AL BUSEY, ) Plaintiff, ) ) vs. ) Case No. 98CV 1331 ) HILL'S PET NUTRITION, INC., ) TRUCK EQUIPMENT SERVICE CO., ) STUDER TRUCK LINE, INC., ) Defendants. ) ________________________________)
Defendant Hill's Pet Nutrition, Inc. (Hill's) filed a motion for summary judgment submitting that there is no genuine issue as to any material fact, that plaintiff was a statutory employee at the time of his injury, that plaintiff's claims are barred by the exclusive remedy provision of the Kansas Worker's Compensation law and that Hill's is entitled to summary judgment as a matter of law.
Plaintiff Al Busey (Busey) filed a response disputing Hill's claims. In addition, Hill's filed both a reply and supplemental reply and Busey filed a supplemental response and supplemental authority. No party has requested oral argument and, therefore, the court deems the motion ready for ruling. The court, after having reviewed the motion, responses, replies, the file, etc. and being fully informed regarding the premises, denies Hill's motion for summary judgment for the reasons set forth below.
1. The plaintiff, Alva Busey, fell from the top of a tractor/trailer on January 13, 1997, at Hill's. He had delivered the poultry meal on January 10, 1997, but it was not unloaded until January 13, 1997.
2. Plaintiff was an independent contractor/truck driver on January 13, 1997, and had frequently delivered products and raw materials to Hill's in the past.
3. At the time of plaintiff's fall which gave rise to this lawsuit, plaintiff was helping Leon Sylvester, an employee of Hill's, in the unloading of poultry meal.
4. Mr. Sylvester's job title at Hill's on January 13, 1997, was bulk unloader, which involves unloading raw materials and product from trucks received at Hill's.
5. As a result of plaintiff's fall on January 13, 1997, plaintiff filed a worker's compensation claim and received $80,000.00 in settlement of his claim, plus other benefits such as medical treatment and temporary total disability. Plaintiff Busey had purchased his own insurance policy.
6. Hill's manufactures high-grade pet food for distribution to veterinarians worldwide.
7. In order to manufacture its pet food, Hill's purchases ingredients such as rice, barley, and poultry meal.
8. It was the job of the plaintiff to get the trailer into the plant, and the job of Hill's personnel to unload the trailer.
9. Plaintiff Busey would back his trailer into the correct spot at the Hill's plant for unloading. Then, Busey would find Leon Sylvester, who was in charge of bulk unloading, to unload the product from the trailer.
10. Once the trailer was positioned properly, Mr. Sylvester would place a tray beneath the trailer and connect suction hoses for unloading the product into the Hill's plant.
11. Sylvester would then open the door on the bottom of the trailer for the product to feed into the tray and into the Hill's plant from the trailer. On the day of Busey's fall, the poultry meal was frozen and would not fall into the tray until it was broken up.
12. To unload the frozen poultry meal, Leon Sylvester climbed on top of the trailer and used a metal rod to poke the meal in an attempt to break it up to enable the meal to be fed into the tray beneath the trailer.
13. After Leon Sylvester tired, plaintiff changed places and climbed on top of the trailer to take a turn at breaking up the poultry meal.
14. While exiting the top of the trailer after loosening the frozen poultry meal, plaintiff fell and suffered injuries that are at issue in the present case.
15. At the time of the accident, plaintiff had a contract with Studer Truck Lines for Studer (the common carrier) to lease a tractor from Busey (contractor) and for Busey to transport loads for Studer. The contract provided that Busey was not an employee of Studers for purposes of the Federal Insurance Contribution Acts (FICA),the Social Security Act, the Federal Unemployment Tax Act and State income tax withholding. In addition, per the contract Busey was required to carry his own Workers Compensation Insurance coverage.
16. Neither plaintiff Busey, Studer, nor Hill's had filed an election with the Workers Compensation Division to come within the provisions of the Workers Compensation Act.
K.S.A. 60-256(c) provides that a motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law."
This court did not find any genuine issues as to any material fact except for whether or not Busey was an employee of Studer. Although the plaintiff did controvert many of defendant Hill's uncontroverted facts, the plaintiff's response generally either added supplemental information or the controverted facts were not material to the facts necessary for the court to rule on this motion for summary judgment.
Hill's asserts that plaintiff Busey is a statutory employee of Hill's and that plaintiff's claims are barred by the exclusive remedy provision of K.S.A. 44-501(b)
K.S.A. 44-501(b) of the Kansas Workers Compensation Act states that:
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 creating a legal liability against a third party and for which workers compensation is payable by such employer.
A worker may not maintain a common-law negligence claim against an employer if the worker may recover workers compensation benefits from that employer. Bright v. Cargill, 251 Kan. 387, 392-93, 837 P.2d 348 (1992).
