Himes v. U.S.

• Decision Date: 08 September 2011
• Docket Number: No. 10–5114.,10–5114.
• Citation: 645 F.3d 771
• Parties: Josh HIMES; Mary Himes, Plaintiffs–Appellants,v.UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

645 F.3d 771

Josh HIMES; Mary Himes, Plaintiffs–Appellants,

v.UNITED STATES of America, Defendant–Appellee.

No. 10–5114.

United States Court of Appeals, Sixth Circuit.

Argued: June 7, 2011.Decided and Filed: July 13, 2011.Rehearing Denied Sept. 8, 2011.

ARGUED: James T. Gilbert, Coy, Gilbert & Gilbert, Richmond, Kentucky, for Appellant. Dell W. Littrell, Assistant United States Attorney, Lexington, Kentucky, for Appellee. ON BRIEF: James T. Gilbert, Coy, Gilbert & Gilbert, Richmond, Kentucky, for Appellant. Dell W. Littrell, Charles P. Wisdom Jr., Assistant United States Attorneys, Lexington, Kentucky, for Appellee.Before: COOK, McKEAGUE, and GRIFFIN, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

Plaintiff Josh Himes was injured while mowing grass at an Army base when a deteriorating steam pipe fell from its place, striking him in the head. Himes and his wife sued the United States for these injuries. The district court granted summary judgment to the United States on the grounds that under the Kentucky Workers' Compensation Law, the United States was an “up-the-ladder” contractor, or statutory employer, and thus Himes' only remedy was the workers' compensation benefits he received from his direct employer. The Plaintiffs appeal this determination, arguing that no governmental entity can be a “contractor” for purposes of this up-the-ladder immunity, and that in this particular case, the mowing work Himes was performing was not a “regular and recurrent” part of business at the base as is required in order for the government to be considered a “contractor.” They also appeal the district court's limitations on their discovery requests and its denial of their motion to hold a hearing on various motions. Because the district court correctly determined that the United States is entitled to up-the-ladder immunity and there is no merit to the other claims, we AFFIRM.

I.

Plaintiffs Josh and Mary Himes are husband and wife. In 2007, Josh Himes was an employee of Ricky Childers Excavating & Fencing (“Childers”). Pursuant to a Grounds Maintenance Contract between Childers and the United States, Childers provided grounds maintenance services, including mowing, at the Blue Grass Army Depot (“BGAD”), an installation of the United States Army in Richmond, Kentucky. The BGAD is a 14,000–acre facility, used to store conventional and chemical weapons and dispose of obsolete weapons and weapons which must be destroyed by law.

The Childers contract included mowing and trimming in unrestricted, restricted, and chemical exclusion areas on the base, and provided for mowing of each designated area a certain number of times during each mowing season. Childers was responsible for providing all personnel, equipment, tools, supervision, and other services necessary to accomplish this work. The contract also required Childers to provide and maintain workers' compensation insurance for Childers employees who performed work at the BGAD. Childers obtained and furnished the United States with a Certificate of Liability Insurance showing that from January 1, 2007, through December 1, 2007, Childers was covered with workers' compensation insurance as required by Kentucky law.

The Army had been “contracting out” grounds maintenance, mowing, and trimming of the BGAD premises since around 1988. Prior to that time, it was accomplished by Army employees. The government asserts, however, that Army employees continued to perform a portion of the ground maintenance, like mowing. Prior to 2007, the Army had also apparently abandoned certain facilities on the premises. Certain asbestos-insulated steam pipes remained and their condition had deteriorated. These pipes were located near Loading Platform 53.

On August 1, 2007, Plaintiff Josh Himes was working as a Childers employee at the BGAD. Around 9:00 a.m., he was instructed to mow in a “restricted area” which included Platform 53. While he was mowing, a steam pipe fell from its pole and struck him on the head. There were no witnesses to the accident. The pipe crushed Himes' skull and caused multiple skull and facial fractures, causing severe traumatic brain injury, complete loss of vision in the left eye, loss of peripheral vision in his right eye, loss of hearing, loss of ability to smell, and severe spinal column injuries. He is now unable to work and unemployable.

As a result of the accident, Himes received full workers' compensation benefits pursuant to Childers' workers' compensation insurance policy.

