                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 14a0615n.06

                                               No. 13-6582                                        FILED
                                                                                              Aug 08, 2014
                            UNITED STATES COURT OF APPEALS                             DEBORAH S. HUNT, Clerk
                                 FOR THE SIXTH CIRCUIT


STEVE DUNN,                                           )
                                                      )
       Plaintiff-Appellant,                           )    ON APPEAL FROM THE UNITED
                                                      )    STATES DISTRICT COURT FOR THE
                 v.                                   )    EASTERN DISTRICT OF KENTUCKY
                                                      )
CORNING, INCORPORATED,                                )
                                                      )
       Defendant-Appellee.                            )
                                                      )




       Before: MOORE, SUTTON, and ALARCÓN*, Circuit Judges.


       ALARCÓN, Circuit Judge. Steve Dunn was injured while working on an expansion project

at Corning, Incorporated’s (“Corning”) Harrodsburg, Kentucky plant. Dunn filed a civil action

against Corning alleging negligence. He alleged that Corning had negligently maintained the

premises where he was injured and had failed to comply with health and safety laws. The district

court entered summary judgment for Corning. It concluded that Corning qualified as a “contractor”

under Kentucky’s Workers’ Compensation Act and was therefore immune from tort liability. Dunn

appeals from the district court’s determination that Corning was a contractor. We affirm because

we are persuaded that Corning is a contractor with respect to Dunn and is his direct employer under

Kentucky’s Workers’ Compensation Act.

             *
              The Honorable Arthur L. Alarcón, Senior Judge of the United States Court of Appeals for the
     Ninth Circuit, sitting by designation.
No. 13-6582
Dunn v. Corning, Inc.

                                                    I


        As of 2013, Corning’s Harrodsburg, Kentucky plant was its only United States–based plant

for its Corning Glass Technologies Division. Corning Glass Technologies Division largely focuses

on the production of flat glass for liquid crystal displays (LCD) and similar applications.


        In early 2012, Corning contracted with Comstock Brothers Electric Company, LLC

(“Comstock”) to provide electricians for maintenance support at the Harrodsburg plant for the

2012 calendar year. In April 2012, Steve Dunn, a Comstock electrician, was assigned to run conduit

for the electricity in the plant’s existing cullet crusher pit for a batch-expansion project at the plant.

The purpose of this expansion project was to add a third mixer, dubbed Weigh/Mix 3, to expand

Corning’s capacity for glass production. The expansion was a new construction project that did not

come under the control or guidance of Corning’s regular maintenance department.


        On April 2, 2012, Dunn was seriously injured while attempting to exit the cullet crusher pit.

The only exit from the crusher pit was a hatch at the top of a ladder. When Dunn opened the closed

hatch to exit, its door swung open, struck the corner of the cullet crusher, rebounded, and struck

Dunn in the head, knocking him off the ladder and causing him to fall several feet into the pit below.


        On December 6, 2012, Dunn sued Corning in Kentucky’s Mercer County Circuit Court.

Dunn’s complaint asserted that Corning’s failure to comply with the Kentucky Occupational Safety

and Health Act and the Federal Occupational Safety and Health Act constituted negligence per se.

Dunn also alleged that Corning was negligent in failing to discover latent dangers in entering and

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Dunn v. Corning, Inc.

exiting the cullet crusher pit. Corning removed this matter to the federal district court on the basis

of diversity jurisdiction under 28 U.S.C. § 1332.


          Following discovery, Corning moved for summary judgment on the ground that it was

immune from tort liability to Dunn under Kentucky’s Workers’ Compensation Act. After the

briefing period for Corning’s motion, the district court allowed additional time for limited discovery

on the question whether running electrical power was a regular or recurrent part of Corning’s

business for purposes of exclusive remedy immunity and ordered the parties to submit supplemental

briefs.


          Following receipt of the parties’ supplemental briefs, the district court found that the running

of electrical power Dunn was performing when he was injured was a regular or recurrent part of

Corning’s business. Based on this finding, the district court concluded that Corning was immune

from tort liability under Kentucky’s Workers’ Compensation Act and granted Corning’s motion for

summary judgment. Dunn appeals from the district court’s grant of summary judgment. We have

jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291.


