RENDERED: JULY 15, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2020-CA-0705-MR

KRISTIAN COLLINS APPELLANT

APPEAL FROM GRANT CIRCUIT COURT

v. HONORABLE R. LESLIE KNIGHT, JUDGE

ACTION NO. 19-CI-00254

MIAMI VALLEY PAPER TUBE CO. APPELLEE

OPINION

AFFIRMING

**   **  **

BEFORE: GOODWINE, TAYLOR, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: Kristian Collins appeals an order of the Grant Circuit 

Court dismissing her negligence action against Miami Valley Paper Tube Co.

(Miami Valley) on the grounds of workers’ compensation immunity. Upon 

review, we affirm.
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The circuit court dismissed Collins’s action pursuant to Kentucky 

Rules of Civil Procedure (CR) 12.02(f). For purposes of a CR 12.02(f) motion, 

this Court, like the circuit court, must accept as true the plaintiff’s factual 

allegations and draw all reasonable inferences in the plaintiff’s favor. Pike v. 

George, 434 S.W.2d 626, 627 (Ky. 1968). As set forth in Collins’s complaint, 

Miami Valley operates a facility in Grant County, Kentucky, where it 

manufactures spiral wound paper tubes and paper cores that are cut into various 

sizes for a variety of industrial uses. At all relevant times, appellant Kristian 

Collins was an employee of Crown Services, Inc. (Crown) and, pursuant to a 

“General Staffing Agreement” Miami Valley entered with Crown, Crown supplied 

Miami Valley with temporary employees, such as Collins. At Miami Valley’s 

facility, Collins worked with some permanent employees of Miami Valley and was 

also supervised by Miami Valley’s shareholders and officers.

On August 23, 2017, Collins was working on a cutting machine 

known as “Line 2,” and another temporary employee was working on another 

known as “Line 3.” While Line 2 was well guarded, Line 3 did not have a safety 

guard on the part of the machine known as the spindle. The employee working 

Line 3 did not know how to shut off the cutting machine, so Collins was 

attempting to instruct him as to the location of the shut-off switch while the 

machine was still running. Collins’s hair then became entangled in the Line 3 
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cutting machine, which caused severe and permanent injuries, including a scalp 

avulsion and broken neck. Collins’s injury triggered an inspection by OSHA1and 

Miami Valley was fined a significant sum as a result of its safety violations at the 

plant. 

Collins filed a negligence action against Miami Valley in Grant 

Circuit Court. She claimed Miami Valley “had both a contractual and common 

law duty to provide adequate safety guards on the machinery” and “to properly 

supervise and train its employees and other temporary workers,” and that Miami 

Valley’s breach of those duties was the proximate cause of her injuries.2

As indicated, Miami Valley responded by filing a CR 12.02 motion to 

dismiss Collins’s complaint. Its motion focused upon Collins’s emphasis in her 

complaint that, pursuant to Kentucky Revised Statutes (KRS) 342.615(1)(e) and 

(f), she was a statutory employee of Crown, which had a statutory obligation to 

provide workers’ compensation insurance for her and it did so, and the undisputed 

fact that Collins was awarded workers’ compensation benefits from Crown due to 

her injury. In sum, Miami Valley argued that because Collins received those 

benefits, and because the applicable law regarded Crown as its subcontractor, it 

1 Occupational Safety and Health Administration.

2 Collins also asserted but later voluntarily dismissed an intentional tort claim against Miami 

Valley.
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was entitled to “up the ladder” immunity pursuant to the Kentucky Workers’

Compensation Act, specifically KRS 342.610 and KRS 342.690. The circuit court 

agreed and granted Miami Valley’s motion to dismiss. 

We review dismissals under CR 12.02(f) de novo. Morgan & 

Pottinger, Attorneys, P.S.C. v. Botts, 348 S.W.3d 599, 601 (Ky. 2011), overruled 

on other grounds by Maggard v. Kinney, 576 S.W.3d 559 (Ky. 2019). CR 12.02(f) 

is designed to test the sufficiency of a complaint. Pike, 434 S.W.2d at 627. It is 

proper to grant a CR 12.02(f) dismissal motion if:

it appears the pleading party would not be entitled to 

relief under any set of facts which could be proved in 

support of his claim. . . . [T]he question is purely a 

matter of law. Stated another way, the court must ask if 

the facts alleged in the complaint can be proved, would 

the plaintiff be entitled to relief?

James v. Wilson, 95 S.W.3d 875, 883-84 (Ky. App. 2002) (internal quotation 

marks and citation omitted).

Collins essentially offers three arguments on appeal regarding why, in 

her view, Miami Valley was not entitled to “up the ladder” immunity. First, she 

asserts that her undisputed status as a temporary worker for a temporary help 

service at the time of the incident precluded Miami Valley from asserting that 

defense. Second, she argues the defense could not apply because she did not 

perform work at Miami Valley’s facility on a regular and recurrent basis. Third, 

she argues an issue of fact existed regarding whether Miami Valley maintained a 
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policy of workers’ compensation insurance that would have covered her at the time 

of her injury and that without proof of such coverage, Miami Valley was legally 

precluded from claiming the exclusive liability provisions of the Kentucky 

Workers’ Compensation Act.

