IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 94,265
BONNIE JEAN BRUNGARDT SCOTT,
Surviving Spouse of JEFFREY WADE SCOTT,
and the ESTATE OF JEFFREY WADE SCOTT,
By and through its ADMINISTRATOR,
BONNIE JEAN BRUNGARDT SCOTT,
Appellees,
v.
CHRISTOPHER HUGHES,
Appellant.
SYLLABUS BY THE COURT
1. Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no
genuine issue as to any material fact and that the moving party is entitled to judgment as a
matter of law. The trial court is required to resolve all facts and inferences which may
reasonably be drawn from the evidence in favor of the party against whom the ruling is
sought. When opposing a motion for summary judgment, an adverse party must come
forward with evidence to establish a dispute as to a material fact. In order to preclude
summary judgment, the facts subject to the dispute must be material to the conclusive
issues in the case. On appeal, we apply the same rules and where we find reasonable
minds could differ as to the conclusions drawn from the evidence, summary judgment
must be denied.
2. Statutory interpretation and construction present questions of law over which an appellate
court's review is unlimited.
3. Under the fellow servant doctrine codified in K.S.A. 44-501(b), a tortfeasor coemployee
is immune from a civil action brought by an injured coemployee or that person's
administrator or heir if the tortfeasor coemployee was acting within the scope and course
of employment at the time of the injury.
4. On the facts of this case, the district court may have erred in denying summary judgment
to the defendant and did err in granting partial summary judgment to the plaintiff.
Appeal from Barton district court; RON SVATY, judge. Opinion filed April 28, 2006.
Reversed and
remanded.
William L. Townsley, III, of Fleeson, Gooing, Coulson & Kitch, L.L.C.,
of Wichita, argued the cause, and
Lyndon W. Vix, of the same firm, was with him on the briefs for appellant.
Scott J. Mann, of Mann Law Offices, of Hutchinson, argued the cause and
was on the brief for appellee.
The opinion of the court was delivered by
BEIER, J.: This interlocutory appeal in a wrongful death and survival action requires us
to address potential limits on the exclusive remedy and tandem fellow servant doctrines of
workers compensation law.
Jeffrey Wade Scott, an employee of Duke Drilling, Inc., was killed in a single-vehicle
accident while he and others were being driven to a job site. The driver was defendant coworker
Christopher Hughes; it was alleged that Hughes was under the influence of alcohol or drugs at
the time of the accident.
Plaintiff Bonnie Jean Brungardt Scott, Scott's common-law widow, received $185,000 in
a workers compensation settlement and then filed this wrongful death and survival action against
Hughes. Hughes moved for summary judgment, contending the workers compensation exclusive
remedy and fellow servant doctrines barred any civil suit for damages. Brungardt Scott also
moved for summary judgment, arguing Hughes' intoxication would make him ineligible for
workers compensation benefits and thus ineligible for immunity under the exclusive remedy and
fellow servant doctrines codified in K.S.A. 44-501(b). The district court denied Hughes' motion
and granted partial summary judgment in favor of Brungardt Scott on her motion, citing K.S.A.
44-501(d)(2) and ruling that Hughes would be unable to recover workers compensation benefits
because he had been under the influence of alcohol or drugs when the accident occurred.
As a result of the accident and Scott's death, criminal charges were filed against Hughes.
They included involuntary manslaughter while driving under the influence of alcohol or drugs,
contrary to K.S.A. 2005 Supp. 21-3442; possession of methamphetamine, contrary to K.S.A.
65-4160; and possession of marijuana, contrary to K.S.A. 65-4162(a)(3). Hughes eventually
entered
a no contest plea to possession of methamphetamine and vehicular homicide, contrary to K.S.A.
21-3405.
For purposes of his summary judgment motion alone, Hughes acquiesced in the
presumption that he was driving the vehicle and was under the influence at the time of the
accident. However, at the time of the district court's ruling, the factual issue of Hughes' alcohol or
drug use remained contested in the wrongful death and survival action generally and the workers
compensation proceeding focused on whether Hughes would be entitled to recover benefits for
injuries he suffered in the accident. Hughes' workers compensation proceeding was still pending
at the time of oral argument before this court.
