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### TENNESSEE BUREAUOFWORKERS' COMPENSATION INTHE COURT OFWORKERS' COMPENSATIONCLAIMS ATNASHVILLE
Noe JimenezMorales, Employee, 

### v. Mirage Construction, Uninsured Employer, And RiteRugFlooring/TheHartford, Employer/Carrier, And NVR, Inc./NewHampshire Ins. Co., Employer/Carrier. ) DocketNo. 2016-08-0944 ) ) 

### ) StateFile No. 79028-2015 ) ) 

### ) Judge Kenneth M. Switzer ) ) ) )



### COMPENSATIONHEARING ORDERGRANTINGNVR'S MOTIONFORSUMMARYJUDGMENT

This matter came before the Court on May 15, 2017, upon NVR's Motion for Summary Judgment. None ofthe otherparties filed opposition to the motion or appeared at the hearing, and Counsel for NVRrepresented to the Court that at the recent, ongoing depositions, all opposing Counsel indicated they do not oppose NVR's motion. For the reasons set forth below, the Court holds there is no genuine issue ofmaterial fact and NVR is entitled tojudgment as a matter oflaw dismissing Mr. Jimenez Morales' claims against it and its carrier. History of Claim


### Mr. Jimenez Morales filed a Petition for Benefit Determination seeking workers' compensation benefits for alleged injuries to his left shoulder, right hip and leg sustained on August 12, 2015. NVR's motion revolves around the relationships among the various parties in the case and which party held workers' compensation coverage on the alleged date ofinjury.

1According to its statement offacts, NVR is the general contractor. It entered into a "'Master VendorAgreement" with Rite Rug in 2011 to provide materials and services in connectionwith NVR's homebuilding and other operations. The agreement required Rite Rug as the vendor to maintain workers' compensation insurance. A "'Certificate of Liability Insurance" provides that Rite Rug obtained coverage for the timeframe during whichMr. Jimenez Morales allegedlybecame injured.
Rite Rug's Responses to NVR's Request for Admissions indicate that Rite Rug admitted it hired Mirage Construction as a subcontractor for the jobsite where Mr. Jimenez Morales allegedly suffered his work injury. Rite Rug further admitted there was no agreement in place between it and NVR extending NVR's insurance coverage to Mirage. Mirage, in tum, admitted it employed Mr. Jimenez Morales on the alleged date ofinjury, but denied having a validworkers' compensation insurancepolicy onthat date. 

### Analysis
Motions for summary judgment are governed by Tennessee Code Annotated section 20-16-101 (2016) and Tennessee Rule ofCivil Procedure 56. Rule 56.03 requires that a motion for summaryjudgment "be accompanied by a separate concise statement of the material facts as to which the moving party contends there is no genuine issue for trial." Rule 56.06 additionally states: When a motion for summaryjudgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but his or her response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. 

### If the adversepartydoes not so respond, summaryjudgment, if 

### appropriate, shall be enteredagainst the adverseparty. (Emphasis added). The Court of Workers' Compensation Claims Practices and Procedures Rule 4.01B states with regard to dispositive motions that, "Ifno opposition is filed, the dispositive motion will be considered unopposed." Further, the Court of Appeals affirmed a trial court's grant ofsummaryjudgmentwhere the non-moving party failed to file a response. 

### Williams v. Little, No. M2008-02105-COA-R3-CV, 2009 Tenn. App. LEXIS 703, at *6 (Tenn. Ct. App. Oct. 20, 2009). Here, none ofthe other parties opposedNVR's motion. However, per Rule 56, the Court must nonetheless determine if summaryjudgmentis appropriate.
To make this determination, aside from Rule 56, in 2011, the Court must also consider the burden ofproof applicable to a motion for summary judgment filed by a partywho does not bearthe burden ofproofattrial:

2In motions for summary judgment in any civil action in Tennessee, the moving party who does not bearthe burden ofproofat trial shall prevail on its motion for summaryjudgmentifit: (1) Submits affirmative evidence that negates an essential element ofthe nonmoving party's claim; or (2) Demonstrates to the court that the nonmoving party's evidence is insufficient to establish an essential element ofthe nonmovingparty's claim.
Tenn. Code Ann. § 20-16-101 (2016); 

### Payne v. D andD Elec., 2016 TN Wrk. Comp. App. Bd. LEXIS 21, at *7-8 (May 4, 2016). IfNVR, as the moving party, satisfies its burden, then the remaining, nonmoving parties must "demonstrate the existence of specific facts in the record which could lead a rational trier of fact to find in [their] favor[.]" 

### Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn. 2015).
NVR relies on Tennessee Code Annotated section 50-6-113(a) (2016), which provides that a "principal contractor, intermediate contractor or subcontractor shall be liable for compensation to any employee injured while in the employ of any of the subcontractors ofthe principal contractor, intermediate contractor or subcontractor and engaged upon the subject matter of the contract to the same extent as the immediate employer." Further, "Every claim for compensation underthis section shall be inthe first instance presented to and instituted against the immediate employer[.]" !d. at § 50-6- 113(c).
In 

### Murray v. Goodyear Tire & 

### Rubber Co., the Supreme Court explained the policy underpinningthe statutory employerprovision as follows:
In essence, the Act creates "statutory employers" in situations where injured workers are unable to recover compensation from their immediate employers. The purpose of this provision is to protect employees of irresponsible and uninsured subcontractors by imposing ultimate liability on the presumably responsible principal contractor, who has it within his power, in choosing subcontractors, to pass upon their responsibility and insist upon appropriate compensation for their workers. Moreover, the statute prevents principal contractors from contracting out work to prevent liability by giving the claimant the right to recover from the principal contractor as a statutory employer ifthe immediate employer cannotpay. 46 S.W.3d 171, 175 (Tenn. 2001)(Internal citations omitted).

3Here, it is undisputed that: Mirage employed Mr. Jimenez Morales; Mirage is uninsured; and Rite Rug engaged Mirage as a subcontractor. Mr. Jimenez Morales may first look to the immediate employer, Mirage, to seek recovery. Mirage is uninsured. Mr. Morales next looks to Rite Rug. Rite Rug admits it hired Mirage as a subcontractor and admits that it (Rite Rug) has workers' compensation coverage. Mr. Morales need riot look higher up the chainto the general contractor. The Court finds summaryjudgment is appropriate.
IT IS, THEREFORE, ORDEREDAS FOLLOWS:
1. NVR's motion for summaryjudgment is granted and NVR and its carrier are dismissed withprejudice from this action.
2. Thematter is set for a status conference on

### June 5, 2017, at 1:45 p.m. Central Time. The hearing will take place via telephone with 

### Judge Kenneth M. Switzer. You must dial 615-532-9552 or 866-943-0025 toll-free to participate.
ENTERED this the 16th day ofMay,2017.

4CERTIFICATE OF SERVICE


### I certifY that a true and correct copy of this Order was sent to the following recipients bythe following methods ofservice on this the 16th day ofMay, 2017.

Name Certified Via Via Service sentto: Mail Fax Email Zachary Wiley, X 

### zwiley@forthegeoQle.com Employee's attorney Nathan Colburn, X 

### colburnlaw@gmail.com attorney for Mirage Tamara Gauldin, X 

### Tamara.gauldin@thehartford.com attorney for Rite Rug/The Hartford StephanieRockwell, X 

### Steghanie@s:geed-seta

.com; AlexAdkins, attorneys alex@sgedd-seta.com forNRV/New Hampshire Ins. Co.

# &;~ Court of rkers' Compensation Claims WC.CourtClerk@tn.gov

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