Fugit v. United Beechcraft, Inc., 48257

• Citation: 564 P.2d 521,222 Kan. 312
• Decision Date: 14 May 1977
• Docket Number: No. 48257,48257
• Parties: Lavon K. FUGIT, Administratrix of the Estate of Louis J. Fugit, Surviving Spouse and Heir at Law, Individually and as next friend of Eloise Dalores King, Robert Louis Fugit, Donald Bruce Fugit and Theresa Cheryl Schmerse, Heirs at Law, Appellants, v. UNITED BEECHCRAFT, INC. and Jack Creamer, Appellees.
• Court: Kansas Supreme Court

Page 521

564 P.2d 521

222 Kan. 312

Lavon K. FUGIT, Administratrix of the Estate of Louis J Fugit, Surviving Spouse and Heir at Law, Individually and as next friend of Eloise Dalores King, Robert Louis Fugit Donald Bruce Fugit and Theresa Cheryl Schmerse, Heirs at Law, Appellants, v. UNITED BEECHCRAFT, INC. and Jack Creamer, Appellees.

No. 48257.

Supreme Court of Kansas.

May 14, 1977.

Syllabus by the Court

1. If a workman can recover benefits from an employer under the workmen's compensation act for an injury, neither he nor his heirs can maintain a common-law action against that employer or his employee for damages based on a theory of negligence.

2. Under K.S.A. 44-503(a), which permits the employee of a subcontractor to recover workmen's compensation benefits from the general contractor, it is not required that the work being performed by the injured workman be the primary business of the general contractor. It is sufficient if the work being performed is some integral part of the general contractor's trade or business or is work which the general contractor has contracted to perform for another.

Ray H. Painter, Jr., Tulsa, Okl., argued the cause, and Davis S. Carson, of Sowers, Carson & Johnston, P. A., Wichita, was with him on the brief for appellants.

Larry A. Withers, of Kahrs, Nelson, Fanning, Hite & Kellogg, Wichita, argued the cause, and Richard C. Hite, Wichita, was with him on the brief for appellees.

PRAGER, Justice:

This is an action filed by the administratrix and heirs of Louis J. Fugit seeking to recover damages for conscious pain and suffering and for wrongful death allegedly caused by the negligence of the defendants-appellees, United Beechcraft, Inc., and Jack Creamer. The trial court sustained the defendants' motion for summary judgment on the grounds that United Beechcraft was a statutory employer of Fugit under the Kansas workmen's compensation act and therefore the plaintiffs' exclusive remedy was under that act. The sole issue to be determined on the appeal is whether as a matter of law the decedent Louis J. Fugit was a statutory employee of United Beechcraft and therefore Fugit's administratrix and heirs were barred from bringing this action at common law.

After the case was filed extensive discovery conducted by the parties brought to light certain undisputed facts which the district court used as a basis for granting summary judgment. Essentially the facts in the case are as follows: Beech Aircraft Corporation is a manufacturer of aircraft located at Mid-Continent Airport in Wichita. United Beechcraft, Inc., is a subsidiary corporation of Beech Aircraft and its primary operations are concerned with the sale, service, and maintenance of Beech aircraft. It is described in the record as a 'fixed base operator.' United Beechcraft does repair work including the total rebuilding of aircraft. It gives flight instruction and, in addition, does modification work an old aircraft to make them more airworthy and in compliance with the standards of the Federal Aviation Agency.

In early 1972 United Beechcraft entered into a written contract with Beech Aircraft to develop a kit for modification of T-34 aircraft. This modification consisted of replacing the original engine and propeller. Under the contract Beech agreed to furnish the airplane, engine, and propeller and to make available blueprints of the T-34. United Beechcraft agreed to provide 'all Engineering and development, including necessary drawings, dynamic tests, structural tests, flight tests, analysis, reports and manuals as required to meet Beech level of quality and reliability, and to obtain FAA . . . approval.' United Beechcraft contracted to complete the design, manufacture the set of kit parts, modify the one airplane by installing the kit, and run the various tests mentioned above. United Beechcraft did not have engineers employed to perform the necessary engineering work or flight testing under its contract with Beech. United Beechcraft therefore enthered into a subcontract with Product Development Group by which Product Development Group became responsible for the engineering design work for the installation of the new engine, for the preparation of paperwork necessary for FAA approval of the airplane, and for the various tests mentioned above. United Beechcraft remained responsible to perform the actual mechanical work and the installation of parts. The decedent, Louis J. Fugit, was an engineer employed by Product Development Group. Among other duties it was his responsibility to conduct flight tests of the modified T-34 aircraft in order to check out the plane for FAA certification. On July 29, 1972, Fugit participated in a flight test of the T-34. The pilot was defendant, Jack Creamer, an employee of United Beechcraft. During the course of the flight Fugit suffered a heart attack and died shortly after the plane landed. Following Fugit's death this common law action was brought on the theory that Fugit's death was the result of the negligence of Jack Creamer, acting in the...