Rehm v. Navistar International, No. 2002-CA-001399-MR (KY 2/25/2005)

Decision Date25 February 2005
Docket NumberNo. 2002-CA-001399-MR.,2002-CA-001399-MR.
PartiesDebbie Ellen REHM, Individually and as Executrix of the Estate of James David Rehm; Nicholas James Rehm and Christina Marie Rehm, by and through their Parent, Guardian and Next Friend, Debbie Ellen Rehm Appellants v. NAVISTAR INTERNATIONAL, a/k/a International Truck & Engine Corporation; Allied Chemical Corporation; American Standard, Inc.; Brown & Williamson Tobacco Corporation; Brown-Forman Corporation; Colgate-Palmolive Company; E.I. Dupont De Nemours; Ford Motor Company; General Electric Company; Kentucky Utilities; Lorillard, Inc.; Louisville Gas & Electric; Philip Morris, Inc.; Reynolds Metals Company; Rohm & Haas; The B.F. Goodrich Company Appellees.
CourtUnited States State Supreme Court — District of Kentucky

Joseph D. Satterley, Kenneth L. Sales, Louisville, Kentucky, Briefs for Appellants.

Kenneth L. Sales, Louisville, Kentucky, Oral Argument for Appellants.

James J. Montgomery, Elizabeth P. Sherwood, Timothy C. Ammer, Cincinnati, Ohio, Navistar International Corp., (International Truck & Engine Corp.), Byron N. Miller, Rheanne D. Falkner, R. Thad Keal, Louisville, Kentucky, Ford Motor Company, Scott A. Davidson, David W. Hemminger, Edward H. Stopher, Louisville, Kentucky, Louisville Gas & Electric Company and Kentucky, Utilities, Rebecca Schupbach, Julie M. McDonnell, Louisville, Kentucky, Brown-Forman Corp. & Colgate-Palmolive Co., Scott T. Dickens, Louisville, Kentucky, General Electric Co., Rosemary D. Welsh, Cincinnati, Ohio, Richard D. Schuster, Columbus, Ohio, Goodrich Corp., Wendell S. Roberts, Donald R. Yates, II, Ashland, Kentucky, Allied Chemical Corp., David L. Schaefer, Kristin M. Lomond, Louisville, Kentucky, John J. Repcheck, Pittsburg, Pennsylvania, Lorillard, Inc., David T. Schaefer, Kristin M. Lomond, Louisville, Kentucky, John J. Repcheck, Pittsburg, Pennsylvania, Philip Morris, Inc., John B. Moore, William P. Swain, Louisville, Kentucky, John D. Epps, Alexandra B. Cunningham, Richmond, Virginia, Reynolds Metals Co., J. Mark Grundy, Melissa Norman Bork, Louisville, Kentucky, American Standard, John J. Repcheck, Pittsburg, Pennsylvania, Brown & Williamson Tobacco Corp., Walter M. Jones, Angela McCorkle Buckler, Louisville, Kentucky, E.I. duPont de Nemours & Co., Cynthia Blevins Doll, Roxanne Baus Edling, Louisville, Kentucky, Rohm and Haas Co., Briefs for appellees.

Rebecca F. Schupbach argued for Joint Appellees as listed on Joint Brief for Appellees and Brown-Forman and Colgate-Palmolive, Byron N. Miller argued for Ford Motor Co., Oral Arguments for Appellees.

Before: JOHNSON, Judge; MILLER and PAISLEY, Senior Judges.1

OPINION

PAISLEY, Senior Judge:

FACTUAL AND PROCEDURAL BACKGROUND

Debbie Ellen Rehm, individually and as executrix of the estate of James David Rehm, and Nicholas James Rehm and Christina Marie Rehm, by and through their Parent, Guardian, and Next Friend, Debbie Ellen Rehm, appeal from an order of the Jefferson Circuit Court granting summary judgment to appellees Navistar International (a/k/a International Truck & Engine Corporation); General Electric Company; Ford Motor Company; Rohm & Haas Company; American Standard, Inc.; Philip Morris, Inc.; Colgate-Palmolive Company; Brown Forman Corporation; E.I. Dupont de Nemours; The B.F. Goodrich Company; Reynolds Metals Company; Kentucky Utilities Company; Louisville Gas & Electric Company; Brown & Williamson Tobacco Corporation; Lorillard, Inc.; and Allied Chemical Corporation, in a lawsuit alleging that James was exposed to asbestos while working on the premises of the appellees. As a result of his exposure to asbestos James developed an incurable form of cancer, which eventually resulted in his death. For the reasons stated below, we affirm.

