MEMORANDUM OPINION AND ORDER
This matter is before the Court on a motion by Defendant for summary judgment [DN 16] and on a motion by Plaintiffs to supplement their response to the motion for summary judgment [DN 22]. The Court has considered the supplement submitted by Plaintiffs in deciding the motion for summary judgment. Fully briefed, these matters are ripe for decision.
Before the Court may grant a motion for summary judgment, it must find that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The moving party bears the initial burden of specifying the basis for its motion and of identifying that portion of the record which demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies this burden, the non-moving party thereafter must produce specific facts demonstrating a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party is required to do more than simply show there is some "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). The rule requires the non-moving party to present specific facts showing that a genuine factual issue exists by "citing to particular parts of materials in the record" or by "showing that the materials cited do not establish the absence . . . of a genuine dispute[.]" Fed. R. Civ. P. 56(c)(1). "The mere existence of a scintilla of evidence in support of the [non-moving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party]." Anderson, 477 U.S. at 252. It is against this standard that the Court reviews the following facts.
On March 6, 2011, Plaintiff, Brian Young (hereinafter "Plaintiff"), sustained a work related injury while employed as a security guard for Securitas Security System USA, Inc. ("Securitas") at a manufacturing and distribution facility owned by Defendant, SCA Personal Care, Inc, in Bowling Green, Kentucky. Defendant is in the business of developing, producing, and marketing adult personal care products. The Bowling Green facility consists of a manufacturing line, shipping area, and storage space, totaling an area in excess of 370,000 square feet.
On September 1, 2009, Defendant contracted with Securitas for the provision of security at the Bowling Green facility. (Service Agreement, 9/1/2009.) Pursuant to that Agreement, Securitas agreed to provide 24 hour security at Defendant's facility, conduct fire walks throughout the facility, and open and close gates for shipping and receiving. (Id., Appendix A.) The Agreement also required Securitas to provide and maintain workers' compensation insurance for Securitas employees who performed work at SCA's facility. (Id.) Plaintiff began working for Securitas at SCA's facility on March 12, 2010, as a Security Officer. As part of his job duties, Plaintiff patrolled the warehouse, controlled entry and exits of deliveries and shipment, cleared paths during inclement weather, checked the identification of visitors and contractors, and wrote reports. (Plaintiff's Answers to Interrogatories, Report of Dr. Timir Banerjee, 8/31/11.)
On March 6, 2011, Plaintiff was working the twelve hour night shift and was in the warehouse area of SCA when he received a call from a truck at the rear entrance requesting entry to the facility. Plaintiff left his desk to check-in the vehicle. While in the warehouse area, Plaintiff noticed that a double set of pallets had fallen. While in the process of investigating the pallets, a 40-pound box fell and struck Plaintiff in the head and neck causing personal injuries. It is undisputed that Plaintiff suffered a work-related injury and that the injury was sustained in the course and scope of his employment with Securitas. Following Plaintiff's injuries, Plaintiff received workers' compensation benefits from Securitas. Specifically, Plaintiff stated in his answers to interrogatories that he "received TTD benefits and payment for some medical treatment by the workers' compensation carrier for Securitas." (Plaintiff's Answers to Interrogatories at 9, DN 21-2.)
On February 29, 2012, Plaintiff Brian Young filed suit against Defendant in the Warren Circuit Court asserting claims for negligence and punitive damages. Plaintiff Shondus Young filed a claim for loss of consortium. Plaintiff alleges that "the Defendant was negligent and reckless in maintaining their warehouse resulting in a box weighing approximately 40 pounds striking Brian Young in the head." (Complaint at ¶ 9.) Defendant removed the action from state court to this Court on March 23, 2012. Defendant filed an answer denying liability for the injuries. In addition, Defendant affirmatively plead that Plaintiffs' claims are barred by the exclusive remedy sections of the Kentucky Workers' Compensation Act. Defendant argues that it is a "statutory employer" within the provisions and definitions in KRS § 342.610(2)(b) and KRS § 342.690. The Defendant now moves for summary judgment on this issue. In contrast, Plaintiff contends that Defendant is not the statutory employer of Plaintiff because Plaintiff was not performing work that is a regular or recurring part of the work of Defendant. Additionally, Plaintiff contends that there has been insufficient discovery and the motion for summary judgment is premature.
A. Exclusive Remedy of Kentucky Workers' Compensation Statute KRS §342.690(1) provides that if an employer secures payment of workers' compensation under Chapter 342, "the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer . . . ." 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." Granus v. North Am. Philips Lighting Corp., 821 F.2d 1253, 1257 (6th Cir. 1987) (citing KRS § 342.690).
KRS §342.610(2) provides in part as follows:
A contractor who subcontracts all or any part of a contract and his or her carrier shall be liable for the payment of compensation to the employees of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured the payment of compensation as provided for in this chapter. . . . 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, ...