NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON F ile Nam e: 13a0198n.06 No. 10-5498 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

STEVE BLACK, Plaintiff-Appellant,

v. DI XI E CONSUMER PR ODUCTS L L C; GEORGI A-PACI FI C CONSUMER P RODUCT HOL DI NGS L L C, Def endants-A

ppellees. ) ) ) ) ) ) ) ) ) ) ) ) ON AP P E AL FR OM T HE UNI TED STA TES DI STRI CT COURT FOR THE WES TERN DI STRI CT OF KENTUCKY

Before: ROG ERS, COOK, and WH ITE, Circuit Jud ges. HELE NE N. WHITE , Circuit Judge. Appellant Steve Bla ck (“B lack” ) appea ls the district court’s g rant o f s u mmary judgme nt in favor of Dix ie Consumer Products (Dixi e) and Geor g iaPacific Consumer Product Holdings (Ge org ia-Pac ific). We REVERSE and REMAND for further proce eding s consistent with this opi nion. I. On J uly 11, 2008, Bla ck sustained an injury while working on the premises of a Dix ie plant in Bow ling Gre en, Kentucky

. Bla ck was a truck driver for Western Ex press, I nc. (We s t er n ), a

commerc ial ca rrier that had contra cted for shipping service s with Geor g ia-Pac ific, Dix ie’s pare nt corpor ation, to provide transporta tion service s for Geor g ia-Pac ific and its sub s id ia r ie s . B la c k’s work included only the transporta tion of materia ls; loading and unloading the materia ls off the trucks wasNo. 10-5498

Black v . Dixie Consumer Produc ts LL C, et al. not one of his job duties. On the day of the injury , Bla ck was transporting a shipment of rolled raw paper materia l from another Geor g ia-Pac ific subsidiary to Dix ie, wher e it would be used to produce paper plates. Whil e Bla ck was on the loading dock, a Dix ie employ ee opera ting a fork lift/tow motor

ran ove r B lack’ s left foot, ultimately resulting in a below- the-kne e amputation of his leg

. Fo llowing the injury , Bla ck succe ssfully pursued a worke rs’ compensa tion claim agai n s t Western. Subsequently , in October of 2008, Bla ck filed a tort lawsuit ag ainst Dix ie and Geor g iaPacific. Dix ie and Geor g ia-Pac ific denied liability for Bla ck’s injuries, and , i n t h e alternative,

asser ted as a complete aff

irmative defe nse the exclusive reme dy sections of the Kentucky Workers’ Compensation Act (KWCA). Under the KWCA, “a person who contra cts with another

. . . to have work perf ormed of a kind which is a reg ular or rec urre nt part of the wo rk o f t h e t ra d e, business, occupation, or profe ssion of such person” is a “contr actor ” immune from l i ab i l i t y for the injuries i n cu rr ed by a contra cted employ ee while pref orming work-r elated duties, if the employ ee i s otherwise able to secur e wo rk er s ’ compensa tion benef its from their direc t employ er. KRS § 342.610(2). Dix ie and Geor g ia-Pac ific argue that they are “contr actor s” within the provisions and definitions of the Act and there fore immune from tort liability with respe ct to Bla ck’s work-r elated injuries. After minimal discovery , the parties filed cross-motions for summary judgme nt on this issue. I n its motion for summ ary judgme nt, Dix ie and Ge org ia-Pac ific ar g ued that they wer e contr actor s of Bla ck under the KWCA be cause shipping service s wer e essential to D ix ie’s business and Dix ie regularly rec eived shipments such as the one Bla ck transporte d on the day of his injury

