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Duarte v. Debruce Grain10/31/2003
Affirmed.
This is an interlocutory appeal by Liberty Mutual Insurance Company (Liberty), an intervenor, from the district court's order in favor of plaintiffs on plaintiffs' and Liberty's cross-motions for partial summary judgment. Plaintiffs (LSI workers) are workers who were injured and the heirs of workers who were killed in a June 1998 explosion at the DeBruce Grain, Inc. (DeBruce), grain elevator in Sedgwick County, Kansas. Defendants are Industrial Maintenance, Inc., (Industrial Maintenance) which was hired by DeBruce to perform maintenance on the dust collection and suppression systems at the grain elevator where the explosion occurred, and Ranger Insurance Company (Ranger Insurance).
Some of the plaintiffs were temporary employees furnished to DeBruce by LSI Corp. (LSI), a temporary employment agency. Liberty, the workers compensation carrier for LSI, paid workers compensation benefits to and on behalf of the LSI workers. Liberty was allowed to intervene in this case in support of its subrogation liens against any civil recoveries of the LSI workers.
Summary judgment was entered in favor of DeBruce on the ground that, as a statutory employer, it was entitled to immunity from civil liability. The district court approved settlement agreements involving plaintiffs, Ranger Insurance, and Industrial Maintenance. The district court's ruling on the cross-motions for partial summary judgment is that any negligence on the part of DeBruce is to be attributed to LSI, thus diminishing its subrogation interest, which is asserted by Liberty. That ruling is the subject of this appeal.
Based on the trial judge's written opinion that its order involved a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the Court of Appeals certified this interlocutory appeal pursuant to K.S.A. 60-2102(b). The court transferred the case from the Court of Appeals. See K.S.A. 20-3018(c).
The sole issue is whether LSI's subrogation interest against plaintiffs' settlement recovery should be reduced by the extent of DeBruce's negligence pursuant to K.S.A. 44-504(d).
In its order granting partial summary judgment in favor of plaintiffs, the district court, finding no material disputes of fact, adopted the uncontroverted contentions of fact submitted by both parties. The following statement of facts is based on the district court's findings:
LSI is a temporary employment agency that has provided DeBruce with entry level production workers. Plaintiffs who were sent by LSI to DeBruce are Miguel Rios, Darryl Williams, and Carlos Amador. The deceased plaintiffs who were sent by LSI to DeBruce were Noel Najera, Victor Castaneda, and Jose Ortiz.
On June 8, 1998, the day of the explosion, the LSI workers were performing general labor. LSI provided only laborers to DeBruce, LSI provided no supervisors.
The LSI workers were not supervised by LSI. They were supervised by Dale Lock, a DeBruce superintendent. It was not the responsibility of LSI to supervise the workers. At no time during the year before the explosion did anyone from LSI's permanent employment staff go to the DeBruce elevator to supervise LSI workers there. Any decision to place any of the LSI workers in a supervisory position at the DeBruce elevator would have been made by DeBruce, not LSI.
The LSI workers were not trained by LSI. None of the LSI workers who were at DeBruce the day of the explosion received training of any kind from LSI. LSI workers were trained by DeBruce along with its permanent staff.
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