We must decide whether the district court erred by: (1) denying summary judgment in
favor of Hughes on the immunity issue and (2) granting partial summary judgment in favor of
Brungardt Scott on Hughes' intoxication and its effect on his ability to recover workers
compensation benefits for his own injuries.
Standard of Review
"'Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
The trial court is required to resolve all facts and inferences which may reasonably be drawn
from
the evidence in favor of the party against whom the ruling is sought. When opposing a motion for
summary judgment, an adverse party must come forward with evidence to establish a dispute as
to
a material fact. In order to preclude summary judgment, the facts subject to the dispute must be
material to the conclusive issues in the case. On appeal, we apply the same rules and where we
find reasonable minds could differ as to the conclusions drawn from the evidence, summary
judgment must be denied.' [Citations omitted.]" State ex rel. Stovall v. Reliance Ins.
Co., 278 Kan.
777, 788, 107 P.3d 1219 (2005).
In addition, it is important to note that the potentially dispositive legal question in this
appeal is one requiring interpretation of the Workers Compensation Act (Act), K.S.A. 44-501
et
seq. Statutory interpretation and construction present questions of law over which this
court's
review is unlimited. See, e.g., Rose v. Via Christi Health System, Inc.,
279 Kan. 523, 526, 113
P.3d 241 (2005).
Denial of Summary Judgment in Favor of Defendant
Defendant Hughes moved for summary judgment in his favor because he believed
himself immune from civil suit under K.S.A. 44-501(b). Our analysis therefore begins with
review of the basic statutory scheme of the Act.
K.S.A. 44-501(a) states:
"(a) If in any employment to which the workers compensation act applies,
personal injury
by accident arising out of and in the course of employment is caused to an employee, the
employer
shall be liable to pay compensation to the employee in accordance with the provisions of the
workers compensation act. In proceedings under the workers compensation act, the burden of
proof shall be on the claimant to establish the claimant's right to an award of compensation and
to
prove the various conditions on which the claimant's right depends. In determining whether the
claimant has satisfied this burden of proof, the trier of fact shall consider the whole record."
This portion of the statute defines who is covered by the Act and identifies the injuries
compensable under it, i.e., injuries "by accident arising out of and in the course of
employment."
K.S.A. 44-501(a). The Act is to be
"'liberally construed for the purpose of bringing employers and employees within the
provisions of
the act to provide the protections of the workers compensation act to both. The provisions of the
workers compensation act shall be applied impartially to both employers and employees in cases
arising thereunder.' K.S.A. 44-501(g)." Neal v. Hy-Vee, Inc., 277 Kan. 1, 14, 81 P.3d
425 (2003).
The statute also provides:
"(b) Except as provided in the workers compensation act, no employer, or
other
employee of such employer, shall be liable for any injury for which compensation is recoverable
under the workers compensation act nor shall an employer be liable to any third party for
any
injury or death of an employee which was caused under circumstances creating a legal liability
against a third party and for which workers compensation is payable by such employer."
(Emphasis added). K.S.A. 44-501(b).
Under this subsection, it is well established that a worker who recovers benefits for an
on-the-job injury from an employer under the Act cannot maintain a civil action for damages
against
the employer or against a fellow employee. The remedy under the Act is exclusive; and both
employers and coemployees or fellow servants are immune from civil suit for damages. See,
e.g.,
Fugit, Administratrix v. United Beechcraft, Inc., 222 Kan. 312, 314, 564 P.2d 521 (1977).
This contrasts with the Act's allowance of recovery of workers compensation benefits
and
civil damages when the tortfeasor is a third party. See K.S.A. 44-504(a) (when injury or death for
which compensation payable under Act caused under circumstances creating legal liability
against some person other than employer or fellow employee, injured worker or worker's
dependents or personal representatives shall have right to take compensation under Act and
pursue civil action against tortfeasor); see also Loucks v. Gallagher Woodsmall, Inc.,
272 Kan.
710, 715, 35 P.3d 782 (2001) (subrogation language of K.S.A. 44-504[b] clearly immunizes
employers, fellow employees from civil suit if workers compensation paid to injured worker;
dual intent to preserve injured workers' claims against third-party tortfeasors, prevent double
recoveries by injured workers).
