Price v. Western Resourses Inc.

• Citation: 232 F.3d 779
• Decision Date: 14 November 2000
• Docket Number: No. 99-3184,99-3184
• Parties: (10th Cir. 2000) ALICE F. PRICE, next friend of minor, Alexandria F. Price, individually and as personal representative for the estate of Charles Edward Price; and ALEXANDRIA F. PRICE, Plaintiffs - Appellants, v. WESTERN RESOURCES, INC., Defendant - Appellee
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

Page 779

232 F.3d 779 (10th Cir. 2000)

ALICE F. PRICE, next friend of minor, Alexandria F. Price, individually and as personal representative for the estate of Charles Edward Price; and ALEXANDRIA F. PRICE, Plaintiffs - Appellants, v. WESTERN RESOURCES, INC., Defendant - Appellee.

No. 99-3184

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

November 14, 2000

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS. (D.C. NO. CV-98-2276-GTV)

[Copyrighted Material Omitted] Mark J. Bredemeier, Lee's Summit, Missouri (Daryl K. Bredemeier, Lee's Summit, Missouri, and Dale E. Bennett, Westwood, Kansas, with him on the brief), for Appellants.

John C. Nettels, Jr., Morrison & Hecker, L.L.P., Wichita, Kansas (Walter M. Brown, Morrison & Hecker, L.L.P., Kansas

City, Missouri, with him on the brief), for Appellee.

Before KELLY, ANDERSON, and HENRY, Circuit Judges.

ANDERSON, Circuit Judge.

Appellants Alice F. Price and Alexandria F. Price brought this diversity wrongful death and survival action against Western Resources, Inc. ("Western") after their husband and father, Charles Edward Price, died from injuries he sustained while working on a switchgear at Western's Lawrence Energy Center ("LEC"). Following several months of discovery, the district court granted Western's motion for summary judgment, holding that Price was Western's statutory employee pursuant to Kan. Stat. Ann. 44-503(a) and that, as a result, this action was barred by the exclusive remedy provision of Kan. Stat. Ann 44-501(b). On appeal from that judgment, the Appellants contend that: (1) the district court erred in refusing to grant them more time to discover information in Western's exclusive control which, they argue, would have created triable issues of fact; (2) the district court erred in granting summary judgment because genuine issues of material fact exist as to Price's status as a statutory employee under Kan. Stat. Ann. 44-503(a); and (3) Kan. Stat. Ann. 44-501(b) unconstitutionally deprives Appellants of their property interest in their claims against Western without due process of law. We exercise jurisdiction pursuant to 28 U.S.C. 1291, and affirm.

BACKGROUND

Price was a highly skilled electrical engineer employed by ABB Services, a wholly-owned subsidiary of Asea Brown Boveri, Inc. ("ABB"). ABB provided various services to Western as an independent contractor.

Western is a Kansas corporation engaged in the production, purchase, transmission and sale of electricity. Western owns and operates the LEC, an electric generating facility in Lawrence, Kansas. At the LEC, Western uses a variety of equipment to convert raw electric power into a form that can be delivered over transmission lines to customers. One such piece of equipment is the switchgear involved in the accident at issue. Western directly employs electricians in its Electric Maintenance Department for the purpose of maintaining and repairing its electrical equipment, including switchgears and circuit breakers. Western also hires independent contractors, such as ABB, to supplement its own workforce when needed and to provide other specialized services which it does not normally perform in-house.

On or about November 23, 1997, Western attempted to start up the LEC's Unit No. 5 after a maintenance outage. Upon startup, the circuit breaker in the 501 main station switchgear tripped. The circuit breaker continued to trip through the night and into the morning hours of November 24, 1997. Western's electricians worked on the switchgear and circuit breaker through the night, but were unable to fix them. On the morning of November 24, 1997, Terry Scarlett, a Western electrician, called Price at home and asked him to come to the LEC to work on the problem. After Price indicated that he would come to the LEC, Western's electricians stopped working on the switchgear and waited for him to arrive.

Price worked with Western's electricians through the day on November 24, 1997. By 4:00 p.m. they were able to determine that the circuit breaker was not the problem with the malfunctioning switchgear. At 4:40 p.m., while Price and two Western electricians, Ron Guy and Duane Tenpenny, were working near the switchgear, an electrical explosion occurred. Tenpenny was killed instantly¹ and Guy and Price were severely injured. Guy died from his injuries five days later and Price died from his injuries on December 1, 1997. After Price's death, Appellants obtained workers compensation benefits from his direct employer, ABB.

