                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                               December 12, 2012 Session

 FAYETTE JANITORIAL SERVICES and TECHNOLOGY INSURANCE
COMPANY, AS ASSIGNEE OF THE CLAIMS OF WESLEY KENNEDY v.
                   KELLOGG USA, INC.

               Direct Appeal from the Circuit Court for Shelby County
                      No. CT-001571-10     Jerry Stokes, Judge


               No. W2011-01759-COA-R3-CV - Filed February 4, 2013


This appeal involves a tort suit filed after a workplace injury. The defendant filed a motion
for summary judgment, contending that it was a statutory employer within the meaning of
the Workers’ Compensation Law, Tenn. Code Ann. § 50-6-113, and therefore, it was
immune from the tort claim asserted on behalf of the injured worker. The trial court granted
the defendant’s motion for summary judgment. Plaintiffs appeal. We affirm.


  Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., and J. S TEVEN S TAFFORD, J., joined.

Benjamin F. Gallagher, St. Paul, MN; Brian L. Yoakum, Memphis, Tennessee, for the
appellants, Fayette Janitorial Services and Technology Insurance Company, as Assignee of
the Claims of Wesley Kennedy

R. Scott McCullough, Richard Sorin, Memphis, Tennessee, for the appellee, Kellogg USA,
Inc.
                                         OPINION

                           I.   F ACTS & P ROCEDURAL H ISTORY

        Kellogg USA, Inc. (“Kellogg”) is engaged in the business of manufacturing and
distributing cereals and snacks. Kellogg operates a manufacturing plant in Memphis,
Tennessee. For at least the last twenty years, Kellogg has followed a specific cleaning and
maintenance cycle in which the plant is shutdown approximately every 28 days for extensive
cleaning and sanitation. Each cleaning cycle lasts approximately 16 to 24 hours, and during
that time, each piece of equipment on the production line, and the building areas surrounding
the production line, are thoroughly cleaned.

       The aforementioned cleaning cycles were performed entirely by Kellogg employees
until April of 2003, when Kellogg and Fayette Janitorial Services (“Fayette”) contractually
agreed that Fayette would begin performing the cleaning and sanitation required during the
28-day cleaning cycles. On September 27, 2008, one of Fayette’s employees, Wesley
Kennedy, was severely burned by chemicals while cleaning one of the fifteen corn cookers
at the Kellogg plant. Technology Insurance Company (“Insurer”) paid $262,979.13 in
workers’ compensation benefits to Mr. Kennedy, on behalf of Fayette.

       Fayette and Insurer, acting “as assignee of the claims of Wesley Kennedy,” then filed
a complaint against Kellogg, asserting a cause of action for negligence, and basically
claiming that Kellogg had breached a duty to Mr. Kennedy by maintaining a defective corn
cooker. Kellogg filed an answer, and discovery ensued.

       Kellogg subsequently filed a motion for summary judgment, arguing that it was a
“statutory employer” of Mr. Kennedy pursuant to Tennessee Code Annotated section 50-6-
113, and therefore, his exclusive remedy was under Tennessee’s Workers’ Compensation
Law, and Kellogg was immune from suit in tort. In support of its motion, Kellogg submitted
affidavits that detailed the nature of its plant’s operations and the role played by Fayette in
Kellogg’s business. Kellogg also submitted the service contract entered into between
Kellogg and Fayette, which was in effect on the date of the accident. Plaintiffs filed a
response along with an additional affidavit.

        Following a hearing, the trial court entered an order granting Kellogg’s motion for
summary judgment on the basis that Kellogg was the statutory employer of Mr. Kennedy, and
therefore, Kellogg was immune from the tort claim asserted by Plaintiffs. Plaintiffs timely
filed a notice of appeal.




                                              -2-
                                   II.    I SSUES P RESENTED

       The issues presented by Plaintiffs on appeal, are, as we perceive them:

1.     Whether Kellogg can be deemed a statutory employer when the service contract
       provided that Fayette was an independent contractor; and
2.     Whether the trial court erred in its finding that the work performed by Fayette was
       part of Kellogg’s regular business and the same type of work usually performed by
       Kellogg’s employees, and therefore concluding that Kellogg was a statutory employer
       of Mr. Kennedy.

For the following reasons, we affirm the decision of the circuit court.

                                III.     S TANDARD OF R EVIEW

        A motion for summary judgment should be granted only “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is entitled to
a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. “When ascertaining whether a
genuine dispute of material fact exists in a particular case, the courts must focus on (1)
whether the evidence establishing the facts is admissible, (2) whether a factual dispute
actually exists, and, if a factual dispute exists, (3) whether the factual dispute is material to
the grounds of the summary judgment.” Green v. Green, 293 S.W.3d 493, 513 (Tenn. 2009).

