BRANHAM v. TENNESSEE VALLEY AUTHORITY GUBMK (2024)

MEMORANDUM OPINION AND ORDER

In this wrongful death action, Plaintiff Christopher Branham, as administrator of the Estate of Seth Black (“decedent”), alleges Defendant Tennessee Valley Authority (“TVA”) and Defendant GUBMK Constructors (“GUBMK”) (together, “Defendants”) negligently caused decedent's fatal injuries while he was working at TVA's Bull Run Fossil Plant (“Bull Run”). The case is currently before the Court on Defendants’ Motions for Summary Judgment [Docs. 33, 36]. The motions are fully briefed and ripe for review. For the reasons stated herein, Defendants’ motions are GRANTED.

I. BACKGROUND

TVA, an executive branch corporate agency created by the TVA Act of 1933, 16 U.S.C. § 831, et seq., manages and operates Bull Run, a coal-fired power plant in Anderson County, Tennessee [Doc. 34, ¶¶ 2, 4]. Bull Run, like other coal-fired power plants, produces electricity by burning coal in a boiler to produce steam that flows into a turbine, which spins a generator to create electricity [Id. at ¶ 5]. Due to the heavy stress these operations place on plant systems, maintenance, inspections, and testing are necessary and planned outages are scheduled for maintenance that cannot be performed while a unit is in service [Id. at ¶¶ 5, 6]. Insulation work, which includes removal, repair, and replacement of insulation on the electrical generation systems, is often performed during planned outages [Id. at ¶ 7].

Prior to 1991, TVA hired employees to complete maintenance work, including insulation work [Id. at ¶ 8]. Since 1991, however, TVA has used contractors and/or authorized subcontractors to perform insulation and other maintenance work [Id.]. Relevant here, TVA contracted with GUBMK for the provision of “non-nuclear modification, outage and supplemental maintenance services ․ at TVA generating plants and other sites located within the Tennessee Valley region” [Doc. 31-1, pg. 10]. Under the TVA-GUBMK contract (the “prime contract”), GUBMK was to “employ and manage all labor necessary for the safe execution of ․ supplemental maintenance [w]ork, including ․ asbestos abatement (direct or through subcontractors), insulation and lagging (direct or through subcontractors) ․” [Doc. 31-1, pg. 11]. Pursuant to the foregoing, GUBMK subcontracted with Williams Specialty Services, LLC (“WSS”) for the performance of asbestos abatement and insulation services at TVA's facilities [Doc. 31-2 pg. 10]. TVA approved the subcontract and authorized WSS to perform insulation work at Bull Run [Id. at pgs. 96–98].

On September 16, 2021, decedent, a WSS employee, fell through the top of a precipitator insulator compartment and came into contact with an energized circuit while performing insulation work at Bull Run [Doc. 34, ¶ 18]. As a result of the fatal accident, Christopher Branham, as administrator of decedent's estate, initiated this action on September 15, 2022, alleging claims of negligence [Doc. 1]. Defendants now move for summary judgment, arguing that Plaintiff's claims are barred by the exclusive remedy provisions of the Tennessee Workers’ Compensation Law, Tenn. Code Ann. § 50-6-108(a).

II. LEGAL STANDARD

Summary judgment is proper where “ ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (quoting Fed.R.Civ.P. 56(c)). The moving party bears the initial burden of demonstrating that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505 (citation omitted). A mere “scintilla of evidence” is not enough; the Court must determine whether, viewing the record in the light most favorable to the nonmoving party, a fair-minded jury could return a verdict in favor of the nonmoving party. Id. at 251–52, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

III. DISCUSSION

“[T]he Tennessee Workers’ Compensation Law ․ requires an employer to compensate an employee for injuries he sustains, even if those injuries are not a result of the employer's negligence.” Mathis v. Bowater Inc., 985 F.2d 277, 278 (6th Cir. 1993); see Tenn. Code Ann. § 50-6-103. “The rights and remedies granted to an employee subject to [the Tennessee Workers’ Compensation Law] ․ exclude all other rights and remedies of the employee, the employee's personal representative, dependents or next of kin, at common law or otherwise, on account of the injury or death.” Tenn. Code Ann. § 50-6-108(a). Thus, an employee is “barred from recovering damages from his employer for injuries resulting from his employer's negligence” because “worker's compensation benefits [are] the employee's exclusive remedy.” Mathis, 985 F.2d at 279.

The “responsibility for workers’ compensation benefits and immunity to tort liability” is also extended “beyond the direct employer” to principal and immediate contractors or subcontractors. Id. (citing Tenn. Code Ann. § 50-6-113). Specifically, the law 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 of the principal contractor, intermediate contractor or subcontractor and engaged upon the subject matter of the contract to the same extent as the immediate employer.

Tenn. Code Ann. § 50-6-113(a)(2015).