The Act also sets out certain exceptions to employer liability for workers compensation.
For example, an employer is not liable to compensate an employee for injuries arising out of the
employee's own intentional tortious acts, from the employee's failure to abide by statutes about
which the employer gave notice, or from the employee's failure to follow precautionary or
procedural rules furnished by the employer. K.S.A. 44-501(d)(1). The exception particularly
relevant in this case is that an employer is not liable to pay workers compensation when an
employee's alcohol or drug use has a role in causing that employee's injury, disability, or death.
K.S.A. 44-501(d)(2) states: "The employer shall not be liable under the workers compensation
act where the injury, disability, or death was contributed to by the employee's use or consumption
of alcohol or any drugs, chemicals, or any other compounds or substances." See Foos v.
Terminix, 277 Kan. 687, 693, 89 P.3d 546 (2004); Poole v. Earp Meat Co.,
242 Kan. 638, 644-48, 750 P.2d 1000 (1988); Woodring v. United Sash & Door
Co., 152 Kan. 413, 417-18, 103
P.2d 837 (1940); Evans v. Frakes Trucking, 31 Kan. App. 2d 211, 213-16, 64 P.3d
440 (2002).
From this review of the basic provisions of the Act, it is clear that Duke Drilling was
liable on Brungardt Scott's workers compensation claim because Scott's death arose out of and in
the course of his employment. It is also clear that, if Hughes' alcohol or drug use and its role in
causing the accident are proved, Duke Drilling will not be liable for workers compensation
benefits to Hughes for any injuries he suffered in the accident. Finally, the Act dictates that, if
Scott's death had been caused by a third-party tortfeasor rather than a fellow employee, Brungardt
Scott would be permitted to seek damages in a civil action against the third party as well as
workers compensation benefits from Duke Drilling.
The statutory language is less clear on the situation before us, which falls between the
foregoing rules: If alcohol or drug use by Hughes would eliminate Duke Drilling's liability to him
for workers compensation benefits, would it also eliminate the coemployee or fellow servant
immunity he would normally enjoy under K.S.A. 44-501(b)? Would it place him instead in the
position of a third-party tortfeasor subject to this civil suit for damages under K.S.A. 44-504?
Given the absence of an obvious answer in the statutory text, we turn to the circumstances
giving rise to the legislature's adoption of the fellow servant doctrine in Kansas and the cases that
have interpreted and applied the doctrine thus far.
It appears that this court's decision in Roda v. Williams, 195 Kan. 507, 407
P.2d 471
(1965), was at least a partial catalyst for inclusion of the doctrine in the Act. The question in that
case was whether the heirs of George Roda, a 20-year-old killed as a result of a coworker's
negligence, could maintain a wrongful death action against the coworker. Turning to the version
of K.S.A. 44-504 (Corrick) then in effect, which provided only that
"[w]hen the injury or death for which compensation is payable under this act was
caused
under circumstances creating a legal liability against some person other than the
employer to pay
damages, the injured workman, his dependents or personal representatives shall have the right to
take compensation under the act and pursue his or their remedy by proper action in a court of
competent jurisdiction against such other person," (emphasis added)
this court allowed the suit against the coworker to proceed. Nothing in the statute undercut
the
common-law rule that fellow employees owe each other a duty to exercise ordinary care.
Roda,
195 Kan. at 508.
The following year, this court adhered to its holding in Roda when it decided
the similar
case of Tully v. Estate of Gardner, 196 Kan. 137, 409 P.2d 782 (1966). In that case,
Gerald L.
Tully and coemployees were working for a common employer when the coemployees' negligence
caused a car accident resulting in Tully's death. The court held that, although Tully was covered
under the Act, his heirs were entitled to maintain a wrongful death action against the
coemployees because coemployees were persons "other than the employer" within the purview of
K.S.A. 44-504. 196 Kan. at 138-39. In declining to reexamine its position in Roda,
the court
noted that its conclusion "was the only one possible under [the] present statute, K.S.A. 44-504."
