Summary
dismissing negligence claim against employer for a workplace injury and stating that "Kentucky Workers' Compensation Act preempts common-law tort claims by an employee against his employer"
Summary of this case from Cox v. PhilipsOpinion
Civil Action No. 3:01CV-413-S
June 28, 2002
MEMORANDUM OPINION
This matter is before the court on motion of the defendant, Ziniz, Inc., to dismiss the action as to it. In support of its motion, Ziniz has submitted various documents and made reference to deposition testimony regarding the securing of workers compensation coverage for Ziniz employees working on the UPS Hub 2000 project site. The plaintiffs have also referred to matters outside the pleadings in their response to the motion. This matter will therefore be treated as one for summary judgment under Fed.R.Civ.P. 12(b) and 56.
On December 22, 2000, the plaintiff, Lester David Casey, an employee of Ziniz, sustained a fall and was injured on the UPS Hub 2000 project site at Louisville International Airport. Ziniz concedes for purposes of this motion that Casey was acting within the course and scope of his employment at the time of the accident in question.
Casey and his wife filed this action in the Jefferson County, Kentucky, Circuit Court alleging that the opening through which he fell was dangerous and unmarked, and he was not warned of this hazard. The action was removed to this court on the ground of diversity of citizenship.
A party moving for summary judgment has the burden of showing that there are no genuine issues of fact and that the movant is entitled to summary judgment as a matter of law. Adickes v. S.H. Kress Co., 398 U.S. 144, 151-60, 90 S.Ct. 1598, 16 L.Ed.2d 142 (1970); Felix v. Young, 536 F.2d 1126, 1134 (6th Cir. 1976). Not every factual dispute between the parties will prevent summary judgment. The disputed facts must be material. They must be facts which, under the substantive law governing the issue, might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 106 S.Ct. 2505, 2510 (1986). The dispute must also be genuine. The facts must be such that if they were proven at trial, a reasonable jury could return a verdict for the non-moving party. Id. at 2510. The disputed issue does not have to be resolved conclusively in favor of the non-moving party, but that party is required to present some significant probative evidence which makes it necessary to resolve the parties' differing versions of the dispute at trial. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 288-89 (1968). The evidence must be construed in a light most favorable to the party opposing the motion. Bohn Aluminum Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir. 1962).
Ziniz seeks dismissal of the claims against it on the ground that it secured workers compensation coverage for Casey and thus the claims in this action are barred. KRS 342.690(1) provides, in pertinent part:
If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee, husband or wife, . . . and anyone otherwise entitled to recover damages from such employer . . . on account of such injury or death.
Thus the Kentucky Workers' Compensation Act preempts common-law tort claims by an employee against his employer. See, Hardaway Management Co. v. Southerland, 977 S.W.2d 910, 917 (Ky. 1998).
Ziniz has established through the deposition testimony of Steven Soph, an insurance broker with Marsh, Inc., and the administrator of the United Parcel Service's Owner-Controlled Insurance Program ("OCIP"), that it secured workers' compensation coverage for its employees. According to Soph, UPS was able to ensure the coverage of its subcontractors by implementing the OCIP. UPS paid the premiums for the liability and workers' compensation coverage to the insurer, Liberty Mutual Insurance Company. In turn, subcontractors did not include the cost of this insurance coverage in their bids. Liberty Mutual issued a master policy for general liability with a list of contractors, including Ziniz, who were covered. Ziniz was issued a separate policy for workers' compensation coverage where it alone was the named insured. According to Soph, there is essentially no difference between a workers' compensation policy issued through an OCIP and a garden variety workers' compensation policy, and there is no doubt that Ziniz had workers' compensation coverage with Liberty Mutual at the time of Casey's accident.
Zinniz has not filed the deposition of Soph in the record, however reference is made to specific pages where Soph's explanation regarding the OCIP implemented for the Hub 2000 project may be found. In its response to the motion to dismiss, the plaintiffs expected that this deposition would "likely provide key evidence on the [coverage] issue presently before this Court." Response, pg. 5. We will assume that any errors in the paraphrasing and/or citations to Mr. Soph's deposition testimony would have been brought to the court's attention.
There does not appear to be any genuine issue of material fact which would preclude the grant of summary judgment. The deposition of Soph appears to have resolved the issue raised in the plaintiffs' response concerning whether Ziniz secured workers' compensation coverage as required by KRS Chapter 342. In accordance with KRS 342.690(1), Ziniz is entitled to summary judgment on all claims against it in this matter. A separate order will be entered herein this date in accordance with this opinion.