Zehring v. Wickham

• Decision Date: 26 August 1982
• Docket Number: No. 53033,53033
• Citation: 8 Kan.App.2d 65,649 P.2d 1246
• Parties: Robert ZEHRING, Appellant, v. Gary WICKHAM and Ron Wickham d/b/a Wickham Glass Company, A Partnership, Appellees.
• Court: Kansas Court of Appeals

Page 1246

649 P.2d 1246

8 Kan.App.2d 65

Robert ZEHRING, Appellant, v. Gary WICKHAM and Ron Wickham d/b/a Wickham Glass Company, A

Partnership, Appellees.

No. 53033.

Court of Appeals of Kansas.

Aug. 26, 1982.

Review Granted Oct. 29, 1982.

Syllabus by the Court

1. Under K.S.A. 44-503(a), a statutory employer, the "principal," is a person who contracts with another person, the "contractor," for the execution by or under the contractor of the whole or any part of (1) work the principal has undertaken to execute which is a part of the principal's trade or business, or (2) work the principal has undertaken by contract with a third party to perform.

2. In a workers' compensation third party action where the defendant is claimed to have been negligent, it is held the defendant was not a statutory employer as defined by K.S.A. 44-503(a).

Edward J. Hund of Smith, Shay, Farmer & Wetta, Wichita, for appellant.

Greer Gsell of Hershberger, Patterson, Jones & Roth, Wichita, for appellees.

Before FOTH, C. J., and REES and PARKS, JJ.

REES, Judge:

This negligence action is a workers' compensation third party action. See K.S.A. 44-504. Defendants Gary Wickham and Ron Wickham are partners doing business as Wickham Glass Company (Wickham). Plaintiff appeals from an adverse summary judgment.

The ground adopted by the trial judge and relied upon by Wickham is that plaintiff's only remedy against Wickham, if any, is that provided by our Workers' Compensation Act. K.S.A. 44-501 et seq.

The facts of this case as it comes before us are gleaned from the admitted allegations in plaintiff's amended petition, the parties' statements of uncontroverted contentions of fact and an affidavit of Ron Wickham. There was substantial compliance with K.S.A. 60-256 and Supreme Court Rule 141, 225 Kan. 1xviii. Plaintiff has objected to Wickham's inclusion of certain selected deposition testimony as an appendix to its brief on the ground that material is taken from a deposition not in the record on appeal. The ground asserted is meritorious (Supreme Court Rule 6.02(f), 225 Kan. xlii), but the objection is lodged at material having no significant tendency to alter the mutually uncontroverted contentions of fact. The record on appeal and the briefs and arguments of the parties reveal the parties have no real differences as to the facts.

Wickham is a glazing contractor whose daily business consists of the design, manufacture and installation of glass-enclosed entrances, glass curtain walls, windows, door glass and mirrors. Its business is not that of a general building contractor. Ron Wickham, a licensed architect, designed the Wickham office building constructed in 1961, an addition to the building constructed in 1977 and another addition constructed in 1978. The second addition is a prestressed concrete building with some special customized features required for housing a large glass tempering oven acquired by Wickham. The foundation, floor slab, electrical, plumbing, roofing and cartage parts of the work involved in the construction of the two additions were performed by independent contractors under oral and written contracts with Wickham; all other parts of the work involved in the construction of the additions were performed by Wickham employees using tools, equipment and materials it supplied and purchased. In the construction of the additions, Wickham coordinated the work of the independent contractors and oversaw its compliance with the plans and specifications.

Plaintiff was an apprentice electrician employed by Superior Electric, the firm with which Wickham contracted for the electrical wiring and fixtures installation portion of the construction of the second addition. On August 19, 1978, while in performance of his employer's contract with Wickham, plaintiff was accidentally injured on the job site. He was on the unfinished roof of the new addition when he fell through an uncovered hole. Immediately prior to his fall, plaintiff, using an electric hand drill, was drilling a series of one-inch holes through the unfinished roof for couplings from which to hang lights. He had previously drilled some of the holes in the wrong location and Ron Wickham had just shown him the correct location. After plaintiff's fall and removal to the hospital, Ron Wickham, using plaintiff's drill, completed the holes for the light couplings.

The exclusive nature of a worker's remedy under the Workers' Compensation Act is not questioned. K.S.A. 44-501. Neither is it questioned plaintiff suffered personal injury by accident arising out of and in the course of his employment. K.S.A. 44-501. The singular issue presented is whether Wickham was a "statutory employer" of plaintiff as that status is defined by K.S.A. 44-503(a). The statute reads:

"Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his trade or business or which he 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 workman employed in the execution of the work any compensation under the workman's compensation act which he would have been liable to pay if that workman had been immediately employed by him ... ."

The statute and its predecessor, G. S. 1935, 44-503(a), are the subject of numerous appellate opinions. Consideration of the statute and the opinions requires careful recognition of the statutory definitions of "principal" and "contractor." While the Revisor of Statutes has chosen to insert "Subcontracting" as the section heading, application of the statute is not limited to situations in which the immediate employer of the worker is a subcontractor.

Under K.S.A. 44-503(a), a statutory employer, the "principal," is a person who contracts with another person, the "contractor," for the execution by or under the contractor of the whole or any part of (1) work the principal has undertaken to execute which is a part of the principal's trade or business, or (2) work the principal has undertaken by contract with a third party to perform.

Fundamental to operation of K.S.A. 44-503(a) is the existence of a contract between two employers, the principal and the contractor. See Ellis v. Fairchild, 221 Kan. 702, 712, 562 P.2d 75 (1977). If the work they contract for execution by or under the contractor is a part of the principal's trade or business, the statute is operative; it does not matter whether the work for execution by or under the contractor is work the principal has contracted with a third party to perform; the contractor is not necessarily a subcontractor. If the work they contract for execution by or under the contractor is work the principal has contracted with a third party to perform, the statute is operative; it does not matter whether the work for execution by or under the contractor is a part of the principal's trade or business; the contractor is a subcontractor.

Here, there is a contract between two employers, that is, Wickham as the principal and Superior Electric as the contractor. The work for execution by or under Superior Electric is not work Wickham undertook by contract with a third party to perform. Accordingly, the question is whether the work Wickham and Superior Electric contracted for execution by or under Superior Electric was a part of Wickham's trade or business.

Hanna v. CRA, Inc., 196 Kan. 156, 409 P.2d 786 (1966), and Woods v. Cessna Aircraft Co., 220 Kan. 479, 553 P.2d 900 (1976), two rather recent Supreme Court opinions, review relevant case law. That review need not be repeated. The pertinent essential teaching of Hanna and...