Corley v. Hardaway Co.

• Decision Date: 18 October 1995
• Docket Number: Civ.A. No. 94-1063-MLB.
• Citation: 905 F. Supp. 923
• Parties: William Patrick CORLEY, Plaintiff, v. HARDAWAY COMPANY, Intervenor/Plaintiff, v. WICHITA ELECTRIC COMPANY, INC., Defendant.
• Court: U.S. District Court — District of Kansas

905 F. Supp. 923

William Patrick CORLEY, Plaintiff, v. HARDAWAY COMPANY, Intervenor/Plaintiff, v. WICHITA ELECTRIC COMPANY, INC., Defendant.

Civ.A. No. 94-1063-MLB.

United States District Court, D. Kansas.

October 18, 1995.

Bradley A. Pistotnik, Brian D. Pistotnik, Affiliated Attorneys of Pistotnik Law Offices, P.A., Wichita, KS, for William Patrick Corley.

Richard L. Honeyman, Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, KS, for Wichita Electric Company, Inc.

Douglas C. Hobbs, Kristin J. Blomquist, Wallace, Saunders, Austin, Brown & Enochs, Chartered, Wichita, KS, for The Hardaway Company.

MEMORANDUM AND ORDER

BELOT, District Judge.

This case comes before the court on defendant Wichita Electric Company's motion for summary judgment (Doc. 39). All parties have responded and the court is prepared to rule.

Introductory Facts

Intervenor/Plaintiff Hardaway Company ("Hardaway") was under contract to construct taxiways for Wichita Mid-Continent Airport. Hardaway used a mobile concrete batch plant at the airport for its supply of concrete, which included a mobile trailer called a "control trailer." The control trailer contained an electrical panel that operated electrical functions and power to the mobile plant.

Hardaway subcontracted with Wichita Electric Company ("Wichita Electric") to connect power to the control trailer, which Wichita Electric did. On August 15, 1992, plaintiff Corley, Hardaway's plant foreman, noticed that the wiring on the control panel was malfunctioning and not powering the mixer. The mixer contained a batch of concrete which if allowed to set, would have required Hardaway to be "out there a week jackhammering it out or shooting it with dynamite" (Doc. 40, Davis Dep. at 31). Hardaway employees immediately called Wichita Electric, and Gary Gehrer, the president of Wichita Electric, came to repair the panel. During the repair work, Gehrer was assisted by Corley and other employees of Hardaway. The nature and extent of the assistance is important and will be discussed separately, infra.

After Gehrer had completed working on the panel, Corley asked him if he could turn on the breaker. Gehrer's response is disputed, but the dispute is not material to the issue for decision.¹ Gehrer testified that he answered, "Just a minute, let's get this stuff out of here" (Doc. 43, Gehrer Dep. at 91); Corley testified that Gehrer answered, "Yeah" (Doc. 43, Corley Dep. at 81-82). At any rate, Corley pulled the main power switch to the control panel after asking Gehrer if it was alright and was injured when an electrical explosion burned him.

Corley received workers compensation benefits from Hardaway, then filed suit against Wichita Electric, alleging that Gehrer was negligent in repairing the control panel. Hardaway intervened to protect its subrogation rights against Wichita Electric pursuant to Kan.Stat.Ann. § 44-504(b).² Jurisdiction is based upon diversity of citizenship pursuant to 28 U.S.C. § 1332.

Facts Pertaining to Corley's Status³

Brad Craig, a project manager for Hardaway and the person of highest responsibility at the job site, testified:

A. My answer is that, yes, the Hardaway Company, whether it be Bradley Craig or Neil Davis, as a common rule would have directed some of our people to be of any help they could be to Mr. Gehrer, yes, sir.

(Doc. 40, Craig Dep. at 29-30).

Craig also testified that Hardaway's employees were working in their capacity as Hardaway employees and remained on Hardaway's payroll while helping Gehrer. Hardaway never relinquished the right to control or supervise the employees (Doc. 43 at 56, 57, 61).

Neil Davis, a superintendent for Hardaway and Corley's boss, testified that he told Corley, "Pat, whatever Gehrer needs or whatever it takes, you know, you help him, or any of the people that he needs" (Doc. 40, Davis Dep. at 30-31). He also testified:

Q. So your instructions to Pat and some of the other men there were to do whatever Gary kind of told them to do, I gather?

A. You know, yes, I mean assistance.

Q. Yeah.

A. In our labeling out there, like we call concrete mud and stuff like that, look, Pat, you help Gary, and any of your people, whatever he needs so we can get back up and running.

Q. Okay. You were essentially kind of loaning Pat to Gary to get the job done?

A. However he could assist, or the people.

(Doc. 40, Davis Dep. at 32).