We disagree with Collins’s first argument. “Up the ladder” immunity 

largely derives from the interrelation of two sections of Kentucky’s Workers’

Compensation Act, KRS 342.610(2) and KRS 342.690(1). The former, as 

paraphrased in Fireman’s Fund Insurance Company v. Sherman & Fletcher, 705 

S.W.2d 459, 461 (Ky. 1986), provides:

(1) every employer subject to the chapter shall be liable 

for compensation for injury without regard to fault, (2) a 

contractor who subcontracts any part of his contract 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 its payment as provided by Chapter 342, and 

(3) a person who contracts with another to have work 

performed of a kind which is a regular or recurrent part 

of the work of the trade, business, occupation or 

profession of such person, shall be deemed a contractor 

and such other person a subcontractor.

The latter, KRS 342.690(1), provides in relevant part:

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 . . . on 

account of such injury . . . . For purposes of this section, 

the term “employer” shall include a “contractor” covered 

by subsection (2) of KRS 342.610, whether or not the 
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subcontractor has in fact, secured the payment of 

compensation.

When read in conjunction, KRS 342.690(1) and KRS 342.610(2) 

provide “up the ladder” immunity to a contractor for injuries incurred by an 

employee of a subcontractor. In U.S. Fidelity & Guaranty Company v. Technical 

Minerals, Inc., 934 S.W.2d 266 (Ky. 1996), the Kentucky Supreme Court held that 

a company that contracts with a temporary labor service for temporary employees 

qualifies as a “contractor” for purposes of KRS 342.610(2) and KRS 342.690(1), 

and is therefore entitled to the immunity provided by those sections. 

Arriving at that conclusion, our Supreme Court explained at length 

that the term “contractor” in the Workers’ Compensation Act has a broader 

meaning than that term’s “common usage” – i.e., the situation where a “principal 

contractor” engages subcontractors to assist in the performance of the work or the

completion of the project which the “principal contractor” has undertaken to 

perform for another. Technical Minerals, 934 S.W.2d at 267-69. In other words, 

for purposes of the Act, “a person who engages another to perform a part of the 

work which is a recurrent part of his business, trade, or occupation is a contractor. 

Even though he may never perform that particular job with his own employees, he 

is still a contractor if the job is one that is usually a regular or recurrent part of his 

trade or occupation.” Id. at 269 (citation omitted).

The Court further explained:
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While this is a case governed by principles of 

statutory construction, it is proper to consider whether the 

Legislature intended to adversely affect existing business 

enterprises. As a practical matter, if the statute here were 

construed to allow a common law civil action against an 

employer who obtains a temporary employee through a 

temporary services company, no employer in his right 

mind would hire such an employee. The effect of this 

would be to destroy the temporary services industry.

Historically, a major reason employers were 

willing to provide Workers’ Compensation benefits was 

to be free of common law civil liability. By the argument 

of the plaintiffs in this case, such would be totally 

frustrated and the plaintiff would have the best of both 

worlds, Workers’ Compensation benefits and a common 

law right of action. By contrast, the defendant/employer 

would have the worst of both worlds and this could not 

have been the legislative intent.

Id.

Collins argues the holding of Technical Minerals does not apply 

because the General Assembly enacted KRS 342.615 approximately one month 

after that case was decided. In relevant part, that statute provides:

(1) As used in this section:

. . .

(e) “Temporary worker” means a worker 

who is furnished to an entity to substitute for 

a permanent employee on leave or to meet 

seasonal or short-term workload conditions 

for a finite period of time; and

(f) “Temporary help service” means a 

service whereby an organization hires its 
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own employees and assigns those employees 

to clients for finite periods of time to support 

or supplement the client’s workforce in 

special work situations, including employee 

absences, temporary skill shortages, and 

seasonal workloads.

. . .

(5) A temporary help service shall be deemed the 

employer of a temporary worker and shall be subject to 

the provisions of this chapter.

Id. Collins’s argument is that the holding of Technical Minerals is inapplicable 

because a “specific” statute dealing with “temporary workers” (KRS 342.615) was 

subsequently enacted, which, in her view, now controls over the “general” 

contractor/subcontractor statute (KRS 342.610).

This argument has no merit, however, because nothing in KRS 

342.615 conflicts with the core holding of Technical Minerals. When the General 

Assembly enacted KRS 342.615, it was clarifying who was responsible for 

workers’ compensation coverage for “leased employees” from “employee leasing 

companies” and “temporary worker[s]” from “temporary help service[s],” and 

imposing registration requirements on “employee leasing compan[ies].” See 

generally KRS 342.615. This statute is not at odds with the Supreme Court’s 

holding in Technical Minerals that a “temporary help service” is a “subcontractor”

liable for providing workers’ compensation benefits for its own employees and that 

a company that contracts with a temporary labor service for temporary employees 
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is a “contractor” for purposes of KRS 342.610(2) and KRS 342.690(1) and thus 

entitled to “up the ladder” immunity. Technical Minerals, 934 S.W.2d at 286.

