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Cabrera v. JBS USA LLC

Court of Appeals of Kentucky

February 8, 2019

JORGE MARTELL CABRERA APPELLANT
v.
JBS USA, LLC; SWIFT BEEF COMPANY; SWIFT PORK COMPANY; SWIFT ECKRICH, INC.; MONFORT, INC.; MONFORT FOOD DISTRIBUTION COMPANY; and CONRAGA, INC APPELLEES

          APPEAL FROM JEFFERSON CIRCUIT COURT HONORABLE JUDITH MCDONALD-BURKMAN, JUDGE ACTION NO. 15-CI-003937

          BRIEF FOR APPELLANT: DOUGLAS H. MORRIS LEA A. PLAYER ROBYN BELL STANTON LOUISVILLE, KENTUCKY

          BRIEF FOR APPELLEES: R. CRAIG REINHARDT NEAL J. MANOR LEXINGTON, KENTUCKY

          BEFORE: DIXON, KRAMER, AND J. LAMBERT, JUDGES.

          OPINION

          KRAMER, JUDGE.

         Jorge Martell Cabrera asserted negligence and/or product liability claims against each of the above-captioned entities in Jefferson Circuit Court. Ultimately, the circuit court dismissed each of his claims on the grounds of either immunity or the applicable statute of limitations. He now appeals. Upon review, we affirm in part, reverse in part, and remand as set forth below.

         The incident giving rise to this appeal is straightforward. As alleged in his complaint, on September 27, 2014, Cabrera was working in the course and scope of his employment sanitizing saddle tables in a pork processing facility located at 1200 Story Avenue, Louisville, Kentucky, when his right arm became entrapped in a conveying system, injuring him. Cabrera later filed a workers' compensation claim and received benefits. He then asserted several negligence and products liability claims in Jefferson Circuit Court against the above-captioned appellees based upon his injuries. After a period of motion practice, his claims were summarily dismissed.

         The primary issue raised in this appeal, and the starting point of our analysis, is the more complicated matter of who Cabrera's "employer" was within the meaning of Kentucky's Workers' Compensation Act. This is because the circuit court dismissed most of Cabrera's claims after determining a number of the above-captioned appellees (i.e., JBS USA, LLC, Swift Pork Company, Monfort, Inc., and Swift Beef Company) qualified as his statutory "employers," and were therefore entitled to workers' compensation immunity. See Kentucky Revised Statute (KRS) 342.690(1) (providing that where an employer secures payment of compensation as required by the Act, the employer is immune from tort liability to the employee). Cabrera argues the circuit court erred in this respect.

         As to our standard of review, we must consider whether the circuit court correctly determined that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. Scifres v. Kraft, 916 S.W.2d 779 (Ky. App. 1996). Because summary judgment involves only questions of law and not the resolution of disputed material facts, an appellate court does not defer to the circuit court's decision. Goldsmith v. Allied Bldg. Components, Inc., 833 S.W.2d 378 (Ky. 1992). Likewise, we review the circuit court's interpretations of law de novo. Cumberland Valley Contrs., Inc. v. Bell Cty. Coal Corp., 238 S.W.3d 644, 647 (Ky. 2007).

         We now proceed with the substance of this appeal. Cabrera has conceded that his claims against appellee Monfort Food Distribution Company were properly dismissed; accordingly, the circuit court's dismissal of his claims against that entity is affirmed. As to the remainder of our analysis, we have divided it to separately address the circuit court's overarching bases for disposing of Cabrera's claims: (1) workers' compensation immunity; (2) the applicable statute of limitations; and (3) an additional argument raised by the appellees that Cabrera has impermissibly split his cause of action.

         I. Workers' Compensation Immunity

         a. JBS USA, LLC (JBS)

         It is beyond cavil that meat processing facilities are required to meet a multitude of state and federal regulations governing many aspects of their business, not the least of which relate to cleanliness and sanitation. In this vein, Cabrera's direct employer - and the entity that paid his workers' compensation benefits - was Packer's Sanitation Services, Inc., a company that specializes in providing sanitation services that ensure meat processing facilities comply with those regulations. When Cabrera sustained his injuries, he was performing those services on behalf of Packers; at a pork processing facility in Louisville that was operated by JBS; and pursuant to the terms of a contract for those services that Packers had entered with JBS.

         As indicated, when the circuit court dismissed Cabrera's negligence and premises liability claims against JBS, its reasoning was based upon workers' compensation immunity - specifically, the "up-the-ladder" variety. To explain, the term "employer," for purposes of coverage under the Act and corresponding workers' compensation immunity, includes "contractors" which are defined by the Act in relevant part as follows: "A person who contracts with another . . . (b) [t]o have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession of such person shall for the purposes of this section be deemed a contractor, and such other person a subcontractor." KRS 342.610(2); see also KRS 342.690(1). If a defendant qualifies as a contractor, "it has no liability in tort to an injured employee of a subcontractor." Fireman's Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d 459, 461 (Ky. 1986).