196 Kan. at 139. And it suggested that policy arguments to the contrary would be better
addressed to the legislative branch. 196 Kan. at 140.
The legislature acted in 1967, amending K.S.A. 44-504 to extend employer immunity
based on the doctrine of exclusive remedy of K.S.A. 44-501 to coemployees. The current form of
the statute was born; it now allows an injured worker who has received workers compensation
benefits to bring a civil action only against "some person other than the employer or any
person
in the same employ . . . ." (Emphasis added.) See L. 1967, ch. 280, sec. 2; K.S.A.
44-504(a).
Fugit, 222 Kan. 312, was the first of our cases to apply the new statutory
language. In that
case, Beechcraft had hired an engineer to conduct flight tests on certain kit planes; the engineer
suffered a fatal heart attack during a kit plane flight piloted by an alleged employee of
Beechcraft. The engineer's heirs brought a wrongful death suit against the employer and the pilot,
alleging the pilot's negligence caused the engineer's death. Much of the court's opinion focused
on the question of whether the engineer and the pilot qualified as statutory coemployees under
K.S.A. 44-503. Once it was determined that they qualified, this court held that the new language
in K.S.A. 44-504 (Weeks) barred the wrongful death suit against both employer Beechcraft and
the pilot, a fellow servant of the deceased engineer. Fugit, 222 Kan. at 314-16; see
also Rajala v.
Doresky, 233 Kan. 440, 442-43, 661 P.2d 1251 (1983) (strict fellow servant immunity
applied to
prevent civil action even for intentional tort).
The appellate case among those coming after Fugit that is most helpful to our
analysis
here is Wells v. Anderson, 8 Kan. App. 2d 431, 659 P.2d 833, rev. denied
233 Kan. 1093 (1983).
Both parties agree that it should be highly influential; they merely differ on the outcome to which
its lessons lead.
In Wells, the defendant and the plaintiff were the only employees on duty at a
gas
station/repair shop. The defendant pulled his own truck into the shop and worked on his own
vehicle intermittently when he was not pumping gas for customers. At one point, after the
defendant had turned on the ignition in his truck while it was in gear, the truck rolled forward and
injured the plaintiff. There was evidence that the employer had forbidden employees from
working on their own vehicles during company time. But the plaintiff, the defendant, and a shop
manager testified that employees routinely violated this rule as long as their work for themselves
did not interfere with company business.
The plaintiff received workers compensation benefits, and the district judge granted
summary judgment in favor of the defendant in the plaintiff's negligence action, ruling suit was
barred because the defendant was protected under K.S.A. 44-501 fellow servant immunity.
A panel of our Court of Appeals reversed and remanded. 8 Kan. App. 2d at 435. It
distinguished Fugit because the defendant pilot in that case was clearly acting within
the scope
and course of his employment at the time of the engineer's heart attack. In Wells, on
the other
hand, the panel determined that a strict application of fellow servant immunity would be
inappropriate. It drew an analogy to a situation in which an employee, within the scope and
course of his or her employment, was injured by a coworker who was on vacation. In that
situation, the panel observed, the injured employee's recovery of workers compensation benefits
would not bar a civil tort claim against the vacationing tortfeasor. 8 Kan. App. 2d at 433 (citing
Helmic v. Paine, 369 Mich. 114, 119, 119 N.W.2d 574 [1963]). The panel also
looked to
contemporary decisions from other jurisdictions for coemployee immunity tests, noting that "the
better test is that a co-employee is immune only if he would have been entitled to receive
compensation had he been injured in the same accident." (Emphasis added.) 8 Kan. App.
