                                                                                 FILED

                                                                                   TN COURI'OF
                                                                        ll\ OR.li.':I.R S' CiOMPl.NS.ATION
                                                                                   <ClAThlS


            TENNESSEE BUREAU OF WORKERS' COMPENSATION
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                            AT NASHVILLE

Noe Jimenez Morales,                          )   Docket No. 2016-08-0944
            Employee,                         )
v.                                            )
Mirage Construction,                          )   State File No. 79028-2015
            Uninsured Employer,               )
And                                           )
Rite Rug Flooring/The Hartford,               )   Judge Kenneth M. Switzer
            Employer/Carrier,                 )
And                                           )
NVR, Inc./New Hampshire Ins. Co.,             )
            Employer/Carrier.                 )


            COMPENSATION HEARING ORDER GRANTING NVR'S
                 MOTION FOR SUMMARY JUDGMENT


       This matter came before the Court on May 15, 2017, upon NVR's Motion for
Summary Judgment. None of the other parties filed opposition to the motion or appeared
at the hearing, and Counsel for NVR represented to the Court that at the recent, ongoing
depositions, all opposing Counsel indicated they do not oppose NVR' s motion. For the
reasons set forth below, the Court holds there is no genuine issue of material fact and
NVR is entitled to judgment as a matter of law dismissing Mr. Jimenez Morales' claims
against it and its carrier.

                                     History of Claim

       Mr. Jimenez Morales filed a Petition for Benefit Determination seeking workers'
compensation benefits for alleged injuries to his left shoulder, right hip and leg sustained
on August 12, 2015. NVR's motion revolves around the relationships among the various
parties in the case and which party held workers' compensation coverage on the alleged
date of injury.



                                             1
       According to its statement of facts, NVR is the general contractor. It entered into
a "'Master Vendor Agreement" with Rite Rug in 20 11 to provide materials and services in
connection with NVR's homebuilding and other operations. The agreement required Rite
Rug as the vendor to maintain workers' compensation insurance. A "'Certificate of
Liability Insurance" provides that Rite Rug obtained coverage for the timeframe during
which Mr. Jimenez Morales allegedly became injured.

        Rite Rug's Responses to NVR's Request for Admissions indicate that Rite Rug
admitted it hired Mirage Construction as a subcontractor for the jobsite where Mr.
Jimenez Morales allegedly suffered his work injury. Rite Rug further admitted there was
no agreement in place between it and NVR extending NVR's insurance coverage to
Mirage. Mirage, in tum, admitted it employed Mr. Jimenez Morales on the alleged date
of injury, but denied having a valid workers' compensation insurance policy on that date.

                                         Analysis

        Motions for summary judgment are governed by Tennessee Code Annotated
section 20-16-101 (2016) and Tennessee Rule of Civil Procedure 56. Rule 56.03 requires
that a motion for summary judgment "be accompanied by a separate concise statement of
the material facts as to which the moving party contends there is no genuine issue for
trial." Rule 56.06 additionally states:

       When a motion for summary judgment is made and supported as provided
       in this rule, an adverse party may not rest upon the mere allegations or
       denials of the adverse party's pleading, but his or her response, by
       affidavits or as otherwise provided in this rule, must set forth specific facts
       showing that there is a genuine issue for trial. If the adverse party does not
       so respond, summary judgment, if appropriate, shall be entered against the
       adverse party.

(Emphasis added).        The Court of Workers' Compensation Claims Practices and
Procedures Rule 4.01B states with regard to dispositive motions that, "If no opposition is
filed, the dispositive motion will be considered unopposed." Further, the Court of
Appeals affirmed a trial court's grant of summary judgment where the non-moving party
failed to file a response. Williams v. Little, No. M2008-021 05-COA-R3-CV, 2009 Tenn.
App. LEXIS 703, at *6 (Tenn. Ct. App. Oct. 20, 2009). Here, none of the other parties
opposed NVR's motion. However, per Rule 56, the Court must nonetheless determine if
summary judgment is appropriate.