This “statutory employer” provision “is intended to ensure that all workers will receive compensation when they are injured in the course of their employment.” Lindsey v. Trinity Commc'ns, Inc., 275 S.W.3d 411, 420 (Tenn. 2009) (citation omitted). It also “prevents employers from contracting out ordinary business activities in an effort to avoid workers’ compensation liability.” Bostic v. Dalton, 158 S.W.3d 347, 350 (Tenn. 2005). Thus, “if a subcontractor's employee is injured on premises under the principal contractor's control, the principal contractor is liable to that employee to the same extent as the subcontractor” and the “principal contractor ․ is immune, to tort actions of that injured employee, to the same extent as the subcontractor.” Mathis, 985 F.2d at 279 (citing Tenn. Code Ann. § 50-6-113).

The dispositive issue here is whether TVA and/or GUBMK are principal contractors, and therefore statutory employers, for purposes of the Tennessee Workers’ Compensation Law. “Generally, a company is considered a principal contractor if: (1) the company undertakes work for an entity other than itself; (2) the company retains the right of control over the conduct of the work and the subcontractor's employees; or (3) ‘the work being performed by a subcontractor's employees is part of the regular business of the company or is the same type of work usually performed by the company's employees.’ ” Lindsey, 275 S.W.3d at 421 (citations omitted).

Here, it is undisputed that decedent performed the insulation work at Bull Run under a subcontract between his employer, WSS, and GUBMK [Doc. 34, ¶¶ 1, 16, 17]. It is further undisputed that GUBMK subcontracted out the insulation work to WSS under the prime contract with TVA [Doc. 34, ¶¶ 14, 15]. Thus, GUBMK undertook work for an entity other than itself, i.e., TVA. Plaintiff asserts that “[t]he mere fact of undertaking work on behalf of TVA does not automatically qualify [GUBMK] as a statutory employer” [Doc. 43, pg. 6]. In support, Plaintiff cites Adams v. Bridgestone Americas Tire Operations, LLC, in which the court found:

[n]ot every relationship in which one company's employees perform a service for another company ․ falls into the principal contractor/subcontractor framework. Tennessee courts have therefore recognized that sometimes one company may perform work for another company without rendering the other company a principal contractor and, by extension, a statutory employer.

No. 3:19-CV-00287, 2020 WL 2112258, at *4 (M.D. Tenn. May 4, 2020). Put differently, the mere fact that Company A performs work for Company B does not render Company B a principal contractor. This statement of the law, however, does not support Plaintiff's position. Applying the statement of law from Adams to the facts here, WSS's performance of work for GUBMK, by itself, does not automatically render GUBMK a principal contractor. However, the fact that GUBMK subcontracted with WSS to perform work for another entity, TVA, does. See Lindsey, 275 S.W.3d at 421. Because GUBMK undertook work for another entity when it subcontracted with WSS, it qualifies as a statutory employer and is immune from tort liability pursuant to Tenn. Code Ann. § 50-6-108(a).

As for TVA, it is undisputed that it did not undertake work for another entity other than itself [See Doc. 35, pg. 10 n.5; Doc. 40, pg. 5]. Nonetheless, TVA may still be considered a principal contractor if “the work being performed by [WSS's] employees is part of the regular business of [TVA] or is the same type of work usually performed by [TVA's] employees” or if it “retain[ed] the right of control over the conduct of the work and [WSS] employees[.]” Lindsey, 275 S.W.3d at 421 (citations and omitted). This Court has previously determined TVA to be a statutory employer in analogous circumstances under the first test.

In Lambert v. Tennessee Valley Authority, an employee of a company who contracted with TVA “to provide modification and supplemental maintenance services” instituted a negligence action after he was injured while working on an ice-blowing auger machine at TVA's nuclear power plant in Hamilton County, Tennessee. No. 1:01-CV-330, 2002 WL 32059747, at *1 (E.D. Tenn. Sept. 17, 2002). This Court dismissed the action on summary judgment based on the finding that TVA was a principal contractor, in part, because the maintenance service at issue was part of the regular business of TVA and was the same type of work usually performed by TVA's employees. Id. at *4 (“[r]egular maintenance and repair work are an inherent part of carrying on the enterprise of operating nuclear power plants”).

Here, the record demonstrates that, like the maintenance services at issue in Lambert, the insulation work performed by decedent was also part of the regular business of TVA. Plaintiff asserts that the circumstances of the instant matter are distinguishable from Lambert because there is evidence that Bull Run is not properly maintained and TVA employees have not performed insulation work since 1991 [Doc. 40, pgs. 8–11]. However, both arguments are misplaced. As an initial matter, the sufficiency of the maintenance work performed at Bull Run is irrelevant to the issue of whether it is regular part of TVA's business. During the ten-year period preceding decedent's accident, TVA conducted 52 planned outages and insulation work was performed during 48 of those outages [Doc. 34, ¶ 9]. Maintenance work which has been performed during over 92% of planned outages undoubtedly qualifies as routine maintenance work that is a regular part of TVA's business, regardless of whether such maintenance is substandard or deficient.