         In other words, tort immunity under the Act extends "up the ladder" from the subcontractor that employs an injured person to the entities that contracted with the subcontractor, so long as the injured person's employer has workers' compensation coverage, and the up the ladder entities contracted "to have work performed of a kind which is a regular or recurrent part of the work" of their business. See Goldsmith, 833 S.W.2d at 379.

         Cabrera contends the circuit court erred by deeming JBS an "up-the-ladder" contractor and thus his statutory employer for immunity purposes. In his words he argues that "there was no evidence that JBS USA employees ever performed this type of work [i.e., sanitation services capable of ensuring the pork processing facility complied with state and federal regulations], there was no evidence that JBS USA employees were skilled/trained in the type of work being contracted, and there was no opportunity to conduct discovery on this issue."

         But, whether JBS employees ever performed this type of work with its own employees or had employees skilled enough or trained to do it is not dispositive of this issue. Persons or entities who engage another to perform a part of the work which is a recurrent part of their business, trade, or occupation are considered "contractors" under the Act even if they never perform that type of work with their own employees. Fireman's Fund, 705 S.W.2d at 462.

         Moreover, no further discovery was needed to determine whether this type of work was "regular" or "recurrent." Within the meaning of the Act, "'[r]ecurrent' simply means occurring again or repeatedly." Daniels v. Louisville Gas and Elec. Co., 933 S.W.2d 821, 824 (Ky. App. 1996); Pennington v. Jenkins-Essex Constr., Inc., 238 S.W.3d 660, 664 (Ky. App. 2006). "'Regular' generally means customary or normal, or happening at fixed intervals." Daniels, 933 S.W.2d at 824. See also General Elec. Co. v. Cain, 236 S.W.3d 579, 588 (Ky. 2007) ("It is work that is customary, usual, or normal to the particular business (including work assumed by contract or required by law) or work that the business repeats with some degree of regularity, and it is of a kind that the business or similar businesses would normally perform or be expected to perform with employees." (Emphasis added.))

         Here, pursuant to the Packers-JBS contract, the sanitation services Cabrera was performing at the pork processing facility were recurrent (i.e., they were performed daily at the end of processing operations). Likewise, they were regular; as indicated and as Cabrera concedes in his brief, the recurrent sanitation work Cabrera was performing at the pork processing facility was required by law. Accordingly, the circuit court committed no error in dismissing Cabrera's claims against JBS based upon up-the-ladder immunity. We affirm.

         b. Swift Pork Company (Swift Pork)

         When the circuit court likewise dismissed Cabrera's claims against Swift Pork, it did so for the same reasons it dismissed Cabrera's claims against JBS, as set forth above. On appeal, Cabrera contends the circuit court erred in applying "up-the-ladder" immunity to Swift Pork. This is so, he argues in his brief, because "[i]t is undisputed that Swift Pork Company never employed Mr. Cabrera. Further, Swift Pork Company has never contracted with Mr. Cabrera's employer, Packers Sanitation. The Contract in this case was between 'JBS USA, LLC Pork Division' and 'Packers Sanitation Services Inc.'"

         In making these arguments, however, Cabrera chooses form over substance. To begin, the Act

does not demand evidence of formal written contracts between a defendant and the plaintiff's direct employer for the defendant to have up-the-ladder immunity but, rather, shows that contracts might be found in this context when the facts show that the defendant is effectively functioning as the contractor . . . even if the evidence would not establish a binding contract for purposes of a breach of contract action, for instance.
. . . While we certainly do not ignore the statutory requirement of "contracts," we construe this term broadly in this context to ensure that workers' compensation coverage is provided allowing injured workers to recover benefits quickly without having to show fault.

Beaver v. Oakley, 279 S.W.3d 527, 534-35 (Ky. 2009) (footnotes omitted).

         Rather, to demonstrate it was a "contractor" and thus entitled to "up-the-ladder" immunity, it was enough for Swift Pork to demonstrate that when JBS contracted with Packers, it did so as a representative and for the benefit of Swift Pork; and, that its omission from the contract was merely a facet of the financial arrangement between itself and JBS. Id. at 532. See also Upper Elkhorn Coal Co. v. Thornberry, 564 S.W.2d 842, 843 (Ky. App. 1977) (deeming, for purposes of workers' compensation coverage, an appellant coal company the "employer" of a person injured while working to remove minerals pursuant to a coal lease because although the lease was purportedly to ...


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