       To make this determination, aside from Rule 56, in 2011, the Court must also
consider the burden of proof applicable to a motion for summary judgment filed by a
party who does not bear the burden of proof at trial:


                                             2
       In motions for summary judgment in any civil action in Tennessee, the
       moving party who does not bear the burden of proof at trial shall prevail on
       its motion for summary judgment if it:

             (1) Submits affirmative evidence that negates an essential
                 element of the nonmoving party's claim; or

             (2) Demonstrates to the court that the nonmoving party's
                 evidence is insufficient to establish an essential element
                 of the nonmoving party's claim.

Tenn. Code Ann. § 20-16-101 (2016); Payne v. D and D Elec., 2016 TN Wrk. Comp.
App. Bd. LEXIS 21, at *7-8 (May 4, 2016). IfNVR, as the moving party, satisfies its
burden, then the remaining, nonmoving parties must "demonstrate the existence of
specific facts in the record which could lead a rational trier of fact to find in [their]
favor[.]" Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn.
2015).

       NVR relies on Tennessee Code Annotated section 50-6-113(a) (2016), which
provides that a "principal contractor, intermediate contractor or subcontractor shall be
liable for compensation to any employee injured while in the employ of any of the
subcontractors of the principal contractor, intermediate contractor or subcontractor and
engaged upon the subject matter of the contract to the same extent as the immediate
employer." Further, "Every claim for compensation under this section shall be in the first
instance presented to and instituted against the immediate employer[.]" !d. at § 50-6-
113(c).

       In Murray v. Goodyear Tire & Rubber Co., the Supreme Court explained the
policy underpinning the statutory employer provision as follows:

      In essence, the Act creates "statutory employers" in situations where
      injured workers are unable to recover compensation from their immediate
      employers. The purpose of this provision is to protect employees of
      irresponsible and uninsured subcontractors by imposing ultimate liability
      on the presumably responsible principal contractor, who has it within his
      power, in choosing subcontractors, to pass upon their responsibility and
      insist upon appropriate compensation for their workers. Moreover, the
      statute prevents principal contractors from contracting out work to prevent
      liability by giving the claimant the right to recover from the principal
      contractor as a statutory employer if the immediate employer cannot pay.

46 S.W.3d 171, 175 (Tenn. 2001)(Internal citations omitted).


                                            3
        Here, it is undisputed that: Mirage employed Mr. Jimenez Morales; Mirage is
uninsured; and Rite Rug engaged Mirage as a subcontractor. Mr. Jimenez Morales may
first look to the immediate employer, Mirage, to seek recovery. Mirage is uninsured.
Mr. Morales next looks to Rite Rug. Rite Rug admits it hired Mirage as a subcontractor
and admits that it (Rite Rug) has workers' compensation coverage. Mr. Morales need riot
look higher up the chain to the general contractor. The Court finds summary judgment is
appropriate.

IT IS, THEREFORE, ORDERED AS FOLLOWS:

      1. NVR's motion for summary judgment is granted and NVR and its carrier are
         dismissed with prejudice from this action.

      2. The matter is set for a status conference on June 5, 2017, at 1:45 p.m. Central
         Time. The hearing will take place via telephone with Judge Kenneth M.
         Switzer.     You must dial 615-532-9552 or 866-943-0025 toll-free to
         participate.

                                        ENTERED this the 16th day ofMay, 2017.




                                          4
                          CERTIFICATE OF SERVICE

       I certifY that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on this the 16th day of May, 2017.

Name                     Certified   Via        Via    Service sent to:
                          Mail       Fax       Email
Zachary Wiley,                                   X     zwiley@forthegeoQle.com
Employee's attorney
Nathan Colburn,                                  X     colburnlaw@gmail.com
attorney for Mirage
Tamara Gauldin,                                  X     Tamara. gauldin@thehartford. com
attorney for Rite
Rug/The Hartford
Stephanie Rockwell,                              X     Steghanie@s:geed-seta.com;
Alex Adkins, attorneys                                 alex@sgedd-seta.com
forNRV/New
Hampshire Ins. Co.



                                               ~,&;~
                                               Court of  rkers' Compensation Claims
                                               WC.CourtClerk@tn.gov




                                           5