Josh and Mary Himes filed the present Federal Tort Claims Act (“FTCA”) complaint in district court on November 9, 2008.¹ In Count I, they alleged that Himes was a business invitee, and that the United States Army, a federal agency, failed to exercise ordinary care to maintain the premises in a reasonably safe condition. In Count II, Mary Himes asserted a claim for loss of spousal consortium.

On April 30, 2009, the United States filed a motion to dismiss and alternatively for summary judgment, arguing that the Kentucky Workers' Compensation Act provided the Plaintiffs' exclusive remedy. It asserted that under that Act, it was entitled to the “up-the-ladder” defense, which shields an employer up-the-ladder from the injured employee if the employer meets all the qualifications of a “contractor” within the meaning of the Act.² This, however, would require that the work Himes was doing at the time of the accident was a “regular and recurrent” part of the business at the BGAD.

The Plaintiffs responded that discovery would be necessary to determine whether, as the government alleged, the work Himes was doing was “regular and recurrent” work of the BGAD. The district court provided additional time to allow “limited discovery only on the issue of whether the work performed by Himes, as an employee of Childers pursuant to the Grounds Maintenance Contract, was a ‘regular’ and ‘recurrent’ part of the work of the Blue Grass Army Depot.”

Pursuant to that order, the Himeses served a Request for Production of Documents on the government.³ The government refused to provide the requested material, and instead filed a motion to quash and for a protective order, arguing that the discovery requests sought information that was irrelevant, privileged, and went beyond the authorized scope. The Plaintiffs opposed the motion. The district court agreed with the government that the discovery requests went “well beyond the bounds” of the court's order. The court granted the motion to quash and for a protective order, and entered the government's proposed order. This order limited discovery to the issue previously specified by the district court. It also, however, provided other restrictions.⁴

In discovery, the Plaintiffs were permitted to take the deposition of both Christine Wren, Supervisory Program Manager at the BGAD, and John Patton, Lead Engineer for Business Operations for Southeastern U.S. Public Works (who was designated as a Rule 30(b)(6) witness). Wren had worked at the BGAD continuously since 1980, and Patton was in charge of overseeing facility operations and maintenance—including ground maintenance—in Army installations in North Carolina, Kentucky, Louisiana, Tennessee, and Alabama.

Wren asserted that the work performed under the Childers contract was maintenance work done regularly and routinely, and was part of the overall maintenance and operation of the facility that was necessary for reasons such as security, safety, and fire protection. She also stated that before 1988, the type of maintenance work now done by Childers had been done by Army civilian employees and was now contracted out due to cost issues. She asserted that if the costs were to grow, the work would once again be done by Army employees.

Patton explained that many similar Army installations contract out such work, but that others use civilian personnel or even Army soldiers. Because Wren and Patton are employees in charge of overseeing such operations, who each have multiple years of personal knowledge on the subject, their testimony constituted evidence of several key facts: that mowing is considered maintenance work on the grounds of the BGAD; that such mowing is done regularly at the BGAD; and that the BGAD and similar installations sometimes use their own employees to do this work.⁵

After discovery, the district court ruled on the motion for summary judgment. It concluded that “Himes' work—mowing and grounds maintenance—was indeed a ‘regular’ and ‘recurrent’ part of the business of the BGAD.” It noted that many Army installations contract out these services, while some have the work performed by civilian personnel, and yet others still use Army soldiers to mow. The court reasoned that mowing is a “regular” activity, despite that the frequency may vary based on certain factors. Addressing the Plaintiffs' claims that mowing cannot be part of the “trade, business, occupation, or profession” of the BGAD, the court cited precedent from this Court holding that regular or recurrent work includes regular maintenance. Therefore, the district court found that the United States was entitled to up-the-ladder immunity under KRS § 342.690 and granted summary judgment. The Plaintiffs timely appealed.

II.

A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a cause of action is treated as a motion for summary judgment when matters outside the pleadings are presented to the court. Mays v. Buckeye Rural Elec. Co–Op., Inc., 277 F.3d 873, 877 (6th Cir.2002). Here, the district court decided the government's motion as one for summary judgment. This court reviews a district court's grant of summary judgment de novo. Valentine–Johnson v. Roche, 386 F.3d 800, 807 (6th Cir.2004).

We review the district court's legal conclusions de novo and its factual findings for clear error. H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609, 620 (6th Cir.2009). The district court's determination that the United...