       “The party seeking the summary judgment has the burden of demonstrating that no
genuine disputes of material fact exist and that it is entitled to a judgment as a matter of law.”
Green, 293 S.W.3d at 513 (citing Martin v. Norfolk S. Ry., 271 S.W.3d 76, 83 (Tenn. 2008);
Amos v. Metro. Gov't of Nashville & Davidson County, 259 S.W.3d 705, 710 (Tenn. 2008)).
“The moving party may make the required showing and therefore shift the burden of
production to the nonmoving party by either: (1) affirmatively negating an essential element
of the nonmoving party's claim; or (2) showing that the nonmoving party cannot prove an
essential element of the claim at trial.” Martin, 271 S.W.3d at 83 (citing Hannan v. Alltel
Publ'g Co., 270 S.W.3d 1, 5 (Tenn. 2008)). In order to negate an essential element of the
claim, “the moving party must point to evidence that tends to disprove an essential factual
claim made by the nonmoving party.” Id. at 84 (citing Blair v. W. Town Mall, 130 S.W.3d
761, 768 (Tenn. 2004)). “If the moving party is unable to make the required showing, then
its motion for summary judgment will fail.” Id. (citing Byrd v. Hall, 847 S.W.2d 208, 215
(Tenn. 1993)).




                                               -3-
        If the moving party does make a properly supported motion, “[t]he non-moving party
must then establish the existence of the essential elements of the claim.” McCarley v. West
Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998). The nonmoving party is required
to produce evidence of specific facts establishing that genuine issues of material fact exist.
Martin, 271 S.W.3d at 84 (citing McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d at 215).
“The nonmoving party may satisfy its burden of production by: (1) pointing to evidence
establishing material factual disputes that were over-looked or ignored by the moving party;
(2) rehabilitating the evidence attacked by the moving party; (3) producing additional
evidence establishing the existence of a genuine issue for trial; or (4) submitting an affidavit
explaining the necessity for further discovery pursuant to Tenn. R. Civ. P., Rule 56.06.” Id.
(citing McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d at 215 n.6). “The nonmoving party's
evidence must be accepted as true, and any doubts concerning the existence of a genuine
issue of material fact shall be resolved in favor of the nonmoving party.” Id. (citing
McCarley, 960 S.W.2d at 588).

       The resolution of a motion for summary judgment is a matter of law, which we review
de novo with no presumption of correctness. Id. However, “we are required to review the
evidence in the light most favorable to the nonmoving party and to draw all reasonable
inferences favoring the nonmoving party.” Id. (citing Staples v. CBL Assocs., Inc., 15
S.W.3d 83, 89 (Tenn. 2000)).

                                          IV.    D ISCUSSION

        “Under the Tennessee Workers’ Compensation Act, an employee injured in an
accident while in the course and scope of employment is generally limited to recovering
workers’ compensation benefits from the employer.” Murray v. Goodyear Tire & Rubber
Co., 46 S.W.3d 171, 175 (Tenn. 2001) (emphasis added). However, for injuries sustained
by employees of subcontractors, our legislature has extended workers’ compensation liability
to principal contractors under certain circumstances. Id. Tennessee Code Annotated section
50-6-113(a) provides:

        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.1


        1
          We note that “[t]his section applies only in cases where the injury occurred on, in, or about the
premises on which the principal contractor has undertaken to execute work or that are otherwise under the
                                                                                             (continued...)

                                                   -4-
A worker must first present a claim for compensation against his or her immediate employer,
and the collection of full compensation from the immediate employer will bar recovery by
the worker against a principal contractor. Tenn. Code Ann. § 50-6-113(c). In other words,
the principal contractor “is secondarily liable for workers’ compensation, and thus pays
workers’ compensation only if the immediate employer cannot do so.” Joseph H. King, Jr.,
The Exclusiveness of an Employee's Workers' Compensation Remedy Against His Employer,
55 Tenn. L. Rev. 405, 429 (1988). Still, due to section 50-6-113, the principal contractor can
be held responsible for workers’ compensation benefits “if lower level employers or
subcontractors do not carry the required insurance.” CNA (Continental Cas.) v. King, No.
M2004-02911-COA-R3-CV, 2006 WL 2792159, at *4 (Tenn. Ct. App. Sept. 28, 2006).

        The extension of workers’ compensation liability to principal contractors under
section 50-6-113 applies “regardless of whether [the principal contractor’s] subcontractors
are independent contractors.” Murray, 46 S.W.3d at 175; see also Hendrix v. Ray-Ser
Dyeing Co., 224 Tenn. 690, 694, 462 S.W.2d 483, 484 (Tenn. 1970); Harness v. Bechtel
Jacobs Co., LLC, No. E2006-00194-COA-R3-CV, 2007 WL 10447, at *3 (Tenn. Ct. App.
Jan. 3, 2007). A principal contractor “may be held liable for injuries sustained by employees
of his subcontractors, even when those subcontractors are deemed to be independent
contractors.” CNA (Continental Cas.), 2006 WL 2792159, at *4. The statute clearly expands
the responsibility for workers’ compensation benefits “beyond the traditional
employer-employee relationship.” Stratton v. United Inter-Mountain Telephone Co., 695
S.W.2d 947, 950 (Tenn. 1985). It “essentially creates ‘statutory employers’ when injured
workers are otherwise unable to recover workers' compensation benefits from their
immediate employers.”2 Bostic v. Dalton, 158 S.W.3d 347, 350 (Tenn. 2005) (citing
Murray, 46 S.W.3d at 175).

