*1 onset of his condition or whether it devel-
oped gradually period years. over a Appeals
Court of found that the evidence
supported the award. We find no fault
with that determination. therefore, agree,
We with the Court of
Appeals, that supports evidence
award of the Board and that movant has prejudice
suffered no in view of the fact Appeals the Court of painstakingly him appellate
afforded review to which
he was entitled.
We hasten to add that we do not
way place any stamp approval upon the
methods followed the trial court. Even
though the review was flawed circuit
court, the Appeals, Court of in a commend- fashion, gave
able movant the review to entitled,
which he was prej- we find no
udicial error in the proceedings. judgment is affirmed.
All concur.
FIREMAN’S FUND INSURANCE
COMPANY, Movant, FLETCHER,
SHERMAN & John Sher- man, Raymond Fletcher, and Otto
Thillman, Respondents. GEORGE,
Karen A. Administratrix of the George;
Estate of David H. Active Con
structors; Krusenklaus; Daniel How Clausen; Devine, ard R. and Patrick L.
Movants, FLETCHER,
SHERMAN & John Sher man, Raymond Fletcher, and Otto
Thillman, Respondents.
Supreme Court Kentucky.
Feb.
paid compensation to the employee of a indemnify subcontractor to itself the contractor when the negligence of the injury. contractor caused the The complex factual giving situation rise to this case is as follows: Sherman and Fletcher: John Sherman Fletcher, Raymond individually and as partners, were the owners developers of a residential complex construction con- sisting townhouses known as the Project. Wessex They contracted with oth- ers for most of the construction work. Elder, David framing S. Inc. was a sub- engaged rough contractor to do the fram- ing carpentry on the Wessex construction David George H. an employee Elder, Inc. who was killed when a concrete block wall at the construction site col- lapsed.
Active Constructors partnership which subcontracted to construct the con- crete block wall collapsed and killed George. David Company Fireman’s Fund Insurance car- ried the worker’s insurance Elder, paid Inc. and benefits to the Bruton, O. Grant Reutling- Middleton & George. estate of David er, Louisville, for movants in No. 84-SC- 274-DG. The trial court dismissed all claims against Sherman & Fletcher. We affirm. Harbison,
Thomas Hundley, C. Stites & Lexington, respondents in No. 84-SC- 274-DG. THE CLAIM OF KAREN A. GEORGE Baker, Kenneth H. Scroghan, James S. ADMINISTRATRIX THE OF ESTATE Louisville, for movant No. 84-SC-279- OF DAVID H. GEORGE DG. Elder, Inc., of David Hundley, Thomas Lexington, C. for re- George, paid worker’s bene-
spondents in No. 84-SC-279-DG. George. fits to the estate of The estate recovery wrongful elected to seek
VANCE, Justice. death claim- presents questions This case concerning ing that respon- Sherman and Fletcher was (1) right of an employee of a negligence sible as a third whose had subcontractor to recover tort from an caused the death. The attrib- contractor, owner who has acted as his own uted to Sherman and Fletcher was that it (2) of a subcontractor in a suit properly supervise failed to the construc- against him in tort implead project the contrac- tion require and failed to that the tor on a subrogation claim for or indemni- concrete block wall under construction be ty, of an insurer which has adequately braced. granted
Sherman & Fletcher agreed sum- contract share mary judgment on the claim of the exemption a different manner. ground Estate on the the worker’s liability given by this section precluded statutes such re- employer’s shall also such extend to covery. employes, carrier and to all officers or *3 carrier, employer directors of such or (1) provides every K.R.S. 342.610 that provided exemption giv- employer subject chapter to the shall be employe, en an officer or director or an compensation liable for injury for without employer apply or carrier shall not fault, regard (2) to a contractor who sub- case where injury proxi- or death is any part contracts of his contract shall be mately by caused unpro- wilful and payment liable for the compensation of physical aggression voked of such em- employees of the subcontractor unless ploye, officer or director.” the subcontractor primarily liable payment compensation such has se- The make plain of statutes that if payment cured its provided by Chap- contractor, Sherman & Fletcher is a it has 3 n 2, person ter who contracts no liability injured employee in tort to an of with another to performed have work of a It is subcontractor. also clear that Sher regular kind which is part or recurrent of man & Fletcher is contractor if the work trade, business, the work occupa- George’s employer subcontracted to of profession tion or person, such shall be regular work of a kind is a of which or recur deemed a contractor person and such other part trade, rent of the work of the busi a subcontractor. ness, occupation profession or of Sherman & Fletcher. 342.690(1)provides: K.R.S.