. Dix ie and

-2-No. 10-5498

Black v . Dixie Consumer Produc ts LL C, et al. Geor g ia-Pac ific claimed that, as contra ctors, they wer e immune from tort liability beca use Bla ck had alre ady rec eived wor

kers’ compensa tion from his direct employ er, Wester n. I n his motion for partial summary judgme nt, Bla ck argued that the classification of Dix ie as

an “employ er” for the purposes of the KWCA is pree mpted by the Fe dera l Motor Carrie r Safety Act (“F MCSA”), which define s “em p l o y er ” as “a person eng ag ed in a business aff ecting interstate

commerc e that owns or lease s a commerc ial motor vehi cl e i n connec tion with that business, or assig ns an employ ee to ope rate it.” 49 U.S.C. § 31132(3)( A). F urther, B lack a rg ued that bec ause Dix ie cannot show that shipping or transporta tion of g oods was part of the “wor k” that Dix ie itself perf orms, it is not a “contr actor ” under the KWCA. L astly , Bl ac k co n t ended Dix ie was not a contra ctor be cause it was not a par ty to the ag ree ment betwee n Western and Ge org ia-Pac ific. The dist rict court ag ree d with Dix i e an d Ge o rgi a-Pac ific. Specifica lly , the court held t hat there was no co n fl i ct betwee n the FCMSA and KWCA, such that the FCMSA would pree mpt a fi n ding that Geor g ia-Pac ific and Dix ie wer e immune from tort liability as “employ ers” under t h e KWCA. The court also deter mined that the car

riag e ag ree ment betwee n We s t ern and Geor g iaPacific qualified Geor g ia-Pac ific as a “contr actor ” under the KWCA. Wit h respe ct to Dix ie, the court stated that the definiti on of “c ontrac tor” unde r the KWCA does not require a formal written contra ct or a ty

pical contra ctor/subcontra ctor rela tionship betwee n the parties and the fac t that Dix ie “func tioned as a co n t ra ct o r as a prac tical matter” was sufficie nt. Finally , the court noted that Kentucky courts “have routinely found that transporta tion and distribution of materia ls is a ‘re g ular and rec urre nt’ part of business operations. ” P I D# 261. On that basis, the court found that transporta tion of raw paper materia ls to Dix ie is a regular and rec urre nt part o f Di x i e’s business -3-No. 10-5498

Black v . Dixie Consumer Produc ts LL C, et al. operations and Bla ck’s complaint is there fore barr ed by the exclusive reme dy of the KWCA. Bla ck appea ls. II. ST ANDAR D OF REVIEW This Court revie ws a dis trict court’s gr ant of summ ary judgme nt de novo

. Spears v. Ruth , 589 F.3d 249, 253 ( 6th Cir. 2009). Summary judgme nt is appropria te wher e, in light of the entire

rec ord, there is no g enuine issue as to any materia l fac t and the moving party is entitled to judgme nt

as a matter of law. Cummings v. City of Akron , 418 F.3d 676, 682 (6th Cir. 2005). We are require d to “view all the fac ts and the infere nces draw n there from in th e l i gh t m o s t favorable to the nonmoving pa

rty .” Id. (citations and inter nal quotations omitt ed). A fede ral court sitti ng in dive rsity must a pply the substantive law of the state in which it is situated. Erie R. Co. v. Tompkins , 304 U.S. 64, 73 (1938). Her e, the tort claims asser ted by Bla ck

are analy zed under Ke ntucky

law. Unde r Ke ntucky

law, the que stion whether Dix ie i s a st atutory employ er is a mi x ed question of l aw and fac t that must be ascerta ined by the court, rathe r t han by a jury

. See Gene ral Elec. Co. v. Cain , 236 S.W .3d 579, 589 (Ky . 2007). III. ANALYSIS A. Exclusive Rem edy P rovision of the K WCA We first addre ss whether Geor g i a- P ac i fi c and Dix ie are contra ctors under the KWCA. Section 342.690(1) of

the KWCA provides: I f an employ er secur es pay ment of compensation as require d by this chapte r, the l iability of such employ er under this chapte r shall be exc lusive and in place of a l l other liabili ty of such em ployer to the employe e . . . on acc ount of such injury or death. For purposes of this section, the term “employ er” shall include a “contr actor ”