       The statutory employer rule set forth in section 50-6-113 “is intended to ensure that
all workers will receive compensation when they are injured in the course of their
employment.” Lindsey v. Trinity Commc’ns, Inc. 275 S.W.3d 411, 420 (Tenn. 2009) (citing
Stratton, 695 S.W.2d at 951). By extending liability from the employer that does not have
workers' compensation insurance to an intermediate or principal contractor that does have


        1
         (...continued)
principal contractor's control or management.” Tenn. Code Ann. § 50-6-113(d). It is undisputed that Mr.
Kennedy’s injury occurred on Kellogg’s premises, and while he was engaged in the work covered by the
service contract between Kellogg and Fayette.
        2
          As noted by Professor Larson, roughly four-fifths of the states have some type of statute imposing
compensation liability on the general employer for the employees of contractors under it. 4-70, Larson’s
Workers’ Compensation Law, § 70.01 (2008). “It has become quite common to speak of the general
contractor’s liability as that of the ‘statutory employer’ to a ‘statutory employee.’” Id. at § 70.03.

                                                    -5-
coverage, the statute “‘prevents employers from contracting out normal work simply to avoid
liability for workers' compensation.’” Id. (quoting Stratton, 695 S.W.2d at 951). The statute
also encourages employers to hire responsible, insured subcontractors. Id. (citing Posey v.
Union Carbide Corp., 705 F.2d 833, 835 (6th Cir. 1983)). “It operates by passing along to
upstream contractors the responsibility either to require their intermediate contractors or
subcontractors to provide workers’ compensation coverage to their own employees or to be
responsible for the coverage themselves.” Williams v. Premapak Corp., No. 01-A-01-9307-
CV-00326, 1995 WL 50068, at *2 (Tenn. Ct. App. M.S. Feb. 8, 1995) (citing Brown v.
Canterbury Corp., 844 S.W.2d 134, 136 (Tenn. 1992); Acklie v. Carrier, 785 S.W.2d 355,
357 (Tenn. 1990); Stratton, 695 S.W.2d at 951; Clendening v. London Assurance Co., 206
Tenn. 601, 609, 336 S.W.2d 535, 537-38 (1960)).

       In exchange for the principal contractor’s exposure to liability under the Workers’
Compensation Law, the principal contractor receives immunity from suit in tort. Troup v.
Fischer Steel Corp., 236 S.W.3d 143, 148 (Tenn. 2007); Campbell v. Dick Broadcasting
Co., Inc. of Tennessee, 883 S.W.2d 604, 606 (Tenn. 1994). Tennessee’s Workers’
Compensation Law contains an exclusive remedy provision which provides that “[t]he rights
and remedies granted to an employee subject to this chapter, on account of personal injury
or death by accident . . . shall exclude all other rights and remedies of the employee . . . at
common law or otherwise, on account of the injury or death.” Tenn. Code Ann. § 50-6-108.
As such, “statutory employers may use the exclusive remedy provisions of Tenn. Code Ann.
§ 50-6-108(a) [] to defeat negligence actions brought against them by the same employees
for whom they would have been required to provide workers' compensation coverage.” 3


        3
            Tennessee Code Annotated section 50-6-112 provides that when a worker’s injury or death, for
which workers’ compensation is payable, “was caused under circumstances creating a legal liability against
some person other than the employer to pay damages, the injured worker . . . shall have the right to take
compensation under this chapter, and the injured worker . . . may pursue the injured worker's [] remedy by
proper action in a court of competent jurisdiction against the other person.” (emphasis added). Simply put,
this statute “saves an employee's tort cause of action for damages against ‘some person other than the
employer.’” Campbell, 883 S.W.2d at 606. “The policy for allowing suit against a responsible third party
is that ‘since the third party could not have been liable for workers' compensation, he should be prepared to
make the injured person whole under normal tort principles.’” Id. (quoting Posey v. Union Carbide Corp.,
705 F.2d 833, 834 (6th Cir. 1983)).
          The complaint filed by Plaintiffs on behalf of Mr. Kennedy stated that the Plaintiffs were asserting
Mr. Kennedy’s right to institute an action pursuant to section 50-6-112. However, this statute authorizes
suits against persons “other than the employer,” and in this context, “‘employer’ refers to any party who may
be liable for workers' compensation benefits pursuant to T.C.A. § 50-6-113(a).” Campbell, 883 S.W.2d at
606. “Principal or intermediate contractors are not viewed as third parties for purposes of tort liability
because they may be held liable for workers' compensation benefits.” Id. Therefore, if Kellogg is deemed
a principal contractor and statutory employer of Mr. Kennedy, it is immune from the tort action purportedly
                                                                                                 (continued...)