“If employer payment secures Elder, Inc., of George’s employer, contract- compensation required by chap- this perform rough framing ed to carpentry ter, of employer such under on disputed It cannot be chapter shall be exclusive and in rough framing carpentry is of a kind work place of all other liability employ- of such regular part which is a or recurrent of the er employe, to the legal representa- his occupation building work of the or trade of tive, wife, husband or parents, depend- construction in which Sherman & Fletcher ents, kin, next of anyone otherwise engaged. entitled to damages recover from such claims, however, Mrs. George employer at law or in admiralty on ac- subcategory carpentry desig- injury count of such pur- or death. For “rough' framing” type nated as was a
poses
section,
of this
‘employer’
term
carpentry which Sherman
Fletcher did
&
shall include a
by
‘contractor’ covered
usually
not do for itself but
subcontracted
342.610,
KRS
whether or not the subcon-
agree
to others. We
with the Court of
fact,
tractor has in
payment
secured the
Appeals that such a distinction is of no
compensation.
The liability of an em-
significance.
ployer
person
to another
may
who
be
purpose
provision
liable for
paid damages
or who has
on
K.R.S. 342.610 that a contractor is liable
injury
account of
employe
or death of an
employee
benefits to an
if
of such
arising out of and in
a subcontractor who does not secure com
employment
the course of
and caused
pensation
prevent
benefits is to
subcon
any duty
obligation
a breach of
owed
tracting
irresponsible people.
Elkhorn-
such
to such other shall be
Corp.
Ky.,
Hazard
Taylor,
Coal Land
limited to the
amount of
(1976).
and other benefits for which such em-
ployer is
chapter
Co.,
liable under this
on
In Bright
Reynolds
Metals
death,
account of
injury
such
unless
prin-
TORS OF FIREMAN’S AGAINST SHERMAN INSURANCE AGAINST & FLETCHER COMPANY SHERMAN & FLETCHER sought indemnify Active Constructors Company itself Sherman & Fletcher for Fireman’s Fund Insurance it damages might required pay carrier for Eld- compensation the worker’s er, obligated Inc. paid pay As such it on account benefits benefits George. was zero. The statute injury and death of David David It limits the of Sherman & indemnity seeks & Fletch- thus Sherman Fletcher to zero dollars. ground er on the Sherman & Fletcher caused it to become pur question On the of whether liable benefits. indemnity ported limitation on the (1) remedy 342.690(1)
It claims that the exclusive in K.R.S. is unconstitu contained 342.690(1) provisions were never applied of K.R.S. to a tional when rights case, intended to abolish the common law Fireman’s Fund in this carrier such as contribution, (2) indemnity Firema n the 1972 we our decision in consider Employ to the Act do not abolish Fund v. Government Insurance amendments Company, ees Insurance rights, attempt those (1982) controlling. respect With to an Assembly General to limit 342.690(1) required by insurance carrier its contract Kentucky K.R.S. violates Consti- 14, 54, pay neglect losses caused of a tution Sections and 241. party, Kentucky we held that Whether or not at- K.R.S. legislative prohibit Constitution does not tempted to abolish actions for indemnity. limitation contribution, there can be no doubt but said: to limit We sought of an em- ployer in claims for and contribu- Util. Co. v. *5 “It was not until 342.690(1) tion. specifically pro- K.R.S. Corp., Ky., 438 County Jackson R.E. employer vides that of an gave S.W.2d 788 that court may be liable or the notion that any consideration to this paid damages who has on account an of indemnity might type of claim fall under injury or employee death of an of such protection of 54. The Const. Sec. employer arising scope out of the question there was whether KRS 342.- employment by course of and caused 015(1), an provides which breach duty obligation by of owed such compensation ‘shall liable for workmen’s employer to such other shall be limited to liability,’ from all other ... be released amount and other primary protected an whose of which the employer is liable negligence alleged have caused its was benefits for chapter under this on account such employe’s death from to a sec- of injury or death.... ondarily-negligent party which had set- wrongful-death Without tled the claim. As we have noted earlier in this deciding question the constitutional un- opinion, Sherman & Fletcher was a contrac equivocally, the court construed KRS pursuant provisions tor to the of K.R.S. 432.015(1) being inapplicable, in but “employer” 342.610 and the term includes reaching stated that ‘the that conclusion 342.690(1). such a contractor. K.R.S. right indemnity jural is a common-law Sherman & Fletcher have been would adoption right prior which existed to the liable for worker’s benefits may not be abol- of our Constitution and Elder, employer, to David if his Assembly.’ ished the General Assum- Inc., had not secured those benefits. The however, deciding, ing, but without so provided cost of the benefits for David indemnity general theory George by Elder, employer, his immediate a cause of cannot grounds for action Inc., no in were doubt reflected the cost of in legislated away, specific still the issue Elder, provided by the services Inc. to Sher- the facts of the case any case is whether man & Fletcher. a cause of action have established would Elder, Today, theory Because Inc. secured the worker’s under that at that time. compensation benefits, theory example, the actual dollar we behold having burgeoned into negligence amount which Sherman Fletcher became liabili- ty products liability without fault in CLAIMS AGAINST OTTO THILLMAN cases, but it would be absurd to contend Otto Thillman of Sher- that such would have been coun- alleged negli- man & Fletcher to have been tenanced in 1891. gent supervision All “The in the asserted claims him were dismissed Company Utilities case was trial court. founded on facts strictly that were analo- gous to the situation the Brown Hotel These were claims not raised ease. Absent the element of workmen’s and, Appeals, considered Court compensation, parties two were liable for accordingly, pass we their decline death, wrongful pri- but it was the however, We passing, merits. note in mary or active one exemption liability granted to an exposed which had the other to lia- employer by also ex K.R.S. bility. Whether employer. to all employees tended developed under those circumstances had judgment is affirmed. point case-law to the recognition doubtful, extremely 1891 is need we GANT, STEPHENSON, VANCE, AKER here, pursue point not it is because WINTERSHEIMER, JJ„ concur. quite beyond that in cavil 1891 neither workmen’s nor no-fault VANCE, J., a separate concurring files automobile or vehicular insurance ex- law AKER, J., in which joins. possible isted. It is not that the kind of sought indemnification in this case could LEIBSON, J., opin- by separate dissents established as law at common STEPHENS, C.J., joins. ion in the time the state Constitution adopted. VANCE, Justice, concurring. ground upon “There is still another I majority opinion concur with be- which Const. Secs. 14 and 54 cannot be it reaches proper cause result as *6 applicable. Aside from the mention unanswered, contesting parties. It leaves 14, in defamation Sec. these constitution- however, question the an em- of whether al provisions expressly to ac- apply only ployer way indemnity is to a by liable death, tions personal injuries, liable for subcontractor who has held property damage. Cf. Kentucky Hotel injury employee the of an of another sub- Cinotti, 88, 27, Ky. 298 182 29 S.W.2d employer’s that the contractor claims (1944), and Zurich Fire Ins. New Co. of respon- negligence partly wholly Weil, 54, York 259 S.W.2d 57 injury. for the It unan- sible also leaves (1953), in both recognized of which is swered, as did in our Burrell in In that Sec. refers to actions tort. Board, Ky., Electric Plant suit, course, subrogation plain- the question indemnity the of whether rights subrogor, tiff the asserts his constitutionally can be limited to the in an indemnity action for he sues employer’s liability amount of the for work- right, his own even basis compensation. er’s implied tenuous more than an contract.” legislature required employ- When an Id. at compensate er even employee an We hold that limits the K.R.S. without though employer wholly liability Sherman & Fletcher to another fault, it the em- sought also immunize paid injury who has benefits on account of from all account ployer liability further on or death employee amount injury, including of the tort compensation for which Sherman Fletch- negligence. (in zero), er is liable this case and we fur- time, injured employee same ther hold that the is not unconstitu- At the statute pursue a tional. was allowed to tort claim negligent party. proportion equal propor- third In the event of of the loss to his recovery by tion of the employee against negli- fault. gent party, employer third was allowed apportionment It seems to me the recoup paid the amount it had as work- liability in compensation cases where both compensation. er’s employer party negligently and a third injury accomplish pre- cause the would This scheme works well when the em- cise intent of Worker’s ployer negligence is free from and a third Act, time, and at the same end all constitu-
party cases, wholly many is at fault. questions concerning indemnity tional however, injury an employee results contribution. negligence the concurrent of an em- ployer party. and a third In such cases the injured If an the concur- employee can recover the full amount of negligence employer rent of his and third damages his from a party who is the party, he should be entitled worker’s only party causing at fault in those dam- employer. benefits from his ages. employer, though partly The at He pursue should also be entitled to a claim fault, recoup can all of paid the sums it has who, party turn, the third could compensation. worker’s employer, implead employer. jury A could then though fault, partially largely even at damage determine the amount of caused escapes without cost on account of the injury apportion liability and could be- injury, party, and the third although only party employer. tween the third and the fault, partially at is stuck with the entire manner, In that party the third would be comport cost. This does not prin- with the responsible only proportionate held ciple of basic fairness. part damage of the caused him. There would be no need for escape unfairness, To or contri- party the third bution. often seeks or contribution from employer pay because he has had to proportionate part damages of the damages caused employer attributed to the could deemed be employer. The third then runs head- discharged by payment to be of com- long into a purports statute which to limit pensation benefits. This effect give would of the employer to the third legislature to the intent of the
party to the amount
employ-
for which the
limited
er is liable for
worker’s
bene-
compensa-
to the amount of his liability for
fits.
