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NOT DESIGNATED FOR PUBLICATION

No. 123,595

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

THE ESTATE OF SCOTT STEIN, by and through Administrator TARA STEIN;

TARA STEIN, Individually, as Widow and Heir of Decedent, SCOTT STEIN; and COHEN 

STEIN, Individually, as Natural Son and Heir of Decedent, SCOTT STEIN,

by and through his Mother, TARA STEIN,

Appellants,

and

RIVERPORT INSURANCE COMPANY, as

Subrogee of BLACKHAWK SANDBLASTING & COATING, LLC,

Intervenor,

v.

SCOTT'S WELDING SERVICE, INC.,

Appellee.

MEMORANDUM OPINION

Appeal from Barton District Court; MIKE KEELEY, judge. Opinion filed April 29, 2022. 

Affirmed.

Scott J. Mann, of Mann Wyatt Tanksley, of Hutchinson, for appellants. 

Matthew A. Spahn, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, and Heather 

R. Hatley, of Franke Schultz & Mullen, P.C., of Kansas City, Missouri, for appellee.

No appearance by intervenor.

Before WARNER, P.J., CLINE,J., and RACHEL L. PICKERING, District Judge, assigned.
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PICKERING, J.: Scott's Welding Service, Inc. (SWS) had an order to manufacture 

and paint several poly pipe trailers. SWS contracted with Blackhawk Sandblasting and 

Coating, LLC (Blackhawk) for the painting portion of the job. Scott Stein, an employee 

at Blackhawk, was painting one of the trailers when it collapsed on him resulting in 

injuries that led to his death.

Stein's heirs sought workers compensation benefits from Blackhawk. After that, 

they then sued SWS, alleging that SWS was negligent. SWS moved for summary 

judgment, arguing that it was the statutory employer of the decedent, thus the exclusive 

remedy provision of the Kansas Workers Compensation Act (KWCA) barred the suit 

against it. The district court agreed and granted the motion for summary judgment. The 

heirs timely appealed.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2020, the Estate of Scott Stein (decedent), Tara Stein, and the Steins' child 

(heirs/Appellants) sued SWS, alleging SWS's negligence caused the decedent's death on 

August 7, 2019. 

The facts relevant to the issues on appeal are largely uncontroverted. 

SWS, which was solely owned by Richard Scott Reddig, performed general 

fabrication, welding, and machine shop services. One of the services performed by SWS 

was the manufacture and assembly of poly pipe trailers. Reddig also owned 75% of 

Blackhawk, while a silent partner owned the other 25%. Blackhawk was in the business 

of sandblasting and coating. Blackhawk and SWS have offices next door to each other.

For several years, SWS painted the poly pipe trailers that it sold. But in 2018, 

SWS contracted with Blackhawk to paint the poly pipe trailers. When painting for SWS, 
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Blackhawk tracked the hours worked by Blackhawk employees and SWS paid

Blackhawk for those hours. At the time of the decedent's death, he was performing a 

work order, as an employee for Blackhawk, painting a poly pipe trailer for SWS. The 

poly pipe trailer collapsed killing the decedent. The accident occurred in Blackhawk's 

shop, while the decedent was using Blackhawk's equipment, and with no assistance or 

input from SWS employees. 

In their suit, the heirs argued that SWS was negligent because it failed to install a 

safety brace, which it had designed, before providing the poly pipe trailer to Blackhawk 

and that the failure to do so caused the decedent's death. SWS moved for summary 

judgment in May 2020. It argued that the heirs' claims were barred by the KWCA, 

specifically under the statutory employer doctrine and the exclusive remedy provision. 

The heirs responded to the motion in October 2020. In their response, they argued 

the KWCA did not bar recovery through tort against SWS because Blackhawk was the 

decedent's employer and because the statutory employer doctrine did not apply to bring 

SWS within the protections offered by the KWCA. The district court granted the motion, 

determining that the statutory employer doctrine did apply, and thus the heirs could not 

seek damages against SWS in a negligence action.

The Appellants timely appealed. 

ANALYSIS

The District Court Did Not Err by Granting the Motion for Summary Judgment.

