Opinion
NO. 2015-CA-001974-MR
05-26-2017
DANIELLE ROOF, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CHAD A. ROOF; DANIELLE ROOF, AS GUARDIAN OF L.R., MINOR CHILD OF CHAD A. ROOF; DANIELLE ROOF, AS NEXT FRIEND OF H.R., MINOR CHILD OF CHAD A. ROOF; AND DANIELLE ROOF, AS NEXT FRIEND OF S.R., MINOR CHILD OF CHAD A. ROOF APPELLANTS v. JAMES JOHNSON, D/B/A MICKEY'S USED CARS APPELLEE
BRIEF FOR APPELLANTS: Timothy L. Stevenson Bowling Green, Kentucky BRIEF FOR APPELLEES: C. Craig Reinhardt Daniel C. Mack Lexington, Kentucky
NOT TO BE PUBLISHED APPEAL FROM EDMONSON CIRCUIT COURT
HONORABLE RONNIE C. DORTCH, JUDGE
ACTION NO. 15-CI-00065 OPINION
AFFIRMING
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BEFORE: COMBS, MAZE, AND TAYLOR, JUDGES. MAZE, JUDGE: Danielle Roof, as Personal Representative for the Estate of Chad A. Roof, and as guardian and next friend for L.R., H.R. and S.R., minor children of Chad A. Roof (collectively, "the Estate") appeal from a summary judgment by the Edmonson Circuit Court dismissing negligence and wrongful-death claims against James Johnson, d/b/a Mickey's Used Cars ("Johnson"). The Estate argues that its action was not barred by the exclusivity provisions of the Workers' Compensation Act or under the terms of a settlement agreement entered in a prior workers' compensation claim. Although we find that the settlement agreement did not preclude a separate action against Johnson, we nevertheless conclude that workers' compensation exclusivity bars the current action. Hence, we affirm.
The underlying facts of this case are not in dispute. On April 16, 2013, Chad A. Roof was employed by Mickey's Towing & Garage, LLC ("Mickey's Towing"). Johnson, the owner of Mickey's Towing, directed Roof to work beneath a tow truck to perform maintenance. The tow truck was titled to Mickey's Used Cars, an unincorporated entity also owned by Johnson. While Roof was under the tow truck, it fell off its blocks and crushed Roof, resulting in his death.
After Roof's death, Danielle Roof, Roof's widow, qualified as personal representative of his estate. On behalf of the Estate, she pursued a workers' compensation claim against Mickey's Towing. On September 2, 2014, the Estate entered into a settlement agreement with Mickey's Towing and its workers' compensation carrier. In pertinent part, the agreement provided as follows:
In consideration of the payments set forth above, the Plaintiff's, Mickey's Towing and Garage, LLC, and its carrier, KEMI, hereby agree that the Plaintiffs completely release and forever discharge Mickey's Towing & Garage, LLC and its carrier, KEMI from any liability for benefits pursuant to K.R.S. 342 based on any theory of recovery, which the Plaintiffs now have, or which may hereafter accrue or otherwise be acquired, on account of, or which may in any way grow out of the work-related injury. This settlement agreement shall also apply to the Defendant's and insurer's past, present, and future officers, directors, stockholders, attorneys, agents, servants, representatives, employees, subsidiaries, affiliates, partners, predecessors and successors, and interests, assigns and all other persons, firms, or corporations with whom any of the former have been, or now, or may hereafter be affiliated. Plaintiffs state that they are aware that all claims for benefits under K.R.S. Chapter 342 and/or increased benefits under K.R.S. 342.165 against Mickey's Towing & Garage, LLC and its carrier KEMI are being dismissed with prejudice, that this settlement agreement suits their best interests, and that they voluntarily accept these terms in compromise of a partially disputed claim.
"KEMI" refers to Kentucky Employer's Mutual Insurance.
Kentucky Revised Statutes.
On April 15, 2015, Danielle Roof, as personal representative of the Estate and as guardian of Roof's three minor children, filed this action against Johnson. The Estate asserted claims for negligence and wrongful death, and sought compensatory and punitive damages, including damages for loss of parental consortium. Johnson responded with a motion to dismiss pursuant to CR 12.03, arguing that the action was precluded under the exclusive remedy provisions of the Workers' Compensation Act and under the express terms of the settlement agreement. The trial court agreed, and dismissed the action by order entered on November 19, 2015. This appeal followed.
Kentucky Rules of Civil Procedure.