tion benefits.
unconstitutional,
If that statute is held
recouping
compensa-
Instead of
all of his
subject
*7
liability
tort
benefits,
employer
tion
the
should recover
by way of indemnity or contribution and
party only
proportion
from the third
in
liability
also
for worker’s
percentage
of
causation attributed
benefits.
contrary
This is
to the intent of
party.
the third
legislature
comport
and also fails to
apportionment
Before there can be an
of
principle
with the
of basic fairness.
liability between a defendant and a third-
I
we
believe
should construe our
defendant,
Court,
statute
course,
party
of
uphold
constitutionality,
its
and at the
Jordan, Ky.,
would have to overrule Nix v.
time,
carry
same
out the
(1975).
intent of the
(1984), adopted principle we liability appor- that in a holds that can be society damage fault, defendants, where is based tioned between two even when liability damage for should be measured has settled the claim one of them degree Among Jordan, of fault. those concur- trial. But him before Nix su- fault, rently only at each should bear apportionment limits to defendants pra, 466 Thillman,
who were in original foreman, defendants action Sherman & Fletcher’s and permit apportionment does not be- danger- had been specifically warned of the tween a defendant in the original suit and ous condition of the wall hours several brought in by third-par- defendant collapsed killing George, before it David ty proceedings. third-party Such defend- Elder, Inc., employed compa- ant is a defendant and nonetheless is an- ny who contracted with Sherman Fletch- damage swerable caused him. perform framing er to work on the Our Hays, decision in Hilen v. supra, Thus the of Otto Thillman adopts principle liability according and Sherman & Fletcher as a cause of this fault. In Prudential Insurance Com Life accident, in in part, whole or must be ac- pany Moody, Ky., (1985), S.W.2d 503 cepted given. majority opinion as a we adopted corollary that no defendant wrongdoers embraces immunity for these liability damages negli should have in any responsibility from (cid:127) for the conse- gence greater degree cases than his quences wrongful of their The rea- acts. fault. soning opinion in the analysis. defies longer any There no valid reason to opinion holds that Sherman & Fletcher's apportionment liability refuse to allow for workers’ benefits among who all are found to be at fault and was zero and therefore its tort thus necessity obviate for contribution should be zero. between them. cases, forty years beginning Almost J.,
AKER,
joins
concurring
in this
opin- with Ruby Lumber Co. v. K.V. Johnson
ion.
(1945),
Ky.
LEIBSON, Justice, continuing through to Burrell v. Elec dissenting. Franklin, tric Board City Plant I Respectfully, dissent. S.W.2d 231 cited in both The trial court dismissed this case on Brief, Appellants’ disregarded. simply are judgment summary barred Ken- recognize At the least these cases tucky Worker’s Act. There- of a third seek fore, on review we must assume that the contribution negligent charged against acts killed to extent amount foreman, Thillman,1 Fletcher and its Otto payable.2 due workers’ proved. can be Surely this would include Sherman & This statement of facts is that Sherman assuming “up-the- even it is an owner/developer & Fletcher was an en- erroneously ladder” it con- gaged building complex a residential con- The majority tends. further holds sisting of own townhouses its use. 342.690(1) not that KRS unconstitutional. Sherman & Fletcher elected to employ not was, No except one ever said it one general supervise contractor and to con- narrowly particular. holding limited This It did negligently struction. so that it begs point because should not suffice arrange properly bracing failed to to free either Sherman & Fletcher or Otto masonry during wall construction collapse. present Thillman from cir- causing its Two had walls fallen *8 previously project, on and this same Otto cumstances. charged principal though appellee
1. is Otto Thillman as a male- was named as an and he argued factor. He is not immune from against appellant’s under case him is in the up-the-ladder Act as "contractor” from the against case him aban- brief. The is neither decedent even if we to extend term include unpreserved. doned nor & Sherman Fletcher. Nor is he a fellow-em- Scott, ployee immunity by extended Miller Thillman, Again, this with claim (1960). Ky., S.W.2d 941 He 339 is extended unpreserved. is a neither abandoned nor claim immunity by holding in this case without so, any doing propriety discussion of the even
467
phrase
this
opinion utilizes
magnitude
majority
and
Because of the number
immunity,
statutory
to extend
as a vehicle
erroneous
assumptions and
mistaken
342.690(1). In the
under KRS
provided
it is
majority opinion
conclusions in the
“liberally” con-
past, Kentucky courts
dissenting
impossible
them in a
to discuss
Act
provisions” of the
“coverage
strued the
An outline
length.