                                                     -6-
Williams, 1995 WL 50068, at *2 (citing Campbell, 883 S.W.2d at 606).

        The statutory employer’s immunity from tort suits applies even in situations in which
the statutory employer was not in fact required to pay workers’ compensation benefits to the
worker. See Mouser v. Buckhead Constr. Co., No. E2005-00967-COA-R3-CV, 2006 WL
1763679, at *4 (Tenn. Ct. App. Jun. 28, 2006) (“The fact that the Employee pursued a
workers’ compensation claim against his employer and its insurer and not against the
Principal Contractor is immaterial; it only matters that the Employee had the right to recover
workers’ compensation benefits from the Principal Contractor under the statute. This
potential liability entitled the Principal Contractor to the protection of the exclusive remedy
rule and shields it from tort liability.”) (emphasis added). As one commentator explained:

       Tennessee courts have held that the exclusive remedy rule protects statutory
       employers from tort claims by employees of their subcontractors for injuries
       covered by the Tennessee workers' compensation act, even if the immediate
       employer pays the entire workers' compensation claim. Thus, the status as
       statutory employer under section 50-6-113 will often give the statutory
       employer the best of both worlds. The statutory employer will usually not have
       to pay compensation, especially if it insists that its subcontractors be
       adequately insured. And, in any event, the statutory employer is usually
       protected by the exclusive remedy rule from tort claims by employees of his
       subcontractors.

King, 55 Tenn. L. Rev. at 429-30 (footnote omitted).

        Despite the important purposes served by the statutory employer statute, such a rule
is “not intended to make a contractee liable to the injured employees of everyone with whom
he or she has some sort of contractual relations.” 99 C.J.S. Workers' Compensation § 215.
In Tennessee, a court will find that a company is a principal contractor or statutory employer
within the meaning of Tennessee Code Annotated section 50-6-113 only if it satisfies one of
three tests. Griffith v. Jellico Community Hosp., Inc., No. E2009-01431-COA-R3-CV,
2010 WL 2160775, at *3 (Tenn. Ct. App. May 28, 2010). As stated by our Supreme Court,

       Generally, a company is considered a principal contractor if: (1) the company
       undertakes work for an entity other than itself; (2) the company retains the
       right of control over the conduct of the work and the subcontractor's
       employees; or (3) ‘the work being performed by a subcontractor's employees


       3
         (...continued)
filed on Mr. Kennedy’s behalf pursuant to section 50-6-112.

                                                  -7-
          is part of the regular business of the company or is the same type of work
          usually performed by the company's employees.’

Lindsey, 275 S.W.3d at 421 (quoting Murray, 46 S.W.3d at 176). In the case before us, it
is undisputed that the first two tests are inapplicable. Therefore, we will limit our discussion
to the third criterion, i.e., whether the work being performed by Fayette’s employees was part
of Kellogg’s regular business or the same type of work usually performed by Kellogg’s
employees. However, we will first address Plaintiffs’ contention that it cannot be considered
a statutory employer in any event because the service contract between Kellogg and Fayette
stated that Fayette was an independent contractor.

                                  A.     Effect of the Service Contract

        The contract between Kellogg and Fayette contained a provision stating that Fayette
and its employees would be deemed independent contractors and not employees of Kellogg.
Thus, Plaintiffs claim that no employment relationship can be deemed to exist in this case,
and Kellogg cannot be considered a statutory employer of Mr. Kennedy. We disagree.

       We first note that the designation given by the parties in their contract does not dictate
the applicability of the Workers’ Compensation Law. Our Supreme Court has stated that “a
contract purporting to establish the plaintiff as an ‘independent contractor’ is insufficient
when the facts surrounding the arrangement indicate [otherwise].” Lindsey, 275 S.W.3d at
419-20. Such a provision is not dispositive “because it is intended to insulate defendant from
worker’s compensation liability.” Barber v. Ralston Purina, 825 S.W.2d 96, 100 (Tenn. Ct.
App. 1991) (citing Stratton, 695 S.W.2d at 953). Tennessee Code Annotated section 50-6-
114(a) provides that “[n]o contract or agreement, written or implied . . . shall in any manner
operate to relieve any employer, in whole or in part, of any obligation created by this
chapter[.]”4 Therefore, “provisions in contracts between the parties do not control on the
question of whether the workers comp statute applies.” Harness, 2007 WL 10447, at *3.

