Summary
In Lambert, the employee of a contractor ("S W") hired by the defendant ("TVA") was injured while performing maintenance on an ice condenser, a component of the facility required to be inspected, serviced, and replenished with ice once every 18 months.
Summary of this case from Dotson v. Bowater, Inc.Opinion
No. 1:01-cv-330.
September 17, 2002
MEMORANDUM
On November 1, 2000, plaintiff Randy Lambert ("Lambert") suffered personal injuries to his hand and arm while working on an ice-blowing auger machine at the Sequoyah Nuclear Power Plant ("Sequoyah") owned and operated be the Tennessee Valley Authority ("TVA") in Hamilton County, Tennessee. Lambert was a direct employee of Stone Webster Construction Company ("S W"). TVA had a contract with S W to provide modification and supplemental maintenance services at Sequoyah. Lambert made a claim for workers' compensation benefits which has been paid by and through TVA.
Plaintiffs Randy Lambert and his wife, Karen, bring this tort action against TVA seeking compensatory damages based on a claim of common law negligence. Karen Lambert asserts a claim for loss of consortium. TVA moves for summary judgment pursuant to FED. R. CIV. P. 56. [Court File No. 5]. It is argued by TVA that the plaintiffs' tort action for negligence is precluded by the Tennessee Workers' Compensation Act, TENN. CODE ANN. §§ 50-6-108 and 50-6-113. TVA contends that under these statutes it is a principal contractor and Lambert's statutory employer, consequently Lambert is precluded from maintaining a negligence tort action against TVA because his exclusive remedy is workers' compensation.
Plaintiffs oppose the motion. After reviewing the record, the Court concludes that TVA's motion for summary judgment is well taken and it will be GRANTED. The plaintiffs' complaint will be DISMISSED WITH PREJUDICE.
I. Standard of Review
Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). In ruling on a motion for summary judgment, the Court must view the facts contained in the record and all inferences that can be drawn from those facts in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); National Satellite Sports, Inc. v. Eliadis Inc., 253 F.3d 900, 907 (6th Cir. 2001). The Court cannot weigh the evidence or determine the truth of any matter in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To refute such a showing, the non-moving party must present some significant, probative evidence indicating the necessity of a trial for resolving a material, factual dispute. Celotex Corp., 477 U.S. at 322. A mere scintilla of evidence is not enough. Anderson, 477 U.S. at 252; McLean v. Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). The Court's role is limited to determining whether the case contains sufficient evidence from which a jury could reasonably find for the non-moving party. Anderson, 477 U.S. at 248, 249; National Satellite Sports, 253 F.3d at 907.
II. Facts
The Court has reviewed the record in the light most favorable to the plaintiffs and makes the following findings of fact. As an integral part of its electric power operations, TVA is continuously involved in the modification and maintenance of its nuclear power generating plants. TVA performs a significant amount of this work through its own regular employees. TVA also contracts with other companies, including S W, to perform much of the work. Since 1991, TVA has utilized contract employees who work alongside and under the supervision of TVA employees. S W has a long term contract with TVA to furnish modification and supplemental maintenance services at TVA's nuclear power plants, including Sequoyah. When Lambert suffered his work-related injury at Sequoyah on November 1, 2000, he was performing supplemental maintenance work under the TVA-S W contract.
As part of Sequoyah's safety systems, each of the two nuclear power units has an ice condenser. The ice condenser unit is a large, horseshoe-shaped refrigerated structure. Each ice condenser system contains approximately two million pounds of ice in metal baskets located around the interior of the containment vessel. TVA's standard maintenance procedures require that each ice condenser system be inspected, serviced, and replenished with ice every eighteen months. The entire maintenance process for an ice condenser at Sequoyah usually takes twenty days with two twelve-hour shifts of approximately forty workers for each shift. The personnel generally utilized to perform the ice condenser maintenance project include: (1) a TVA maintenance manager responsible for the overall operation; (2) a TVA maintenance specialist responsible for ensuring technical compliance with TVA procedures; (3) a TVA assistant unit operator responsible for operating the ice-making equipment; (4) a TVA head foreman/general foreman responsible for managing the day-to-day manual work activities; (5) three S W craft foremen responsible for overseeing the work crews; and (6) thirty S W boilermakers.