of reasonable
“immunity
construed the
“narrowly”
major
of the
suffice.
errors must
Diamond Coal
Boggs v. Blue
provisions.”
Co.,
1) In
Reynolds Metals
Bright v.
1979).
any
(CCA
making Elder, Inc., a claim is possible over “It not in- its that the kind of claim would be could sought limited at most case this demnification amount of at workers’ at law due and established common payable. The the time the this state majority opinion interprets Constitution of added.) adopted.” (Emphasis 635 give the Act to S.W.2d at 477. non-employer, complete immunity.
4) hand, On the other v. Electric majority states, As the in Burrell Active Board, supra, referring Plant when Constructors does indeed assert that party indemnification tort- between third time has come to determine the constitu- is employer, feasor and an the kind which tionality 342.690(1) of KRS as amended in of indemnity negligence based with on attempts 1972 insofar as it to limit the confronted, presently which we are we stat- indemnity against amount of claim for ed: employer. only But Active does so sense presently limited of whether as here, “Indemnity proved, has if it can be impairs written the statute the common nothing subrogation to a non- to do with right indemnity preexisted law of claim, existent from common derives majori- 1890 constitution. As stated in the principles indemnity law from active ty opinion, Active relies 54 Section wrongdoer wrongdoer, in- passive ato 241 Kentucky Constitution for demnity length as defined Brown at proposition Assembly General Co., 311 Pittsburgh Hotel Co. v. Fuel authority right has no to limit indem- (1949).” Ky. S.W.2d 165 nification. S.W.2d at 236. majority opinion cites Fireman’s Kentucky v. Utilities Co. Jackson Co., Employees
Fund Ins.
Gov’t
Ins.
supra,
held
County,
which
unconstitution-
Ky., 635
“controlling”
S.W.2d 475
as
portion
al
342.690 abol-
former KRS
question.
on
This
case is cited as
indemnity
ishing
duty
the common
law
authority
proposition
that there was
negligence
owed
right
indemnity preexist
no common law
undoubtedly a
tortfeasor was
protected by
ing
Kentucky
Consti
application
and 241 of
proper
of Sections 54
is
tution. This
incorrect.
It misses the
& Elec-
Constitution. Louisville Gas
right
distinction between
common law
Koenig,
tric
liability by Act, Workers’
there would nobe incentive for employ- spend money
er prove or effort to his apportionment
innocence. The against him consequences.
would have no financial
This guarantee scenario would almost negligent products defendant or manufacturer would assigning succeed in BARTLETT, Appellant, Edward employer disproportionate the immune liability, share of at employee’s
expense. Kentucky, COMMONWEALTH of ex. CALLOWAY, Appellee. rel. Gloria M.
There
legal
why
are sound
reasons
developed
common law
and maintains the
Supreme
Kentucky.
Court of
providing
joint
rule
for
and several
Feb.
responsible
single
defendants
for a
indi-
visible harm. These reasons are discussed
my
Dissenting Opinions in Prudential
Ky.,
Ins.
v. Moody,
Co.
Life Enterprises, and Burke Inc. v.
Mitchell,
(1985).
Ky.,
members of this the bench and Assembly give General
careful consideration to these reasons be- they
fore abandon longstanding common principles
law which have so long served justice.
the interest of Concurring Opinion in this case Jordan,
urges us “to overrule Nix v. (1975),” rejected ex-
tending of apportioning the rule
to a defendant’s claim over a third defendant,
party good and sufficient do so
reasons. To would be a harsh and
unprecedented decision. To so in do is,
present circumstances, that where an negli-, has sued a third
gence and the defendant has a claim made
over
contribution, by rights require would Assembly
General to amend the Workers’
Compensation Law. apportionment
This has not issue appellees
raised in this case. This
would be change a drastic which should not considered our court case