Butera v. Fluor Daniel Construction Corp.

61 P.3d 95, 31 Kan. App. 2d 108, 2003 Kan. App. LEXIS 36
CourtCourt of Appeals of Kansas
DecidedJanuary 17, 2003
DocketNo. 87,621
StatusPublished

This text of 61 P.3d 95 (Butera v. Fluor Daniel Construction Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Butera v. Fluor Daniel Construction Corp., 61 P.3d 95, 31 Kan. App. 2d 108, 2003 Kan. App. LEXIS 36 (kanctapp 2003).

Opinion

Green, J.:

Sean M. Butera appeals from the Workers Compensation Appeals Board’s (Board) order denying his workers compensation claim. Butera alleges that the Board erred in holding that neither the premises exception nor the special hazard exception to the going and coming rule, as set forth in K.S.A. 2001 Supp. 44-508(f), applies to the facts of this case. We agree and reverse.

Butera was an iron worker for Fluor Daniel Construction Corporation (Fluor Daniel). Fluor Daniel contracted with Wolf Creek Nuclear Operating Corporation (Wolf Creek) to provide fueling services at the power plant near Burlington, Kansas. Butera, whose primary residence is Cabool, Missouri, temporarily took up resi[109]*109dence at a hotel in Garnett, Kansas, a 30-minute drive from Wolf Creek.

While driving to work one fall evening, Butera was injured when his vehicle crashed into a concrete barrier in front of an unlighted guard post on Wolf Creek property. The guard post was normally lit, but a transformer failure extinguished the lighting that night. Butera filed workers compensation claims under the Kansas Workers Compensation Act (the Act), K.S.A. 44-501 et seq., and against Fluor Daniel as his direct employer and Wolf Creek as his statutory employer.

The administrative law judge denied benefits for Butera against Fluor Daniel after determining that Butera’s injuries did not arise out of and in the course of his employment with Fluor Daniel. Specifically, the administrative law judge found that because Butera’s accident occurred while traveling to work, his claim against Fluor Daniel was barred by the going and coming rule. However, the administrative law judge went on to grant benefits against Wolf Creek, finding that Butera was a statutory employee of Wolf Creek.

The case was appealed to the Board, which found that Butera’s injuries were compensable against Fluor Daniel. The Board found that the inherent travel exception to the going and coming rule was applicable because travel was an intrinsic part of Butera’s job. The Board also found that Wolf Creek was not liable because Fluor Daniel had workers compensation insurance, which precluded an assessment of liability against Wolf Creek under K.S.A. 44-503(g).

Fluor Daniel appealed the Board’s decision to this court, which held that the inherent travel exception to the going and coming rule was inapplicable because travel was not an inherent part of Butera’s job as an iron worker. See Butera v. Fluor Daniel Const. Corp., 28 Kan. App. 2d 542, 18 P.3d 278, rev. denied 271 Kan. 1035 (2001). This court remanded the case to the Board to determine whether the premises exception or the special hazard exception to the going and coming rule applied to the facts of this case. 28 Kan. App. 2d at 549.

On remand, the Board determined that neither exception to the going and coming rule was applicable to this case. Specifically, the Board found that the premises exception only applied when the [110]*110injury occurred on the direct employer’s premises, rather than on the statutory employer’s premises. The Board also found that the special hazard exception only applied when the employee sustained an injury while on a route not used by the public except in dealings with the direct employer. Because Butera’s injuries did not occur on Fluor Daniel’s premises or on route to Fluor Daniel’s premises, the Board determined that Butera’s injuries were not compensable under the premises exception or the special hazard exception to the going and coming rule.

Butera appealed the Board’s order, and Fluor Daniel filed a notice of cross-appeal. Nevertheless, it seems that Fluor Daniel has abandoned its cross-appeal because it failed to raise any issues in its appellate brief.

The sole issue on appeal is whether the Board erred in holding that the term “employer” as used in K.S.A. 2001 Supp. 44-508(f) is limited to the direct employer and does not include die statutory employer. Before addressing the scope of K.S.A. 2001 Supp. 44-508(f), a review of the law regarding statutory and direct employers would be helpful. The terms “statutory employer” and “direct employer” are used in workers compensation cases which involve subcontracting work. Subcontracting is addressed in K.S.A-. 44-503. K.S.A. 44-503(a) provides that a principal is any person who contracts with any other person (the contractor) for work undertaken by the principal. In a workers compensation proceeding where an employee of the contractor is injured, the contractor is referred to as the direct employer and the principal is referred to as the statutory employer. See Robinett v. The Haskell Co., 270 Kan. 95, 96-97, 12 P.3d 411 (2000).

In addition, K.S.A. 44-503(a) assesses primary workers compensation liability to the principal for injuries to a contractor’s employee if the principal would have been liable had the injured employee been immediately employed by the principal. The statute further provides that “where compensation is claimed from or proceedings are taken against the principal, then in the application of the workers compensation act, references to the principal shall be substituted for references to the employer K.S.A. 44-503(a). However, if the contractor has workers compensation cov[111]*111erage, then under K.S.A. 44-503(g), primary responsibility in workers compensation shifts from the principal to the contractor. In that case, the principal becomes secondarily liable and compensation may be secured against the principal only in the event that the contractor has not secured the payment of compensation or the contractor is uninsured or insolvent.

Here, because Butera was employed by Fluor Daniel, that corporation is the direct employer. In addition, because Wolf Creek contracted with Fluor Daniel to perform work, Wolf Creek is the statutory employer. Furthermore, Fluor Daniel is primarily liable for Butera’s injuries under K.S.A. 44-503(g) because Fluor Daniel secured workers compensation coverage for its workers.

On appeal, Butera argues that the trial court erred in holding that the term “employer” as used in K.S.A. 2001 Supp. 44-508(f) is limited to the direct employer and does not include the statutory employer.

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Bluebook (online)
61 P.3d 95, 31 Kan. App. 2d 108, 2003 Kan. App. LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/butera-v-fluor-daniel-construction-corp-kanctapp-2003.