FROM JEFFERSON CIRCUIT COURT HONORABLE JUDITH
MCDONALD-BURKMAN, JUDGE ACTION NO. 15-CI-003937
FOR APPELLANT: DOUGLAS H. MORRIS LEA A. PLAYER ROBYN BELL
STANTON LOUISVILLE, KENTUCKY
FOR APPELLEES: R. CRAIG REINHARDT NEAL J. MANOR LEXINGTON,
BEFORE: DIXON, KRAMER, AND J. LAMBERT, JUDGES.
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.
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
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
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).
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.
Workers' Compensation Immunity
JBS USA, LLC (JBS)
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.
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).
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.
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."
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.
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."
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.
Swift Pork Company (Swift Pork)
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
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,
. . . 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)
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