Union Carbide Corp. v. Sweco, Inc., 80-CA-884-MR
| Decision Date | 03 October 1980 |
| Docket Number | No. 80-CA-884-MR,80-CA-884-MR |
| Citation | 610 S.W.2d 932 |
| Parties | UNION CARBIDE CORPORATION, Appellant, v. SWECO, INC., Appellee. |
| Court | Kentucky Court of Appeals |
J. Gregory Wehrman, Wehrman & Wehrman, Chartered, Covington, for appellant.
J. Kenneth Meagher, Rendigs, Fry, Kiely & Dennis, Cincinnati, Ohio, for appellee.
Before HAYES, C. J., and BREETZ and GANT, JJ.
Union Carbide Corporation, the defendant and third party plaintiff below, appeals from a partial summary judgment of the Kenton Circuit Court in favor of the third party defendant, Sweco, Inc.
On August 14, 1976, the plaintiff, Kenneth Hoffman, an employee of Sweco was injured as the result of an explosion which occurred while he was at work at Sweco's plant in Florence, Kentucky. Hoffman alleged that the explosion occurred when fumes from certain cleaning chemicals provided him by Sweco's ignited. Hoffman filed a workers' compensation claim against Sweco. Liberty Mutual Insurance Company, Sweco's insurer, has paid certain sums on the claim.
On August 10, 1977, Hoffman, Beverly Hoffman and Liberty Mutual filed a tort action against J. Daly Company, Inc., a distributor and vendor of chemical products, and Union Carbide Corporation, a manufacturer of chemical products. The complaint alleged that Daly and Union Carbide were negligent in failing to test the chemicals to determine their flammability and explosive nature and in failing to warn Hoffman of any such dangerous characteristics. Liberty Mutual asserted a subrogation claim for the amount it had been required to pay Hoffman on the workers' compensation claim.
On November 13, 1978, Union Carbide filed a third party complaint against Sweco alleging that Sweco was primarily and actively negligent in that it failed to instruct Hoffman regarding safety practices and procedures in its plant and in that it failed to provide Hoffman with a safe working area. Union Carbide's complaint sought indemnification from Sweco. The record reveals that there is an issue of fact concerning Sweco's alleged negligence. Sweco moved for dismissal or summary judgment on the grounds that Sweco is immune from such a claim under the provisions of KRS 342.690(1) which reads 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 employe, 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 KRS 342.610, whether or not the subcontractor has in fact, secured the payment of compensation. The liability of an employer to another person who may be liable for or who has paid damages on account of injury or death of an employe of such employer arising out of and in the course of employment and caused by a breach of any duty or obligation owed by such employer to such other shall be limited to the amount of compensation and other benefits for which such employer is liable under this chapter on account of such injury or death, unless such other and the employer by written contract have agreed to share liability in a different manner. The exemption from liability given an employer by this section shall also extend to such employer's carrier and to all employes, officers or directors of such employer or carrier, provided the exemption...
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...is the oldest of the three doctrines, and the only cause of action based on a common-law right. See Union Carbide Corp. v. Sweco, Inc., 610 S.W.2d 932, 934 (Ky.Ct.App.1980) (explaining that “indemnity is a jural right which existed prior to the adoption of our Constitution and may not be ab......
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