United States District Court, D. Kansas
MEMORANDUM & ORDER
W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE
August 29, 2013, plaintiff sustained electrical injuries when
he was installing a guard structure under an overhead power
transmission line during a utility line construction project
near Medicine Lodge, Kansas. At the time of his injury,
plaintiff was employed by and performing work for his
employer, Track Utilities, LLC (“Track”). In this
lawsuit, plaintiff asserts negligence claims against the
owner of the transmission line, Mid-Kansas Electric Company,
LLC (“Mid-Kansas”); the operator of the
transmission line, Sunflower Electric Power Corporation
(“Sunflower”); and the contractor responsible for
the utility line construction project, Power Constructors,
matter is presently before the court on numerous motions.
Plaintiff has filed a motion for partial summary judgment on
defendants' respective affirmative defenses that
plaintiff's claims are barred by the exclusive remedy
provision of the Kansas Workers' Compensation Act.
Defendants have also filed motions for summary judgment on
the exclusive-remedy defense as well as issues relating to
foreseeability, breach of duty, intervening cause and
punitive damages. In response to defendants' motions,
plaintiff has filed a motion to ignore certain evidence
submitted by defendants in support of their motions for
summary judgment. Plaintiff has also moved to strike portions
of the reply briefs filed by defendants on the grounds that
those briefs rely on new evidence and arguments not addressed
in defendants' motions and because defendants have
impermissibly replied to plaintiff's responses to
defendants' statements of uncontroverted facts.
be explained, the court grants Power's motion for summary
judgment because plaintiff's claims against Power are
barred by the exclusive remedy provision of the Kansas
Workers' Compensation Act. Plaintiff's cross-motion
on that issue is denied. Factual disputes in the record
preclude the court from resolving on summary judgment whether
plaintiff's claims against Mid-Kansas and Sunflower are
barred by the exclusive remedy provision and, accordingly,
the court denies plaintiff's motion for summary judgment
on that issue and the cross-motion filed by Mid-Kansas and
Sunflower. The balance of the summary judgment motion filed
by Mid-Kansas and Sunflower is denied because material
factual issues exist concerning foreseeability, breach,
proximate cause and the availability of punitive damages. The
court will address plaintiff's motions concerning
evidentiary issues as pertinent below.
Sunflower Electric Power Corporation
(“Sunflower”) provides electric and transmission
services to its distribution cooperatives in central and
western Kansas. Sunflower operates and maintains nearly 2300
miles of transmission line and 48 substations through an
operating agreement with defendant Mid-Kansas Electric
Company, LLC (“Mid-Kansas”), the owner of the
transmission line. Defendant Power Constructors, Inc.
(“Power”) is a construction contractor in the
electrical utility industry and regularly contracts with
utility companies for, among other services, the construction
of transmission lines.
March 2008, Power entered into a Master Services Agreement
with Sunflower and Mid-Kansas. That agreement expressly requires
Power to “perform all design and construction services,
and provide all material, equipment, tools and labor,
necessary to complete the Work as [Sunflower] may from time
to time request.” The agreement defines the
“contract documents” to include “any task
orders or Change Orders modifying or setting forth a scope of
Work.” The agreement further requires that Power
“shall provide through itself or Subcontractors the
necessary supervision, labor, inspection, testing, start-up,
material, equipment, machinery, temporary utilities and other
temporary facilities to permit [Power] to complete
construction” of a given project.
2012, Sunflower and Mid-Kansas initiated a large project
which involved constructing and rebuilding over 70 miles of
transmission line. That project was divided into several
“smaller” projects or phases, many of which were
contracted separately between Power and Sunflower/Mid-Kansas.
