Black v. Dixie Consumer Prods. LLC, 15-5889

• Citation: 835 F.3d 579
• Decision Date: 29 August 2016
• Docket Number: No. 15-5889,15-5889
• Parties: Steve Black, Plaintiff–Appellee, v. Dixie Consumer Products LLC; Georgia–Pacific Consumer Products Holdings LLC, Defendants–Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

835 F.3d 579

Steve Black, Plaintiff–Appellee,

v.Dixie Consumer Products LLC; Georgia–Pacific Consumer Products Holdings LLC, Defendants–Appellants.

No. 15-5889

United States Court of Appeals, Sixth Circuit.

Argued: August 5, 2016

Decided and Filed: August 29, 2016

Rehearing En Banc Denied November 1, 2016^*

ARGUED: Matthew P. Cook, Cole & Moore, P.S.C., Bowling Green, Kentucky, for Appellants. Mike Breen, Mike Breen Attorney at Law, P.S.C., Bowling Green, Kentucky, for Appellee. ON BRIEF: Matthew P. Cook, John David Cole, Sr., Cole & Moore, P.S.C., Bowling Green, Kentucky, for Appellants. Mike Breen, Mike Breen Attorney at Law, P.S.C., Bowling Green, Kentucky, for Appellee.

Before: BOGGS, CLAY, and SUTTON, Circuit Judges.

SUTTON, J., delivered the opinion of the court in which BOGGS, J., joined. CLAY, J. (pp. 586 – 93), delivered a separate dissenting opinion.

OPINION

SUTTON, Circuit Judge.

Steve Black, a truck driver for Western Express, drove a load of raw paper materials to a factory operated by Dixie Consumer Products in Bowling Green, Kentucky. During the unloading process, a careless Dixie employee ran over Black's foot with a forklift. Black received workers' compensation from Western due to the injury. He then filed a tort claim against Dixie and its parent company, Georgia–Pacific. The district court denied Dixie and Georgia–Pacific's motion for summary judgment. Because Kentucky's workers' compensation statutes provide an exclusive remedy for injuries of this sort, we reverse the decision of the district court.

I.

Dixie makes paper cups and plates out of raw paper material. Forty-eight different truck and freight service providers carry the raw paper to the Bowling Green factory. One of them is Western, which agreed to “transport and deliver shipments of contract freight from facilities or other designated locations to the various destination points.” R. 14–2 at 2.

On the day of the accident, Black drove a Western truck, loaded with 41,214 pounds of pulpboard, to the factory. Ten-pound rubber mats separated the heavy paper rolls and secured the load on its journey to Bowling Green. After parking his truck, Black received permission from Larry Chinn, the Dixie forklift operator, to enter the loading dock through a locked cage designed to keep pedestrians off the loading dock. It was “[c]ommon practice,” as Black understood, for the truck driver to unload the rubber mats so that the Dixie forklift operator did not “have to get off each time and get” them himself. R. 84–12 at 7, 12.

Chinn and Black soon got “into a rhythm” in unloading the materials. R. 84–9 at 22. Chinn would remove a layer of paper rolls with his forklift. And Black would remove the rubber mats and walk them to the trash compactor. At some unfortunate point, they fell out of rhythm, and Chinn ran over Black's foot with the forklift, leading to a below-the-knee amputation of Black's leg.

Black received workers' compensation from Western due to the injury.

He then filed this tort action against Dixie and Georgia–Pacific, seeking $1,850,000 in damages.

Dixie and Georgia–Pacific answered that the exclusive nature of the Kentucky Workers' Compensation Act barred Black's claims. See Ky. Rev. Stat. §§ 342.610(2), .690. “After minimal discovery,” the district court agreed.

Black v. Dixie Consumer Prods. LLC , 516 Fed.Appx. 412, 413 (6th Cir. 2013). The district court rejected Black's claim as a matter of law due to the exclusive nature of the Kentucky law, granting summary judgment to Dixie and Georgia–Pacific.

Our court reversed because the record was insufficiently developed. In particular, the evidence did not show whether “the work Black performed at the time of his injury was a regular or recurrent part of [Dixie's] work.” Black , 516 Fed.Appx. at 417. “[I]n order to find that the transportation of raw paper materials between a supplier and Dixie is a ‘part of’ Dixie's work,” a precondition for contractor immunity under Kentucky law, “Dixie must demonstrate both that this type of transportation is a ‘customary, usual, or normal’ part of Dixie's business or ‘work that [Dixie] repeats with some degree of regularity’ and that it is work that Dixie or similar businesses would normally perform or be expected to perform with employees.” Id. (quoting Gen. Elec. Co. v. Cain , 236 S.W.3d 579, 588 (Ky. 2007) ).

On remand, the parties introduced additional evidence about the nature of this transport service. As the district court saw this evidence, it did not show that Dixie and Georgia–Pacific were entitled to immunity from this lawsuit and thus it denied their motion for summary judgment.

