                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           APR 22 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    GARY L. MINNER,

                Plaintiff - Appellant,

    v.                                                   No. 00-3389
                                                 (D.C. No. 99-CV-1131-DWB)
    DAYTON HUDSON                                        (D. Kansas)
    CORPORATION, doing business as
    Target Store #906,

                Defendant - Appellee.


                             ORDER AND JUDGMENT           *




Before SEYMOUR , McKAY , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
I.    INTRODUCTION

      In this diversity action, plaintiff Gary L. Minner sued defendant Dayton

Hudson Corporation, doing business as Target Store #906 (“Target”), seeking to

hold Target liable for the personal injuries he sustained when he slipped and fell

while attempting to deliver periodicals, books, and related merchandise to Target

in Garden City, Kansas. The district court entered summary judgment in favor of

Target on the basis that plaintiff was Target’s statutory employee and therefore

his exclusive remedy is under the Kansas Workers Compensation Act. Plaintiff

appeals and we affirm.

II.   BACKGROUND

      A winter storm occurred in Garden City the evening of April 13, 1997. The

next morning, at approximately 8:00 a.m., Mr. Minner arrived at Target’s rear

delivery area. While making his second trip pushing a loaded cart, he slipped and

fell on accumulated snow and ice. Mr. Minner received workers compensation

benefits from his employer, Anderson News Company, then filed this negligence

action against Target.

      Mr. Minner’s delivery efforts were in accordance with a contract between

Anderson News and Target. Under the contract, Anderson News agreed to sell,

deliver, and display periodicals for Target, following guidelines and procedures

set by Target. Plaintiff was responsible for driving a truck, delivering the


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materials, and performing related physical activities. Another Anderson News

employee stocked the display racks, removed dated issues, and stacked these

issues for plaintiff to pick up on a return trip. Target has similar agreements with

vendors of other items that can become outdated, such as food and soft drinks.

Over ninety percent of Target’s merchandise, however, is shipped to individual

stores from Target’s warehouse and is delivered, unloaded, and stocked by Target

employees.

III.   DISCUSSION

       In exchange for the liability-without-fault protection given to employees,

the Kansas Workers Compensation Act immunizes employers from common law

actions by injured employees. Workers compensation benefits constitute the

employee’s exclusive remedy against the employer. Kan. Stat. Ann. § 44-501(b).

This immunity is extended to a principal “statutory employer” if a worker’s

immediate employer is under contract “to execute any work which is a part of the

principal’s trade or business.” § 44-503(a).         1
                                                         A statutory employer is immune


1
       Section 44-503(a) provides, in pertinent part:

       Where any person (in this section referred to as principal) undertakes
       to execute any work which is a part of the principal’s trade or
       business or which the principal has contracted to perform and
       contracts with any other person (in this section referred to as the
       contractor) for the execution by or under the contractor of the whole
       or any part of the work undertaken by the principal, the principal
                                                                        (continued...)

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even when it is not liable for benefits because the worker is covered under the

immediate employer’s policy.      Robinett v. Haskell Co. , 12 P.3d 411, 418-20

(Kan. 2000). The rationale is that the overall responsibility of the statutory

employer for making sure its subcontractors are insured, and its latent liability for

compensation if it fails to do so, is sufficient to maintain the immunity.   Id.

         The Workers Compensation Act is to “be liberally construed for the

purpose of bringing employers and employees within the provisions of the act to

provide the protections of the workers compensation act to both.” § 44-501(g).

The Act is to “be applied impartially to both employers and employees,”      id. ,

whether or not the result “is desirable for the specific individual’s

circumstances,” Mays v. Ciba-Geigy Corp. , 661 P.2d 348, 368 (Kan. 1983).

         The test to determine whether a principal is a statutory employer involves

asking two questions:




1
    (...continued)
          shall be liable to pay to any worker employed in the execution of the
          work any compensation under the workers compensation act which
          the principal would have been liable to pay if that worker had been
          immediately employed by the principal; and where compensation is
          claimed from or proceedings are taken against the principal, then in
          the application of the workers compensation act, references to the
          principal shall be substituted for references to the employer, except
          that the amount of compensation shall be calculated with reference to
          the earnings of the worker under the employer by whom the worker is
          immediately employed.

