Baird v. Phillips Petroleum Co.

• Decision Date: 14 April 1982
• Docket Number: Civ. A. No. 80-2222.
• Citation: 535 F. Supp. 1371
• Parties: Kenneth W. BAIRD, Plaintiff, v. PHILLIPS PETROLEUM COMPANY and Weber Aircraft Corporation, Defendants.
• Court: U.S. District Court — District of Kansas

535 F. Supp. 1371

Kenneth W. BAIRD, Plaintiff, v.PHILLIPS PETROLEUM COMPANY and Weber Aircraft Corporation, Defendants.

Civ. A. No. 80-2222.

United States District Court, D. Kansas.

April 14, 1982.

COPYRIGHT MATERIAL OMITTED

Robert W. Harris, Harris & Hills, Kansas City, Kan., G. Winton Huston, Lee's Summit, Mo., for plaintiff.

Leonard O. Thomas, Weeks, Thomas, Lysaught & Mustain, Kansas City, Kan., Douglas H. Delsemme, Knipmeyer, McCann, Fish & Smith, Kansas City, Mo., O. P. Peterson, Jr., Kansas City, Kan., Douglas C. McKenna, Alder, Nelson & McKenna, Overland Park, Kan., for defendants.

MEMORANDUM AND ORDER

SAFFELS, District Judge.

This matter is before the Court upon the motion of defendantWeber Aircraft Corporation hereinafter Weber for summary judgment, the motion of defendantPhillips Petroleum Company hereinafter Phillips for summary judgment, the motion of defendant Weber for leave to join additional defendants or file third-party complaint, and the motion of defendant Weber for leave to file an amended answer.

Plaintiff has filed this action alleging negligence on the part of defendants Phillips and Weber.Plaintiff allegedly fell from a hydraulic lift and was injured on July 15, 1978.At the time he was employed by Piping Contractors, Inc. hereinafter Piping, and was performing duties Phillips had contracted to have performed by independent contractors.Plaintiff has alleged Phillips was negligent in repairing and maintaining the lift, and that Weber was negligent in the lift's design and manufacture.

Phillips had contracted with the Darby Products Company of Steel Plate Corporation hereinafter Darby to furnish labor to perform repair and maintenance work at the Phillips refinery.For this project, Darby had subcontracted the pipe fitting work to Piping.The work performed by plaintiff was pursuant to Darby's contractual obligation to Phillips.Phillips was aware and approved the use of Piping employees to do the maintenance and repair job.Pursuant to the contract, Phillips paid Darby for the work performed by Piping employees.Workmen's compensation benefits were paid by Piping's insuror for plaintiff's injuries.

I.Defendant Weber's Motion for Summary Judgment

On June 3, 1980, plaintiff filed a petition for damages in the District Court of Wyandotte County, Kansas, against defendants Phillips and Weber.This action subsequently was removed to this court.The petition was filed on behalf of Mr. Baird as the only plaintiff.Plaintiff's petition was filed some twenty-two (22) months after the alleged accident.Plaintiff's petition contains no allegation that the petition was being filed by the named plaintiff's employer, Piping, or Piping's insurance carrier, in the name of the plaintiff.In fact, Piping has not at any time since the alleged injury been a partyplaintiff in any suit to recover damages from defendants or any other third party.

Plaintiff received workman's compensation benefits from Piping's insurance carrier.Medical bills totaling Nine Hundred Thirty-Seven and 95/100 Dollars ($937.95) were paid by Piping's insurance carrier.A settlement of Twenty-Five Thousand Dollars ($25,000) was made in a lump sum to plaintiff by Piping's insurance carrier.Additionally, temporary total compensation in the amount of Three Thousand Eight Hundred Fourteen and 17/100 Dollars ($3,814.17) was paid to plaintiff.

Defendant Weber argues that plaintiff is a "workman" as that term is defined in K.S.A. 44-501 et seq., and that the injury of which he complains arose out of and in the course of his employment.K.S.A. 44-504(b) provides, in part, that a workman's remedy against a negligent third-party is limited in that such an action must be instituted within one (1) year of the date of injury.Defendant Weber further argues that it is clear plaintiff in this action failed to commence his lawsuit within one year from the date of his injury.Therefore, it is argued, defendant Weber is entitled to judgment as a matter of law.

K.S.A. 44-504(c) provides, in part, that:

"Failure on the part of the injured workman ... to bring such action within the time herein specified, shall operate as an assignment to the employer of any cause of action in tort which the workman ... may have against any other party for such injury ... and such employer may enforce same in his own name or in the name of the workman ..."