                                                     II


          Kentucky Revised Statute (KRS) section 342.610(2)(b) defines a “contractor” as a person

who contracts with another “[t]o have work performed of a kind which is a regular or recurrent part

of the work of” that person’s “trade, business, occupation, or profession” (emphasis added). If a

premises owner qualifies as a contractor under this provision, then it is “deemed to be the statutory,

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Dunn v. Corning, Inc.

or ‘up-the-ladder,’ employer[] of individuals who are injured while working on” the premises. Gen.

Elec. Co. v. Cain, 236 S.W.3d 579, 585 (Ky. 2007).


       The purpose of up-the-ladder liability under KRS 342.610(2)(b) is “to discourage a

contractor from subcontracting work that is a regular or recurrent part of its business to an

irresponsible subcontractor in an attempt to avoid the expense of workers’ compensation benefits.”

Cain, 236 S.W.3d at 585. “KRS 342.610(2)(b) accomplishes its purpose by viewing an up-the-

ladder contractor as being the employer of an uninsured subcontractor’s employees, i.e., their

statutory employer.” Doctors’ Assocs., Inc. v. Uninsured Employers’ Fund, 364 S.W.3d 88, 91 (Ky.

2011). A statutory (or up-the-ladder) employer is liable for the injured worker’s workers’

compensation benefits (unless the direct employer already provided coverage) and may recover any

amount paid (plus any expenses) from the subcontractor bearing primary liability as the injured

worker’s direct employer. Id. In addition, both the statutory employer and direct employer in this

scenario are immune from tort liability for the work-related injury—an immunity often called

“exclusive remedy immunity.” Id.; Cain, 236 S.W.3d at 585. The “humane spirit of the statute,”

however, “does not warrant its extension beyond its legitimate scope.” Cain, 236 S.W.3d at 587

(quoting Gateway Constr. Co. v. Wallbaum, 356 S.W.2d 247, 249 (Ky. 1962)).


       Whether Corning is entitled to the exclusive remedy immunity it seeks therefore depends on

whether Dunn “was injured while performing work that was ‘of a kind which is a regular or

recurrent part of the work of the trade, business, occupation, or profession’ of the owner.” Cain, 236




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No. 13-6582
Dunn v. Corning, Inc.

S.W.3d at 585. If so, Corning is immune from tort liability for Dunn’s injuries. Id. If not, Corning

is subject to tort liability.1 Id.


        The Kentucky Supreme Court has defined “regular or recurrent” work as “work that is

customary, usual, normal, or performed repeatedly and that the business or a similar business would

perform or be expected to perform with employees.” Id. at 589. The test for whether work is regular

or recurrent “is relative, not absolute.” Id. at 588. Relevant factors include the business’s size and

scope, “as well whether it is equipped with the skilled manpower and tools to handle the task the

independent contractor is hired to perform.” Id. “Employees of contractors hired to perform routine

repairs or maintenance that the owner or owners of similar businesses would normally be expected

to handle with employees generally are viewed as being statutory employees.” Id. Those hired to

perform major or specialized construction or renovation projects, on the other hand, “generally are

not a premises owner’s statutory employees unless the owner or the owners of similar businesses

would normally expect or be expected to handle such projects with employees.” Id.


                                                    B


        Corning’s Harrodsburg plant is in the business of producing glass. The parties do not dispute

that running electrical power, or running conduit, is a regular or recurrent part of this business. The

parties split, however, over how narrowly they frame the work at issue. Dunn argues that Corning

contracted with Comstock to supplement Corning’s electrical employees to work on a major one-off

               1
                It is undisputed that Comstock and Corning were each covered by workers’ compensation
      insurance policies at the time of Dunn’s injury.

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No. 13-6582
Dunn v. Corning, Inc.

expansion project that was not a part of Corning’s regular or recurrent business. This alone, he

argues, is enough for the Court to conclude that Corning is not entitled to exclusive remedy

immunity, regardless of what specific task Dunn had been assigned to perform for the expansion

project.


       Corning, on the other hand, asks the Court to look more closely at the specific task Dunn was

performing when he was injured. It argues that because Dunn was running conduit when he was

injured, he was performing regular or recurrent work because Corning electricians ran conduit on

a near-daily basis, regardless of the specific purpose for which the conduit was being run. In other

words, Corning contends it would be improper to distinguish between running conduit for a large-

scale expansion project and running conduit for regular and recurrent maintenance at the plant.