DISCUSSION

A. Discovery Issue

Rule 56(f) allows a court to stay or deny a summary judgment motion in order to permit further discovery if the nonmovant states by affidavit that it lacks facts necessary to oppose the motion. Fed. R. Civ. P. 56(f).²

Appellants claim that Western has in its exclusive control information relevant to Price's status as a statutory employee on the day of his injury. As a result, they contend, the district court should have denied or stayed Western's motion for summary judgment so that they could conduct "full discovery." Appellants' Br. at 22-23. Although they fail to cite Rule 56(f), we, like the district court, construe Appellants' argument as one requesting relief under that rule.

The general principle of Rule 56(f) is that "summary judgment [should] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n. 5 (1986). The movant's exclusive control of such information is a factor weighing heavily in favor of relief under Rule 56(f). See Vivid Techs., Inc. v. American Sci. and Eng'g, Inc., 997 F. Supp. 104, 107 (D. Mass. 1998), vacated in part on other grounds, 200 F.3d 795 (1st Cir. 1999).

However, Rule 56(f) does not operate automatically. Its protections must be invoked and can be applied only if a party satisfies certain requirements. We have summarized the requirements of Rule 56(f) as follows:

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.

[C]ounsel's unverified assertion in a memorandum opposing summary judgment does not comply with Rule 56(f) and results in a waiver.

Committee for the First Amendment v. Campbell, 962 F.2d 1517, 1522 (10th Cir. 1992) (citations omitted). After reviewing the foregoing authorities, the district court found that Appellants were not entitled to relief under Rule 56(f) because they had failed to meet its requirements. We review that decision under the abuse of discretion standard. Id.

Instead of filing the required affidavit, Appellants 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 under Rule 56(f). Id. Appellants contend that the district court erred in so doing. However, our cases make it clear that "[w]here a party opposing summary judgment and seeking a continuance pending completion of discovery fails to take advantage of the shelter provided by Rule 56(f) by filing an affidavit, there is no abuse of discretion in granting summary judgment if it is otherwise appropriate." Pasternak v. Lear Petroleum Exploration, Inc., 790 F.2d 828, 832-33 (10th Cir. 1986).

In addition to their failure to file the required affidavit, Appellants have failed to satisfy the other requirements of Rule 56(f). Instead of explaining what facts they want to discover, why they have not yet discovered them, and how additional time would help them rebut Western's allegations, Appellants state only that Western is in exclusive control of relevant information. While the movant's exclusive control of desired information is a factor favoring relief under Rule 56(f), it is not sufficient on its own to justify that relief, especially where the other requirements of Rule 56(f) have not been met. The Vivid case cited by Appellants in support of their position also states:

Exclusive control does not, however, require automatic relief under Rule 56(f). "If all one had to do to obtain a grant of a Rule 56(f) motion were to allege possession by movant of certain information [and] other evidence[,] every summary judgment decision would have to be delayed while the non-movant goes fishing in the movant's files."

Vivid, 997 F. Supp. at 107 (quoting Keebler Co. v. Murray Bakery Prods., 866 F.2d 1386, 1389 (Fed. Cir. 1989)). In Weir v. Anaconda Co., 773 F.2d 1073, 1083 (10th Cir. 1985), a case involving similar claims, the court stated, "[e]ven if plaintiff had filed a Rule 56(f) affidavit stating that he could not counter [movant's] affidavits because the necessary evidence was peculiarly within [movant's] knowledge, this alone would be insufficient to defeat [movant's] summary judgment motion."

Appellants cite Weir for the proposition that full discovery is especially important in exclusive control cases. Appellants mischaracterize Weir. The actual quote referenced in Appellants' brief reads, "sufficient time for discovery is especially important when relevant facts are exclusively in the control of the opposing party." Weir, 773 F.2d at 1081 (emphasis added). Earlier in that same paragraph, the court stated that, "[t]here is no requirement in Rule 56, Fed. R. Civ. P. that summary judgment not be entered until discovery is complete." Id.

Western filed its motion to dismiss on August 13, 1998.³ Appellants' App. at 4, Dkt. No....