      Furthermore, as explained above, the extension of liability to principal contractors
under section 50-6-113 applies “regardless of whether [the principal contractors’]
subcontractors are independent contractors.” Murray, 46 S.W.3d at 175. The statute
expands the responsibility for workers’ compensation benefits “beyond the traditional
employer-employee relationship,” Stratton, 695 S.W.2d at 951, to allow employees of
subcontractors to recover from a party other than their immediate employer. The “‘injured
workman need not be an employee of the principal contractor; it is enough if he was an


          4
              Subsection (b) of the statute contains one exception not relevant here. Tenn. Code Ann. § 50-6-
114(b).

                                                      -8-
employee of any subcontractor on the project.’” Id. at 951-52 (citing Clendening, 336
S.W.2d at 538). The statute effectively permits a worker who could otherwise be classified
as an independent contractor of the principal contractor, under other tests for employment,
to be deemed a “statutory” employee in order to recover workers’ compensation. “Correctly
understood, the statutory employer rule represents an exception to the rule that independent
contractors are not covered by the workers' compensation act.” King, 55 Tenn. L. Rev. at
430. The subcontractor who directly employs the worker “may very well be (and often is)
an independent contractor and may still be a party to a relationship with a § 50-6-113
statutory employer.” Id. at 430 n.110. “Indeed, the whole purpose of the § 50-6-113 rule is
to identify general, intermediate, and superior subcontractors who are potentially liable for
workers' compensation for injuries to the employees of their subcontractors who are
independent contractors. If those latter subcontractors are employees of the superior
contractor-defendant, there is no need to even invoke § 50-6-113.” Id.

       For these reasons, we find that the “independent contractor” language used in the
parties’ service contract does not preclude Kellogg from being deemed a statutory employer.

                       B.    Classification as a Statutory Employer

        We now turn to the issue of whether Kellogg is considered a statutory employer of Mr.
Kennedy within the meaning of Tennessee Code Annotated section 50-6-113. Under the
third test mentioned above, which is the one relevant to this appeal, “[a] company or other
business is considered a principal contractor if the work being performed by a subcontractor's
employees is part of the regular business of the company or is the same type of work usually
performed by the company's employees.” Murray, 46 S.W.3d at 176 (emphasis added). As
we noted above, the statutory employer provision is aimed to prevent employers “from
contracting out ordinary business activities in an effort to avoid workers’ compensation
liability.” Bostic, 158 S.W.3d at 350. It “prevent[s] employers from relieving themselves
of liability by doing through others what they would otherwise do through direct employees.”
Tayloe Paper Co. v. W. F. Jameson Const. Co., 211 Tenn. 232, 235, 364 S.W.2d 882, 884
(Tenn. 1963)). Therefore, “statutory employers” are “those who get part of their regular
work done by the employees of a subcontractor and are held responsible for work-related
injuries sustained by those employees, if the subcontractor is uninsured.” Brown, 844
S.W.2d at 136 (citing Larson, Workmen's Compensation, § 49.14 (1991)).

      On appeal, Plaintiffs argue that the cleaning work being performed by Mr. Kennedy
was not “part of the regular business of the company” because Kellogg is in the business of
manufacturing cereals, not cleaning or sanitation. Plaintiffs claim that the phrase “regular
business” refers only to the nature of the contractor’s business, not the frequency of the work
performed. They contend that the 28-day cleaning cycles were performed while the “regular

                                              -9-
business” in the Kellogg plant was shut down. We find that the Plaintiffs’ narrow
interpretation of “regular business” is not supported by Tennessee caselaw. A brief review
of some Tennessee cases will best demonstrate our point.

        “Whether work is a regular part of the business of any entity is a fact-specific inquiry,
relative to the size and scope of the business.” Lindsey, 275 S.W.3d at 422. In Murray v.
Goodyear Tire & Rubber Co., 46 S.W.3d 171, 173 (Tenn. 2001), Goodyear undertook an
extensive project of cleaning and painting the overhead air ducts, located about twenty feet
above the ground, at its tire plant. Goodyear employees occasionally performed minor
maintenance tasks, including some painting, but this was a specialized project for which
Goodyear lacked the employees, materials, and equipment necessary to complete the job.
Consequently, Goodyear hired a professional painter to paint the overhead air ducts. After
the painter was injured, the Supreme Court was faced with the issue of whether Goodyear
was the painter’s statutory employer, and more specifically, whether he was engaged in work
that was a regular part of Goodyear’s business. Id. at 174-75. “Undoubtedly,” the Court
explained, “regular maintenance, repair, painting, and cleaning are an ‘expectable, routine
and inherent part of carrying on any enterprise.’” Id. at 176 (quoting Smith v. Lincoln Mem'l
Univ., 202 Tenn. 238, 304 S.W.2d 70, 74 (1957)). However, the painting of the overhead
air ducts was found to be more extensive and specialized than a regular maintenance project,
and the Court found no indication that this was “the type of project that need[ed] to be done
on a continual basis.” Id. This was “a project that was not part of the regular business of the
company.” Id. at 177. In sum, the Court concluded, “the evidence preponderate[d] against
the trial court's finding that Goodyear was a principal contractor under section 50-6-113 and
was therefore a statutory employer who [was] liable for workers' compensation benefits.”
Id.

