Kentucky Truck Driver’s Tort Action Against Wal-Mart Barred by Statutory Employer Rules

A truck driver, who alleged that he sustained injuries while delivering merchandise to a Wal-Mart store in Kentucky cannot proceed in his civil action against the large retailer since, under the facts of the case, Wal-Mart was the driver’s statutory employer, held a federal district court yesterday [see Settles v. Wal-Mart Stores, Inc., 2015 U.S. Dist. LEXIS 59654 (May 7, 2015)]. Construing Kentucky law, the court indicated the term “employer” included any entity that contracted or subcontracted to have work performed of a kind that is a “regular or recurrent part” of its trade or business [Ky. Rev. Stat. Ann. § 342.610(2)].

Wal-Mart had earlier contracted with Schneider, a trucking company, to transport and deliver merchandise from one of its distribution centers to its stores in Kentucky. Schneider, in turn, contracted those services to Mercer Transportation, who then subcontracted the services to yet another firm that employed the plaintiff-truck driver. In the driver’s deposition, he testified that he delivered such merchandise to Wal-Mart on a daily basis. He claimed he sustained injuries when a Wal-Mart employee accidentally lowered a dock door onto him as he knelt to secure the latch of his trailer door.

Wal-Mart sought summary judgment based on a statutory employer—sometimes referred to as “up-the-ladder”—defense. The issue turned on whether or not the service being performed at the time of the driver’s injury was a “regular” or “recurrent” part of Wal-Mart’s retail business. The court observed that in Smothers v. Tractor Supply Co., 104 F. Supp. 2d 715 (W.D. Ky. 2000), the court had recognized that transporting merchandise from a central storage facility to retail stores was an essential element of operating a nationwide retail chain consisting of many stores and had granted summary judgment based on the “up-the-ladder” defense.

The driver countered that Wal-Mart had never used its own employees to perform the task that the driver had performed. Logic, therefore, dictated that the driver’s tasks could not credibly be considered a “regular or recurrent” part of Wal-Mart’s business. The court observed, however, that ample precedent supported the position that a business that never actually performed a particular job with its own employees could still fall within the purview of Ky. Rev. Stat. Ann. § 342.610(2). As long as the company contracted away a job that it is expected to perform, even if it never actually performed the job, the company could be considered a “contractor” under the statute and could get the benefit of the statutory employer, “up-the-ladder” defense. As the driver’s statutory employer, Wal-Mart was immune from suit; the driver’s sole remedy was under the Kentucky Workers’ Compensation Act.

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