                                                                          F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                       UNITED STATES COURT OF APPEALS
                                                                            APR 2 1999
                             FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    JOHN R. CHERMOK,

                Plaintiff-Appellant,

    v.                                                    No. 98-3075
                                                     (D.C. No. 95-CV-2243)
    WAL-MART STORES, INC.,                                  (D. Kan.)

                Defendant-Appellee.




                              ORDER AND JUDGMENT         *




Before BRORBY , EBEL , and LUCERO , 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      This order and judgment is not binding precedent, except under the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.
      Plaintiff, a Kansas resident, filed this diversity action seeking damages for

personal injury caused by allegedly negligent acts of an employee of defendant, a

South Carolina corporation. The district court granted defendant’s motion for

summary judgment, holding that because plaintiff was a statutory employee of

defendant under Kan. Stat. Ann. § 44-503(a), he was limited to workers

compensation and was precluded as a matter of law from claiming third-party

negligence against defendant. Plaintiff appeals, and we affirm.

      Plaintiff was employed as a truck driver by Gainey Transportation, Inc. In

May 1993, he drove from Gainey’s Kansas City, Kansas, facility to Neosho,

Missouri. Pursuant to a contract between Gainey and defendant, he picked up a

trailer loaded by Sunbeam Outdoor Products with gas grills and then drove to

defendant’s distribution center in Lauren, South Carolina. Upon plaintiff’s

arrival, an employee of defendant began to unload the truck with a slip loader.

Plaintiff assisted him, at the direction of both Gainey and defendant. During the

unloading, plaintiff was struck on the head, neck, and shoulder area by boxes of

the product which fell from the slip loader.

      Plaintiff filed for and received workers compensation in the State of Kansas

against Gainey. He also commenced this third-party negligence action, which the

district court decided in favor of defendant on summary judgment.




                                         -2-
      We review the grant of summary judgment de novo.         See Kaul v. Stephan ,

83 F.3d 1208, 1212 (10th Cir. 1996). Under Fed. R. Civ. P. 56(c), summary

judgment is appropriate if “there is no genuine issue as to any material fact and

. . . the moving party is entitled to judgment as a matter of law.” Because this is a

diversity case, we review the district court’s determinations of state law de novo.

See Salve Regina College v. Russell   , 499 U.S. 225, 231 (1991).

      Plaintiff argues that he was not a statutory employee under § 44-503(a) and

is therefore not precluded from bringing a third-party negligence claim against

defendant. Plaintiff contends that he was not a statutory employee because the

work he was doing at the time of his injury was not “necessarily inherent in and an

integral part of [defendant’s] business as to ordinarily have been done by

employees of [defendant].” Appellant’s Br. at 9.

      The Kansas Workers Compensation Act provides an exclusive remedy for an

employee injured while performing work for his employer.       See Kan. Stat. Ann.

§ 44-501(b). The Act applies to both direct and statutory employees and

employers. Section 44-503(a), which defines statutory employers and employees,

see Aetna Life & Cas. v. Americas Truckway Sys., Inc.      , 929 P.2d 807, 811 (Kan.

Ct. App. 1997), provides in 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

                                          -3-
       contractor) for the execution by or under the contractor of the whole
       or any part of the work undertaken by the principal, the principal
       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 . . . .

Kan. Stat. Ann. § 44-503(a). Thus, an injured worker cannot sue his statutory

employer in negligence for damages.       See Selle v. Boeing Co. , 840 P.2d 542, 543

(Kan. Ct. App. 1992).

       Courts apply the following tests to determine if the work giving rise to the

employee’s injury is a part of the principal’s trade or business under § 44-503(a):

       (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?

             If either of the foregoing questions 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.

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

applying these tests, no formula or list of factors is deemed controlling.   See

Rodriquez v. John Russell Constr.     , 826 P.2d 515, 518 (Kan. Ct. App. 1991).

       We agree with the district court that plaintiff was a statutory employee of

defendant under both tests. Unloading trailers is “necessarily inherent in and an

integral part of” defendant’s business of selling merchandise. Also, because


                                             -4-
plaintiff and defendant’s employee both were engaged in the unloading of the

truck, this is a type of work ordinarily performed by defendant’s employees.

      Plaintiff maintains that the language “necessarily inherent in and an integral

part of” contemplates that the work be more than incidental or minor. We

disagree. No case law establishes such a requirement.      Cf. Rodriquez , 826 P.2d at

518 (no requirement that work undertaken be primary work of principal

contractor; work need only be part of principal contractor’s overall operations).

Also, the Act is to be liberally construed, whether or not it is desirable for the

employee. See id. at 519. 1

      The judgment of the United States District Court for the District of Kansas

is AFFIRMED.

                                                        Entered for the Court



                                                        Wade Brorby
                                                        Circuit Judge




1
        The district court also determined that regardless of whether Kansas or
South Carolina law applied, plaintiff’s exclusive remedy was workers
compensation. Plaintiff does not make any argument regarding South Carolina
law on appeal. Apparently, he has abandoned any such argument.        See Swanson
ex rel. Swanson v. Guthrie Indep. Sch. Dist. No. I-L   , 135 F.3d 694, 702-03 (10th
Cir. 1998). Nonetheless, after reviewing South Carolina law, we agree with the
district court’s determination that workers compensation is also the exclusive
remedy under South Carolina law.

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