The Appellants raise two issues on appeal, but they are closely related to each 

other. First, they argue that SWS was not the decedent's employer for purposes of the 
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KWCA. Second, they argue that SWS cannot assert a statutory employer defense because 

the accident did not occur on property under SWS's control.

Standard of Review

"Summary judgment is appropriate when the pleadings, depositions, answers to 

interrogatories, admissions on file, and supporting affidavits show that no genuine issue 

exists as to any material fact and the moving party is entitled to judgment as a matter of 

law. The district court must resolve all facts and reasonable inferences drawn from the 

evidence in favor of the party against whom the ruling [is] sought. When opposing 

summary judgment, a party must produce 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 issue in the case. Appellate courts apply the same rules and, 

where they find reasonable minds could differ as to the conclusions drawn from the 

evidence, summary judgment is inappropriate. Appellate review of the legal effect of 

undisputed facts is de novo. [Citation omitted.]" GFTLenexa, LLC v. City of Lenexa, 310 

Kan. 976, 981-82, 453 P.3d 304 (2019).

"The interpretation or construction of the Workers Compensation Act is a question 

of law. But once that interpretation or construction occurs, the ultimate question of 

whether an accident arises out of and in the course of employment is a question of fact.

[Citation omitted.]" Estate of Graber v. Dillon Companies, 309 Kan. 509, 513, 439 P.3d 

291 (2019). Statutory interpretation presents a question of law over which appellate 

courts have unlimited review. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 

647 (2019).

"[T]he Legislature has also expressed its intent 'that the workers compensation act 

shall be liberally construed only for the purpose of bringing employers and employees 

within the provisions of the act.'" Schmidt v. Trademark, Inc., 315 Kan. 196, 200, 506 

P.3d 267 (Kan. 2022) (quoting K.S.A. 2020 Supp. 44-501b[a]).
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Discussion

Under the KWCA's exclusive remedy provision, "no employer . . . shall be liable 

for any injury . . . for which compensation is recoverable under the workers 

compensation act . . . ." K.S.A. 2020 Supp. 44-501b(d). Essentially, if compensation is 

available to an injured employee under the KWCA, that employee cannot recover 

through some other mechanism, such as a tort suit.

The exclusive remedy provision is extended to "statutory employers" through 

K.S.A. 44-503(a), where the KWCA provides:

"Where any . . . principal[] undertakes to execute any work which is a part of the 

principal's trade or business or which the principal has contracted to perform and 

contracts with any other . . . contractor[] for the execution by or under the contractor of 

the whole or any part of the work undertaken by the principal, the principal shall be liable 

to pay to any worker employed in the execution of the work any compensation under the 

workers compensation act which the principal would have been liable to pay if that 

worker had been immediately employed by the principal; and 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 . . . ."

The principals mentioned in K.S.A. 44-503(a) are known as "'statutory employers.'"

Robinett v. Haskell Co., 270 Kan. 95, 98, 12 P.3d 411 (2000).

The "principal purpose of K.S.A. 44-503(a) is '"to prevent employers from 

evading liability under the act by the device of contracting outsiders to do work which 

they have undertaken to do as a part of their trade or business."'" Bright v. Cargill, Inc., 

251 Kan. 387, 393, 837 P.2d 348 (1992) (quoting Hoffman v. Cudahy Packing Co., 161 

Kan. 345, Syl. ¶ 4, 167 P.2d 613 [1946]). 
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Here, SWS only argued that the second test—the contracting out contracted work 

provision—applied so this court need not address the first test. The Appellants agree that 

SWS became a principal under K.S.A. 44-503(a) when it hired Blackhawk to perform 

work on the trailer. But the Appellants then argue that the exclusive remedy provision is 

only available to employers and that SWS does not qualify as an employer. 

A panel of this court addressed a prior version of K.S.A. 44-503(a) in Harper v. 

