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Rowan v. Sunflower Electric Power Corporation

United States District Court, D. Kansas

January 22, 2018

Michael Rowan, Plaintiff,
v.
Sunflower Electric Power Corporation and Mid-Kansas Electric Company, LLC; Defendants.

          MEMORANDUM & ORDER

          John W. Lungstrum United States District Judge

         On 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”). Plaintiff asserted 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, Inc. (“Power”). The court granted Power's motion for summary judgment after concluding that plaintiff's claims against Power were barred by the exclusive remedy provision of the Kansas Workers' Compensation Act. Plaintiff's claims against Sunflower and Mid-Kansas proceeded to trial.

         On September 26, 2017, the jury returned its verdict.[1] As reflected on the special verdict form utilized in comparative fault cases, the jury attributed 23% of the fault to plaintiff; 15% of the fault to defendant Sunflower; 0% of the fault to defendant Mid-Kansas; 29% of the fault to Power Constructors, Inc; and 33% of the fault to Track Utilities LLC. The jury found that plaintiff had sustained the following damages:

Medical expenses to Dated:

$182, 382.59

Future economic loss:

$3, 000, 000.00

Noneconomic loss to Dated:

$750, 000.00

Future noneconomic loss:

$150, 000.00

Loss or impairment of services as spouse:

$0.00

Total Damages:

$4, 082, 382.59

The jury did not award punitive damages. In accordance with the jury's comparative fault findings, judgment was entered in favor of plaintiff against defendant Sunflower as follows:

Medical expenses to Dated:

$27, 357.39

Future economic loss:

$450, 000.00

Noneconomic loss to Dated:

$112, 500.00

Future noneconomic loss:

$22, 500.00

Loss or impairment of services as spouse:

$0.00

Total Damages:

$612, 357.39

This matter is now before the court on three post-trial motions filed by the parties-defendant Sunflower's motion for judgment notwithstanding the verdict (doc. 616); plaintiff's motion for new trial (doc. 617); and defendant Sunflower's motion for leave to pay judgment into court (doc. 618). As will be explained, each of the motions is denied in its entirety. [2]

         Sunflower's Rule 50(b) Motion on its Statutory Employer Defense

         Sunflower maintained at trial that even if it was at fault and contributed to the incident, it could not be liable because it was plaintiff's “statutory employer” for purposes of the exclusive remedy provision of the Kansas Workers' Compensation Act.[3] The exclusive remedy provision provides as follows:

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.

         K.S.A. § 44-503-(a). Section 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. 2000). At trial, Sunflower pursued the “statutory employer” defense under the first alternative set forth in § 44-503(a)-that it was plaintiff's statutory employer because the work that gave rise to plaintiff's injury was part of Sunflower's “trade or business.” 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. Thus, the first test looks to industry practice and the second test looks at the individual principal's practice. Price ex rel. Price v. Western Resources, Inc., 232 F.3d 779, 787

         (10th Cir. 2000) (applying Kansas law). Both tests are intended to prove the same fact-that the work being done was “part of ...


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