Corley testified regarding the instructions he received from Davis:

A. No, I — Neal had told me when I come back inside, if you don't know anything about the delta Y, he said don't mess with it, let Gary do it.

Q. Well, if —

A. My men only done what Gary told them to do.

Q. Sure. And was the same thing true of you, you did some work on the panel —

A. Yeah, I checked —

Q. Were you not supposed to do that?

A. Well Gary was there watching me, he knew what I done.

Q. Your understanding was that if Gary was there and supervising you, then you could do some of the work as long as you did it under Gary?

A. Yeah, I mean he watched —

Q. Okay.

A. — what I done. I asked him before I done it, since Neal had told me not to touch it, I said, "Gary, I'm going to run these three wires, check some of the lugs" —

....

Q. So, in terms of doing the electrical work there in the trailer and on the main control panel, either you — well, any Hardaway employee that was doing any of that work was supposed to do it under Gary's supervision and direction?

A. To my best memory, that's what it was.

Q. Do you remember who told you that, was it Neal?

A. Both of them did; Brad, when he come to me, first told me to let Gary take it over, then when I went inside, Neal told me, he said, "Let Gary have your men, you just leave it alone, you don't know nothing about it."

....

Q. All right. But, in any event, on the day of this accident any work that was being done on the main control panel, either by Mr. Gehrer or you or any of your employees, was done under Mr. Gehrer's supervision?

A. Yeah.

Q. So whatever Mr. Gehrer said went, insofar as working on that main control panel?

A. Yeah.

Q. Okay. You were to follow his instructions period?

A. Yeah.

Q. Okay. And those were the directions you had from your superiors at Hardaway, correct?

A. (Witness nods head in the affirmative).

....

Q. ... as you have testified, in connection with the repair of this main control panel, you had been instructed to absolutely follow the directions of Mr. Gehrer?

A. Right.

Q. Okay. Now, he couldn't have hired or fired you from Hardaway, but if he had been dissatisfied with your work, would he have had the authority, under your understanding, to tell Hardaway to get you out of there?

A. Oh sure.

Q. And replace you with somebody else to do the work, or something like that?

A. Well, if — like when I was putting them three wires in, if he'd said no, don't touch it, then that was it. I done had my instructions not to touch it.

Q. And so he was in complete authority over that job, is that —

A. Yeah.

(Doc. 40, Corley Dep. at 56, 57, 67, 85-86).

Gary Gehrer, the president of Wichita Electric and the person conducting the repair of the control panel, testified:

Q. Okay. Was there some conversation between Neal Davis and yourself indicating these guys were available for your use during your repair?

A. He told them to do whatever they could, you know, to help, yes.

Q. So were you supervising the other Hardaway employees' conduct with regard to your repair?

A. That's a real gray area. The — they were doing things that I was not aware of, I mean I — they were asking me questions continually —

Q. Uh-huh.

A. — telling stories, talking, I mean — everybody was trying to — they were chasing down lines, saying where does this cable go, you know what does it do, they knew more about the plant than I did, they'd worked on it all the time.

....

Q. Did Neal Davis tell you you could use Hardaway employees to carry out your goal?

A. I still don't know exactly how to answer that, because — I mean he was telling everybody standing in that trailer to do, you know, whatever you needed to do to work on it to get it going, make it function.

....

Q. But who was taking care of the Hardaway employees who were working on the various cables and lines running from this control panel?

A. I would ask them, you know, where does this cable go, yes, I would do that, I'd ask them where does it go from this control panel, this guy would go out.... They would trace those out, I had asked the question, well, where does this go, where does it go to, and immediately Neal said, "Trace that damn thing out, find out where in the hell it goes," you know, so they would do that.

Q. So you'd take a cable and at your request the Hardaway employees would follow the specific work tasks with regard to —

A. I would ask them, you know, where does it go, they would follow it and trace it out, yes.

(Doc. 40, Gehrer Dep. at 70-71, 77-78).

Gehrer further testified that Hardaway never told him that he was responsible for the Hardaway employees helping him or that they were working for him (Doc. 43, Gehrer Dep. at 74), and that he didn't think he specifically asked a Hardaway employee to do a task for him. He stated:

Q. You'd ask where does this cable go and someone would volunteer to —

A. They would take off to go do it, they realized the urgency of getting it back on-line....

(Doc. 43, Gehrer Dep. at 80).

Standards of Summary Judgment

Rule 56(c) of the Federal Rules of Civil Procedure directs the entry of summary judgment in favor of the party who "shows 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." A principal purpose "of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). The court's inquiry is to determine "whether there is the need for a trial — whether, in other words, there are any genuine...