Pertinent here, and as contemplated by the Master Services
Agreement, Power and Sunflower/Mid-Kansas executed a task
order covering one segment of the 70-mile
project. That task order defined the project as the
“Harper to Barber 138kV Transmission Line
Rebuild” and identified the “scope of
services” to include providing “construction
services to rebuild the 138kV transmission line from Harper
Substation to the newly constructed Barber
Substation.” Paul Mehlhaff was Sunflower's project
manager for the project and James Stovall was Power's
“on-site representative” for the project. Power,
in turn, subcontracted a portion of its work on the
project-the construction of the transmission line from Barber
Substation to Flat Ridge Substation-to Track Utilities, LLC.
August 19, 2013, a pre-construction meeting was held and was
attended by representatives from Power, Sunflower and Track.
Mr. Stovall attended on behalf of Power; Mr. Mehlhaff
attended on behalf of Sunflower; and plaintiff, Daryl Kimmel,
Randal Miller and Matt Heath attended on behalf of Track. Mr.
Kimmel was the general foreman for the Track crew on the
project and Mr. Heath was Track's project manager.
Plaintiff and Mr. Miller were both apprentice linemen
employed by Track. At the meeting, the scope of the project
and the construction schedule were discussed. The project
“start date” was identified as August 19, 2013
and the outage schedule for the Barber to Flat Ridge
transmission line was established as October 1, 2013 through
November 5, 2013. Sunflower's evidence suggests that
Track was specifically instructed that it could not build or
erect guard structures until the outage on October 1,
2013. Plaintiff's evidence, however,
suggests that Track notified Sunflower at the
pre-construction meeting of its intent to build and erect
guard structures prior to the outage.
August 29, 2013, Mr. Rowan and other members of Track's
crew, in connection with the Barber to Flat Ridge project,
were building a guard structure underneath an energized,
uninsulated transmission line. At some point, Mr. Rowan lost
control of a wooden pole that he was attempting to maneuver
and the pole made contact with the overhead line. Mr. Rowan
sustained electrical injuries as a result.
facts will be provided as they related to the specific
arguments raised by the parties in their submissions.
Summary Judgment Standard
judgment is appropriate if the pleadings, depositions, other
discovery materials, and affidavits demonstrate the absence
of a genuine issue 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
warranted if the movant points out a lack of evidence to
support an essential element of that claim and the nonmovant
cannot identify specific facts that would create a genuine
issue.” Id. at 1143-44.
legal standard does not change if the parties file
cross-motions for summary judgment. Each party has the burden
of establishing the lack of a genuine issue of material fact
and entitlement to judgment as a matter of law. Atlantic
Richfield Co. v. Farm Cr. Bank, 226 F.3d 1138, 1148
(10th Cir. 2000).
Exclusive Remedy/Statutory Employer
assert that plaintiff's claims are barred by the Kansas
Workers' Compensation Act, K.S.A. § 44-501 et seq.
In pertinent part, the Kansas Workers' Compensation Act
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 created a legal
liability against a third party and for which workers
compensation is payable by such employer.
K.S.A. § 44-501b(d). This section, commonly known as the
exclusive remedy provision, precludes workers who can recover
under the act from bringing a common law negligence action
against an employer or fellow employee. See Herrell v.
National Beef Packing Co., 259 P.3d 663, 674 (Kan. 2011)
(quoting Hollingsworth v. Fehrs Equip. Co., 729 P.2d
1214 (Kan. 1986)). The exclusive remedy provision of the
Workers' Compensation Act also applies to situations
involving contractors and subcontractors. K.S.A. §
Where any person (in this section referred to as the
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.
44-503(a) extends the application of the act to certain
entities which are not the immediate employers of the injured
worker, but rather are “statutory employers.”