When matters outside of the pleading are presented on a motion to dismiss, as in this case, the trial court must treat it as a motion for summary judgment. CR 12.03. "The proper function of summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56.03. The record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor. Steelvest, 807 S.W.2d at 480. The trial court must examine the evidence, not to decide any issue of fact, but to discover if a real issue exists. Id. Since a summary judgment involves no fact-finding, this Court's review is de novo, in the sense that we owe no deference to the conclusions of the trial court. Scrifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).
The primary question in this case is whether the Estate's action is precluded by the exclusive remedy provisions of the Workers' Compensation Act, and under the terms of the settlement agreement. KRS 342.690(1) states that if an employer secures workers' compensation coverage as required by the Act, then:
[T]he liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death.In other words, if an employee is injured on the job and is covered by workers' compensation, then neither he nor his estate can sue his employer under any tort theory.
The parties agree that Roof was killed while working within the scope of his employment, and that his employer, Mickey's Towing, secured payment of workers' compensation benefits. However, if "some other person than the employer" may be legally responsible for the worker's on-the-job injuries, the worker may assert a tort claim against that other person and attempt to recover damages. Beaver v. Oakley, 279 S.W.3d 527, 530 (Ky. 2009), citing KRS 342.700. Since the tow truck was owned by Mickey's Used Cars, an unincorporated entity operated by Johnson, the Estate argues that Johnson may be responsible for Roof's injuries and death separately from Mickey's Towing.
The trial court pointed out that the settlement agreement applies not only to Mickey's Towing, but also to any "officers, directors, stockholders, ... agents, servants, representatives, employees,... and other persons, firms, or corporations with whom [Mickey's Towing and KEMI] have been, or now, or may hereafter be affiliated." The trial court concluded that the settlement agreement and release clearly applied to Johnson. The Estate contends that, when read in context, the quoted language of the settlement agreement only releases liability for workers' compensation benefits under KRS Chapter 342, and not to its current tort and loss-of-consortium claims.
We agree with the Estate that the settlement agreement discharges Mickey's Towing and KEMI for liability for any workers' compensation benefits under KRS Chapter 342. This provision expressly qualifies the subsequent language, "based on any theory of recovery...which may grow out of the work-related injury." Likewise, the later language, extending that release to any employees or stockholders of Mickey's Towing, is limited to that scope previously set out. Thus, the settlement agreement releases Mickey's Towing, and by extension Johnson, from any liability for additional workers' compensation benefits. However, the settlement does not release Johnson from any liability which he may have outside of the Workers' Compensation Act.
The Estate seeks to assert claims against Johnson in his capacity as owner of the tow truck. The Estate also contends that Johnson was not acting on behalf of Mickey's Towing at the time of Roof's injury, but was acting in his capacity as owner of the truck or agent of Mickey's Used Cars. When a person such as Johnson "wears two hats" and owes separate duties in different capacities, then the immunity of KRS 342.690 does not bar a separate action arising from the duties owed outside the scope of employment. Hughes v. Haas, 413 S.W.3d 315, 319 (Ky. App. 2013), citing Wallace v. Wathen, 476 S.W.2d 829, 831 (Ky. 1972). See also Borman v. Interlake, Inc., 623 S.W.2d 912, 913 (Ky. App. 1981).
In Borman, this Court characterized the dual capacity doctrine as follows:
Under this doctrine, an employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.
In this case, the tow truck was titled to Johnson through the unincorporated Mickey's Used Cars. Hence, Johnson was clearly the owner of the vehicle in his individual capacity. However, at the time of the accident, the vehicle was insured under a liability policy issued in the name of Mickey's Towing. And as noted above, the Estate admitted in the workers' compensation action that Roof was killed while working within the scope of his employment with Mickey's Towing.
Unlike in Hughes or Wallace, there is no allegation that Johnson was acting in a distinct capacity from Mickey's Towing, or that he owed duties in his individual capacity that were distinct from those which he owed as Roof's supervisor through Mickey's Towing. Consequently, the dual capacity doctrine does not apply, and the exclusivity provision of KRS 342.690(1) bars the Estate's separate action against Johnson. Therefore, the trial court properly granted Johnson's motion for summary judgment. Having reached this conclusion, we need not address the other grounds asserted to support dismissal.
Accordingly, we affirm the order of the Edmonson Circuit Court dismissing the Estate's complaint.
ALL CONCUR. BRIEF FOR APPELLANTS: Timothy L. Stevenson
Bowling Green, Kentucky BRIEF FOR APPELLEES: C. Craig Reinhardt
Daniel C. Mack
Lexington, Kentucky
Borman, 632 S.W.2d at 913, quoting 2A Larson, Law of Workmen's Compensation, § 72.80 (1976) at 14-112.