Price v. Western Resources, Inc., CIV. A. 98-2276-GTV.
| Decision Date | 10 May 1999 |
| Docket Number | No. CIV. A. 98-2276-GTV.,CIV. A. 98-2276-GTV. |
| Citation | 50 F.Supp.2d 1057 |
| Parties | Alice E. PRICE, next friend of minor, Alexandria F. Price, individually and as personal representative for the estate of Charles Edward Price, Plaintiffs, v. WESTERN RESOURCES, INC., Defendant. |
| Court | U.S. District Court — District of Kansas |
Dale E. Bennett, Law Offices of Dale Bennett, Overland Park, Daryl K Bredemeier, Independence, MO, Mark J. Bredemeier, Lee's Summit, MO, for plaintiffs.
William E. Hanna, Morrison & Hecker L.L.P., Kansas City, MO, T.L. Green, Western Resources, Inc., Topeka, John C. Nettels, Jr., Morrison & Hecker L.L.P., Wichita, James J. Roddy, Piland & Magruder, Kansas City, MO, for defendant.
This survival and wrongful death action arises out of an explosion at defendant Western Resources, Inc.'s Lawrence Energy Center near Lawrence, Kansas, which resulted in the death of Charles Edward Price. The case is before the court on defendant Western Resources, Inc.'s motion for summary judgment (Doc. 17). Defendant argues that plaintiffs' action is barred by the exclusive remedy provision of the Kansas Workers Compensation Act. For the reasons set forth in this memorandum and order, defendant's motion is granted.1
Prior to setting out the relevant facts, the court will address plaintiffs' contention that ruling on the instant motion for summary judgment is premature because discovery has not been completed. Specifically, plaintiffs argue that further discovery is needed because defendant failed to fully respond to various interrogatories, and because all the relevant evidence is in the exclusive control of Western Resources.
Although plaintiffs fail to cite the rule, the court construes plaintiffs' argument as one under Rule 56(f). Rule 56(f) allows a court to continue a motion for summary judgment or order further discovery upon a showing "that the [nonmoving] party cannot for reasons stated present by affidavit facts essential to justify the party's opposition." Rule 56(f) is not "invoked by the mere assertion that discovery is incomplete or that specific facts necessary to oppose summary judgment are unavailable." Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 833 (10th Cir.1986). The nonmoving party must state with specificity how the additional time would enable it to obtain evidence to oppose the motion for summary judgment. See Jensen v. Redevopment Agency, 998 F.2d 1550, 1554 (10th Cir. 1993).
The Tenth Circuit has stated that [a] prerequisite to granting relief [pursuant to Rule 56(f)] ... is an affidavit furnished by the nonmovant. Although the affidavit need not contain evidentiary facts, it must explain why facts precluding summary judgment cannot be presented. This includes identifying the probable facts not available and what steps have been taken to obtain these facts. In this circuit, the nonmovant also must explain "how additional time will enable him to rebut movant's allegations of no genuine issue of fact."
Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992) (citations omitted). "The purpose of the affidavit is to ensure that the nonmoving party is invoking the protections of Rule 56(f) in good faith and to afford the trial court the showing necessary to assess the merit of a party's opposition." Id. Rather than filing an affidavit, plaintiffs request a continuance and further discovery in the body of their summary judgment motion. An "unverified assertion in a memorandum opposing summary judgment does not comply with Rule 56(f) and results in a waiver." Id. The court, therefore, will not defer its ruling, and will address the merits of Western Resources' motion for summary judgment.
The following facts are either uncontroverted, or if controverted, are construed in the light most favorable to plaintiffs.2 See Applied Genetics Int'l Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990). Immaterial facts and factual averments not properly supported by the record are omitted.
Defendant Western Resources, Inc. is a Kansas corporation engaged in the production, purchase, transmission, and sale of electricity. As its needs dictated, Western Resources contracted with ABB Services, Inc. to perform "specialized technical electrical services" at its Lawrence Energy Center near Lawrence, Kansas. All work performed by ABB Service was as an independent contractor. At all relevant times, Charles Price was a field service engineer and district manager employed by ABB Services.