Likewise, the fact that TVA has contracted out maintenance work since 1991 is inconsequential. TVA expressly reserved the right to have its own employees perform the specified work [Doc. 31-1, pg. 11]. However, the issue is not dispositive because “the principal contractor test is disjunctive.” Bray v. Tennessee Valley Auth., 742 F.Supp.2d 911, 916 n.5 (W.D. Tenn. 2010). That is, “[a] company may be a principal contractor if the ‘work being performed ․ is part of the regular business of the company or is the same type of work usually performed by the company's employees.’ ” Id. (quoting Murray v. Goodyear Tire & Rubber Co., 46 S.W.3d 171, 176 (Tenn. 2001)) (emphasis in original). As this Court previously found, “TVA may be a principal contractor in the regular business of performing a particular task ․ without necessarily having TVA employees do the manual labor.” Lambert, 2002 WL 32059747, at *5. Because the insulation work is part of TVA's regular business, TVA is a principal contractor.

Even if the insulation work performed by decedent was not part of TVA's regular business, TVA is a principal contractor if it had the right to control the conduct of work performed by GUBMK and its subcontractors. “[A] company [is] a principal contractor when it retain[s] the right to control: (1) the subcontractor's employees to be used; (2) the manner in which the job was to be performed; and (3) the materials to be used.” Lindsey, 275 S.W.3d at 421 (citations omitted). Plaintiff asserts that the right to control rested solely with WSS [Doc. 40, pg. 7], and he offers the sworn affidavits of four WSS employees who worked on the insulation project at Bull Run in support of this contention [Doc. 40-3]. Each of the employees state that the “course and manner of [their] employment was controlled solely by [WSS]” and “[a]t no time was [their] work directed, managed, or controlled by anyone from ․ [TVA]” [Doc. 40-3, pg. 2, ¶¶ 23, 24; pg. 5, ¶¶ 23, 24; pg. 8, ¶¶ 21, 22; pg. 11, ¶¶ 21, 22]. However, none of the employees claim to have personal knowledge regarding the contractual rights of WSS, GUBMK, and TVA, and whether TVA actually exercised control is irrelevant. See Murray v. Goodyear Tire & Rubber Co., 46 S.W.3d 171, 176 (Tenn. 2001) (“the control test is satisfied if the proof demonstrates that the alleged employer had a right to control, regardless of whether this right was actually exercised.”) (emphasis in original).¹

Here, the record demonstrates that TVA retained the right to control WSS through its prime contract with GUBMK. First, TVA retained the right to control the employees to be used. The prime contract required GUBMK to determine that all personnel, including those of subcontractors, were qualified to perform the assigned work, and TVA reserved the right to request information regarding an individual's qualifications and experience prior to assigning them to perform any services [Doc. 31-1, pg. 47]. TVA further reserved the right to direct GUBMK to discontinue the services of any personnel that failed to meet TVA's qualifications or performance requirements [Id.]. The prime contract also establishes that TVA had the right to control the manner in which the job was performed. The scope of work was controlled by TVA through the issuance of a “Project Authorization” or “Work Release” and TVA retained the right to change the scope of work, including changes “in the method or manner of performance” [Id. at pgs. 10, 33, 78]. Finally, TVA retained the right to control the materials to be used by providing tools, materials, and facilities and requiring prior approval for the use of third-party equipment, materials, and supplies [Id. at pgs. 44, 45]. Thus, TVA retained the right to control the work performed by decedent and other WSS employees.²

Based on the foregoing, the Court finds that both GUBMK and TVA are principal contractors and, as a result, statutory employers for purposes of the Tennessee Workers’ Compensation Law. Accordingly, worker's compensation benefits are Plaintiff's exclusive remedy and Defendants are entitled to summary judgment as a matter of law. Mathis, 985 F.2d at 279; Tenn. Code Ann. § 50-6-108(a).

IV. CONCLUSION

For the reasons provided herein, Defendants’ Motions for Summary Judgment [Docs. 33, 36] are GRANTED, and GUBMK's Objection to Plaintiff's Affidavits [Doc. 45] is DENIED AS MOOT. A separate judgment shall enter.

SO ORDERED.

FOOTNOTES

1.   GUBMK objected to the affidavits [Doc. 45], arguing that the affiants are not competent to testify as to the contractual agreements between the parties and their lay opinions are not admissible on the legal issues associated with the control of work [Doc. 46]. Considering the lack of weight given to the affidavits, GUBMK's objection [Doc. 45] is DENIED AS MOOT.

2.   Plaintiff also asserts that genuine issues of material fact exist as to whether Defendants acted intentionally. To be sure, an employee may avoid the exclusive remedy provisions of the Tennessee Workers’ Compensation Law if “the employer had an actual intent to injure the employee[.]” Gonzales v. Alman Const. Co., 857 S.W.2d 42, 46 (Tenn. Ct. App. 1993). But the exception is not applicable here where Plaintiff pleads only a negligence claim and does not allege intentional conduct by Defendants. Plaintiff also asserts that Defendants must be held liable for their role in decedent's death in the interest of public policy. However, that argument more suitable for the Tennessee General Assembly rather than the Court.

Clifton L. Corker, United States District Judge