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MODIFIED : NOVEMBER 21, 2007 CORRECTED : AUGUST 30, 2007 RENDERED : AUGUST 23, 2007 TO BE PUBLISHED

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2004-SC-000043-DG GENERAL ELECTRIC COMPANY ON REVIEW FROM COURT OF APPEALS CASE NUMBER 2002-CA-001843 JEFFERSON CIRCUIT COURT, NOS. 97-CI-006559,97-CI-006560, AND'!. -CI-Q.0 ~6 APPELLANT

V.

DENNIS CAIN, AS EXECUTOR OF THE ESTATE OF DANIEL CAIN ; MARY HELEN CAIN; JOHN T. CAIN ; BECKY CAIN; VINCENT J. BECKER ; AND KATHLEEN BECKER AND 2005-SC-.000242-DG E

APPELLEES

DEBBIE ELLEN REHM, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF JAMES DAVID REHM; NICHOLAS JAMES REHM, BY AND THROUGH THEIR PARENT, GUARDIAN AND NEXT FRIEND, DEBBIE ELLEN REHM ; AND CHRISTINA MARIE REHM, BY AND THROUGH THEIR PARENT, GUARDIAN AND NEXT FRIEND, DEBBIE ELLEN REHM ON REVIEW FROM COURT OF APPEALS CASE NUMBER 2002-CA-001399 JEFFERSON CIRCUIT COURT NO. 01-CI-001344

APPELLANTS

V.

NAVISTAR INTERNATIONAL CORPORATION ; ALLIED CHEMICAL CORPORATION ; AMERICAN STANDARD ; BROWN & WILLIAMSON TOBACCO CORPORATION ; COLGATE-PALMOLIVE ; LORILLARD; E .1. DUPONT ; ROHM & HAAS ; FORD MOTOR ; GENERAL ELECTRIC ; KENTUCKY UTILITIES ; LOUISVILLE GAS & ELECTRIC ; PHILLIP MORRIS; BROWN-FORMAN ; REYNOLDS METALS; AND B.F. GOODRICH

APPELLEES

OPINION OF THE COURT AFFIRMING IN PART AND REVERSING IN PART The plaintiffs assert that they (or their decedent) contracted an occupational disease as a result of exposure to asbestos while performing work for their direct employers on premises owned by the various businesses ("premises owners") named as defendants in these cases. At issue, however, is not whether the owners must pay workers' compensation benefits to the plaintiffs, but whether the "exclusive remedy" provision in KRS 342 .690(1) immunizes the owners from tort liability for the occupational diseases that the plaintiffs claim were caused by the owners' respective negligent acts or omissions. As these cases were resolved by summary judgment, the Jefferson Circuit Court did not reach the issues of negligence, causation, or damages. The summary judgment did, however, address the issues of "exclusive remedy" immunity, the constitutionality of such immunity under the "jural rights" doctrine, and whether the premises owners had proven that each had "secure[d] . . . payment of compensation" as required by KRS 342 .340. In its judgments, the circuit court found in favor of all of the owners, holding that they were "contractors" immune from tort liability, that the exclusive remedy provision was not unconstitutional, and that each owner had sufficiently proven that it has secured payment of compensation per KRS 342.340 . In case No. 2004-SC-0043-DG (hereinafter the "G .E. case") one panel of the Court of Appeals reversed the Circuit Court, holding that General Electric Company ("G .E .") was not a "contractor" as defined by KRS 342 .610(2)(b) when the plaintiffs, Daniel Cain, John Cain and Vincent Becker, were allegedly exposed to asbestos while working on its premises. It also held there was a material issue of fact as to whether