Robinett v. Haskell Co., 12 P.3d 411, 414 (Kan.
three defendants assert that plaintiff's claims are
barred because they qualify as “statutory
employers” under the act. Sunflower and Mid-Kansas
assert in their motion for summary judgment that they qualify
as statutory employers because the work that gave rise to
plaintiff's injury was part of their “trade or
business” under the first alternative set forth in
§ 44-503(a). Power asserts in its motion for summary
judgment that it qualifies as a statutory employer because
the work that gave rise to plaintiff's injury was work
that Power had “contracted to perform” under the
second alternative set forth in § 44-503(a). According
to defendants, then, summary judgment is appropriate because
plaintiff's claims are barred by §
44-501b(d). Plaintiff, on the other hand, contends
that he is entitled to summary judgment on this defense
because the uncontroverted facts demonstrate that none of the
defendants qualify as statutory employers. As will be
explained, material fact issues exist as to whether Sunflower
and Mid-Kansas are statutory employers and the court denies
the parties' cross-motions for summary judgment on that
issue. With respect to Power, the uncontroverted evidence
demonstrates that Power was plaintiff's statutory
employer such that plaintiff's exclusive remedy lies
under the Workers' Compensation Act. Power's motion
for summary judgment, then, is granted and plaintiff's
motion with respect to Power is denied.
and Mid-Kansas (collectively, the “Utilities”)
assert that they are plaintiff's statutory employer
because the work that gave rise to plaintiff's injury was
part of the Utilities' “trade or business”
under the first alternative set forth in § 44-503(a).
The Utilities and plaintiff have both moved for summary
judgment on this issue and they agree on the applicable tests
utilized by Kansas courts in resolving the issue. In
Hanna v. CRA, Inc., 409 P.2d 786 (Kan. 1966), the
Kansas Supreme Court set forth the following tests to
determine whether the work being performed is a part of the
principal's trade or business:
(1) Is 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?
Id. at 789. The Hanna court further noted
that “[i]f either of the foregoing questions is
answered in the affirmative the work being done is part of
the principal's ‘trade or business, ' and the
injured employee's sole remedy against the principal is
under the Workmen's Compensation Act.” Id.
The test, then, is a disjunctive one and the Utilities need
only satisfy one of the Hanna tests. Price ex
rel. Price v. Western Resources, Inc., 232 F.3d 779, 785
n.4 (10th Cir. 2000) (applying Kansas law).
Bright v. Cargill, Inc., 837 P.2d 348, 359 (Kan.
1992), the Kansas Supreme Court clarified that the question
under the first Hanna test is not whether the
subcontractor's work is useful, necessary or even
indispensable to the principal's business. Rather, the
first Hanna test is whether other similar businesses
use their own employees to perform the kind of work that was
being performed by the injured worker or whether similar
businesses contract out that kind of work. Id. The
second Hanna test is met where it is “shown
that the employees of the principal ordinarily do the type of
work that was being done by the injured” worker.
Price, 232 F.3d at 787. Thus, the first test looks
to industry practice and the second test looks at the
individual principal's practice. Id. Both tests
are intended to prove the same fact-that the work being done
was “part of the principal's trade or
First Hanna Test
court first examines the parties' arguments and evidence
relating to industry practice. While the Utilities assert
that they are entitled to summary judgment under both
Hanna tests, they have come forward with no evidence
or argument relating to industry practice under the first
Hanna test. Rather, the Utilities' evidence
relates solely to the Utilities' own practices. The
Utilities, then, have not shown that they are entitled to
summary judgment under the first Hanna test.
Plaintiff's motion for summary judgment on this issue is
based entirely on the affidavit and report of his liability
expert, Donald R. Johnson. Mr. Johnson opines that when
“smaller utilities” like Sunflower and Mid-Kansas
undertake projects of the same magnitude as the 70-mile
project in this case, those utilities typically do not
maintain sufficient in-house resources to perform the work
such that those types of projects are necessarily performed
by independent contractors. Plaintiff's argument, then,
broadly frames the pertinent “work” by examining
the project as a whole.
directs the court to no authority supporting his
interpretation of the applicable “work.” Indeed,
none of the parties have briefed the issue of whether that
focus is appropriate or whether “the work” is
more appropriately determined by examining the specific task
or activity performed by plaintiff at the time of the injury.
The Court in Bright, relying on Larson's