-4-No. 10-5498

Black v . Dixie Consumer Produc ts LL C, et al.

cover ed by subsection (2) of KRS 342.610, whether or not the subcontrac tor has in fac t, secure d the pay

ment of compe nsation. KRS § 342.690 (empha sis added)

. KRS § 342.610(2) provides in rele vant part that “a person who contra cts with another

. . . [t ]o have work performed of a kind which is a reg ular or rec urre nt part of the work of the trade , business, occupation, or profe ssion of such person . . . shall for the purposes of this sec tion be deeme d a contr actor , and such other person a subcontrac tor.” I f Geor g ia-Pac ific and Dix ie are “contr actor s” under § 342.610(2), they are immune f rom tort liability beca

use Bla ck

was a ble to secur e wor

kers’ compensa

tion benefits from Western. As the parties pleading the exclusive reme dy aff irmative defe nse, Geor g ia-Pac ific and Dix ie bear the burden of proof. Gene ral Elec. Co. , 236 S.W .3d at 585, 590. Be cause Geor g ia-Pac ific and Dix ie have separ ate and distinct leg al rig hts with respe ct to Bla ck, we will consider eac h appellee ’s aff irmative def

ense unde r the statute se parately

. 1. Dixie as “contrac tor” under the K WCA B la c k f irst argues that there was no contra ctor/subcontra ctor rela tion s h ip e s ta b li s h e d b e tw e e n Dix ie and Western under the car riag e ag ree ment. Rather, Bla ck argue s that the ag ree ment esta b li s h e d a n a r ms - le n g th c o n tr a c tu a l r e lationship betwee n Geor g ia-Pac ific and Western, and Dix ie,

as a wholly independe nt subsidiary of Geor g ia-Pac ific, is not a party to the contra ct and thus is not a “c ontrac tor” unde r § 342.610(2)

. As noted by the district court, the issue whether a formal contra ct is require d to establish the contra ctor rela tionship was considere d by the Kentucky Supreme Court in Beav er v. Oakley , 279 S.W .3d 527 (Ky

. 2009). I n Beav er , the court square ly held that § 342.610 “does not demand

-5-No. 10-5498

Black v . Dixie Consumer Produc ts LL C, et al. evidenc e of formal written contra cts betwee n a defe ndant and the plaintiff’s direc t employ er for the defe ndant t o have up-the-ladde r i mmunity but, rathe r, shows that contra cts might be found i n this context when the fa cts show that the defe ndant is e ffe ctively functioning as the c ontrac tor.” Id. at 534. Thus, under Kentucky law, the absenc e of a formal written contra ct betwee n the parties is not dispositi ve. Bla ck further argues that beca use the ca rr iag e ag ree ment betwee n Western and Geog iaPacific ref

ers to Western as an “indepe n dent contra ctor,” and any rig hts held by Dix ie under the 1 contra ct can be no g reater than the rig hts of the cont racting party , Geor g ia-Pac ific, Dix ie and Western cannot fall within the contra ctor/subcontra ctor rela tionship under § 342.610. Howeve r, the Kentucky Supreme Court h as h eld that the rele vant inquiry under the KWCA is not whether the injured worke r is an employ ee or independe nt contra ctor, but rathe r whether “t h e t ask the independe nt contrac tor is hired to perf orm” is a “ regular or r ecur rent part of the work of the trade , business, occupation, or profe ssion” of the premises owne r. Cain , 236 S.W .3d at 588. There fore , any express contra ctual provision descr ibing Western as an “indepe ndent contra ctor” has no bear ing on whether

Dix ie and Ge org ia-Pac ific ar e contr actor s within the meaning of § 342.610(2)

. Turning to the substantive consideration whether Dix ie is a “contr actor ” under the KWCA,

we note at the outset that Bla ck does not substantially challeng e the district court’s conclusion that deliverie s of raw paper materia ls to Dix ie occur red on a regular or rec urre nt basis. Considering the

