Edwards v. Anderson Engineering, Inc.

Citation166 P.3d 1047
Decision Date07 September 2007
Docket NumberNo. 96,203.,96,203.
PartiesLinda EDWARDS, et al., Appellees, v. ANDERSON ENGINEERING, INC., Appellant.
CourtUnited States State Supreme Court of Kansas

James D. Oliver, of Foulston Siefkin LLP, of Overland Park, argued the cause, and Wyatt A. Hoch, of the same firm, was with him on the brief for appellant.

Thomas E. Hayes, of The Spigarelli Law Firm, of Pittsburg, argued the cause, and Fred Spigarelli and Lori Bolton Fleming, of the same firm, were with him on the brief for appellees.

The opinion of the court was delivered by JOHNSON, J.:

Anderson Engineering, Inc. (Anderson) files this interlocutory appeal, challenging the denial of its summary judgment motion in a wrongful death action filed by the wife and children of William Edwards, who died in a construction accident. Anderson claims immunity as a construction design professional under K.S.A.2006 Supp. 44-501(f). Finding that the district court mischaracterized legal questions as disputed issues of fact, but that the district court's denial of the summary judgment motion, as presented, was correct, we affirm.

Originally, the City of Pittsburg hired Wilson & Company, Inc. to design a storm sewer and drainage improvement project. Crossland Heavy Contractors, Inc. (Crossland) won the construction bid and used large, elliptical-shaped concrete pipe manufactured by Moores Manufacturing, Inc. (Moores) to build the system. Crossland completed the project in September 2001.

In January 2002, Wilson notified Crossland that it would need to replace some of the concrete pipes that had failed. Crossland replaced the pipe and put the extracted failed pipe on a vacant lot that had been prepared as a materials storage and staging area for the original construction project. The replacement project was completed on March 29, 2002.

Crossland retained Anderson to test the failed pipe to determine whether it complied with the project specifications for wire reinforcement and strength. The parties did not memorialize their agreement in writing.

Anderson needed the large pipes cut into sections to conduct its testing, and Crossland committed to cut the pipe. Upon being notified the pipe cutting would occur on April 1, 2002, an Anderson engineer went to the storage site and conversed with Crossland's project superintendent. Crossland proposed to crush the pipe with heavy equipment, but the Anderson engineer wanted the pipe cut in order to have clean edges for testing. The engineer specified the location of the desired cut lines by marking on the pipe with a yellow marker, which included a line that extended lengthwise on the top of the pipe.

Crossland commenced cutting the pipe, but when the Anderson engineer determined the process would take some time, he left the site. Edwards, a Crossland employee, stood on top of the concrete pipe to effect a lengthwise cut. At some point, shortly after the Anderson engineer had left, the pipe split lengthwise and rolled outward, causing Edwards to fall and be crushed when the pipe rolled back.

The Edwards family initially filed suit against Anderson and Moores, the pipe manufacturer. As an employee of Crossland, Edwards was covered by Crossland's workers compensation policy, and benefits were paid to his survivors. The district court granted a motion by Crossland and Zurich North America to intervene in the wrongful death action. The district court granted a motion to amend the petition to join Wilson, the original project engineer, as a party defendant. Subsequently, the district court granted summary judgment in favor of Wilson and Moores, and both of those defendants were dismissed with prejudice.

However, on Anderson's summary judgment motion, the district court found that "material issues of fact exists [sic] as to whether K.S.A. 44-501(f) is applicable and therefore Summary Judgment is improper." The court went on to specify that:

"A jury must determine if: 1) Defendant Anderson is a construction design professional; 2) the testing of the failed concrete pipe was on a construction project; and 3) that Defendant Anderson's activity in testing and drawing on the pipe constitutes negligent preparation of design plans or specifications."

Anderson requested that the district court certify the summary judgment denial for an interlocutory appeal, arguing that the applicability of the immunity statute is a question of law for the judge to decide, rather than a jury question. In its memorandum decision granting Anderson permission to seek an interlocutory appeal, the district court stated:

"The court finds that whether applicability of the immunity statute is a question of fact for the jury or a question of law to be determined by the court is in itself a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation."