At the time of his injury on November 1, 2000, Lambert was working at Sequoyah Unit Two as a general foreman performing maintenance service on the ice condenser. Due to a forced outage in Sequoyah Unit One, the TVA employee who normally would perform this particular job, Mark McMillan, had been assigned to assist in restarting Sequoyah Unit One. Lambert was assigned to work in Mark McMillan's place on the Sequoyah Unit Two ice condenser maintenance project. Lambert was under the supervision of, and reported directly to, head foreman J.D. Elsea, a TVA employee.
The ice replenishment process involves making and blowing new ice through a transfer pipe to the ice condenser where each basket is refilled. The ice is made in long, thin sheets that drop into a bin. The ice sheets are then raked into a 12-inch auger which transfers the ice to a 9-inch auger, which in turn transfers the ice sheets to a chopper. After the ice is chopped into small pieces, it is blown through a pipe. Sometimes the ice is too thick. To prevent thick ice from clogging and blocking the transfer pipes, the thick ice is removed by hand from the 12-inch auger.
Lambert injured his hand and arm while working to remove thick ice from the 12-inch auger. Lambert contends that his injuries were caused by TVA's negligence. Lambert has received workers' compensation benefits under TVA's owner-controlled insurance program through which TVA provides workers' compensation coverage to S W employees.
III. Analysis
TVA contends it is Lambert's statutory employer and that Lambert is barred from bringing a negligence tort claim against TVA by the exclusive remedy provision of the Tennessee Workers' Compensation Act. TENN. CODE ANN. § 50-6-108(a) provides in pertinent part that the rights and remedies granted to an employee subject to the workers' compensation law on account of personal injury "shall exclude all other rights and remedies of such employee, such employee's personal representative, dependents . . . on account of such injury . . . ."
Section 50-6-108(a) precludes an employee covered by the Tennessee Workers' Compensation Act from maintaining a negligence claim in a tort action against his employer for personal injuries suffered in the course and scope of his employment. Thus, Lambert is barred from recovering damages from his employer in a tort action for any injuries resulting from the employer's negligence. Workers' compensation benefits are Lambert's exclusive remedy against his employer. Mathis v. Bowater, Inc., 985 F.2d 277, 278-79 (6th Cir. 1993); Posey v. Union Carbide Corp., 705 F.2d 833, 834 (6th Cir. 1983). Section 50-6-108(a) also precludes plaintiff Karen Lambert, the injured employee's spouse, from bringing a suit against the employer for loss of consortium. Nichols v. Benco Plastics, Inc., 469 S.W.2d 135 (Tenn. 1971).
The specific question to be resolved is whether TVA is considered to be Randy Lambert's employer for purposes of enforcing the Tennessee Workers' Compensation Act. After reviewing the record and the applicable law, this Court concludes that TVA is Lambert's statutory employer and TENN. CODE ANN. § 50-6-108(a) bars Lambert from bringing a tort action against TVA claiming negligence. Lambert's exclusive remedy against TVA for alleged negligence is workers' compensation.
The responsibility for paying workers' compensation benefits to injured employees and the corresponding immunity from tort liability for negligence is expanded beyond Lambert's direct employer, S W. TENN. CODE ANN. § 50-6-113(a) provides that a principal contractor shall be liable for compensation to any employee injured while in the employ of any of the subcontractors of the principal and "engaged upon the subject matter of the contract to the same extent as the immediate employer." Section 50-6-113(d) provides that § 50-6-113 "applies only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under the principal contractor's control or management." In essence, § 50-6-113 creates statutory employers in situations where injured workers are unable to recover workers' compensation benefits from their immediate, direct employers. Murray v. Goodyear Tire Rubber Company, 46 S.W.2d 171, 175 (Tenn. 2001).