       In Lindsey v. Trinity Communications, Inc., 275 S.W.3d 411, 415 (Tenn. 2009), a
small cable and internet service provider, with only two employees, contracted with a Texas
corporation for it to install a new cable system for the cable provider. An employee of a
subcontractor on the project was injured while splicing cable and sought to recover from the
cable company as a statutory employer. The Supreme Court ultimately concluded that the
new cable system construction project was not part of the regular business of the cable
company. Id. at 422. The cable company operated only two cable systems, including the
system for which the injured worker performed splicing work. In addition, the cable
company’s two employees were incapable of handling the construction of a new system. The
Court explained its decision as follows:

              We conclude that the evidence preponderates against the trial court's
       finding that the work performed by Lindsey was a regular part of Trinity's
       business. Whether work is a regular part of the business of any entity is a

                                              -10-
       fact-specific inquiry, relative to the size and scope of the business.
       Construction or repair that is routine activity for a large business, which
       normally expects to perform the work with its own employed staff, may be a
       nonrecurring and extraordinary undertaking for a small business. 4–70
       Larson's Workers' Compensation Law § 70.06(3) (2008). While new system
       construction may be a regular part of the business of "a cable company" in
       some instances, Trinity's small size and limited number of employees did not
       allow this type of work to be a regular part of its business. See Goodyear, 46
       S.W.3d at 177 (holding that a painting job was not a regular part of the
       business because it was more extensive and specialized than a regular
       maintenance project).

Id. In sum, new system construction was not a regular part of the cable company’s business,
and it was not the statutory employer of the injured worker. Id. at 423.

        The Court of Appeals has considered the “statutory employer” issue in a case quite
similar to the case at bar. In Randolph v. Eastman Chemical Co., 180 S.W.3d 552, 554-55
(Tenn. Ct. App. 2005), a manufacturer of chemicals, plastics, and fibers routinely shutdown
its plant for a twenty-day period once every two years for cleaning, inspections, and any
necessary repairs. The shutdown cycle had been taking place regularly since the plant’s
inception in about 1980. The manufacturer did not have the technology to conduct
electromagnetic testing on its heat exchangers, so it hired an outside contractor that had the
appropriate proprietary equipment to conduct the testing during the shutdowns. An engineer
who was employed by the outside contractor was injured while boarding an elevator at the
manufacturing plant, and the Court considered whether the work being performed was part
of the regular business of the manufacturer in order to determine whether the manufacturer
was a statutory employer. Id. at 556-57. The Court found it appropriate to “look at the entire
picture” and to view the shutdown “as one large project.” Id. at 558, 560. The Court found
that, “[u]nlike the painting of the duct work in Goodyear, the evidence in the present case
demonstrates that the work performed during a shutdown must be done on a continual basis,
i.e., every two years, in order for the plant to operate properly, effectively, and in compliance
with applicable safety regulations.” Id. at 558. Due to the nature of the products being
manufactured, the continual shutdown cycle was of vital importance to the business. The
Court concluded, “It necessarily follows that the work activities taking place during the
shutdown are part of [the manufacturer’s] regular business because they are what [it] does
on a regular basis as a necessary part of its ongoing business operation and, without them,
there likely would be no business.” 5 Id. at 560.


       5
           In the case before us, Plaintiffs argued that we should focus on the particular task being performed
                                                                                                   (continued...)

                                                      -11-
       In the case at bar, Kellogg submitted, in support of its motion for summary judgment,
an affidavit from its Operations Specialist, who explained various details regarding the
company’s cleaning procedure at the Memphis plant. He stated that Kellogg has followed
the same 28-day cleaning cycle for at least the last twenty years. The plant is shutdown for
approximately 16 to 24 hours, and during that time, each piece of equipment on the
production line, and the building areas surrounding the production line, are thoroughly
cleaned. The Operations Specialist stated that regular sanitation and cleaning of the plant’s
food production line was essential to Kellogg's ability to produce safe, high-quality food
products and necessary for the plant to operate properly, effectively, and in compliance with
applicable safety regulations. Kellogg also produced the service contract between it and
Fayette, which described the work to be performed by Fayette in great detail.

