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Marquez-Warner v. Campus Crest At Louisville, LLC

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

March 28, 2018

MELISSA MARQUEZ-WARNER, et al., Plaintiffs,



         Anthony Warner died in a tragic accident while working at a construction site. His estate, widow, and child's guardian seek damages for wrongful death and loss of consortium from several defendants, including Titan Electric of Kentucky, LLC; Campus Crest Construction, Inc.; Campus Crest at Louisville, LLC; Campus Crest Development, Inc.; JCR Company, Inc.; and Bigford Enterprises, Inc. (Docket No. 23) Titan Electric, Campus Crest Construction, Campus Crest at Louisville, Campus Crest Development, JCR Company, and Bigford Enterprises have moved for summary judgment. (D.N. 89; D.N. 101; D.N. 108; D.N. 128) For the reasons explained below, JCR Company's motion will be denied. The other defendants' motions will be granted.

         I. BACKGROUND

         Campus Crest at Louisville purchased land near the University of Louisville to develop a student housing facility known as “The Grove.” (D.N. 101-2, PageID # 1395) Campus Crest at Louisville entered into a development agreement with Campus Crest Development under which Campus Crest Development would be responsible for supervising construction of the project. (Id.) Per the agreement, Campus Crest Development was not responsible for construction or safety; those were the responsibilities of the general contractor. (Id., PageID # 1402) Campus Crest at Louisville named Campus Crest Construction as general contractor to furnish all design and construction services. (D.N. 101-3, PageID # 1433-34) Under the design-build agreement, Campus Crest at Louisville appointed a representative to “be fully acquainted with the Project” and retained the right to object to subcontractors, to order changes in the work, and to correct worksite hazards if the general contractor failed to do so. (Id., PageID # 1446-47, 1452, 1442) Campus Crest Construction, however, had “overall responsibility for safety precautions and programs” under the agreement. (Id., PageID # 1441)

         Campus Crest Construction hired a number of subcontractors to perform various tasks at The Grove. Titan Electric contracted to perform all electrical work on the project. (D.N. 101-4) DM Masonry agreed to perform all masonry labor. (D.N. 102-2) Campus Crest Construction tasked JCR Company with work involving drywall, paint, insulation, interior trim, cabinets, doors, door hardware, bath accessories, shelving, and mini-blinds. (D.N. 121-1) Bigford Enterprises agreed to perform all framing on the project. (D.N. 131-1; D.N. 131-2) Through the various subcontracts, Campus Crest Construction imposed upon the subcontractors a duty to maintain a safe work environment. (See D.N. 121-1, PageID # 1984; D.N. 131-2, PageID # 2204) The various subcontracts required the subcontractors to keep the worksite free from debris, comply with OSHA and KOSHA safety regulations, report unsafe conditions, and ensure that fall-protection devices were in place. (D.N. 121-1, PageID # 1984; D.N. 121-2, PageID # 2052; D.N. 131-2, PageID # 2204; D.N. 131-3, PageID # 2214)

         In July 2014, Titan Electric posted an ad on Craigslist seeking laborers to assist at The Grove. (D.N. 93-4, PageID # 1222, 1228; D.N. 128-2, PageID # 2143) Warner responded to the ad via email on July 14, 2014, and Titan's Vice President Joshua Boling informed him that the job would last six weeks and pay $15 an hour. (D.N. 93-4, PageID # 1217, 1228, 1222-24, 1230) When Warner expressed interest in the job, Boling talked to him on the phone and instructed him to report to The Grove for an interview. (Id., PageID # 1228, 1223-24) At that time, Boling also sent an email to Tommy Dimaio at Hardhat, [1] stating that Warner would be starting work the next day, July 15, 2014. (Id., PageID # 1230; D.N. 93-5, PageID # 1234) Despite the fact that Warner's application had not been processed, he was put to work on July 15th laying out light fixtures and picking up trash. (D.N. 93-4, PageID # 1218; D.N. 93-5, PageID # 1234, 1240-41) David Gilbreath, a supervisor for Titan, ensured that prospective employees completed applications. (D.N. 93-5, PageID # 1231, 1233-34, 1238)