Based on the facts and circumstances in this case, the Court finds that TVA was acting as its own principal contractor on the premises of TVA's Sequoyah nuclear power plant within the purview of TENN. CODE ANN. § 50-6-113. TVA was Lambert's statutory employer when he was injured at Sequoyah. If a subcontractor's employee (Lambert) suffers a work-related injury on premises under the principal contractor's control or management, the principal contractor (TVA) is liable pursuant to TENN. CODE ANN. § 50-6-113 to pay workers' compensation benefits to the same extent as the subcontractor (S W). The principal contractor (TVA) is also immune from tort liability for negligence to the injured employee (Lambert) under TENN. CODE ANN. § 50-6-108(a) to the same extent as the subcontractor (S W). Mathis, 985 F.2d at 279; Campbell v. Dick Broadcasting, Co., Inc. of Tennessee, 883 S.W.2d 604 (Tenn. 1994); Brown v. Canterbury Corp., 844 S.W.2d 136-37 (Tenn. 1992); Acklie v. Carrier, 785 S.W.2d 355, 357-58 (Tenn. 1990); Barber v. Ralston Purina, 825 S.W.2d 96 (Tenn.App. 1991).
Lambert was employed directly by S W; and we must determine whether S W was an independent contractor. TENN. CODE ANN. § 50-6-112 allows an injured employee to bring a tort action against someone other than his employer. Assuming arguendo that S W was operating as an independent contractor under the terms of its contract with TVA and TVA was not a principal contractor, then Lambert could sue TVA in tort for negligence because TVA would not be Lambert's statutory employer pursuant to TENN. CODE ANN. § 50-6-113. TVA would qualify as "some person other than the employer" under TENN. CODE ANN. § 50-6-112. Barber, 825 S.W.2d at 99; see also Brown v. Canterbury Corp., 844 S.W.2d 134, 137-38 (Tenn. 1992).
The Tennessee courts have developed two basic tests to determine whether TVA is a principal contractor under TENN. CODE ANN. § 50-6-113 and whether S W is an independent contractor. First, TVA is a principal contractor if the work being performed by a subcontractor's employees is part of TVA's regular business or is of the same type of work usually performed by TVA employees. Murray, 46 S.W.3d at 176; Barber v. Ralston Purina, 825 S.W.2d 96, 99 (Tenn.App. 1991). The second test is that even if TVA contracts out work that is not part of its regular business or is not the type of work usually performed by its employees, TVA may nevertheless be a principal contractor based on its right of control over the conduct of the work and control over the subcontractor's employees. Murray, 46 S.W.3d at 176; Barber, 825 S.W.2d at 99; Stratton v. United Inter-Mountain Telephone Co., 695 S.W.2d 947 (Tenn. 1985).
With regard to the first test, this Court finds that the maintenance service performed on the ice condensers at Sequoyah by S W was part of the regular business of TVA and was the same type of work (maintenance service) usually performed by TVA's employees. As part of its operation of nuclear power plants, TVA routinely and continuously engages in modification and maintenance services on its facilities. Regular maintenance and repair work are an inherent part of carrying on the enterprise of operating nuclear power plants. Although TVA may not have had its own direct employees performing a substantial part of the actual manual labor on the ice condenser and remove the thick ice from the auger at Sequoyah Unit Two on November 1, 2000, this fact is not dispositive of the outcome here. The totality of the circumstances establishes that TVA was the principal contractor on its own premises at Sequoyah.