Broadway Mortuary, 6 Kan. App. 2d 763, Syl. ¶ 2, 634 P.2d 1146 (1981), where this 

court upheld the district court's determination that a contractor was a statutory employer 

of the deceased. In Harper, Broadway Mortuary contracted with one of its customers for 

a motorcycle escort during a funeral procession. In furtherance of that contract, 

Broadway Mortuary contracted with the decedent's employer. The decedent provided the 

escort service but was killed during the escort. A worker's compensation claim was 

brought against Broadway Mortuary because the decedent's direct employer was not 

covered by the KWCA.

After several intermediate procedural steps, the district court determined that 

Broadway Mortuary was a statutory employer of the decedent through the contracting out 

contracted work provision. On appeal before this court, Broadway Mortuary challenged 

that decision. In its analysis, the court stated that it was unnecessary for the trial court to 

apply the test of Woods v. Cessna Aircraft Co., 220 Kan. 479, 553 P.2d 900 (1976), i.e.,

whether the escort service was an inherent part of appellant's trade or business or if such 

was ordinarily done by employees of the principal because "[b]y contracting to provide 

an escort service for a third party, appellant made the work a part of its business."

Harper, 6 Kan. App. 2d at 765. This court affirmed the decision, noting that Broadway 

Mortuary had a contractual obligation to provide an escort and chose to subcontract that 

obligation out, thus the contracting out contracted work provision applied. 6 Kan. App. 

2d at 764-65. 
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A similar result occurred in Robinson v. Flynn's Ferry Service, Inc., 6 Kan. App. 

2d 709, Syl. ¶ 4, 633 P.2d 1166 (1981), where this court again determined that the 

contracting out contracted work provision applied to bring a contractor within the 

KWCA. In Robinson, Robinson was the owner-operator of Maize Flying Service, Inc., 

who sometimes contracted with other companies to ferry planes. Maize contracted with 

Flynn's Ferry Service to deliver a plane. During the trip he crashed and died. 

Robinson's mother brought a workers compensation claim against Flynn's Ferry 

Service, which was denied because the examiner, director, and district court determined 

that Robinson was an independent contractor rather than an employee or statutory 

employee. On appeal, this court noted: "The fundamental premise upon which liability is 

predicated under 44-503(a) is the existence of a contract between two employers." 6 Kan. 

App. 2d at 713 (citing Ellis v. Fairchild, 221 Kan. 702, Syl. ¶ 3, 562 P.2d 75 [1977]). The 

court disagreed with the lower court's ruling, holding that K.S.A. 44-503(a) clearly 

applied and that Robinson was a statutory employee of Flynn's Ferry Service under the 

contracting out contracted work provision. 6 Kan. App. 2d at 713. 

Here, SWS contracted with a buyer for the manufacture and assembly of three 

trailers. The trailers had to be painted black. SWS hired Blackhawk to paint the trailers. 

The decedent, who was an employee of Blackhawk, was killed while painting one of the 

trailers. SWS subcontracted part of the work it was hired to do to Blackhawk. The 

decedent was performing the work that SWS had "contracted to perform" for a third-party 

when he was killed. Based on these facts, it seems clear that SWS was the statutory 

employer of the decedent at the time of his injury and death under the second test set out 

in K.S.A. 44-503(a), especially when the directive to liberally construe the KWCA to 

include employers and employees within the provisions of the Act is considered. See 

K.S.A. 2020 Supp. 44-501b(a).
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The Appellants argue that the statutory employer provision fails here because they 

have not tried to claim compensation from or taken proceedings against the principal, 

thus references to the principal cannot be substituted for references to the employer. But 

caselaw stands against the Appellants.

In Robinett, 270 Kan. at 98, the Kansas Supreme Court determined an individual 

cannot sue his or her employer in tort after receiving workers compensation benefits from 

his or her immediate employer rather than the statutory employer. 

In Robinett, the plaintiff "was injured while performing work under a subcontract 

between his employer, Stanley Jones Corporation (Stanley Jones), and the defendant, The 

Haskell Company (Haskell)." 270 Kan. at 95. Stanley Jones provided workers 

compensation to the plaintiff. Plaintiff then sued Haskell in tort for the same injuries. 