The Contract Carria g e Ag ree ment states, “[i] t is expressly understood and ag ree d that the 1 business of [W estern], its ag ents, serva nts and employ ees, is in all respe cts separ ate and distinct from [Georg ia-Pac ific], and that [W estern], and its ag ents, serva nts an d em p l o y ees, are with respe ct to [Georg ia-Pac ific], independent contr actor s.” PI D# 112. -6-No. 10-5498

Black v . Dixie Consumer Produc ts LL C, et al.

rec ord evidenc e that Dix ie rec eived as many as fifty truck shipments of rolled paper raw materia ls d uring a ty

pical wee k, there appea

rs to be no materia l question on this issue. I n s t ea d , Bl ac k primarily argues that Dix ie fails to show that Western was perf orming work that was a re gu l ar or

rec urring part of the work of Dixi e’s “ trade , business, occupation, or profe ssion.” I n support, Bla ck relies on the Kentucky Supreme Court’s holding in Cain that “wor k” under § 342.610 is that which a “business or simil ar businesse s would normally perf orm or be expected to perf orm with employ ees.” Cain , 236 S.W .3d at 588. Bla ck claims that beca use Dix ie conce des that it eng ag es none of i ts own employ ees in the commercial t ranspor tation of ra

w mater ials to its production fac ility , Western’s shipment of such materia ls is no t a “p art of the work” of Dix ie’s business. Fur

ther, Bla ck argues that the transporta tion of raw paper supplies from a third party mill to Dix ie’s production fac ility is not a part of the “wor k” of Dix ie’s b u s i n es s , whi ch involves the production of f

inished paper

g oods. I n Cain , the Kentucky Supr e me Co u r t c o n s id e r e d whether employ ees who wer e injured while perf orming work for their direc t employ ers on premises owned by the various businesses named as defe ndants wer e prec luded from pursuing tort act i o n s aga i nst those defe ndants by the exclusive

reme dy provision of § 342.610. Panels of the Kentucky C o u rt o f Appea ls had rea ched differ ent results in case s involving various circ umstances, holding some defe ndants to be contra ct o rs and denying others that status. The Kentucky Supreme Court reve rsed with respe ct to sever al of the defe ndants who had been deter mined to be contra ctors, concluding that althoug h the em ploy ees perf ormed work for the defe ndants at regular or rec urre nt intervals, the employ ees did not perf orm

-7-No. 10-5498

Black v . Dixie Consumer Produc ts LL C, et al. work that was of the kind perf ormed by the defe ndants or other simil ar businesses in the defe ndants’ industry . The Ke ntucky

Supreme Court explained: Work of a kind that is a “re g ular or rec urre nt part of the work of the trade , business, occupation, or profe ssion” of an owner does not mean work that is benef i cial or incidental to the owner ’s business or that is nece ssary to enable the owner to continue in business, improve or expand its business, or rema in or become more competitive in the marke t

. . . I t is work that is customary , usual, or normal to the particula r business (including work assumed by contra ct or require d by law) or work that the business repe ats with some deg ree of regularity , and it is of a kind that the business or similar businesses would normally perform or be expe cted to perform with employe es.

. . . . The test is rela tive, not absolute. Fa ctors rele vant to the “wor k of the

. . . business,” include its nature, size, and sc ope as w ell as whe ther it is e quipped with the skilled manpower and tools to handle the task the independe nt contra ctor is hired to perf orm. Cain , 236 S.W .3d at 588 (e mphasis added)