The Court of Appeals granted Anderson leave to file the interlocutory appeal. The case was transferred to this court pursuant to the authority of K.S.A. 20-3018(c).

SUPREME COURT RULES OF APPELLATE PRACTICE

We pause to comment on two of our rules of appellate practice. We do so not to chastise or embarrass competent counsel in this appeal, but rather to remind the practicing bar of these frequently violated rules.

The appellees' brief is accompanied by a voluminous appendix, albeit not all of the appended documents are contained in the record on appeal. Appendices can be most helpful to appellate jurists and members of their staff. However, an appendix is limited to containing extracts from the record on appeal and cannot serve as a substitute for the record itself. Supreme Court Rule 6.02(f) (2006 Kan. Ct. R. Annot. 36); Supreme Court Rule 6.03(e) (2006 Kan. Ct. R. Annot. 39). The court will not consider appended items which are not found in the record.

Anderson submitted a reply brief in which it challenged appellees' arguments on the points raised in appellant's initial brief. The reply brief's introduction does not refer to new material raised in appellees' brief, but rather states that the reply would "reconfirm" Anderson's legal arguments.

Supreme Court Rule 6.05 (2006 Kan. Ct. R. Annot. 41) states, in relevant part:

"A reply brief shall not be submitted unless made necessary by new material contained in the appellee's or cross-appellee's brief. A reply brief shall make specific reference to the new material being rebutted and under no circumstances shall it duplicate or include, except by reference, any statements, arguments, or authorities already made in preceding briefs."

Quite plainly, a reply brief is intended to provide the appellant an opportunity to address new issues or material raised for the first time in the appellee's brief. It is not intended to be a vehicle to reiterate arguments from the initial brief. An opportunity to get in the last word is afforded to appellants on oral arguments.

STATUTORY IMMUNITY

Under the Workers Compensation Act (Act), K.S.A. 44-501 et seq., an employer who is subject to the Act is liable to pay compensation to an employee who suffers personal injury by accident arising out of and in the course of employment. K.S.A.2006 Supp. 44-501(a). In return, the employee receiving workers compensation benefits cannot maintain a civil action for damages against the employer or another employee. K.S.A.2006 Supp. 44-501(b). In other words, employers and coworkers are immune from civil liability for damages because the remedy provided by the Act is exclusive. Scott v. Hughes, 281 Kan. 642, 645, 132 P.3d 889 (2006).

Nevertheless, if the employee's injury or death was caused by a third party with legal liability, the injured worker or his or her successors in interest shall have the right to collect workers compensation benefits and also pursue civil damages against the third party. K.S.A. 44-504(a). The employer is permitted to intervene in the third-party action and, if the employee recovers from the third party, the employer can recoup the workers compensation benefits previously paid. The legislature's intent in enacting 44-504 was two-fold: "(1) to preserve an injured worker's claim against third-party tortfeasors and (2) to prevent double recoveries by insured workers. Loucks v. Gallagher Woodsmall, Inc., 272 Kan. 710, Syl. ¶ 2, 35 P.3d 782 (2001)." PMA Group v. Trotter, 281 Kan. 1344, 1348-49, 135 P.3d 1244 (2006).

In this case, Anderson was not Edwards' immediate employer or statutory employer. See K.S.A.2006 Supp. 44-508(a) (extending application of Act to certain individuals or entities who are not immediate employers of injured worker). Thus, Anderson would be amenable to a third-party action if it was legally liable for Edwards' injuries. Anderson claims it cannot be legally liable for Edwards' injuries because the Act specifically grants it immunity under K.S.A.2006 Supp. 44-501(f), which provides:

"Except as provided in the workers compensation act, no construction design professional who is retained to perform professional services on a construction project or any employee of a construction design professional who is assisting or representing the construction design professional in the performance of professional services on the site of the construction project, shall be liable for any injury resulting from the employer's failure to comply with safety standards on the construction project for which compensation is recoverable under the workers compensation act, unless responsibility for safety practices is specifically assumed by contract. The immunity provided by this subsection to any construction design professional shall not apply to the negligent preparation of design plans or specifications."

Anderson points out that the construction design professional immunity provision was added to the workers compensation law in 1985. It claims that the provision was the legislature's response to two Kansas Supreme...

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