Driver Can’t Sue Dixie, Georgia Pacific for Partial Loss of Leg

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By Jay-Anne B. Casuga

Aug. 29 — A truck driver whose foot was run over by a forklift can’t bring state law negligence claims against Dixie Consumer Products LLC or parent company Georgia-Pacific, a split federal court ruled ( Black v. Dixie Consumer Prods. LLC , 6th Cir., No. 15-5889, 8/29/16 ).

The Kentucky Workers’ Compensation Act bars Steve Black’s claims because it provides an exclusive remedy to employees for workplace injuries and shields contractors like Dixie and Georgia-Pacific from lawsuits, the U.S. Court of Appeals for the Sixth Circuit said.

The Sixth Circuit also held for the first time that a lower court’s denial of lawsuit immunity to employers under Kentucky’s workers’ compensation law can be immediately appealed.

Judge Jeffrey Sutton wrote the opinion, joined by Judge Danny J. Boggs.

Judge Eric L. Clay dissented, arguing that the appeals court shouldn’t have heard the case because the denial of contractor immunity isn’t immediately appealable.

“The majority would bestow upon this Circuit the dubious distinction of becoming the first circuit in the nation to hold that a denial of an affirmative defense of state workers’ compensation immunity is immediately appealable,” Clay wrote.

Court Says Immunity Applies

According to the court, Black worked for Western Express, which entered into a contract to deliver raw paper materials to a Dixie factory in Kentucky.

Black was injured when a Dixie employee ran over his foot while they were unloading the truck. Black’s injuries required a below-the-knee amputation. He received workers’ compensation benefits from Western Express and sued Dixie and Georgia-Pacific for negligence.

Under Kentucky law, the Sixth Circuit said, contractors provide backup workers’ compensation coverage and, in return, can receive immunity from negligence claims. It said Dixie and Georgia-Pacific were entitled to that immunity here.

Black’s injury occurred while he was performing work that was part of Dixie’s “customary, usual or normal” business, and that “Dixie or similar businesses would normally perform or be expected to perform with employees.”

Majority: Immunity Rulings Immediately Appealable

Generally, parties can’t appeal non-final orders of a district court unless they fall under one of several exceptions.

One such exception, known as the “collateral-order doctrine,” allows parties—usually government entities and officials—to appeal orders related to their immunity from suit.

The Sixth Circuit majority held that the denial of contractor immunity under a workers’ compensation law fell within the scope of the collateral-order doctrine.

Appeal Shouldn’t Have Been Heard, Dissent Says

Clay contended that Kentucky law doesn’t establish that a denial of workers’ compensation immunity belongs in any of the limited categories of non-final orders that can be appealed immediately.

“In its apparent eagerness to reach the merits, the majority ignores the plain language of the Kentucky Workers’ Compensation Act, overlooks a substantial body of case law construing the statute, and fails to heed the stern and frequent cautions of the United States Supreme Court that the ‘narrow’ rule allowing appeals from a small class of non-final orders ‘should stay that way and never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered,’” he wrote.

Michael A. Breen of Breen & Morgan in Bowling Green, Ky., represented Black. Matthew P. Cook and John D. Cole Sr. of Cole & Moore in Bowling Green, Ky., represented Dixie and Georgia-Pacific.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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