. Prior to Cain , the Kentucky Supreme Court held in Fireman’s Fund Ins. Co. v

. Sherman & F l etche r that “[e]ven though [a contra ctor] may never perf orm that particula

r job with his o wn employ ees, he is still a contra ctor if the job is one that is usually a regular or rec urre nt par t of his trade or occ upation.” 705 S.W.2d 459, 462 (Ky . 1986). Under Fireman’s Fund Ins. Co. and Cain , whether the work perf orm ed b y t h e contra cted employ ee at the time of his or her injury is normally perf ormed by the contra ctor’s reg ular employ ees is not dispositi ve. Rather, that is simply one fac tor to consider in the “re g ular or rec urre nt” analy sis. Other rele vant fac tors include the “natur e, siz e, and scope” of the business, whether the business is equipped with the to o l s an d manpower to perf orm the contra cted- for work, and whether “similar businesses would normally expect or be e x pecte d to handle such pr ojects with e mploy ees.” Cain , 236 S.W .3d at 588. -8-No. 10-5498

Black v . Dixie Consumer Produc ts LL C, et al. I n the prese nt case , the district court did not analy ze the Cain fac tors befor e concluding that the work Bla ck perf

ormed at the time of his injury was a regular or rec urre nt part of Dix ie’s business. I nstead, the district court found that the fre quency and volume of raw paper shipments rec eived by Dix ie demonstrated that such deliverie s wer e “integ ral to the work[] perf ormed at the Dix ie plant.” Yet, the Kentucky Supreme Court e x plained in Cain that “wor k” under the KWCA does not mean “wor k that is benef

icial or incidental to the owner ’s business or that is nece ssary to enable the owner to continue in business.” 236 S.W .3d at 588. Thus, even though Dix ie neede d raw paper materia ls to be transporte d and delivere d in order to perf orm its work, that is not a sufficie nt basis to find that such deliverie s wer e a “par t of ” Dix ie’s work. Under Cain , in order to find that the transporta tion of raw paper materia ls b et we en a s u pplier and Dix ie is a “par t of” Dix ie’s work, Dix ie must demonstrate both that this ty pe of transporta tion is a “customar y , usual, or normal” part of Dix ie’s business or “wor

k that [Dix ie] repe ats with some deg ree of regularity ” and that it is work that Dix ie

or simil ar businesses would no rm al l y perf orm or be expected to perf orm with employ ees. Reg ardle ss whether Dix ie has satisfied the first prong of the Cain standard, it has not produce d any evidenc e t o s h o w that it meets the second prong . The rec ord demonstrates that Dix ie owned no

commerc ial vehicles and employ ed no drivers for the purpose of interstate tr a n s p o r t o f r a w ma terials. And there is no evidenc e demonstrating that businesses in the simil ar “ trade , business, occupation

or profe s s i o n ” as Dix ie normally use their own employ ees to transport raw materia ls from their suppliers to their fac iliti es. Be cause Dix ie has not established that the work Bla ck perf ormed at the 2

The rec ord is also unclea r about whether Dix ie or Geor g ia-Pac i fi c was responsible for 2 arr ang ing the transporta tion of raw materials to Dixi e’s B owling G ree n Plant. -9-No. 10-5498

Black v . Dixie Consumer Produc ts LL C, et al. time of his injury

was a “re g ular or r ecur

rent” part of its wor

k, it wa s not e ntitled to judgme nt as a matter of la

w. 3 2. Ge orgia-P acific as “contract or” under the K WCA I n considering w hether Geor g ia-Pac ific is a statutory employ er under § 342.610(2), this court must walk t h o u gh t he same analy sis. At the outset, for the rea sons previously noted, we reje ct Bla ck’s argument that Geor g ia-Pac ific and Western’s neg otiated rela tionship as “in depende nt ag ents” should bar

Geor g ia-Pac ific’s c laim that it is a contr actor under the KWCA. At the time of Bla ck’s acc ident, Geor g ia-Pac ific had an active co n t ra ct wi th Western to provide shipping service s for Dix ie and its subsidiaries. The district court cited lang uage in the

car riag e ag ree ment that Geor g ia-Pac ific, “in the usual and ordinary conduct of its business require s transporta tion by motor car riers of i ts products, materials, and equipment,” PI D# 108, to find that t h e h au l ing of raw paper product pursuant to that ag ree ment is a “re g ular or rec urre nt part o f Geor g ia-Pac ific’s business.” PI D# 262. This contra ctual lang uag e is not di s positive. Rather, we must consider whether the work perf ormed by Bla ck, on beha lf of Western, is “par t of t he work of t he trade, busi ness, occ upation,

or profe ssion” of Geo r g ia

- Pa c if ic. There is littl e evidenc e in the rec ord conce rning Geor g ia-Pac ific’s

