835 F.3d 579
6th Cir.2016Background
- Steve Black, a Western Express truck driver, was injured (below-the-knee amputation) at Dixie Consumer Products’ Bowling Green, KY plant when a Dixie forklift operator ran over his foot while unloading a delivery.
- Black received workers’ compensation benefits from Western Express and then sued Dixie and its parent Georgia‑Pacific in tort for damages.
- Dixie/Georgia‑Pacific moved for summary judgment asserting Kentucky’s workers’ compensation statutory immunity (up‑the‑ladder/exclusive remedy) bars the suit; the district court denied the motion after initial limited discovery.
- On prior appeal the Sixth Circuit remanded for more evidence on whether the transportation/unloading work was a regular or recurrent part of Dixie’s business and whether Dixie would normally perform it with employees.
- On remand the district court again denied summary judgment; the Sixth Circuit majority granted interlocutory review under the collateral‑order doctrine and reversed, holding Dixie and Georgia‑Pacific are immune from suit under Kentucky law.
- The majority applied a three‑part test from Kentucky law (hiring relationship, customary/recurrent nature of the work, and whether the owner would normally perform the work with employees) and found all three satisfied; Judge Clay dissented, arguing lack of appellate jurisdiction because Kentucky law provides immunity from liability (not suit) and collateral‑order review is inappropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the denial of Kentucky up‑the‑ladder workers’ compensation immunity immediately appealable under the collateral‑order doctrine? | Black: The immunity is not a true immunity from suit; interlocutory appeal is improper. | Dixie/GP: Kentucky treats contractor immunity as immunity from suit; denial is immediately appealable. | Court: Yes — the immunity is effectively an immunity from suit under Kentucky law and collateral appeal is permissible. |
| Was Western hired to perform the work Black was doing (i.e., transport and delivery including unloading tasks)? | Black: Unloading the rubber mats was not his job once truck arrived; it was part of the carrier’s duties but not necessarily for Dixie. | Dixie/GP: Carriage agreement required transport/delivery; removing mats was part of safe transport/delivery. | Court: Held Western was hired to transport/deliver and Black’s actions were part of that contracted task. |
| Was the unloading/delivery work a customary, usual, or recurrent part of Dixie’s business? | Black: The record ambiguously established regularity. | Dixie/GP: Dixie regularly received many raw‑paper deliveries (up to ~50 trucks/week). | Court: Held deliveries/unloading were regular/recurrent and therefore customary to Dixie’s business. |
| Would Dixie or similar businesses normally perform that work with their own employees (so as to trigger up‑the‑ladder immunity)? | Black: Dixie did not necessarily perform this specific task with its own employees. | Dixie/GP: Dixie has employees and equipment (forklifts/compactors) and similar companies use private fleets; unloading is work such businesses would expect to do with employees. | Court: Held the work is of a kind that Dixie or similar businesses would normally perform with employees; up‑the‑ladder immunity applies. |
Key Cases Cited
- Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009) (collateral‑order doctrine standards for interlocutory appeals)
- Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) (origin of collateral‑order doctrine)
- Gen. Elec. Co. v. Cain, 236 S.W.3d 579 (Ky. 2007) (Kentucky test for up‑the‑ladder/exclusive remedy immunity)
- Beaver v. Oakley, 279 S.W.3d 527 (Ky. 2009) (discussion of up‑the‑ladder immunity as contractor immunity from tort suits)
- Ervin Cable Constr., LLC v. Lay, 461 S.W.3d 422 (Ky. Ct. App. 2015) (Kentucky Court of Appeals allowed interlocutory appeal on similar immunity grounds)
- Interlock Indus., Inc. v. Rawlings, 358 S.W.3d 925 (Ky. 2011) (driver participation in unloading can make the driver a participant in the contractor’s work)