       This Court recently explained “that our inquiry must focus on the actual work being

performed at the time of the injury.” Estate of Dohoney ex rel. Dohoney v. Int’l Paper Co., 560 F.

App’x 564, 569 (6th Cir. 2014). There, International Paper (IP) hired Konecranes, Dohoney’s direct

employer, to perform electrical work on IP’s house crane during a regularly scheduled plant

shutdown. Id. at 565. Dohoney was fatally electrocuted while attempting to repair the wiring on

limit switches on the crane, which was one of several crane-maintenance tasks to which he was

assigned. Id. Dohoney’s widow argued that while Konecranes’s general role at IP was crane

maintenance and repair—itself a regular or recurrent part of IP’s business—the limit-switch wiring

Dohoney was performing at the time of his death in particular was neither regular nor recurrent work

normally expected of IP employees. Id. at 569. This Court agreed, noting that the evidence showed

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No. 13-6582
Dunn v. Corning, Inc.

that IP itself engaged only in preventative maintenance and simple work, while Konecranes had been

the exclusive repairer and maintainer of the house crane since 1996 and that limit-switch wiring

replacement was not work IP normally would have done itself. Id. at 569–71.


       While we recognize that Estate of Dohoney is unpublished, we find that case highly

persuasive in its application of the Kentucky Supreme Court’s decision in General Electric Co. v.

Cain, 236 S.W.3d 579 (Ky. 2007). In Cain, James Rehm worked directly for Rapid Installation

Company, which had contracted for several companies to perform millwright work where Rehm had

possibly been exposed to asbestos. Cain, 236 S.W.3d at 590. The Kentucky Supreme Court applied

its regular-or-recurrent test to each of the companies at which Rehm had performed contract work

with Rapid, focusing on “the nature of the work that Rehm helped to perform for each [premises]

owner.” Id. at 592. In evaluating Rehm’s claim against American Standard, Inc., the court in Cain

noted Rehm’s testimony that he “helped to tear out and re-route a conveyor in the foundry and repair

or replace the conveyor’s chain; he installed machinery in the faucet facility and connected the

machinery as well as pipes, motors, and pumps to a conveyor; and he worked on the conveyor line

that ran from the foundry into the enamel shop.” Id. at 593. The court found that while “[t]here was

substantial evidence that Rehm performed work that was regular or recurrent at American standard,”

there was “no substantial evidence [to show] that all of the work he performed was of a kind that

American Standard or similar businesses would normally perform or be expected to perform with

employees.” Id. at 593–94 (emphasis added).




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No. 13-6582
Dunn v. Corning, Inc.

       The court in Cain also considered Rehm’s work at Goodrich Corporation, where Rehm

testified that he removed and replaced machinery, pumps, motors, and pipes. Id. at 599. The

evidence demonstrated that Goodrich had its own staff of unionized millwrights and other workers

who performed day-to-day maintenance at the plant, and that it was Goodrich’s policy to staff in-

house employees on projects first and supplement with outside contractors on emergency work and

major repairs. Id. at 599–600. The court concluded that the evidence “indicated that outside

contractors were always working on capital projects at Goodrich, providing substantial evidence that

such projects were regular or recurrent.” Id. at 600. Nevertheless, the evidence failed to show that

the project on which Rehm actually worked “was work of a kind that the company would normally

expect or be expected to perform with employees rather than outside contractors.” Id.


       Thus, the court in Cain analyzed the specific projects Rehm had been assigned to perform

at the various premises. E.g., id. at 595 (“No evidence indicated that the project on which Rehm

worked was significantly different from those that Brown–Forman employees performed.” (emphasis

added)). Here, the evidence establishes that Comstock—and thus Dunn—was hired specifically to

run conduit for the Weigh/Mix 3 expansion.


       Some aspects of the Weigh/Mix 3 expansion, and perhaps the expansion itself, viewed as a

whole, may not have been a part of Corning’s regular or recurrent business. We need not consider

these issues to resolve this case, however, because the evidence does not demonstrate that Comstock

was hired to perform, or that Dunn actually did perform, any part of that project other than running

electrical power for the new mixer. The uncontroverted testimony in the record reveals that running

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No. 13-6582
Dunn v. Corning, Inc.

electrical power was a regular or recurrent part of Corning’s business and that Dunn was performing

the regular-or-recurrent task when he was injured.