After Haskell moved for summary judgment arguing that Haskell was the statutory 

employer of the plaintiff, the district court dismissed the case.

On appeal, the Kansas Supreme Court noted that K.S.A. 44-503(a) allowed "an 

employee of a contractor to recover workers compensation benefits from either his 

immediate employer or the principal contractor." 270 Kan. at 98. The Kansas Supreme 

Court went on to state that a "statutory employer is immune from a common-law suit for 

damages due to the exclusive remedy provision even when the injured employee chooses 

to receive workers compensation benefits from his or her immediate employer rather than 

the statutory employer because the employee could have recovered compensation from 

the statutory employer." 270 Kan. at 98.

Here, the Appellants admit they made a workers compensation claim against 

Blackhawk. Thus, the statement in Robinett controls here. Because Appellants could and 

did make a claim through the KWCA against Blackhawk, they cannot now seek a remedy 

in tort from the statutory employer, SWS, because the exclusive remedy provision of the 
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KWCA would apply. See K.S.A. 2020 Supp. 44-501b(d); K.S.A. 44-503(a); Robinett, 

270 Kan. at 98. The situation may be different if it turns out that the Appellants cannot 

recover through the KWCA, but that is not a question before the court in this case.

Assuming this court agrees and holds that SWS would be considered a statutory 

employer barring some exception, the Appellants next argue that an exception applies. 

But again, the law stands in the way of their argument. 

Under K.S.A. 44-503(d), the subcontracting provision does not apply "where the 

accident occurred elsewhere than on, in or about the premises on which the principal has 

undertaken to execute work or which are otherwise under the principal's control or 

management, or on, in or about the execution of such work under the principal's control 

or management." The problem for Appellants, which Appellants acknowledge, is that the 

Kansas Supreme Court has broadly interpreted the language "on which the principal has 

undertaken to execute work" in K.S.A. 44-503(d) and it includes essentially anywhere the 

injured workers accident occurs. See Swift v. Kelso Feed Co., 161 Kan. 383, 386, 168 

P.2d 512 (1946).

In Swift, Kelso Feed Company argued that it was not liable under the KWCA after 

one of its subcontractors employees was injured while delivering animal feed to a 

customer because the exception in G.S. 1935, 44-503(d), the predecessor to K.S.A. 44-

503(d), applied meaning that it was not a statutory employer of the injured claimant. The 

Kansas Supreme Court disagreed, holding "the place where it was delivering feed was . . . 

a place where it had 'undertaken to execute work' which was a part of its trade or 

business." 161 Kan. at 386.

Under that interpretation, which the Appellants describe as a flaw in interpretation, 

anywhere a worker was injured while performing work for the principal would be 

"'premises on which the principal has undertaken to execute work.'" Appellants thus 
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argue that the position renders K.S.A. 44-503(d) an exception without teeth. But this 

court followed the holding in Swift in Robertson v. Bayer CropScience AG, No. 107,669, 

2013 WL 452162, at *8-9 (Kan. App. 2013) (unpublished opinion), and the Kansas 

Supreme Court denied the petition for review.

The Appellants are essentially asking this court to ignore the holding in Swift, 

which this court cannot do. We are duty-bound to follow Kansas Supreme Court 

precedent unless there is some indication that it is departing from its previous position. 

State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). There has been no 

indication that the Kansas Supreme Court is departing from its long-held position that the

"in or about the premises on which the principal has undertaken to execute work"

language in K.S.A. 44-503(d) should be broadly interpreted to include nearly anywhere 

where an injured claimant is working on behalf of the principal.

Here, SWS contracted with Blackhawk to paint the trailers. The painting occurred 

on Blackhawk's property and it was there where the decedent sustained the injuries which 

caused his death. Thus, the accident occurred on premises where SWS undertook to 

execute the work and the exception in K.S.A. 44-503(d) does not apply. See Swift, 161 

Kan. at 386.

To conclude, the district court did not err in granting SWS's motion for summary 

judgment. SWS was a statutory employer of the decedent and any recovery from the 

accident had to occur through the KWCA. The tort suit could not be brought.

Affirmed.