G .E. had secured Workers' Compensation coverage as required by KRS 342.690(1) . For the reasons set forth herein, we have concluded: 1 .) that summary judgment for G .E. was improper because the available evidence inadequately supported the trial court's finding that the plaintiffs performed work of a kind that was a regular or recurrent part of the work of G .E.'s business, and 2 .) that documented evidence of workers' compensation coverage, absent some evidence to the contrary, is sufficient proof of workers' compensation coverage for the purpose of summary judgment. Therefore, we affirm on Issue 1, reverse on Issue 2, and remand the case to the Jefferson Circuit Court for further proceedings . In case No. 2005-SC-0242-DG (hereinafter the "Rehm case"), another panel of the Court of Appeals affirmed the circuit court, holding that each of the sixteen premises owners was a "contractor" as defined by KRS 342 .610(2)(b), when the plaintiffs' decedent, James David Rehm, was exposed to asbestos while working on each of their premises. Under the facts presented, this panel also held that "exclusive remedy" immunity as embodied in KRS 342 .610 and 342.690 is constitutional and does not transgress the "jural rights" doctrine . They further disagreed with the panel in the G.E. case and held that documentary proof of workers' compensation coverage, absent proof to the contrary, presented no issue of material fact as to coverage. For the reasons set forth herein, we conclude: 1 .) that the evidence does not support the Circuit Court's conclusion that Rehm performed work of a kind that was a regular part of the work of the premises owners' businesses in every instance that he worked on each premises; 2.) that documented evidence of workers' compensation coverage, absent some evidence to the contrary, is sufficient proof of workers' compensation coverage for summary judgment ; and 3.) that "exclusive remedy" immunity under the Kentucky

Workers' Compensation Act does not violate the `jural rights" doctrine . Therefore, we affirm in part and reverse in part on Issue 1, affirm on Issues 2 and 3, and remand the claims against seven of the premises owners to the Jefferson Circuit Court for further proceedings. 1. "EXCLUSIVE REMEDY" IMMUNITY A. STATUTORY BASIS KRS 342.690(1) provides, in pertinent part, as follows: If an employer secures payment of compensation as required by this chapter, the liability of such employer under this chapter shall be exclusive and in place of all other liability of such employer to the employee . . . . . For purposes of this section, the term "employer" shall include a "contractor" covered by subsection (2) of KRS 342 .610, whether or not the subcontractor has in fact, secured the payment of compensation . (emphasis added .) KRS 342.610 identifies those employers who are liable for payment of workers' compensation benefits to employees who suffer work-related injuries or occupational diseases. It provides, in pertinent part: (1) Every employer subject to this chapter shall be liable for compensation for injury, occupational disease, or death without regard to fault as a cause of the injury, occupational disease, or death. A contractor who subcontracts all or any part of a contract and his carrier shall be liable for the payment of compensation to the employees of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured the payment of compensation as provided for in this chapter. . . . A person who contracts with another :

(2)

(b) To have work performed of a kind which is a regular o recurrent part of the work of the trade, business occupation, or profession of such person shall for the purposes of this section be deemed a contractor, and such other person a subcontractor . . . . (emphasis added .) 4

If premises owners are "contractors" as defined in KRS 342 .610(2)(b), they are deemed to be the statutory, or "up-the-ladder," employers of individuals who are injured while working on their premises and are liable for workers' compensation benefits unless the individuals' immediate employers of the workers have provided workers' compensation coverage . If deemed to be "contractors," the owners, like any other employers, are immune from tort liability [exclusive remedy immunity] with respect to work-related injuries whether or not the immediate employer actually provided workers' compensation coverage. See Thomas M. Cooper, The "Comp" Factor in Tort Cases, 51 Ky. Bench & Bar, No. 1, Winter 1987, at 14, 37. Thus, whether an owner is entitled to "exclusive remedy" immunity depends upon whether the worker was injured while performing work that was "of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession" of the owner. If so, the owner is immune; if not, the owner is subject to tort liability . Consistent with the principles expressed in Shamrock Coal Co., Inc. v. Maricle , 5 S .W .3d 130,133 (Ky. 1999), and Gordon v. NKC Hospitals, Inc., 887 S.W.2d 360, 362 (Ky. 1994), a premises owner who asserts exclusive remedy immunity must both plead and prove the affirmative defense . Even when the underlying facts are undisputed, a conclusion that a defendant is entitled to judgment as a matter of law must be supported with substantial evidence that a defendant was the injured worker's statutory employer under a correct interpretation of KRS 342.610(2)(b). Special Fund v. Francis , 708 S.W.2d 641, 643 (Ky. 1986). Statements that amount to legal conclusions are not properly included in an affidavit and, in any event, are not substantial evidence. 2A C.J.S . Affidavits

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