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McCarty v. Covol Fuels No. 2, LLC

United States District Court, W.D. Kentucky, Owensboro Division

October 16, 2013

NANCY J. MCCARTY, individually, and as Personal Representative of the Estate of DAVID W. MCCARTY, Deceased, PLAINTIFFS And LIBERTY MUTUAL AGENCY MARKETS, INTERVENING PLAINTIFF

Decided October 15, 2013

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For Nancy J. McCarty, Individually, and as Personal Representative of the Estate of David W. McCarty, Deceased, Plaintiff: Travis L. Holtrey, LEAD ATTORNEY, Tyler H. Johnson, Foreman Watson Holtrey, LLP, Owensboro, KY; Lane C. Siesky, Siesky Law Firm, PC, Evansville, IN.

For Liberty Mutual Agency Markets, Intervenor Plaintiff: Mark W. Howard, LEAD ATTORNEY, H. Douglas Jones, Jones Howard Law, PLLC, Florence, KY.

For Covol Fuels No. 2, LLC, a Utah Corporation, Defendant: Robert D. Bobrow, Robert Estes Stopher, Boehl Stopher & Graves, LLP - Louisville, Louisville, KY.


Joseph H. McKinley, Jr., Chief United States District Judge.

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This matter is before the Court on Defendant Covol Fuels No. 2's (" Covol" ) Motion for Summary Judgment [DN 120] and Motion to Exclude, or Limit Testimony of, Plaintiff's Expert Witnesses [DN 122]. Additionally, other matters before the Court are Plaintiffs' Motion for Partial Summary Judgment [DN 113], Daubert Motion to Exclude Testimony and Opinions of Dr. George R. Nichols [DN 115], Motion In Limine Excluding Any Reference at Trial to David McCarty's Alleged Marijuana Use [DN 116], and Motion for Sanctions is [DN 114].


On February 26, 2009, David McCarty, employed by Evansville Garage Doors, fell and suffered fatal injuries while installing an overhead commercial-grade door at the Minuteman Fines Recovery Plant located in Muhlenberg County. Covol hired H & B Builders to construct the post-frame building at the facility, and to complete this building, H & B Builders subcontracted the installation of the garage door to Evansville Garage Doors.

On the day of the fall, McCarty and Jeremy Means were sent to Covol's facility to install the garage door, but McCarty was the lead installer for the project. The incident that led to McCarty's death occurred while McCarty and Means were

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checking the tension spring in the door. Means and McCarty bolted the door to the tension wheel and used a forklift to raise the door to the height needed and to keep the door from falling while they were working. After bolting the door on the tension wheel, Means and McCarty decided that they no longer needed the forklift to restrain the door. To make the adjustments to the tension wheel, Means used a man-lift to put himself in position and McCarty positioned himself on the top of a ladder directly below the opening of the door. While checking the tension in the door, McCarty and Means pulled down on the garage door, which caused the door to fully descend and strike the ladder McCarty was using. Even though McCarty was wearing a safety harness and had tie-offs, he was not tied-off to anything that would have prevented his fall. As a result, McCarty fell from the ladder and hit his head against the concrete floor below him.

Following the incident at Covol, William Barnwell, a Mine Safety and Health Coal Mine Inspector, conducted an investigation into how McCarty fell from the ladder. Barnwell concluded that McCarty's fall resulted from the placement of his ladder directly below the door opening, the failure of Means and McCarty to follow the installation instructions for the door, and the lack of restraint devices used to prevent the door from descending as it did when it struck the ladder. However, " the root" cause of the incident, Barnwell reported, was that " [t]he steel curtain was not blocked from motion during the installation of the door as required in the manufacturer's installation manual." (MSHA's Report, DN 51-1, at 12). Additionally, the inspector found the garage door itself free of any defects that would have contributed to the accident.


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 that 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 identifying that portion of the record that demonstrates the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Although the Court must review the evidence in the light most favorable to the non-moving party, the non-moving party must do more than merely show that there is some " metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Instead, the Federal Rules of Civil Procedure require 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 the Court reviews the following facts.


In this case, Plaintiffs assert four theories of negligence: (1) common law duty

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" to provide a safe workplace and safe equipment," (2) " negligence per se for violating mine safety statutes and regulations," (3) voluntary assumption of a duty for McCarty based on " Covol's safety policies and procedures," (4) contractual duty of care " pursuant to the contract that Covol entered into with the Commonwealth of Kentucky." (Mem. in Supp. of Pls.' Mot. for Partial Summ. J., DN 113-1, at 1-2). Defendant responds to each contention by asserting that it either owed a very limited duty of care to McCarty, in the case of the common law duty, or that it owed no contractual duty arising from the lease with the Commonwealth of Kentucky, its internal policies, or mining regulations. Additionally, Defendant argues for immunity claiming the Workers' Compensation Act is Plaintiffs' exclusive remedy. Since a finding that the Workers' Compensation Act applies to Defendant would dispose of Plaintiffs' tort claims, the Court will first examine this assertion.

A. Exclusive Remedy Under Workers' Compensation Act

Defendant argues that it is immune from tort liability because the Workers' Compensation Act provides the exclusive remedy in this case. Defendant supports this contention on what it perceives as Plaintiffs' admission within their motion for partial summary judgment. In response to this argument, Plaintiff points to Defendant's various filings to show issues of fact as to the applicability of the Workers' Compensation Act.

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, ...

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