K.S.A. 44-503(a) of the Kansas Workers Compensation Act extends the application of the Act to certain individuals or entities who are not the immediate employers of the injured worker. Hollingsworth v. Fehrs Equipment Co. Of K.C., 240 Kan. 398, 402, 729 P.2d 1214 (1986). K.S.A. 44-503(a) provides that:
Where any person (in this section referred to as 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 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...
Hill's argues that plaintiff's activities at the time of his injury satisfied both of the tests set out in Hanna v. CRA, Inc., 196 Kan. 156, 409 P.2d 786 (1966). The Kansas Supreme Court set out the following tests in Hanna to determine whether the work which gave rise to the worker's injury was part of the principal's trade or business under K.S.A. 44-503(a):
...(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?
Plaintiff argues that it is not necessary to determine whether Busey's work meets the tests set out in Hanna because Busey is not an employee under the definitions of the Act.
K.S.A. 44-508(b) provides that:
(b) "Workman" or "employee" or "worker" means any person who has entered into the employment of or works under any contract of service or apprenticeship with an employer... Unless there is a valid election in effect which has been filed as provided in K.S.A. 44-542a and amendments thereto, such terms shall not include individual employers, limited or general partners or self-employed persons.
Plaintiff argues that Busey is a self-employed person. Hill's does not appear to controvert that Busey is self-employed (however that issue is controverted in Studer's Motion for Summary Judgment). Hill's argument simply is that Busey (an independent contractor) performed work that was an integral part of Hill's trade or business and was work ordinarily done by Hill's employees.
However, K.S.A. 44-508(b) overrides K.S.A. 44-503(a) and provides that the Act does not apply to a self-employed person unless there is a valid election filed. Allen v. Mills, 11 Kan. App. 2d 415, 724 P.2d 143 (1986), Thompson v. Harold Thompson Trucking, 12 Kan. App. 449 (1987).
While Busey apparently did acquire insurance coverage which is part of the process of making an election under K.S.A. 44-542a, there is no evidence that a written statement of election was filed with the director of Workers Compensation as required by the statute. As stated in Syl. No. 2 of Aetna Life and Casualty v. America Truckway Systems, Inc., 23 Kan. App. 2d 315, 929 P.2d 807 (1997) "Self-employed, independent contractor drivers employed by truck brokering service, were not covered by Workers Compensation Act absent valid elections to be so covered." Therefore, if Busey is self-employed and no election was filed, the exclusive provisions of K.S.A. 44-501(b) do not apply.
Hill's continues to argue that even if the above analysis is correct, Aetna only applies to the relationship between Studer and Busey and it doesn't affect any claim by a third party as to Busey being a statutory employee. However, under the tests in Hanna, Busey would have to be an employee of the independent contractor or the independent contractor that performed work that was an integral part of the principal's (Hill's) trade or business or performed work that was ordinarily done by the employees of the principal (Hill's). It is controverted by plaintiff that Busey is an employee of Studer's. There is no evidence that Hill's contracted with Busey to perform any work. Apparently Hill's had a contract with Studers, but the contract is not in evidence so it is unknown whether the contract included the unloading that Hill's asserts is an integral part of its business.
Busey's act of helping with the unloading falls under the category of volunteer labor since there is no evidence that Hill's contracted for that service. Volunteers are only included under the Act if the employer filed a valid election. K.S.A. 44-508(b).
In addition, plaintiff Busey argues that he is excluded from the statutory employee provisions of K.S.A. 44-503(a) because of the concurrent application of K.S.A. 44-503(h). (See the court's discussion of this in Studer's motion for summary judgment). This argument, as Hill's points out, is certainly applicable to Studer's Motion for Summary Judgment but this court finds that it also applies to the interpretation of K.S.A. 44-503(a). As set forth above if Busey wasn't an employee of Studers, K.S.A. 44-503(a) may not appear to apply.
The court made no findings with regard to any alleged violations of OSHA standards as the motion for summary judgment did not deal with that subject or require any rulings regarding OSHA.
For all of the reasons set forth above, this court denies Hill's motion for summary judgment. The above constitutes the court's ruling on the motion and no further journal entry is required.
IT IS SO ORDERED.
Dated this 8th day of March , 2000.
________________________
Nancy Parrish
Judge, Third Judicial District
Division Fourteen
William J. Pauzauskie
216 SW 7th Street
Topeka, Kansas 66603
Ronald W. Fairchild
5851 SW 29th
Topeka, Kansas 66614
Barry E. Warren
P.O. Box 12290
10111 West 87th Street
Overland Park, Kansas 66282
Larry G. Pepperdine
3550 SW 5th Street
P.O. Box 949
Topeka, Kansas 66601
___________________________
Norma J. Dunnaway, Administrative Assistant