I n support of its conclusion that Dix ie is a contra ctor under the KWCA, the district court 3 also cited other district court case s, as well as a case from the Ke ntucky Court of Appea ls, which stand for the proposition that “tra nsportation

. . . of materia ls are a regular or rec urre nt part of business operations.” Howeve r, with one exception, all of the case s cited by the district c ourt predate Cain

. The sole post- Cain case cited by the di strict co u rt, Dean v. Dow Corning Corp ., 2009 WL 995469 (E.D. Ky

. April 4, 2009), does not mention Cain or consider any of the rele vant fac tors discussed in Cain in its analy sis. Acc ording ly , we do not find the rea soning of this case persua sive. -10-No. 10-5498

Black v . Dixie Consumer Produc ts LL C, et al. primary business function, the deg ree of control Geor g ia-Pac ific assumed in order ing shipments of

raw paper supplies for Dix ie, or whether Geor g ia-Pac ific’s own employ ees wer e regularly or

rec urre ntly eng ag ed in the work of transporting raw materia ls from the paper mill or other production fac iliti es to Dix ie or other Geor g ia-Pac ific subsidiaries. Although Western regularly t ra nsported materia ls betwee n Geor g ia-Pac ific subsidiaries, and from third parties to various subsidiaries, there is no evidenc e in the rec ord that indicates whether transporta tion of raw materia ls betwee n a pare nt and its s u b s i diary , or betwee n subsidiaries, is the ty pe of work that Geor g ia-Pac ific or a simil ar business would be expected to perf orm with its own employ ees. Acc ording ly , Geor g ia-Pac ific has not met its burden of demonstra ting that it is a “c ontrac tor” unde r the KWCA. B. Pr eem ption b y the Mot or Car rier Saf ety A ct Bla ck also asser

ts that the provisions defining “employ er” within the Fe dera l Motor Carrie r Safety Act (F MCSA) pree mpt the classifica tion of Geor g ia-Pac ific and Dix ie as statutory employ ers under the KWCA. The F MCSA st ates that the pr imary purpose of

the leg islation is: (1) to promote the safe opera tion of co m m er ci al motor vehicles; (2) to minimi ze dang ers to the health of operators of commerc ial motor vehicles and other employ ees whose employ

ment direc tly aff

ects motor car

rier safe ty ; and (3) to ensure incre ased compliance with traff

ic laws and with the comm er ci al motor vehicle safe ty and health re g ulations and standar ds presc ribed a nd order s issued under this cha pter. 49 U.S.C. § 31131(a)

. The statute provides, inter alia , that an “employ er” is “ a person eng ag ed in

a business aff

ecting interstat e co m m erce that owns or lease s a commerc ial motor vehicle in

connec tion with that business, or assig ns an employ ee to opera te it,” 49 U.S.C. § 31132(3)( A), and

-11-No. 10-5498

Black v . Dixie Consumer Produc ts LL C, et al. continues to enumer ate various duties of employ ers with respe ct to the safe ty of motor vehicles and their oper ators. When considering fede ral pree mption of state law, this court must beg in “with the traditional presumption

