Kimzey v. Interpace Corp., Inc.

• Decision Date: 07 February 1985
• Docket Number: No. 56414,56414
• Citation: 10 Kan.App.2d 165,694 P.2d 907
• Parties: David M. KIMZEY, Appellant, v. INTERPACE CORPORATION, INC., Appellee.
• Court: Kansas Court of Appeals

Page 907

694 P.2d 907

10 Kan.App.2d 165

David M. KIMZEY, Appellant, v. INTERPACE CORPORATION, INC., Appellee.

No. 56414.

Court of Appeals of Kansas.

Feb. 7, 1985.

Syllabus by the Court

1. Under the dual capacity doctrine, an employer who is generally immune from tort liability to an employee injured in a work-related accident may become liable to such employee as a third-party tortfeasor if he occupies, in addition to his capacity as an employer, a second capacity that confers upon him obligations independent of those imposed upon him as an employer.

2. Where the employer's liability is alleged to arise solely by reason of its independent assumption by contract of the obligations of a third-party tortfeasor, the exclusivity provision of the Workmen's Compensation Act does not bar a common law action by the employee against his employer for injuries sustained in the course of his employment.

Lloyd Burke Bronston and Dan L. Smith, of Bronston & Smith, Overland Park, for appellant.

Richmond M. Enochs and James L. Sanders, of Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, for appellee.

Before ABBOTT, P.J., C. FRED LORENTZ, District Judge, Assigned, and HARRY G. MILLER, District Judge Retired, Assigned.

HARRY G. MILLER, District Judge Retired, Assigned:

David Kimsey, plaintiff, has appealed the order of the trial court granting summary judgment to the defendant Interpace Corporation, Inc., plaintiff's employer, in a products liability action.

On or about April 11, 1980, while operating a pyramid roll machine in the course of his employment, plaintiff received an injury to his foot and leg. The machine was designed, manufactured and distributed by the Lock Joint Pipe Co., Inc., (Lock Joint) prior to a corporate merger in 1962.

In September, 1962, Lock Joint was dissolved and merged into another corporation which later merged into the defendant Interpace Corporation. As a part of the merger agreement, Interpace contracted to assume "all debts, liabilities, restrictions, duties and obligations" of Lock Joint.

After receiving workers' compensation benefits from his employer's insurance carrier, plaintiff brought the present action against his employer, claiming that he was injured due to the negligence, design defect and breach of warranty by Lock Joint in the design and manufacture of the roll machine, and that Interpace, as corporate successor to Lock Joint, was liable by reason of its agreement to assume Lock Joint's liability for product defects and negligence.

The defendant's motion for summary judgment was sustained on the ground that plaintiff's exclusive remedy against his employer was under the Workmen's Compensation Act.

The policy and purpose of workers' compensation acts is to provide a swift and sure source of benefits to the employee for injuries arising out of and in the course of his employment, and to shift from the employee to the industry the burdens incidental to modern industrial operations. Duncan v. Perry Packing Co., 162 Kan. 79, 174 P.2d 78 (1946).

Under such acts, the employee is required to relinquish his right to sue for damages sustained in job-related injuries, and the employer is required to accept a no-fault liability for a measure of damages prescribed by statute. In effect, a form of strict liability is imposed upon the employer to pay for industrial accidents.

The exclusive remedy provision of the Kansas Workmen's Compensation Act states:

"If in any employment to which the workmen's compensation act applies, personal injury by accident arising out of and in the course of employment is caused to an employee, his or her employer shall be liable to pay compensation to the employee in accordance with the provisions of the workmen's compensation act.... Except as provided in the workmen's compensation act, no employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable thereunder nor shall an employer be liable to any third party for any injury or death of an employee which was caused under circumstances creating a legal liability against a third party and for which workmen's compensation is payable by such employer." K.S.A. 44-501.

Under this statute, the well-established rule is that if an employee recovers benefits under the Workmen's Compensation Act, he cannot maintain a common law negligence action against his employer for damages. Zehring v. Wickham, 232 Kan. 704, 658 P.2d 1004 (1983); Fugit, Administratrix v. United Beechcraft, Inc., 222 Kan. 312, 564 P.2d 521 (1977).

The act has been liberally construed "to bring workers under the act whether or not it is desirable for the specific individual's circumstances." Mays v. Ciba-Geigy Corp., 233 Kan. 38, 65, 661 P.2d 348 (1983).

If, however, the worker's injuries for which compensation is payable were caused by the negligence of a third person not in the same employ as the injured worker, the worker is not precluded from accepting the compensation and also pursuing a cause of action against the third person. K.S.A.1983 Supp. 44-504(a). Houk v. Arrow Drilling Co., 201 Kan. 81, 439 P.2d 146 (1968); Zehring v. Wickham, 232 Kan. 704, 658 P.2d 1004.

This kind of third party liability provision has prompted considerable discussion in the law as to whether there are ever any circumstances under which an employer may be sued by an injured employee as a third-party tortfeasor, 2A Larson's Workmen's Compensation Law § 72.81 (1983), and it has given rise to the so-called dual capacity doctrine under which plaintiff asserts liability in this case.

According to the dual capacity doctrine, an employer who is generally immune from tort liability to an employee injured in a work-related accident may become liable to his employee as a third-party tortfeasor if he occupies, in addition to his capacity as an employer, a second capacity that confers upon him obligations independent of those imposed upon him as an employer. It is in this second capacity that liability to an employee may be imposed.

In Weber v. Armco, Inc., 663 P.2d 1221 (Okla.1983), the Oklahoma Supreme Court discussed in some detail the appropriate application of the dual capacity doctrine. Relying on the reasoning of Professor Arthur Larson, the nation's leading authority on the subject, the court stated:

"This concept of duality, which confers third party status upon the employer, is more meaningful when viewed in terms of an employer having a dual persona. An employer may become a third person if he possesses a second persona so completely independent from and unrelated to his status as an employer, that by established standards, the law recognizes it as a separate legal person." 663 P.2d at 1225.

The court, in accordance with the great weight of authority in this country, rejected application of the dual capacity doctrine under a products liability theory in cases where the employer manufactures, distributes or installs a product used in the employee's work on the ground that the employer's duty to provide a safe workplace for its employee and its duty as a manufacturer to make a safe product are so inextricably intertwined that it cannot logically be separated into two distinct legal persons.

Professor Larson has criticized the dual capacity...