Wheeler v. Rolling Door Co., 92,325.

• Decision Date: 01 April 2005
• Docket Number: No. 92,325.,92,325.
• Citation: 33 Kan.App.2d 787,109 P.3d 1255
• Parties: KRISTI L. WHEELER, Appellee, and CINCINNATI INSURANCE CO., Intervenor/Appellee, v. ROLLING DOOR COMPANY; AUTOMATIC SERVICES CORPORATION, d/b/a ROLLING DOOR COMPANY and AERO SYSTEMS CORPORATION; ASC AERO SYSTEMS CORPORATION, d/b/a ROLLING DOOR COMPANY and AERO SYSTEMS CORPORATION; E.W. JOHNSON, INC.; BURNS & McDONNELL ENGINEERING COMPANY, INC., Defendants, and STATE OF KANSAS, Appellant.
• Court: Kansas Court of Appeals

33 Kan.App.2d 787

109 P.3d 1255

KRISTI L. WHEELER, Appellee, and CINCINNATI INSURANCE CO., Intervenor/Appellee, v. ROLLING DOOR COMPANY; AUTOMATIC SERVICES CORPORATION, d/b/a ROLLING DOOR COMPANY and AERO SYSTEMS CORPORATION; ASC AERO SYSTEMS CORPORATION, d/b/a ROLLING DOOR COMPANY and AERO SYSTEMS CORPORATION; E.W. JOHNSON, INC.; BURNS & McDONNELL ENGINEERING COMPANY, INC., Defendants, and STATE OF KANSAS, Appellant.

No. 92,325.

Court of Appeals of Kansas.

Opinion filed April 1, 2005.

Eliehue Brunson, assistant deputy attorney general, for appellant.

John W. Johnson, of Bradshaw, Johnson & Hund, of Wichita, and Shari R. L. Willis, of Powell, Brewer & Reddick, of Wichita, for appellee, Kristi L. Wheeler.

Before GREEN, P.J., PIERRON and CAPLINGER, JJ.

GREEN, J.:

Kristi Wheeler sued the State of Kansas and others on claims of negligence, based on the injuries she sustained while preparing for the Kansas Starbase program. The parties filed cross-motions for summary judgment on the issue of whether Wheeler was the State's statutory employee under K.S.A. 44-503(a) of the Workers Compensation Act (Act), K.S.A. 44-501 et seq., and, therefore, precluded from obtaining relief on her negligence action. The Act provides the exclusive remedy for injured employees. Determining that the State had not met its burden of proof on this issue, the trial court ruled that Wheeler was not the State's statutory employee and granted Wheeler's motion for summary judgment. The State brings this interlocutory appeal from that decision. We determine that a genuine issue of material fact remains regarding whether the National Guard Bureau of the United States Department of Defense (NGB) had contracted with the State to furnish the teaching and site coordination services that Wheeler was performing and whether the State had in turn contracted with Wheeler's employer, Smoky Hill Education Service Center (Smoky Hill), for these services. As a result, we affirm in part, reverse in part, and remand.

Wheeler was employed by Smoky Hill and worked as a site coordinator and teacher in the Kansas Starbase program at Wichita's McConnell Air Force Base. Smoky Hill had contracted with the Kansas Air National Guard (Guard) to employ and supervise the Kansas Starbase state director and employees. The accident occurred one morning in June 1999 when Wheeler, while preparing for a Starbase academy, suffered serious injuries when opening a truck hangar door.

After her accident, Wheeler sued several defendants including the State. It appears that the other defendants have settled with Wheeler and have been dismissed from the case. Wheeler's suit against the State was based on claims of negligence. The case went to trial, and the jury rendered a verdict in favor of Wheeler and found the State 100 percent at fault. On appeal, however, a panel of this court reversed and remanded the case on various issues. As part of its ruling, the panel directed the trial court to consider whether Wheeler was the State's statutory employee. Apparently, the State had raised this issue in two summary judgment motions before trial, but the trial court had never addressed the issue. See Wheeler v. Rolling Door Co., No. 88,478, unpublished opinion filed May 9, 2003.