The employer is governed by the two-year statute of limitations contained in K.S.A. 60-513.SeeLady v. Ketchum,186 Kan. 614, 352 P.2d 21(1960).This means that an injured workman must bring his suit within one (1) year, and if he fails to do so, his cause of action is assigned to the employer, who must bring his suit within two (2) years of the injury or be barred.Defendant Weber contends in its motion for summary judgment that this lawsuit is being brought solely by plaintiff and not by plaintiff's employer as a result of the assignment provision of K.S.A. 44-504(c).

Plaintiff, however, vigorously denies this.Plaintiff contends that defendant Weber has been placed on notice that plaintiff's cause of action includes the recognition of subrogation rights in benefits of the employer and the employer's worker compensation insurance carrier.Plaintiff argues that the Federal Rules of Civil Procedure require only notice pleading, and that notice pleading does not require plaintiff to set forth that his lawsuit is brought for his benefit and for the benefit of his employer and its insurance carrier as their interests appear.Plaintiff shows the Court that if the Court should require plaintiff to amend his cause of action strictly to conform with K.S.A. 44-504(c), plaintiff is willing to do so.Plaintiff argues that the need for such amendment, or the lack thereof, is not the proper subject for a summary judgment motion.

The Court must agree with plaintiff, although the Court will order that such amendment be made.The liability of the tortfeasor remains the same for two (2) years after the injury, no matter who brings the action, the employee or the employer.The language of K.S.A. 44-504 requires that the injured employee must bring his action within one (1) year, and that failure to do so will result in assignment to his employer of any cause of action in tort which he might have against some third-party.On its face, this statute seems to deprive an employee of his right to sue after one year has elapsed.This, however, is not the interpretation placed on the statute by the Kansas Supreme Court.On the contrary, in a number of cases where suit was brought by an employee after the expiration of the one year period provided by K.S.A. 44-504, it was held that the period of limitations set out in the statute did not prevent an action by an employee thereafter on his own behalf, and on behalf of his employer and compensation carrier.See, e.g., Klein v. Wells,194 Kan. 528, 538, 400 P.2d 1002(1965);Bingham v. Hillcrest Bowl, Inc.,193 Kan. 201-202, 392 P.2d 942(1964);Sundgren v. Topeka Transportation Co.,178 Kan. 83, 88, 283 P.2d 444(1955).See also, Hedges v. Fischbach & Moore, Inc., No. KC-2507 (D.Kan., 1967, unpublished).

The Court concludes that an injured workman can avoid the one year limitation in subsection (b) of K.S.A. 44-504 simply by taking the precaution of pleading his cause of action as one for himself, his employer, and the workmen's compensation insuror as their interests appear.Houk v. Arrow Drilling Co.,201 Kan. 81, 439 P.2d 146(1968).The form of the lawsuit is important.SeeWhitaker v. Douglas,179 Kan. 64, 71-72, 292 P.2d 688(1956).Defendant Weber has been on notice of the nature of this lawsuit since at least the time it was removed to this Court from Wyandotte County, Kansas.Defendant Weber has not alleged that it has been prejudiced by plaintiff's course of pleading in this action to date, and, indeed, it would be difficult to see how defendant Weber could have been prejudiced.Therefore, plaintiff is directed to amend his complaint to reflect the nature of his suit as being one for himself, his employer, the employer's workman's compensation insuror, as their interests appear.Defendant Weber's motion will, therefore, be overruled.

II.Defendant Phillips' Motion for Summary Judgment

Plaintiff was injured while working for Piping on the premises of defendant Phillips.Phillips had contracted with Darby to furnish labor and do maintenance and repair work as needed on Phillips' catalytic cracking unit and other facilities at the Kansas City refinery.Pursuant to a written contract, Phillips sometimes used Darby employees to repair steam valves and steam traps on steam tracers in and around the refinery.Darby labor was used when Phillips did not have sufficient manpower to complete a repair project in the required time.

Darby would sometimes use employees of Piping to fulfill the terms of the contract.The contract provided that Darby might subcontract some work.On July 15, 1978, the date of plaintiff's accident, Darby was supplying labor under the contract with Phillips that entailed the replacement and repair of steam valves and steam traps on steam tracers.Darby was using Piping employees.Plaintiff was an employee used by Piping to perform duties under the Phillips contract with Darby.

Steam tracers are copper tubes which surround pipes carrying oil, oil products, or water.Their function in the winter is to keep the contents of the pipes from freezing or becoming thick and sluggish.On the steam tracers are steam valves and steam traps which release steam or trap water as necessary to regulate steam pressure within the lines.There are miles of steam tracers used in the refinery.The steam traps and steam valves must be working properly by the time the winter arrives.If not properly repaired, production is reduced because fluids are not moving properly.Improperly working steam valves release steam into the atmosphere, requiring the refinery...