TVA may be a principal contractor in the regular business of performing a particular task (maintenance service on ice condenser at Sequoyah) without necessarily having TVA employees do the manual labor. Brown, 844 S.W.2d at 138. TVA is engaged in a business — the operation of nuclear power plants — which by its size and nature requires TVA to have an extensive ongoing program of constant construction, modification, replacement, and maintenance service. Prior to 1991, TVA carried out its maintenance duties through its own employees. After 1991, TVA turned to outside companies such as S W for assistance in performing the maintenance service work that forms a part of TVA's regular business activity in operating the nuclear power plants. TVA's employees have continued to work on maintenance activities after 1991, and the TVA-S W contract authorizes TVA to use and rely on its own employees to perform work duties within the scope of the contract. Therefore, TVA is the principal contractor at Sequoyah. Id.
Moreover, application of the second Tennessee test concerning the right of control also establishes that TVA is a principal contractor. The Court considers the following factors: (1) whether TVA had the right to control the conduct of work by S W; (2) whether TVA had the right to terminate the employment of S W employees; (3) method of payment of wages to S W employees; (4) whether S W had the freedom to select, hire and furnish its own helpers; (5) whether S W furnished its own tools and equipment; and (6) whether TVA was "doing work for another." Mathis, 985 F.2d at 279; Wright, 779 S.W.2d at 373; Stratton, 695 S.W.2d at 950; Masiers v. Arrow Transfer Storage, 639 S.W.2d 654, 656 (Tenn. 1982); Slaughter v. Duck River Electric Membership Corp., 2002 WL 870316, *6 (Tenn.App. May 7, 2002); Barber, 825 S.W.2d at 99.
While no single factor is dispositive per se, the courts have consistently emphasized that the right to control the conduct of the work is the most significant factor. Mathis, 985 F.2d at 279; Bargery v. Obion Grain Co., 785 S.W.2d 118, 120 (Tenn. 1990); Wright, 779 S.W.2d at 373; Stratton, 695 S.W.2d at 950; Masiers, 639 S.W.2d at 656; Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858 (Tenn. 1976). The control test is satisfied if TVA had the right to control, regardless of whether the right to control was actually exercised by TVA. Mathis, 985 F.2d at 279; Murray, 46 S.W.3d at 176; Stratton, 695 S.W.2d at 950; Carver v. Sparta Electric System, 690 S.W.2d 218, 220 (Tenn. 1985); Slaughter, 2002 WL 870316, at *6; Barber, 825 S.W.2d at 99.
This Court has reviewed the TVA-S W contract and considered the six factors. The majority of these factors strongly weigh in favor of finding that TVA was its own principal contractor under TENN. CODE ANN. § 50-6-113 and S W was not an independent contractor. TVA had a right under the contract to control and supervise the conduct, methods, and details of the work to be performed by S W and its employees, including Lambert. TVA had the right to control the assignment of work to specific S W employees and the right to effectively terminate the employment of S W employees. Under the contract, TVA provided the facilities, tools, equipment, materials and supplies necessary for S W to do the work. The method of payment of wages and benefits to the S W employees also demonstrates that S W was not an independent contractor. TVA was not doing work for another. TVA contracted with S W to perform modification and maintenance work on premises and facilities owned and operated by TVA.
As TVA correctly points out in its memorandum of law in support of the summary judgment motion, this is not the first time the Court has had the opportunity to review the TVA-S W contract. On January 26, 2001, this Court rendered an opinion in another civil action styled Eddie W. Marion v. Tennessee Valley Authority, United States District Court for the Eastern District of Tennessee at Chattanooga, Case No. 1:99-cv-332. [Court File No. 11, Tab 5]. In the prior case of Marion v. TVA, this Court determined that under the same TVA-S W contract, TVA is a principal contractor pursuant to TENN. CODE ANN. § 50-6-113; S W is not an independent contractor; and TVA had immunity from tort liability for a negligence claim brought by an injured employee of S W pursuant to TENN. CODE ANN. § 50-6-108(a). The Court is not persuaded there is any good reason or justification why it should reach a different result in the instant case involving Lambert.
