LED technician for the job, Miller directed the stagehands during the take-down of the large video screen. During that process, a truss crushed Plaintiffs right foot. After sitting out for approximately twenty-five minutes, Plaintiff, with the use of a stick to help him walk, assisted the other stagehands with “push[ing] the rest of the stuff back to the truck.”[29] After finishing the job, Plaintiff went directly to see the “workers' comp doctor.”[30] Plaintiff filed a workers' compensation claim with IATSEL31's insurance carrier, Travelers.[31]

         Smith has no independent recollection regarding the October 7, 2013 accident, other than what was stated in his typed statement on November 4, 2013:

(Image Omitted)

         He filled out an incident report on December 12, 2013, that mainly referenced his typed statement.

         Defendants Screenworks and NEP Broadcasting, LLC are subsidiaries of Defendant NEP Group, Inc. NEP Group owns the holding companies that own Screenworks. NEP Broadcasting serves as a payroll entity for employees within the NEP group of companies.[32]


         Defendants seek summary judgment based on the exclusive remedy provision of the Kansas Workers' Compensation Act (“KWCA” or “the Act”).[33] Kansas law provides that an employee may not recover twice from an employer for an injury that is covered by workers' compensation. K.S.A. 44-501(b) provides:

Except as provided in the workers compensation act, no employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable under the workers compensation act nor shall an employer be liable to any third party for any injury or death of an employee which was caused under circumstances creating a legal liability against a third party and for which workers compensation is payable by such employer.

         “The exclusive remedy provision protects both employers and employees. Employees are guaranteed a form of recovery against their employer; and employers are protected against paying for the employees damages twice - once through workers' compensation and again through a civil action for damages.”[34] The Kansas Supreme Court has emphasized the provisions of the KWCA are to be “liberally construed for the purpose of bringing a worker under the Act whether or not desirable for the specific individual's circumstances.”[35]

         This protection from suit extends to employers who may not be the immediate employers of the injured party. K.S.A. 44-503(a) states:

Where any person (in this section referred to as principal) undertakes to execute any work which is a part of the principal's trade or business or which the principal has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any worker employed in the execution of the work any compensation under the workers compensation act which the principal would have been liable to pay if that worker had been immediately employed by the principal; and where compensation is claimed from or proceedings are taken against the principal, then in the application of the workers compensation act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the worker under the employer by whom the worker is immediately employed. For the purposes of this subsection, a worker shall not include an individual who is a self-employed subcontractor.

         The Kansas Supreme Court has provided two separate tests-known as the Hanna tests-for determining whether an employer is a statutory employer.[36] An employer is the statutory employer of the worker if either of the following are met:

(1) [I]s the work being performed by the independent contractor and the injured employee necessarily inherent in and an integral part of the principal's trade or business? (2) is the work being performed by the independent contractor and the injured employee such as would ordinarily have been done by the employees of the principal?[37]

         If either of the above tests is answered with a “yes, ” the work being done is part of the principal's trade or business and the employee's sole remedy is under the KWCA.[38]

         A. ...

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