2d at
434. The panel ultimately decided the evidence in the record was inconclusive on whether the
defendant was acting within the scope and course of his employment, a genuine issue of material
fact precluding summary judgment. It stated:
"This record does not conclusively establish whether, if defendant had been
injured in
the same accident, his injuries would be deemed to have arisen out of and in the course of his
employment . . . [citation omitted]. However, an accident which occurs while an employee is not
actually performing his job may nonetheless arise out of and in the course of employment. See
Hilyard v. Lohmann-Johnson Drilling Co., 168 Kan. 177, 211 P.2d 89 (1949). On
the other hand,
if an employee is performing work which has been forbidden, as distinguished from doing his
work in a forbidden manner, he is not acting in the course of his employment. Hoover v.
Ehrsam
Company, 218 Kan. 662, 544 P.2d 1366 (1976)." 8 Kan. App. 2d at 434.
A year after Wells was decided, this court handed down its opinion in
Blank v. Chawla,
234 Kan. 975, 678 P.2d 162 (1984). In Chawla, the plaintiff employee was injured
while walking
in the employer's parking lot; he was struck by a coemployee's vehicle while both employees
were leaving work. Plaintiff received workers compensation benefits and then brought a
negligence action against the coemployee. The district court held that the accident arose out of
and in the course of employment under K.S.A. 44-508(f); that plaintiff had received workers
compensation benefits; and that summary judgment must be entered against the plaintiff based on
the exclusivity of workers compensation as a remedy.
On appeal, this court applied the rule of Wells. It determined there was a
causal
connection between the plaintiff's injury and the employment and that, "[i]f [defendant] had been
injured in the accident, there would have been the same causal connection between his injuries
and employment as [plaintiff's]." 234 Kan. at 980. It then stated:
"In an action for damages by an injured party against his co-employee in which the
exclusive
remedy provision of the Workmen's Compensation Act is asserted as a defense, it is held: (1) a
co-employee is immune only if he or she would have been entitled to receive workers' compensation
had she or he been injured in the same accident; and (2) since no genuine issues of material fact
remain to be resolved, the trial court did not err in granting summary judgment." 234 Kan. at 982.
Two subsequent Court of Appeals cases also have invoked the Wells rule. In
each, the
panel reached the conclusion that the plaintiff's negligence action was barred because the
defendant coemployee was acting within the scope and course of his or her employment at the
time plaintiff was hurt. See Servantez v. Shelton, 32 Kan. App. 2d 305, 311-12, 81
P.3d 1263,
rev. denied 277 Kan. 925 (2004) (store manager injured when parking lot guard
assists in
apprehending shoplifter); Bay v. Funk, 19 Kan. App. 2d 440, 442-44, 871 P.2d 268
(1994)
(plaintiff security worker injured when defendant coemployee on way to work).
Chawla and the two Court of Appeals cases, Servantez and
Bay, recognized that the
central question under Wells for determining the application and extent of fellow
servant
immunity was whether the defendant coemployee had acted within the scope and course of his or
her employment at the time of the plaintiff's injury. In all three of those cases, the defendant
coemployee could successfully invoke the exclusive remedy of workers compensation and fellow
servant immunity because the defendant was acting within the scope and course of his
employment at the time of the tortious conduct. See Chawla, 234 Kan. at 982;
Servantez, 32 Kan.
App. 2d at 311-12; Bay, 19 Kan. App. 2d at 442-44. The defendant, under the
formula of Wells,
was not performing "forbidden work," even if there may have been an argument that he was
performing work in a "forbidden manner." See Wells, 8 Kan. App. 2d at 434. In
Wells itself, on
the other hand, the employee tinkering with his own truck on company time may have been
performing "forbidden work," taking him outside the scope and course of his employment and
thus outside the protection of fellow servant immunity.
In this case, in essence, Brungardt Scott asserts that alcohol or drug use by Hughes would
make any work he was performing at the time of the accident "forbidden" under
Wells. This
assertion is fueled by Chawla's reformulation of Wells' central question,
permitting civil
immunity for a coemployee "only if she or he would have been entitled to
receive workers'
compensation had she or he been injured in the same accident." (Emphasis added.)
Chawla, 234
Kan. at 982. According to Brungardt Scott, because K.S.A. 44-501(d)(2) would give Duke
Drilling a defense to workers compensation liability for Hughes' injuries, Hughes would not be
entitled to receive benefits under Chawla's language and thus would be unable to
claim fellow
servant immunity.