         On July 16, 2014, Warner fell from a second-floor elevator shaft to his death. (D.N. 131-6, PageID # 2242) The Kentucky Labor Cabinet's Office of Occupational Safety and Health concluded that the elevator shaft was unguarded and cited Titan Electric for failing to use guardrails. (D.N. 131-7, PageID # 2247) It is unclear how long the elevator shaft had been left unguarded at the time of the accident. In addition, pallets of wrapped deadbolts and light fixtures were found in the hallway by the elevator shaft. (D.N. 121-12, PageID # 2099-2100; D.N. 131-7, PageID # 2246) The Office of Occupational Safety and Health took note of the pallets of light fixtures and cited Titan Electric for failing to keep the hallway free and clear. (D.N. 131-7, PageID # 2246)

         II. STANDARD

         Summary judgment is required when the moving party shows, using evidence in the record, “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see 56(c)(1). For purposes of summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party. Loyd v. Saint Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, the Court “need consider only the cited materials.” Fed.R.Civ.P. 56(c)(3); see Shreve v. Franklin Cty., Ohio, 743 F.3d 126, 136 (6th Cir. 2014). If the nonmoving party “fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), ” the fact may be treated as undisputed. Fed.R.Civ.P. 56(e). To survive a motion for summary judgment, the nonmoving party must establish a genuine issue of material fact with respect to each element of each of her claims. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (noting that “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial”).


         A. Titan's Motion for Summary Judgment

         Titan argues that the exclusivity provision of Kentucky's workers' compensation law bars Plaintiffs' civil claims against Titan. (D.N. 89-1, PageID # 1169) Plaintiffs disagree. (D.N. 93, PageID # 1196) The Kentucky Workers' Compensation Act provides:

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 employee, 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.

Ky. Rev. Stat. § 342.690(1). The exclusivity provision “grants immunity for liability arising from common law and statutory claims.” State Farm Mut. Auto. Ins. Co. v. Slusher, 325 S.W.3d 318, 323 (Ky. 2010) (quoting Ky. Emp'rs Mut. Ins. v. Coleman, 236 S.W.3d 9, 13 (Ky. 2007)). The provision's effect is to “shield a covered employer and its insurer from any other liability to a covered employee for damages arising out of a work-related injury.” Id. (quoting Coleman, 236 S.W.3d at 13). “This immunity is pivotal in maintaining the tradeoff-guaranteed compensation for the injured and immunity in court for the employer-inherent in Kentucky's workers' compensation law.” Marquez-Warner v. Campus Crest at Louisville, LLC, No. 3:15-cv-172-DJH-CHL, 2016 WL 5402767, at *2 (W.D. Ky. Sept. 26, 2016) (citing Black v. Dixie Consumer Prods. LLC, 835 F.3d 579, 583 (6th Cir. 2016)).

         “A certification of coverage from the Department of Workers' Claims or an uncontroverted affidavit from the employer's insurer is prima facie proof that a company has secured payment of compensation for the purposes of KRS 342.690(1).” Gen. Elec. Co. v. Cain, 236 S.W.3d 579, 605 (2007). “Absent evidence that the coverage was in some way deficient as to a worker, such a showing is enough to invoke the exclusive remedy provision . . . .” Id. Titan has presented a certificate of liability insurance from its insurer and a copy of its workers' compensation and employers' liability policy. (See D.N. 89-1, PageID # 1171, 1176-1183) Although the certificate was not issued by the Department of Workers' Claims, Plaintiffs have not disputed that Titan carried workers' compensation insurance or argued that the coverage was in any way deficient. (See D.N. 93, PageID # 1197) The Court thus finds the evidence here sufficient to show that Titan secured payment of compensation for purposes of § 342.690(1). Plaintiffs argue, however, that there is a genuine issue of material fact as to whether Titan was Warner's employer. (See id., PageID # 1197-1202)