       Mark Hewlett, an electrical supervisor at the Harrodsburg plant, testified in his deposition

that in April 2012, when Dunn was injured, Corning had contracted with Comstock to supply

electricians for the Weigh/Mix 3 expansion and a rebuild of two production lines, 136 and 137. It

is undisputed that Dunn was injured while running electrical conduit to the cullet crusher pit, and

Hewlett testified that Corning electricians ran conduit at the Harrodsburg plant on a near-daily

basis. He also testified that there was nothing unique about the conduit-running task Dunn had been

performing just before his injury—that is, a Corning employee electrician could have performed the

same task.


       Ross similarly testified that running conduit “was a basic task performed daily by the

electricians at the Corning facility,” regardless of whether rebuilds or expansion projects were in

progress.    Ross testified that when rebuilds were in progress, Corning’s electrical shop

work—including running conduit—increased such that “Corning’s electrical shop staff would be

supplemented with outside contract industrial electricians of equal qualifications, to assist with the

increased demands caused by the rebuild or expansion as well as the basic electrical work.” Ross

further testified that the running of conduit and electrical power Dunn was performing in the cullet

crusher pit when he was injured “is the same type of work performed daily by the Corning

electricians as part of the normal plant operations.”




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No. 13-6582
Dunn v. Corning, Inc.

         Importantly, Hewlett also testified that Corning electricians and contract electricians worked

together to complete the Weigh/Mix 3 expansion, with the exception of the expansion’s main power

feed. Installing the main power feed, Hewlett explained, required outside expertise due to the high

voltage involved. Ross, Hewlett’s supervisor (whom Hewlett acknowledged would be most

knowledgeable about the project, further explained that Corning had brought in Ready Electric, not

Comstock, specifically to install the main power feed.


         The record therefore discloses that Corning hired Comstock, Dunn’s direct employer, to

supplement Corning employees in performing regular and recurrent work at its Harrodsburg plant,

while it hired Ready Electric to perform specialized work Corning employees would not be expected

to perform themselves. At the time he was injured, Dunn was performing work that, but for the

increased demand for electrical work at the Harrodsburg plant at the time, Corning’s

employee–electricians would have performed themselves. The record is silent regarding whether

Corning employees or outside contractors, or both, completed the non-electrical aspects of the

expansion or whether such projects would regularly or recurrently be performed by Corning

employees. Absent such evidence, we cannot conclude that Dunn had been contracted to perform

anything other than the regular and recurrent work of running conduit for Corning’s Harrodsburg

plant.


         Finally, we note that our conclusion that Corning was a contractor with respect to Dunn

pursuant to KRS 342.610(2)(b) accords with the statute’s purpose. KRS 342.610(2)(b) is meant to

deter premises owners from avoiding the expense of workers’ compensation coverage by contracting

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Dunn v. Corning, Inc.

out work it normally would perform itself. Cain, 236 S.W.3d at 585. The record here does not

establish that Corning contracted with Comstock for anything other than running electric power for

the Weigh/Mix 3 expansion. It further reveals that Corning would have performed that aspect of the

expansion with its own in-house electricians but for the increased demand for electricians at

Corning’s Harrodsburg plant at the time Corning contracted with Comstock. To hold Corning liable

in tort for Dunn’s injuries just because the plant’s increased demand for electricians resulted from

a broader, potentially irregular or nonrecurrent expansion project would impermissibly extend up-

the-ladder liability beyond its legitimate scope.


                                            Conclusion


       “Cases must be analyzed individually under KRS 342.610(2)(b) based on the particulars of

the relationship at issue.” Doctors’ Assocs., 364 S.W.3d at 92. The evidence in this case establishes

that the relationship at issue here was limited to Corning’s contracting with Comstock—for whom

Dunn was employed—solely for Comstock to perform a regular and recurrent part of Corning’s

business: running electrical power (regardless of the broader purpose for that power). Dunn has

submitted no evidence to demonstrate that Comstock was hired to perform any other task or that he

was performing any other task. Under these circumstances, we conclude that Corning was an up-

the-ladder statutory employer under Kentucky’s Workers’ Compensation Act. The district court

therefore did not err in granting summary judgment in Corning’s favor on the ground that it was

entitled to exclusive remedy immunity from tort liability for Dunn’s injuries.




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Dunn v. Corning, Inc.

AFFIRMED.




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