                                             -4-
       (1) [I]s the work being performed by the independent contractor and
       the injured employee necessarily inherent in and an integral part of
       the principal’s trade or business? (2) is the work being performed by
       the independent contractor and the injured employee such as would
       ordinarily have been done by the employees of the principal?

Bright v. Cargill, Inc ., 837 P.2d 348, 356 (Kan. 1992) (quotation omitted;

alteration in original). The two questions may overlap.            Id. at 358. However, if

either “is answered in the affirmative the work being done is part of the

principal’s trade or business, and the injured employee’s sole remedy against the

principal is under the [Workers] Compensation Act.”          Id. at 356 (quotations

omitted).

       There are close cases “‘which in the abstract look as though they might be

decided either way.’”    Id. at 359 (quoting 1C Arthur Larson & Lex K. Larson,

Workmen’s Compensation Law § 49.16(j), at 9-105 to 9-106 (1991)). In these

cases, the test is not “‘whether the subcontractor’s activity is        useful, necessary, or

even absolutely indispensable     ’” to the statutory employer’s business.       Id. It is

whether the activity “‘is, in that business, normally carried on through employees

rather than independent contractors.’”       Id.

       This is a case that appears to be close in the abstract. Under the stipulated

facts, however, it is evident that Target meets at least the second prong of the

applicable test. According to the parties’ stipulation:

       Target acquires its merchandise for over 90% of its merchandise
       from the manufacturer which ships the merchandise to a Target

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       warehouse. The merchandise is then shipped from the Target
       warehouse to individual stores where the merchandise is unloaded
       and stocked on the Target store display areas by Target employees.

Jt. App. at 53, ¶ 2. Target, a retail business, normally makes its products

available to customers by having its merchandise delivered, unloaded, and stocked

by Target employees.

       Because the delivery of merchandise is part of Target’s trade and business,

Mr. Minner’s sole remedy is under the Workers Compensation Act. Mr. Minner,

however, attempts to avoid this result by shifting     the focus to his own work duties

and away from the contractual undertakings of Anderson News. As he presents

the facts, he was making an ordinary delivery for his employer, a vendor of

periodicals. From this viewpoint, he argues that, like the plaintiff in   Bendure v.

Great Lakes Pipe Line Co. , 433 P.2d 558, 564 (Kan. 1967), his delivery duties did

not make him the statutory employee of the purchaser.

       The facts of Bendure are not comparable. In that case, the plaintiff, a truck

driver, was injured when delivering and unloading steel I-beams at the buyer’s

worksite. The plaintiff’s employer and the defendant had never discussed the

responsibility for unloading the steel.     Id. at 562. The plaintiff was not expected

to take orders from the buyer; he was to cooperate only to the extent that he could

get the truck back and on the road again.      Id. Under those circumstances, the

Kansas Supreme Court held that the plaintiff could bring a personal injury lawsuit


                                             -6-
because the sale and delivery of merchandise does not result in a statutory

employer relationship.    Id. at 564. It noted, however, that this rule “is subject to

the exception that when the contract to sell is accompanied by an undertaking by

either party to render substantial services in connection with the goods sold, that

party is a contractor within the meaning of the statute.”     Id.

       The agreement between Target and Anderson News did include substantial

services. In fact, the Anderson News supervisor described it in his deposition as

a contract “to service” Target stores. Jt. App. at 93-94. Target requires certain

magazines to be brought to the store and placed on the racks according to Target’s

diagram. Anderson News chooses additional materials to fill in remaining space

on the racks. Id. Anderson News also “promotes sales by merchandising the

product correctly and . . . pick[ing] up any old outdated product.”    Id. at 94.

       Contrary to Mr. Minner’s contentions, the      Bendure holding does not control

the outcome of this case. Instead, the well-established test set out above applies.

Under that test, Target is Mr. Minner’s statutory employer and therefore immune

from suit. The district court’s summary judgment ruling is in accordance with the

Kansas Workers Compensation Act.




                                             -7-
     The judgment of the United States District Court for the District of

Kansas is AFFIRMED.


                                                  Entered for the Court



                                                  Michael R. Murphy
                                                  Circuit Judge




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