Because this is an appeal from an award of summary judgment in favor of the appellees, we review the factual background in the light most favorable to the appellants' position in the case.

James was employed as a millwright by Rapid Installation (now Rapid Industries) from approximately 1975 until 1982. According to James, during the relevant time frame, Rapid Installation was a company primarily engaged in the business of manufacturing, selling, installing, and maintaining industrial conveyor systems and the associated machinery. In his job as a millwright for Rapid Installation, James was involved in the demolition, tearing out, and installation of conveyors, furnaces, ovens, machinery, and other equipment at facilities owned by the appellees. During the jobs at the facilities owned by the appellees, James was exposed to insulation products on the pipes, furnaces, ovens, machinery, and other equipment on the appellees' property.

In February 2001, James was diagnosed with malignant mesothelioma, an incurable form of cancer caused by exposure to asbestos. On February 23, 2001, James and Debbie and Nicholas James and Christina Marie, by and through their parents, guardians, and next friends, James and Debbie, brought this action to recover damages for personal injuries caused from James's exposure to asbestos. Among other things, the plaintiffs sued under a theory of premises liability alleging that the appellees failed to exercise reasonable care in maintaining their properties contaminated with asbestos. The plaintiffs alleged negligence, gross negligence, willful misconduct, and intentional and outrageous conduct in that the appellees knowingly failed to warn James of the dangers of working around asbestos products and that their negligence caused James's disease.

Within a short time after the action was filed, each of the sixteen property-owner appellees filed a motion for summary judgment alleging that the appellants' claims were barred under Kentucky Workers' Compensation law pursuant to the "up-the-ladder" immunity provisions of Kentucky Revised Statutes (KRS) 342.610 and KRS 342.690. Under these provisions a contractor is immunized against common law tort claims brought by the employees of a subcontractor if, among other things, the work performed by the subcontractor is a regular or recurrent part of the contractor's business.

The plaintiffs attempted to depose the defendants' corporate witnesses regarding the asbestos located on their properties; however, based upon the defendants' motions for summary judgment, the trial court entered an order limiting discovery to the defendants' up-the-ladder defenses.

On May 31, 2002, the trial court entered an order granting summary judgment to each of the sixteen property owner defendants who are the appellees in this case. The trial court determined that each of the defendants was entitled to up-theladder-immunity. This appeal followed.2

STANDARD FOR SUMMARY JUDGMENT

Summary judgment is only proper "where the movant shows that the adverse party could not prevail under any circumstances." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991) (citing Paintsville Hospital Co. v. Rose, 683 S.W.2d 255 (Ky. 1985)). The trial court must view the record "in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, 807 S.W.2d at 480 (citing Dossett v. New York Mining & Manufacturing Co., 451 S.W.2d 843 (Ky. 1970)). However, "a party opposing a properly supported summary judgment motion cannot defeat that motion without presenting at least some affirmative evidence demonstrating that there is a genuine issue of material fact requiring trial." Hubble v. Johnson, 841 S.W.2d 169, 171 (Ky. 1992)(citing Steelvest, supra at 480). This Court has previously stated that "[t]he standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. There is no requirement that the appellate court defer to the trial court since factual findings are not at issue" [citations omitted]. Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996).

UP-THE-LADDER-IMMUNITY ISSUES

The appellants contend that the trial court erred in granting summary judgment to the appellees because there are questions of fact regarding whether the work performed by James on each of the appellees properties was a regular or recurrent part of each business so as to qualify each of the appellees to the exclusive remedy provisions of the Workers' Compensation Act and the Act's up-the-ladder immunity defense.

ELEMENTS OF UP-THE-LADDER-IMMUNITY

The elements of up-the-ladder immunity are set forth in KRS 342.690(1) and KRS 342.610(2). KRS 342.690(1) provides, in relevant part, as follows:

If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to recover damages from such employer at law or in admiralty on account of such injury or death. For purposes of this section, the term "employer" shall include a "contractor" covered by subsection (2) of KRS 342.610 whether or not the subcontractor has in fact, secured the payment of compensation.

KRS 342.610(2) defines a "contractor" for purposes of KRS 342.690(1), in relevant part, as follows:

A person who contracts with another:

....

(b) To have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession of such person...

shall...be deemed a contractor, and such other person a subcontractor.

These statutes make it clear that if an appellee is a contractor, then it has no liability in tort to an injured employee of its subcontractor, Rapid Installation. It is also apparent from the statute that an appellee is a contractor if the work it...

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