Gordon v. NKC Hospitals, Inc., Nos. 93-SC-414-D

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtLAMBERT
Citation887 S.W.2d 360
PartiesBryan GORDON, Appellant, v. NKC HOSPITALS, INC., Appellee. NKC HOSPITALS, INC., Cross-Appellant, v. Bryan GORDON, Cross-Appellee.
Decision Date23 November 1994
Docket NumberNos. 93-SC-414-D,93-SC-1020-DG

Page 360

887 S.W.2d 360
Bryan GORDON, Appellant,
v.
NKC HOSPITALS, INC., Appellee.
NKC HOSPITALS, INC., Cross-Appellant,
v.
Bryan GORDON, Cross-Appellee.
Nos. 93-SC-414-DG, 93-SC-1020-DG.
Supreme Court of Kentucky.
Nov. 23, 1994.

Page 361

Joseph L. White, Louisville, Anne McAfee, Shepherdsville, for appellant/cross-appellee.

Wesley P. Adams, Jr., Russell H. Saunders, A. Andrew Draut, Edward J. Smith, Weber & Rose, P.S.C., Louisville, for appellee/cross-appellant.

LAMBERT, Justice.

The decisive issue here is whether a potential, but unasserted, defense under the exclusiveness of liability provision of the Workers' Compensation Act, KRS 342.690, deprives a circuit court of subject matter jurisdiction of a claim otherwise properly before it, thus rendering its final judgment subject to vacation upon motion pursuant to CR 60.02. Despite appellee's failure to raise any Workers' Compensation defense until after a notice of appeal had been filed from an adverse final judgment, the Court of Appeals held that raising the issue pursuant to CR 60.02 was a sufficient challenge to the circuit court's subject matter jurisdiction requiring remand for a determination of the facts. This Court granted discretionary review to decide whether the possibility of a defense under the Workers' Compensation Act deprives the circuit court of subject matter jurisdiction so that even an untimely allegation requires evidence and a factual determination.

Appellant was employed by Norris, a painting contractor. Norris entered into a contract with appellee, NKC, for painting upon its premises. On January 15, 1988, while so employed, appellant was grievously injured in a fire. Appellant received Workers' Compensation benefits from his employer, Norris, and brought a civil action for damages against appellee in the Jefferson Circuit Court.

Appellant's complaint alleged negligence with respect to appellee's use of its business premises. In its answer, appellee admitted that appellant had been injured, denied its own negligence, and alleged that appellant or his fellow servants caused or contributed to the injury-producing accident. Neither the complaint nor the answer could be construed

Page 362

as providing even a clue that the Workers' Compensation Act had anything to do with the case. Certainly there was no objection to jurisdiction. Appellee concedes that at no time prior to its notice of appeal from the adverse final judgment did it raise any such question. Not until after filing its notice of appeal did appellee seek relief by means of a CR 60.02 motion which, on June 8, 1992, was denied as untimely. Appellee then appealed from that final order.

The Court of Appeals held the appeal from the underlying final judgment in abeyance, and upon the appeal from denial of CR 60.02 relief, vacated and remanded. It expressed the view that the Workers' Compensation Act deprived the circuit...

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45 practice notes
  • Harris v. Vernier, Docket No. 208750.
    • United States
    • Court of Appeal of Michigan (US)
    • 18 Octubre 2000
    ...766 P.2d 598 (1988); Messner v. Briggs & Stratton Corp., 120 Wis.2d 127, 139, 353 N.W.2d 363 (1984); but see Gordon v. NKC Hosps., Inc., 887 S.W.2d 360, 363 (Ky., 1994); Ammons v. Hood, 288 S.C. 278, 281, 341 S.E.2d 816 (1986); Turner Constr. Co. v. Hebner, 276 Pa.Super. 341, 345-348, 419 A......
  • Louisville v. Fire Service ex rel. Kaelin, No. 2004-SC-0443-DG.
    • United States
    • Kentucky Supreme Court
    • 22 Noviembre 2006
    ...is not, as the FSMA argues, an affirmative defense for which the City bears the burden of proof. Cf. Gordon v. NKC Hospitals, Inc., 887 S.W.2d 360, 362-63 (Ky. 1994) (exclusivity of liability provision under the Workers' Compensation statute amounts to affirmative defense); Curry v. Cincinn......
  • Hisle v. Lexington-Fayette Urban County, No. 2006-CA-001733-MR.
    • United States
    • Kentucky Court of Appeals
    • 1 Febrero 2008
    ...as opposed to particular case jurisdiction which refers to a court's authority over a specific case); Gordon v. NKC Hospitals, Inc., 887 S.W.2d 360, 362 (Ky.1994); Privett v. Clendenin, 52 S.W.3d 530, 532 Subject matter jurisdiction concerns the very nature of the court's creation under con......
  • Rehm v. Navistar International, No. 2002-CA-001399-MR (KY 2/25/2005), No. 2002-CA-001399-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 25 Febrero 2005
    ...remedy provision of KRS 342.690 is an affirmative defense, which must be pled and proven by the employer. Gordon v. NKC Hospitals, Inc., 887 S.W.2d 360, 362-63 (Ky. 1994). Thus, the burden of establishing that the work performed by James was of a kind which was a regular or recurrent part o......
  • Request a trial to view additional results
45 cases
  • Harris v. Vernier, Docket No. 208750.
    • United States
    • Court of Appeal of Michigan (US)
    • 18 Octubre 2000
    ...766 P.2d 598 (1988); Messner v. Briggs & Stratton Corp., 120 Wis.2d 127, 139, 353 N.W.2d 363 (1984); but see Gordon v. NKC Hosps., Inc., 887 S.W.2d 360, 363 (Ky., 1994); Ammons v. Hood, 288 S.C. 278, 281, 341 S.E.2d 816 (1986); Turner Constr. Co. v. Hebner, 276 Pa.Super. 341, 345-348, 419 A......
  • Louisville v. Fire Service ex rel. Kaelin, No. 2004-SC-0443-DG.
    • United States
    • Kentucky Supreme Court
    • 22 Noviembre 2006
    ...is not, as the FSMA argues, an affirmative defense for which the City bears the burden of proof. Cf. Gordon v. NKC Hospitals, Inc., 887 S.W.2d 360, 362-63 (Ky. 1994) (exclusivity of liability provision under the Workers' Compensation statute amounts to affirmative defense); Curry v. Cincinn......
  • Hisle v. Lexington-Fayette Urban County, No. 2006-CA-001733-MR.
    • United States
    • Kentucky Court of Appeals
    • 1 Febrero 2008
    ...as opposed to particular case jurisdiction which refers to a court's authority over a specific case); Gordon v. NKC Hospitals, Inc., 887 S.W.2d 360, 362 (Ky.1994); Privett v. Clendenin, 52 S.W.3d 530, 532 Subject matter jurisdiction concerns the very nature of the court's creation under con......
  • Rehm v. Navistar International, No. 2002-CA-001399-MR (KY 2/25/2005), No. 2002-CA-001399-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • 25 Febrero 2005
    ...remedy provision of KRS 342.690 is an affirmative defense, which must be pled and proven by the employer. Gordon v. NKC Hospitals, Inc., 887 S.W.2d 360, 362-63 (Ky. 1994). Thus, the burden of establishing that the work performed by James was of a kind which was a regular or recurrent part o......
  • Request a trial to view additional results

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