Lambert raises three arguments which lack merit. [Court File No. 12]. First, Lambert contends TVA did not order or demand that Lambert go to work at Sequoyah following his tenure at TVA's Watts Bar Nuclear Plant. TVA merely requested that Lambert work at Sequoyah and, according to Lambert, he had control over the decision whether he would accept the assignment to Sequoyah. In an effort to show that TVA did not have or exercise a right to control Lambert as an employee of S W, Lambert seeks to characterize and portray himself as someone who voluntarily agreed to work at Sequoyah.
This argument fails. It is immaterial whether Lambert voluntarily agreed to comply with a TVA request and go work at Sequoyah. It is undisputed that Lambert was working at Sequoyah under the terms of the TVA-S W contract when he was injured. TVA's right to control the work of all S W employees, including Lambert, is governed by the contract. Once Lambert accepted the job at Sequoyah, TVA had substantial rights under the contract to control the conduct of Lambert's work. As TVA aptly observes in its reply [Court File No. 13], every employee on every job in effect "volunteers" to work in that job by the very act of showing up for work. If Lambert's theory that TVA somehow lacked the right of control because Lambert voluntarily showed up for work is carried to its logical conclusion, it would produce an absurd result in that no principal contractor could ever have a right to control alleged "voluntary" employees and thus could never be a statutory employer under TENN. CODE ANN. § 50-6-113. There is no support for Lambert's theory or such a result under Tennessee law. Lambert does not cite any relevant law in support of his position on this point.
Lambert's second contention is that at the time of his injury, TVA was not exerting control over the assignment of Lambert to the job of removing ice from the auger. This argument fails because, as explained supra, the key is that TVA had the right of control under the contract. It is irrelevant whether TVA actually exercised its right of control. Murray, 46 S.W.3d at 176. Lambert says he was responsible for the training and supervision of S W employees at Sequoyah. During the ice condenser maintenance job, Lambert volunteered to accompany TVA foreman J.D. Elsie to the ice condensing unit. This was outside of Lambert's contracted position of employment with S W. The specific act of cleaning out the ice condenser piping and the 12-inch auger was manual labor outside the function of Lambert's usual job duties as supervisor. Lambert contends he was not a laborer or boilermaker and he was not required to perform the manual labor of cleaning out the auger on the ice condenser system.
The Court finds it is immaterial whether Lambert volunteered to do this particular work or whether the manual labor was outside the function of his usual duties as a supervisor. Even if it is true, this does not mean that TVA lacked the right under the contract to control the conduct of the work performed by Lambert and other S W employees. Lambert's allegations do not change the fact that TVA is the principal contractor at Sequoyah under the TVA-S W contract.
Lambert's final argument is that TVA lacked control because TVA employees did not participate in the manual labor on the ice condenser. He asserts that although TVA has authority over Sequoyah, the manual labor performed on the ice condenser was done only by Lambert and S W personnel over whom Lambert had supervisory control. This argument is not persuasive. It is immaterial whether TVA actually exercised control over the performance of the manual labor on the ice condenser maintenance project. TVA had a right of control under the TVA-S W contract. TVA did assign several of its employees to manage and supervise the ice condenser maintenance project on Sequoyah Unit Two. Moreover, as explained supra, the work on the ice condenser is the type of maintenance service work that is part of TVA's regular business in owning and operating nuclear power plants. Whether TVA employees did or did not perform a substantial part of the manual labor on the ice condenser is not determinative on the issue of whether TVA is a principal contractor. Brown, 844 S.W.2d at 138.
Accordingly, an order will enter GRANTING defendant TVA's motion for summary judgment and DISMISSING the plaintiffs' complaint.
ORDER
In accordance with the accompanying memorandum opinion, the motion by defendant Tennessee Valley Authority for summary judgment [Court File No. 5] is GRANTED pursuant to FED. R. CIV. P. 56. The plaintiffs' complaint is DISMISSED WITH PREJUDICE. Each party shall bear their own costs of this action. The Clerk of Court shall close the record in this case. This is a FINAL JUDGMENT.