. . . that Congr ess did not intend to displace state law

. . . unless that was the clea r and manifest purpose of Congr ess.” Interstate Towi ng Ass ’n , In c. v. City of Cincinnati , 6 F.3d 1154, 1161 (6th Cir. 1993) (citations and internal quotations omitted). “I n no field has [t his] defe renc e to state regulation been g reater than that o f h i gh wa y s afe ty regulation.” Id. at 1162. Fur ther, pree mption of st ate authority occur s only in limit ed cases: (1) wher e C ong ress preempts state l aw in express terms; (2) when Congr ess cre ates a regulatory scheme “so perva sive as to make rea sonable the infere nce that Congr ess left no room to supplement it”; or (3) wher e “state law is pree mpted to the extent that it actua lly conf l i ct s wi t h federal law.” Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev . Comm'n , 461 U.S. 190, 203-04 (1983). Her e, the FMCSA did not expressly pree mpt the Kentucky worke rs’ compensa tion statute,

an d Bla ck does not alleg e any actua l conflict betwee n the fede ral and state laws. Rather, Bl ac k claims that the FMCSA is a “compr ehensive scheme for the regulation of commerc ial motor vehicle safe ty ,” which w as intended to “ fully occupy the par ameter s of motor ca rrier employ ment.” Howeve r, Bla ck’s arg

ument is without mer i t

. Fi rst , there is no indication that Congr ess intended the FMCSA to pree mpt state worke rs’ compensa tion statutes wher e the purposes of the two statutes are clea

rly distinct

. T h e p ri m ary purpose of the KWCA is to ensure that worke rs’ compensa tion benef

its are available to injured employ ees and thus re q u ires contractors to assume responsibility for the provision of worke rs’ compensat i o n b enefits wher e the subcontrac tor has -12-No. 10-5498

Black v . Dixie Consumer Produc ts LL C, et al. otherwise failed to do so. I n contra st, the FMCSA was enac ted specific ally to promote the safe ty of

commerc ial motor vehicles and their operators and acc ording ly sets forth detailed safe ty and health standards for those operators
. There is simply no indication that the FMCSA, a statute intended to promote commerc ial motor vehicle safe ty , should pree mpt state leg islation reg arding the provision of worke rs’ c ompensation bene fits. Bla ck fur ther a rg ues that Geor g ia-Pac ific and D ix ie should be re quired to comply with the FMCSA befor e they may be considere d “employ ers” under the KWCA. Howeve r, there is no indication that a classificat i o n of Geor g ia-Pac ific or Dix ie as an “employ er” under the FMCSA should have any bear ing on its classification, if any , under the KWCA, or that Congr ess intended the FMCSA to define “employ er” for the purposes of worke rs’ compensa tion laws. The fac t that Dix ie and Geor g ia-Pac ific can be classified as employ ers for the purpose of one statute, but not the other, is of no conseque nce. C. Choice of Law P rovision Finally , Bla ck argues that the district court err ed in apply ing the exclusive reme dy provision under Kentu cky statutory law, beca use the contra ct car

riag e ag ree ment clea

rly states, “[t] his ag ree ment shall be interpre ted in acc ordanc e with the laws of the state of Delaw are , without g iving eff ect to the conflict of law rules there of.” PI D# 114. Bl ac k ar gu es that the district court should have applied Delaw are law to the question whether an employ er/e mploy ee rela tionship exis ted betwee n Bla ck and Geor g ia-Pac ific/Dix ie, and that under Delaw are law, which has no counter part to § 342.610, Blac k would be able to pursue tort cla ims ag ainst Dix ie and Ge org ia-Pac ific.

-13-No. 10-5498

Black v . Dixie Consumer Produc ts LL C, et al. Bla ck’s choice -of- law argumen t wa s raised for the first time in his Rule 59(e) motion to

vacate t he sum mary judgme nt order. I t is well settled that Rule 59(e) motions are not appropr iate to “ raise arguments which could, and should, have been raised befor e judgme nt issued. Thus, the district court was not obliged to c onsider this arg ument and, because it did not, we have no ruling to review . Any

further argument on this iss ue must take plac e on re mand.

IV. For the fore g oing rea sons, we REVERSE and REMAND for pr ocee dings c onsistent with this opini on.

-14-