Collins’s second argument is that Miami Valley was not entitled to 

“up the ladder” immunity because she did not perform work at Miami Valley’s 

facility on a regular and recurrent basis. According to Collins:

A temp worker, employed by Crown, can hardly work on 

a “regular and sustained basis” if Miami Valley has the 

ability to terminate that person if it feels she cannot be a 

good permanent worker for the company. In short, 

temporary workers at Miami Valley were the equivalent 

of “walk ons” on a college football team. They were 

there for a “finite period of time” and could be cut from 

the team at 520 hours or less. If they made the team, they 

became permanent employees, but Ms. Collins never got 

to that point.

We disagree, and we adopt the succinct reasoning of the circuit in this 

respect as follows:

This argument misreads KRS 342.610. The statute 

provides: “A person who contracts with another . . . [t]o 

have work performed of a kind which is a regular or 

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). This 

statute describes the relationship between Defendant (the 

“contractor”) and Crown (the “subcontractor”). It does 

not describe the relationship between Crown’s individual 

temporary employees (like Plaintiff) and a contractor like 

Defendant. Put differently, what matters is that the work 

Crown’s employees did for Defendant was “a regular or 

recurrent part of [Defendant’s] . . . trade, business, 

occupation, or profession,” not whether the individual 
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temporary employees were a “regular or recurrent” part 

of Defendant’s workforce.

In General Electric v. Cain, 236 S.W.3d 579 (Ky. 2007),

the Court defined “regular and recurrent” as work that is 

“customary, usual, or normal to the particular business 

(including work assumed by contract or required by law) 

or work that the business repeats with some degree of 

regularity, and it is of a kind that the business or similar 

businesses would normally perform or be expected to 

perform with employees.” Id. at 588. “As long as the 

company contracts away a job it is expected to perform –

even if it never actually performs the job – the company 

can be considered a ‘contractor’ that reassigned ‘regular 

or recurrent work.” Boyd v. Doe, No. 13-136-ART, 2014 

WL 5307951, *2 (E.D. Ky. Oct. 15, 2014) (citing 

Doctors’ Assocs. Inc. v. Uninsured Employers’ Fund, 

364 S.W.3d 88, 92 (Ky. 2011)). From the Complaint, it 

is apparent that Crown’s employees were doing work of a 

kind that was “a regular or recurrent part of 

[Defendant’s] . . . business.”

(Internal footnotes removed; text of footnotes added to block quote.)

Lastly, Collins argues an issue of fact existed regarding whether 

Miami Valley maintained a policy of workers’ compensation insurance that would 

have covered her at the time of her injury. She argues that without proof of such 

coverage, Miami Valley was legally precluded from claiming the exclusive 

liability provisions of the Kentucky Workers’ Compensation Act.

This argument is also the subject of a motion Miami Valley filed with 

this Court to strike part of Collins’s brief. In its motion, Miami Valley correctly 

noted that the circuit court dismissed Collins’s action based upon the face of her 
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complaint pursuant to CR 12.02 – and not based upon the absence of any proof of a 

material fact, which would have necessitated review pursuant to CR 56. That said, 

Collins’s argument lacks merit, and we have denied Miami Valley’s motion by 

separate order as moot, because the “conflict in the evidence” identified by Collins 

does not relate to any material fact at issue in this appeal. To reiterate,

[i]f a defendant qualifies as a contractor, “it has no 

liability in tort to an injured employee of a 

subcontractor.” Fireman’s Fund Ins. Co. v. Sherman & 

Fletcher, 705 S.W.2d 459, 461 (Ky. 1986). In other 

words, tort immunity under the Act extends “up the 

ladder” from the subcontractor that employs an injured 

person to the entities that contracted with the 

subcontractor, so long as the injured person’s employer 

has workers’ compensation coverage, and the up the 

ladder entities contracted “to have work performed of a 

kind which is a regular or recurrent part of the work” of 

their business. See Goldsmith [v. Allied Bldg. 

Components, Inc., 833 S.W.2d 378, 379 (Ky. 1992).]

Cabrera v. JBS USA, LLC, 568 S.W.3d 865, 869 (Ky. App. 2019).

As previously explained, Miami Valley qualified as a “contractor” 

pursuant to KRS 342.610(2), and Crown was its subcontractor. Crown employed 

Collins, who was injured while, pursuant to Crown’s contract with Miami Valley, 

she was performing work that was a regular and recurrent part of Miami Valley’s 

business. Crown provided Collins with workers’ compensation coverage. 

Therefore, tort immunity under the Act extended “up the ladder” from Crown to 

Miami Valley. Simply put, that is the end of the inquiry.
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We have addressed the breadth of Collins’s appellate arguments. 

Finding no error, we affirm the Grant Circuit Court’s dismissal of Collins’s 

negligence action against Miami Valley.

ALL CONCUR.

BRIEF FOR APPELLANT:

Ronald R. Parry

Cincinnati, Ohio

Philip Taliaferro, III

Colby Cowherd

Covington, Kentucky

BRIEF FOR APPELLEE:

Carmen Sarge

Matthew F.X. Craven

Cincinnati, Ohio