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BAY v. FUNK3/25/1994
Brian Bay, plaintiff, appeals from the district court decision granting summary judgment to defendant Michael Funk. Bay claims there are disputed questions of material fact that make this case unsuitable for summary judgment. We affirm.
On December 20, 1990, Brian Bay was employed as a security guard for Midwest Security Systems. Bay was under contract to Exide Corporation. Bay's job duties included inspecting trucks leaving the plant. To accomplish this inspection, the truck would pull over to the far right-hand side of the road, and Bay would walk around the truck to inspect the seal on the rear door of the vehicle.
As Bay was walking along the south side of a truck he was inspecting, Michael Funk ran a stop sign and struck Bay. Funk, an Exide employee, was reporting for work on the 11:00 p.m. shift. He was traveling approximately 23-28 miles per hour and did not stop at a stop sign located just ahead of the guard shack where the accident occurred.
Burg Road where the accident occurred is a county right-of-way. The county placed a stop sign at the plant entrance, pursuant to Exide's request. Exide and Bay were aware that many employees ran the stop sign and traveled through the area at an excessive rate of speed. Bay had reported employees to Exide for failure to obey the traffic regulations. Exide responded by posting a notice that any employee failing to obey the traffic regulations would be suspended. Exide did not attempt to enforce the traffic regulations.
Exide required its employees to use the county road, which ends at the plant, to enter and leave the worksite. The only people using the road were people traveling to and from the plant. Funk moved for summary judgment, arguing co-employee status barred a separate action for negligence.
The court held Bay was a statutory employee and, as such, was covered by Exide's workers compensation plan. No party disputes this decision. What is disputed is whether Bay may maintain a separate civil action against Funk. The court held the separate action is prohibited by K.S.A. 44-508(f). The district court believed the accident occurred within the scope and course of Funk's employment.
On appeal, Bay argues there were disputed questions of material fact, making this case inappropriate for summary judgment. K.S.A. 1993 Supp. 60-256(c). However, it seems clear from the record that there were no disputed facts. Rather, the dispute was over the legal meaning of the facts. In Finstad v. Washburn University, 252 Kan. 465, 468, 845 P.2d 685 (1993), the Supreme Court stated:
"Where the facts are not disputed, summary judgment is appropriate. We must view those facts in the light most favorable to the party who defended against the motion for summary judgment, and if reasonable minds could differ as to the conclusion drawn from the facts, summary judgment must be denied. However, if the only questions presented are questions of law, the summary judgment is proper. [Citation omitted.]"
This appeal may be resolved based on the legal conclusion reached by the district court. Appellate review of questions of law is unlimited. Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Kan. App. 2d 673, 674, 753 P.2d 1299, rev. denied 243 Kan. 778 (1988).
Workers compensation applies to all "personal injur by accident arising out of and in the course of employment." K.S.A. 44-501. Workers compensation is a sole remedy, and an injured employee may not seek recovery against the employer or a fellow employee if workers compensation applies to the injury. K.S.A. 44-501(b).
No party disputes that Bay is entitled to wor
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