II.

Denials of summary judgment are not final orders. And we have jurisdiction only over “final decisions of the district courts.” 28 U.S.C. § 1291. But there are a few exceptions, a few times when the courts of appeals will review non-final orders on an interlocutory basis. The key exception is the collateral-order doctrine. Under it, a party may appeal a non-final order only “if it (1) conclusively determines the disputed question; (2) resolves an important issue separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final judgment.” Mohawk Indus., Inc. v. Carpenter , 558 U.S. 100, 105, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (quotation omitted); see Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 546–47, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

The Supreme Court has frequently applied the collateral-order doctrine in the context of decisions rejecting immunity-from-suit defenses. The best known, and most frequently invoked, immunity-from-suit cases involve claims of sovereign immunity, absolute immunity, and qualified immunity raised by governmental entities and individuals. In all three settings, the losing party may appeal the rejection of an immunity defense immediately because the core point of “immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action.” Mitchell v. Forsyth , 472 U.S. 511, 525, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (qualified immunity); see P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (state sovereign immunity); Nixon v. Fitzgerald , 457 U.S. 731, 742, 102 S.Ct. 2690, 73 L.Ed.2d 349 (1982) (absolute immunity).

Not all invocations of the word “immunity,” however, satisfy this exception. What matters is the “nature of the protection,” as opposed to “the loose ability of an attorney to use the term ‘immunity.’ ” Kelly v. Great Seneca Fin. Corp. , 447 F.3d 944, 950 (6th Cir. 2006). And what counts in terms of protection is whether the relevant state or federal law “provides immunity from suit rather than immunity from liability.” Sabo v. City of Mentor , 657 F.3d 332, 336 (6th Cir. 2011) ; see Range v. Douglas , 763 F.3d 573, 581 (6th Cir. 2014) ; Chesher v. Neyer , 477 F.3d 784, 793 (6th Cir. 2007).

Under Kentucky law, a contractor has immunity from negligence actions (in return for providing backup workers' compensation coverage) when “the worker was injured while performing work that was of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession of the owner,” no matter whether “the immediate employer actually provided workers' compensation coverage.” Cain , 236 S.W.3d at 585. Often called “up-the-ladder” contractor immunity, it establishes an immunity from suit, not just from liability. Black concedes as much. See Appellee's Br. 5, 20. Dixie and Georgia–Pacific agree. See Appellant's Br. 36, 44–45. Kentucky courts agree, too. The Supreme Court of Kentucky describes up-the-ladder immunity as “a contractor's immunity from tort lawsuits.” Beaver v. Oakley , 279 S.W.3d 527, 528 n.1 (Ky. 2009) ; see Dilts v. United Grp. Servs. , LLC, 500 Fed.Appx. 440, 449–50 (6th Cir. 2012) (Clay, J.) (quoting the Beaver footnote). The immunity plays a pivotal role in maintaining the tradeoffs contained in Kentucky's workers' compensation scheme. See Cain , 236 S.W.3d at 587. Consistent with the reality that up-the-ladder immunity insulates contractors from lawsuits, not just liability, and consistent with the give-and-take nature of all workers' compensation systems, Kentucky courts themselves allow immediate appeals from an interlocutory order denying a private contractor's immunity. Ervin Cable Constr., LLC v. Lay , 461 S.W.3d 422, 423 (Ky. Ct. App. 2015).

Kentucky courts, it is true, at times refer to contractor immunity as “immunity from liability,” Beaver , 279 S.W.3d at 528, as our colleague points out in dissent. But this is unsurprising given that an immunity from suit includes an immunity from liability. What matters is that Kentucky treats the immunity as an “absolute immunity, the denial of which is subject to immediate appeal since immunity is designed to free the possessor not only from liability, but also from the costs of defending an action.” Ervin Cable Constr. , 461 S.W.3d at 423. We ourselves use both “immunity from suit[ ]” and “immun[ity] from liability” to describe immunities of such magnitude, sometimes in back-to-back sentences. Brookings v. Clunk , 389 F.3d 614, 617 (6th Cir. 2004). That is because absolute immunity “refers to protection from suit and not simply the assessment of liability.” Bush v. Rauch , 38 F.3d 842, 849 (6th Cir. 1994). Even aside from what Kentucky calls the immunity, it treats the immunity as one from suit by permitting interlocutory appeals from the denial of contractor immunity. An employer's immunity from suit is the flip side of the employee's freedom—immunity if you will—from having to file a suit to obtain coverage in the first place. A major concern of workers' compensation systems is “that benefits be paid to deserving claimants as soon as possible” and without having to file a lawsuit. Edwards v. Dir., Office of Workers' Comp. Programs , 932 F.2d 1325, 1327–28 (9th Cir. 1991) (per curiam) (granting collateral...