After the case was remanded, the State filed a supplemental motion in support of its second summary judgment motion previously filed. Pointing out that the Act contains an exclusive remedy provision, the State argued that it was Wheeler's statutory employer under K.S.A. 44-503(a) of the Act and thus immune from her tort suit against it. Wheeler responded to the motion and also moved for partial summary judgment and judgment as a matter of law on the statutory employment issue. Wheeler argued that the State could not meet its burden to show that Wheeler was its statutory employee. The parties agreed that the statutory employment issue raised a legal question which had to be determined as a matter of law. Moreover, the parties requested that in ruling on these motions, the trial court determine that the matter was appropriate for interlocutory appeal.

The trial court granted Wheeler's motion for partial summary judgment and judgment as a matter of law. The trial court determined that Wheeler was not the State's statutory employee when she was injured. In addition, the trial court denied the State's second motion for summary judgment. Determining that an interlocutory appeal was appropriate in this case, the trial court stayed the proceedings until this court issues a decision on the issue. The State now appeals from the trial court's ruling.

Summary Judgment Standard

Our review of the trial court's grant or denial of summary judgment is well established:

"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, [the reviewing court must] apply the same rules and where ... reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.]" Bracken v. Dixon Industries, Inc., 272 Kan. 1272, 1274-75, 38 P.3d 679 (2002).

Although both parties assert that summary judgment was appropriate on the issue of whether the State was Wheeler's statutory employer, the trial court was still required to determine whether a genuine issue of material fact remained before granting summary judgment. The mere filing of cross-motions for summary judgment does not obligate a trial court to enter summary judgment. Rather, the trial court must independently determine whether a genuine issue of material fact exists. 73 Am. Jur. 2d, Summary Judgment § 43, pp. 684-85.

Exclusive Remedy Rule

Initially, we note that the Act contains an exclusive remedy provision limiting recovery by injured employees from their employers to that prescribed under the Act. K.S.A. 44-501(b) states: "Except as provided in the workers compensation act, no employer, or other employee of such employer, shall be liable for any injury for which compensation is recoverable under the workers compensation act." Thus, "[t]he remedy provided in the Kansas Workers Compensation Act is exclusive and a worker may not maintain a common-law action for damages founded upon negligence against a party from whom he or she could have recovered compensation from that employer under the Act. [Citation omitted.]" Robinett v. The Haskell Co., 270 Kan. 95, 97, 12 P.3d 411 (2000). In order for the State to prevail on the exclusive remedy defense, it has the burden of proof to establish an employment relationship between it and Wheeler under the Act. See Anderson v. National Carriers, Inc., 10 Kan. App. 2d 203, 206, 695 P.2d 1293, rev. denied 237 Kan. 886 (1985).

Statutory Employer Provision

K.S.A. 44-503(a), the statutory employer provision of the Act, states:

"Where any person (in this section referred to as principal) undertakes to execute any work which is a part of the principal's trade or business or which the principal has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any worker employed in the execution of the work any compensation under the workers compensation act which the principal would have been liable to pay if that worker had been immediately employed by the principal; and where compensation is claimed from or proceedings are taken against the principal, then in the application of the workers compensation act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the worker under the employer by whom the worker is immediately employed. For the purposes of this subsection, a worker shall not include an individual who is a self-employed subcontractor."

K.S.A. 44-503(a) "extends the application of the Kansas Workers Compensation Act to certain individuals or entities who are not the immediate employers of the injured workers, but rather are `statutory employers.' [Citation omitted.]" Robinett, 270 Kan. at 98. Under this statute, "a principal will be liable to the employee of a subcontractor if the principal undertakes to do work which (1) is a part of the principal's trade or business, or (2) the principal has contracted to do for a third party." Harper v. Broadway Mortuary, 6 Kan. App. 2d 763, 764, 634 P.2d 1146 (1981). Because the parties raise arguments under each of these alternatives, we will consider each one separately.

It is important to point out that although Wheeler has sued the State as a whole, the "principal" under the facts of this case is the Guard. Under Kansas law, the Guard is the organized militia of this State. K.S.A. 48-201. The Guard, acting on behalf of the State, contracted with the NGB regarding the Kansas Starbase program. In addition, the Guard contracted with Smoky Hill to provide the employees for the Kansas Starbase program. Accordingly, the parties have presented their arguments under K.S.A. 44-503(a) with the Guard as the "principal."

Liberal Construction of the Act

In addressing the parties' arguments, this court must bear in mind that K.S.A. 44-501(g) requires us to liberally construe ...