On the evening of November 23, 1997, Western Resources attempted to restart the Lawrence Energy Center's Unit No. 5 after a scheduled two-week maintenance outage. Repeated attempts to start the unit failed due to a malfunction in the unit's 501 main station switchgear.3 Employees of Western Resources investigated the problem and determined that one of the main circuit breakers — referred to in the record as the 501 main circuit breaker — inside the switchgear was tripping and shutting down the unit. At 7:00 a.m. on November 24, Terry Scarlett, an electrical maintenance supervisor for Western Resources, called Price and requested that he come to the Lawrence Energy Center to look at the breaker. Scarlett believed that Price could be of assistance to the repair effort because Price had recently overhauled the 501 main circuit breaker. Price arrived at 9:00 a.m. According to Scarlett's deposition, Price worked throughout the day with various members of Western Resources' Electrical Maintenance Department to "troubleshoot" and determine why the circuit breaker was tripping. At approximately 4:40 p.m., Price was working on the malfunctioning switchgear alongside Ron Guy and Duane Tenpenny, both members of Western Resources' Electrical Maintenance Department. The switchgear exploded, killing Ron Guy instantly and critically injuring Duane Tenpenny and Price. Tenpenny and Price subsequently died of their injuries.
At the time of the accident, Western Resources' Electrical Maintenance Department at the Lawrence Energy Center consisted of nine electricians. The trouble-shooting and repair activities performed by Price, while labeled as "specialized electrical services," were normally carried out by members of Western Resources' Electrical Maintenance Department. It is undisputed that employees of Western Resources attempted to fix the faulty switchgear before Price's arrival, and had Price not been available to render his services on November 24, 1997, these same employees would have continued to repair the switchgear without him.
It is likewise undisputed that the repair and maintenance of switchgears and circuit breakers in an electrical power plant are necessary and integral parts of an electrical power plant's business of providing electricity. David Phelps, Western Resources' Director of Coal Fired Plants, testified by affidavit that Price's assistance in providing advice on how to repair the malfunctioning circuit breaker was "necessary to, inherent in, and an integral part of, the operations of Western's business, which is the production, transmission and sale of electricity."
A moving party is entitled to summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). One of the principal purposes of summary judgment is to isolate and dispose of factually unsupportable claims or defenses, and Rule 56 should be interpreted in a way that accomplishes this purpose. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The court's proper inquiry is whether there is a need for a trial; in other words, whether "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. This burden may be discharged by "showing" that there is an absence of evidence to support the nonmoving party's case. Celotex, 477 U.S. at 325, 106 S.Ct. 2548. Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party, who "may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. 2505. Thus, the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment. See id.
Plaintiffs argue that summary judgment should not be granted because Western Resources was not Price's statutory employer as defined by the Kansas Workers Compensation Act, or in the alternative, because the Kansas Workers Compensation Act is unconstitutional.
The first issue before the court is whether Price was a statutory employee of Western Resources pursuant to K.S.A. § 44-503(a).4 K.S.A. § 44-503(a) extends the application of the Kansas Workers Compensation Act to individuals or entities, who are not the immediate employer of the injured worker, by deeming them statutory employers. See Hollingsworth v. Fehrs Equip. Co., 240 Kan. 398, 402, 729 P.2d 1214 (1986). Pursuant to K.S.A. 44-501(b)5, a statutory employer is neither liable for any injury "for which compensation is recoverable under the workers compensation act," nor liable "to any third party for any injury or death of an employee which was caused under circumstances creating a legal liability against a...
To continue reading
Request your trial
-
WALLACE v. MICROSOFT Corp.
...the KWCA)). 50 See Price v. W. Resources, Inc., 232 F.3d 779, 789-90 (10th Cir. 2000). 51 Id. at 789 (quoting Price v. W. Resources, Inc., 50 F. Supp. 2d 1057, 1063 (D. Kan. 1999)). 52 See Bernard v. Doskocil Cos., Inc., 861 F. Supp. 1006, 1012-13 (D. Kan. 1994) (finding that intentional to......
-
Price v. Western Resourses Inc.
...requested a continuance and further discovery in the body of their memorandum opposing summary judgment. Price v. Western Res., Inc., 50 F. Supp.2d 1057, 1059 (D. Kan. 1999). The district court found that the failure to file an affidavit constituted a waiver and refused to grant relief unde......