We are not persuaded by this assertion. The existence of a potential legal defense to
workers compensation liability because of a coemployee tortfeasor's drinking or drug use is not
necessarily equivalent to a factual finding that the coemployee was performing "forbidden work"
outside the scope and course of his or her employment. It may demonstrate only that any work
was being performed in a "forbidden manner." See Wells, 8 Kan. App. 2d at 434-35.
Earlier
Kansas cases analyzing the intoxication issue separately from and subsequently to the
scope-and-course issue imply exactly this. See Kindel v. Ferco Rental, Inc., 258 Kan.
272, 277-87, 899 P.2d
1058 (1995) (court first disposes of scope-and-course issue, then turns to intoxication issue);
Foos v. Terminix, 31 Kan. App. 2d 525, 525-31, 67 P.3d 173 (2003)
aff'd 277 Kan. 687, 691-700,
89 P.3d 546 (2004) (same). The architecture of the legislature's statutory scheme leaves the same
impression. Whether certain conduct arises out of the scope and in the course of employment is
the threshold question under K.S.A. 44-501(a). Whether an employer can advance a viable
defense to workers compensation liability under the Act is among later questions to be addressed
once it is established that conduct arises out of and in the course of employment. See K.S.A.
44-501(d).
We therefore conclude that certain aspects of our language in Chawla were
somewhat
misleading. Neither entitlement to receive nor actual receipt of workers
compensation benefits
by a coemployee tortfeasor is required for fellow servant immunity to attach and bar a civil suit.
What matters is whether that coemployee was acting within the scope and course of employment
when he or she caused injury to another.
This case must be reversed and remanded for further proceedings consistent with this
standard of analysis. If the district judge concludes that there is no genuine issue of material fact,
i.e., that there is no evidence to controvert defendant Hughes' claim that he was
acting within the
scope and course of his employment at the time of the accident, then he is entitled to fellow
servant immunity and this wrongful death and survival suit is barred.
Partial Summary Judgment in Favor of Plaintiff
We must also address the propriety of the district court's additional ruling granting partial
summary judgment to Brungardt Scott on the factual issue of Hughes' consumption of alcohol or
drugs and its effect on his ability to recover workers compensation benefits.
Whether a person is operating a vehicle while under the influence of alcohol or drugs is a
question of fact. See, e.g., State v. Price, 233 Kan. 706, 710, 664 P.2d
869 (1983). It cannot be
determined by a judge as a matter of law unless the record contains evidence to support only one
finding.
The record before the district court and before us contains only allegations, not evidence,
to support Hughes' use of alcohol or drugs and its role in the accident in this case. The fact of
such use cannot be reliably inferred from the no contest plea entered in Hughes' criminal case.
Patrons Mut. Ins. Ass'n v. Harmon, 240 Kan. 707, 711-12, 732 P.2d 741 (1987) (no
contest plea
or finding of guilt in criminal action not admission of the act charged, cannot be used as evidence
in subsequent civil
case). Nor can it be presumed from the allegations in the pleadings before the
district court. See Poole, 242 Kan. at 646 (blood alcohol concentration relevant
regarding cause
of accident, does not give rise to presumption of intoxication); Evans, 31 Kan. App.
2d 211, Syl.
¶ 4 (result of employee's blood alcohol test at time of accident not conclusive presumption
of
impairment, inadmissible where probable cause otherwise absent). Furthermore, Hughes
continued to contest the fact of his alcohol or drug impairment outside the context of his own
motion for summary judgment. For purposes of that motion only, he acquiesced in
the
presumption of such use and its contribution to causing the accident. This was not an admission
for all purposes. Finally, the question of Hughes' alcohol or drug use had not been resolved in his
workers compensation proceeding. The district judge's premature and unsupported ruling ran the
risk of inconsistent outcomes between the two proceedings.
Given all of the above, summary judgment on this issue in favor of Brungardt Scott must
be reversed.
The district court judgment is reversed, and the case is remanded for further proceedings
consistent with this opinion.
Reversed and remanded.
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