                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0403n.06
                             Filed: May 16, 2005

                                           No. 04-5493

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


CHARLES A. LOCK,                                 )
                                                 )
       Plaintiff-Appellant,                      )
                                                 )
SAFECO INSURANCE COMPANY,                        )   ON APPEAL FROM THE UNITED
                                                 )   STATES DISTRICT COURT FOR THE
       Intervening Plaintiff-Appellant,          )   WESTERN DISTRICT OF KENTUCKY
                                                 )   AT BOWLING GREEN
v.                                               )
                                                 )
UTICON, INC.; WOERHEIDE                          )
ENTERPRISES, INC.; DAVE TURNER                   )
                                                 )
       Defendants-Appellees,                     )
                                                 )
JAVIER STEEL CORPORATION,                        )
                                                 )
       Third-Party Defendant-Appellee.           )


       Before: BOGGS, Chief Judge; COOK, Circuit Judge; and BEER, District Judge.*


       BEER, District Judge. Charles Lock appeals the district court’s grant of summary judgment

dismissing his tort claims as barred by Kentucky’s Workers’ Compensation Act, K.R.S. Chapter

342. For the following reasons, we affirm the district court’s decision.


                                                 I



       *
        The Honorable Peter H. Beer, United States District Judge for the Eastern District of
Louisiana, sitting by designation.
No. 04-5493
Lock, SAFECO v. Uticon, Inc., Javier Steel

         In February of 1999, Uticon, Inc. (Uticon) was awarded a bid from the Kentucky

Department of Transportation (KYDOT) to build a bridge and related structures on Kentucky

Highway 101 in Edmonson County, Kentucky. Uticon entered into a subcontract with Javier Steel

Corporation (Javier Steel) to supply and install all of the steel work on the bridge. The steel work

included welding L-shaped steel support angles to steel inserts in the pre-cast concrete support

beams of the bridge. Corrugated steel decking, known as stay-in-place (SIP) decking, was then

fastened to the support angles to form a solid decking upon which concrete would be poured to make

the bridge surface. Uticon installed fall safety lines (lifelines) along the bridge so workers and

inspectors could “tie off” to limit the fall distance should they fall from the bridge beams.


       Lock was employed by Javier Steel as a welder who was welding support angles. Under the

subcontract, Javier Steel was responsible for providing workers’ compensation benefits for all of its

employees. Javier Steel ordered the steel, including the support angles and the SIP decking, from

its steel supplier, Topikal d/b/a/ Woerheide Enterprises (Topikal). Before completing the installation

of the support angles and the steel decking, one of Javier Steel’s employees, Joe Deck, noticed

possible cracking in the support angles. Deck was concerned that the angles could possibly break

under the heavy weight of the concrete poured on the decking to form the roadway.


       Officials from KYDOT, Uticon, Javier Steel, and Topikal met and agreed that Topikal would

replace the steel angles. Topikal agreed to pay Javier Steel for the cost of replacing the affected

support angles, including the material, labor, insurance, and taxes. Javier Steel began replacement




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No. 04-5493
Lock, SAFECO v. Uticon, Inc., Javier Steel

of the support angles, which required taking up sections of the SIP decking, removing the old angles,

welding on new angles and replacing the decking.


       Javier Steel notified Uticon that it did not feel that the safety lines that had previously been

removed needed to be reinstalled because the employees would be working on solid decking. On

April 6, 2000, Lock fell 40 feet from the bridge into the creek bed below when he stepped in a hole

in the SIP decking. He sustained serious injuries. Lock brought an action against Uticon and

Topikal. Javier Steel was made a third-party defendant. Safeco Insurance Company, Javier Steel’s

insurance carrier, was an intervening plaintiff.


       Uticon filed a motion for summary judgment, asserting that Kentucky Workers’

Compensation Act, K.R.S. Chapter 342, bars Lock’s action against Uticon and Topikal. Lock

opposed the motion claiming that Javier Steel was not working under its contract with Uticon, but

rather under a warranty or remediation contract with its vendor, Topikal. Lock claims he fell and

was injured because Uticon did not provide a fall safety system for which it was contractually

obligated under its contract with KYDOT. Thus, Lock alleged that Uticon was not protected from

liability by the workers’ compensation provisions.


       The district court granted Uticon’s motion for summary judgment, concluding that Lock was

working for Javier Steel at the time of the accident, and, therefore, Uticon, as contractor, was

immune from tort liability under the exclusive remedy provision of the Workers’ Compensation Act.

Lock appeals this decision.



                                                   -3-
No. 04-5493
Lock, SAFECO v. Uticon, Inc., Javier Steel

                                                    II


          We review a grant of summary judgement de novo, applying the same standard of Fed. R.

Civ. P. 56 (c) used by the district court. Williams v. Mehra, 186 F.3d 685, 689 (6th Cir. 1999) (en

banc).


                                                    III


          The district court concluded that Lock’s lawsuit is barred because of the operation of

Kentucky’s Workers’ Compensation Act, K.R.S. Chapter 342. K.R.S. § 342.690(1) provides that

if an employer secures payment of workers’ compensation under Chapter 342, “the liability of such

employer . . . shall be exclusive and in the [sic] place of all other liability of such employer . . . . For

purposes of this section, the term ‘employer’ shall include a ‘contractor’ covered by subsection (2)

of K.R.S. 342.610, whether or not the subcontractor has in fact, secured the payment of

compensation.” See Granus v. North American Philips Lighting Corp., 821 F.2d 1253, 1256-57 (6th

Cir. 1987) (quoting K.R.S. § 342.690(1)).


          The statute “was enacted to discourage owners and contractors from hiring financially

irresponsible subcontractors and thus eliminate workmen’s compensation liability.” Tom Ballard

Co. v. Blevins, 614 S.W.2d 247, 249 (Ky. Ct. App. 1980). “If a defendant qualifies as a contractor,

by the same token, ‘it has no liability in tort to an injured employee of a subcontractor.’” Granus,

821 F.2d 1257 (quoting Fireman’s Fund Ins. v. Sherman & Fletcher, 705 S.W.2d 459, 461 (Ky.

1986)).

                                                   -4-
No. 04-5493
Lock, SAFECO v. Uticon, Inc., Javier Steel

       Appellant, Lock, seeks to convince this Court that he was working for Topikal at the time

of his injury, and thus, he may sue Uticon for failure to provide a fall safety system for the bridge.

We do not agree. Uticon, as general contractor, contracted with KYDOT to furnish a completed

project to the state, and subcontracted with Javier Steel to provide the materials and labor to build

the steel frame for the bridge. Javier simply bought the steel from Topikal. Topikal had no

authority, as the material supplier, to hire a welder to replace the angle irons on the bridge. Uticon

was the only entity with that authority.


       As well, it is undisputed that a contractor- subcontractor relationship existed between Uticon

and Javier Steel. Moreover, installing steel angles and SIP decking is certainly an integral part of

building bridges. As such, Lock’s exclusive remedy against Uticon is under the Kentucky Workers’

Compensation Act.


                                                 IV


       For the foregoing reasons, we AFFIRM the decision of the District Court.




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