        The facts presented by Kellogg demonstrated that the work performed during the
cleaning cycle was done on a regular and continual basis, and it was of vital importance to
Kellogg’s ongoing business operation. We conclude that Kellogg properly supported its
motion for summary judgment with “evidence that tend[ed] to disprove an essential factual
claim made by the nonmoving party,” and therefore, Kellogg affirmatively negated an
essential element of Plaintiffs’ claim and shifted the burden of production to Plaintiffs. See
Martin, 271 S.W.3d at 83-84. In response to Kellogg’s motion for summary judgment,
Plaintiffs submitted an affidavit from an insurance claims representative, who recounted facts
she had learned about Mr. Kennedy’s accident, but which basically failed to address the issue
of whether the work being performed was part of Kellogg’s regular business. In their
memorandum of law, Plaintiffs argued that the nature of Kellogg’s “regular business” was
manufacturing and distributing cereal, not sanitation and cleaning, and therefore Fayette was
not performing work that was part of Kellogg’s regular business. Plaintiffs compared the 28-
day cleaning cycle to a “specialized project” like the duct painting at issue in Murray.
Plaintiffs also pointed out that although the Operations Specialist stated that Kellogg’s
cleaning and sanitation procedures were necessary for the plant to operate, Kellogg had not


        5
          (...continued)
by Mr. Kennedy when he was injured (cleaning the corn cooker), and determine whether that particular task
is part of Kellogg’s regular business, rather than considering whether the 28-day cleaning cycle was part of
Kellogg’s regular business. They claim that cleaning the corn cooker was not part of the regular business
of Kellogg because that task had been “subcontracted out.” We find no support for Plaintiffs’ position that
we should exclusively focus on one particular duty rather than the entirety of the circumstances. See
Lindsey, 275 S.W.3d at 422 (“Whether work is a regular part of the business of any entity is a fact-specific
inquiry, relative to the size and scope of the business.”); Randolph, 180 S.W.3d at 558 (considering the
“entire picture” and viewing the shutdown “as one large project”); Shires v. King, No. 2:05-CV-84, 2007
WL 784350, at *3 (E.D. Tenn. Mar. 13, 2007) (rejecting the worker’s attempt to oversimplify the regular
business of Bristol Motor Speedway to simply motor racing, and holding that a contractor who provided food
service in the luxury suites was performing a service that was part of the regular business of the Speedway).

                                                    -12-
produced any type of written regulation requiring the specific shutdown cycle at issue.

        We find that Plaintiffs’ response to the motion for summary judgment failed to
establish that genuine issues of material fact existed. In response to a properly supported
motion for summary judgment, “[t]he nonmoving party may satisfy its burden of production
by: (1) pointing to evidence establishing material factual disputes that were over-looked or
ignored by the moving party; (2) rehabilitating the evidence attacked by the moving party;
(3) producing additional evidence establishing the existence of a genuine issue for trial; or
(4) submitting an affidavit explaining the necessity for further discovery pursuant to Tenn.
R. Civ. P., Rule 56.06.” Martin, 271 S.W.3d at 84. Plaintiffs did none of these. The facts
remained undisputed, and they established that the cleaning and sanitation work performed
by Fayette for Kellogg was a part of Kellogg’s regular business, as it was an integral part of
Kellogg’s business that was performed on a continual and recurring basis. This was a routine
maintenance program that was part of Kellogg’s ongoing business operation, not an irregular
specialized project.

        Plaintiffs argue on appeal that Kellogg’s own employees do not participate in the
cleaning cycles, and therefore, Kellogg’s “regular business,” or regular practice, is to
subcontract out the portion of its business relating to cleaning and sanitation. As noted
above, the cleaning cycles were performed entirely by Kellogg employees until April of
2003, when Fayette began performing the cleaning and sanitation required during the
cleaning cycles. Since Fayette’s involvement, the role of Kellogg’s employees has greatly
diminished.6 However, under the “regular business” prong of the statutory employer
analysis, it is not essential to have Kellogg employees working alongside Fayette employees
doing the same work. A company is considered a statutory employer if “the work being
performed by a subcontractor's employees is part of the regular business of the company or
is the same type of work usually performed by the company's employees.” Lindsey, 275
S.W.3d at 421 (emphasis added). A company may be deemed a statutory employer under one
prong of the test even if it does not meet the other. See id. (considering the issues
separately); Randolph, 180 S.W.3d at 561 n.4 (“We note that Goodyear only requires [the
manufacturer] to establish either that ‘the work being performed by a subcontractor's
employees is part of the regular business of the company or is the same type of work usually
performed by the company's employees.’”) (emphasis in original). For example, in the


        6
          According to the affidavit of the Operations Specialist, Kellogg employees remain present at all
times during a cleaning cycle, and Kellogg employees normally clean the first floor of the packing room
during that time. Additionally, Kellogg maintenance employees continue to work throughout the plant during
a shutdown. Kellogg employees inspect the work performed by Fayette before production resumes, and if
Fayette discovers a problem with a piece of equipment during the cleaning cycle, the problem is reported to
Kellogg, and Kellogg employees perform the repairs.

                                                   -13-
Randolph case, which involved the engineer who performed electromagnetic testing at the
chemical plant, the Court found that such testing was part of the regular business of the
chemical company, giving rise to statutory employer status, even though the statutory
employer did not possess the technology for its own employees to perform such testing. 180
S.W.3d at 560. In Rucker v. Rockwood Elec. Utilities, No. 03S01-9511-CH-00127, 1996
WL 626292, at *4 (Tenn. Oct. 30, 1996), an electric utility contracted with a tree cutting
service for the removal of trees along its utility lines, and when one of the workers was
injured by a saw, the electric utility was found to be his statutory employer, despite evidence
that the utility company’s employees did not perform such work, because the work was a
vital function of the utility company’s principal business. Id. at *4.