         The Kentucky Department of Workers' Claims initially found that Warner was an employee of Titan at the time of his death. (D.N. 93-7, PageID # 1266) Titan appealed, and the Kentucky Workers' Compensation Board vacated the determination that Titan employed Warner at the time of his death and remanded the claim for further analysis. (D.N. 93-8, PageID # 1285) In its opinion on remand, the Department concluded that Warner was an employee of both Titan and Hardhat at the time of his death. (D.N. 157-1, PageID # 2411) Hardhat evidently filed a petition for reconsideration, but no ruling had been made as of October 3, 2017. (See D.N. 145, PageID # 2325)

         The Kentucky Workers' Compensation Act defines “employer” as “[a]ny person, other than one engaged solely in agriculture, that has in this state one (1) or more employees subject to this chapter.” Ky. Rev. Stat. § 342.630(1). The Act further defines “employee” as “[e]very person, including a minor, whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, express or implied, and all helpers and assistants of employees, whether paid by the employer or employee, if employed with the knowledge, actual or constructive, of the employer.” § 342.640(1). This definition of “employee” determines when a person shall be deemed an employee for purposes of workers' compensation coverage. See Pike Cty. Bd. of Educ. v. Mills, 260 S.W.3d 366, 369 (Ky. Ct. App. 2008).

         Joshua Boling, Titan's vice president, first talked to Warner and told him to report to the job site for an interview. (D.N. 93-4, PageID # 1230, 1217, 1223) Boling also told Warner that the job would last six weeks and pay $15 an hour. (Id., PageID # 1224, 1228) Finally, Boling stated in an email to Hardhat that he had “a new guy” starting the next day, referring to Warner. (Id., PageID # 1230; D.N. 93-5, PageID # 1234) Warner reported to the job site on July 15, 2014, and was put to work laying out light fixtures and picking up trash. (D.N. 93-5, PageID # 1240-41) These facts show that Titan, through Boling, knowingly employed Warner through an implied contract of hire. See Abel Verdon Constr. v. Rivera, 348 S.W.3d 749, 752-54 (Ky. 2011) (finding that substantial evidence supported ALJ's conclusion that claimant was an employee where claimant's work was within the scope of the employer's business; the employer controlled the work being performed; and the work did not require any particular skill).

         Based on the facts outlined above, the Court finds that Warner was Titan's employee and Titan was Warner's employer for purposes of the Kentucky Workers' Compensation Act.[2] And it is undisputed that Titan carried workers' compensation insurance. (See D.N. 89-1, PageID # 1176-83; D.N. 93, PageID # 1197) Thus, the exclusivity provision applies, and Titan has “immunity for liability arising from common law and statutory claims.” Slusher, 325 S.W.3d at 323; see also Hardin v. Action Graphics, Inc., 57 S.W.3d 844, 845-46 (Ky. Ct. App. 2001) (holding that a loss-of-consortium claim is covered by the exclusive-remedy provision of Kentucky's Workers' Compensation Act). Because Plaintiffs' claims against Titan belong before the Kentucky Department of Workers' Claims, the Court will grant summary judgment in favor of Titan.

         Even if Titan were not Warner's employer, summary judgment in favor of Titan would still be appropriate. Plaintiffs have asserted negligence and loss-of-consortium claims against Titan. (D.N. 23) A negligence claim “requires proof that . . . the defendant owed the plaintiff a duty of care.” Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky. 2003) (citing Mullins v. Commonwealth Life Ins. Co., Ky., 839 S.W.2d 245, 247 (Ky. 1992)). Plaintiffs do not argue that Titan owed Warner a duty outside of the employment context. (See D.N. 93, PageID # 1193-1204) In the absence of any duty owed to Warner by Titan, Plaintiffs' negligence claims fail, as do the derivative loss-of-consortium claims. See McDaniel v. BSN Med., Inc., No. 4:07-cv-00036, 2010 WL 4779767, at *4 (W.D. Ky. Nov. 16, 2010) (“A loss of consortium claim ‘is derivative in nature, arising out of and dependent upon the right of the injured spouse to recover.'” (quoting Floyd v. Gray, 657 S.W.2d 936, 941 (Ky. 1983) (Leibson, J., dissenting))).

         B. Campus Crest's Motion for Summary Judgment

         1. Claims Against Campus ...

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