        In Griffith v. Jellico Community Hosp., Inc., No. E2009-01431-COA-R3-CV, 2010
WL 2160775, at *1 (Tenn. Ct. App. May 28, 2010) perm. app. denied (Tenn. Oct. 20, 2010),
the Court rejected the same argument asserted by Plaintiffs in the case before us. A hospital
had hired a company to service and maintain some 700 pieces of medical equipment in the
hospital, and the company provided a biomedical equipment technician who worked at the
hospital on a daily and continuous basis. When the technician was injured and filed a
negligence suit against the hospital, the hospital contended that it was the statutory employer
of the technician. In response, the technician and his direct employer argued that the hospital
could not be deemed a statutory employer because the hospital did not have employees that
performed the same type of work as the technician. Id. at *5. At the very least, they argued,
there was a genuine issue of material fact regarding whether the maintenance services
provided by the technician constituted the regular business of the hospital. The Court of
Appeals disagreed. The Court found that the technician’s work was part of the “regular
business” of the hospital “[b]ecause the proper and safe operation of the equipment [was]
essential to [the hospital’s] business of providing health care.” Id. at *7. The Court
compared the facts before it to the electromagnetic testing performed by the engineer at the
chemical plant in Randolph, and it explained that “the continual nature of the work
performed by the subcontractor's employee” was “[k]ey to the reasoning in Randolph.” Id.
The Court found that the worker’s interpretation of “regular business” was incorrect because
it “ignore[d] the continual nature of the services provided” and failed to account for the
connection between the equipment maintenance work and the statutory employer’s “basic
functions as a general hospital.” Id. at *8. The Court concluded that the hospital had shown
without factual controversy that it was the statutory employer of the technician, as the
undisputed facts established the essential and regular nature of the technician’s work to the
hospital’s operation. Id. at *8-9. Therefore, summary judgment was appropriately granted
to the hospital. See also Erwin v. Methodist Medical Center of Oak Ridge, No. 03A01-
9811-CV-00379, 1999 WL 907557, at *5 (Tenn. Ct. App. E.S. Oct. 18, 1999) (finding that
a hospital was a statutory employer of the employee of a contractor that provided pharmacy
service at the hospital, even though the contractor was the exclusive provider of such service,

                                             -14-
because the pharmacy service was part of the regular business of the hospital in providing
healthcare services); Lambert v. Tennessee Valley Authority, No. 1:01-CV-330, 2002 WL
32059747, at *5 (E.D. Tenn. Sept. 17, 2002) (“TVA may be a principal contractor in the
regular business of performing a particular task . . . without necessarily having TVA
employees do the manual labor.”)7

        Considering the holdings of these previous cases, we likewise conclude that Kellogg
can be deemed a statutory employer of Mr. Kennedy even though Kellogg has not utilized
its own employees to clean the corn cookers since 2003. “Obviously, an entity may be in the
business of performing a particular task without necessarily having regular employees do it.”
Brown, 844 S.W.2d at 138. The statutory employer rule is designed to prevent employers
from contracting out normal work, or “doing through others what they would otherwise do
through direct employees,” Tayloe Paper Co., 364 S.W.2d at 884, in an effort to avoid
workers’ compensation liability. The regular cleaning work previously completed by
Kellogg’s own employees, and now performed by Fayette, was precisely the type of “regular
business” activity that the statutory employer rule was meant to encompass. Under Plaintiffs’
theory, a company could avoid statutory employer status, and workers’ compensation
liability, by delegating its regular work to subcontractors if it simply ensured that none of its
own employees performed the same type of work. We reject such an interpretation.




        7
          The Lambert case, although not binding on this Court, has been discussed and cited with approval
in other Tennessee cases. See Griffith, 2010 WL 2160775, at *8 (finding the Lambert case “instructive”);
Randolph, 180 S.W.3d at 560 (stating that the Court “agree[d] with the reasoning of” Lambert).

                                                  -15-
                                    III.   C ONCLUSION

       The undisputed facts presented by Kellogg demonstrate that the work being performed
by Fayette, and Mr. Kennedy, was a regular part of Kellogg’s business. No genuine issues
of material fact existed regarding this issue. Therefore, Kellogg is a statutory employer and
principal contractor within the meaning of Tennessee Code Annotated section 50-6-113, and
Kellogg is immune from the tort suit filed by Plaintiffs “as assignee of the claims of Wesley
Kennedy.” We affirm the trial court’s order granting summary judgment to Kellogg. Costs
of this appeal are taxed to the appellants, Fayette Janitorial Services and Technology
Insurance Company, and their surety, for which execution may issue if necessary.


                                                   ALAN E. HIGHERS, P.J., W.S.




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