Kevin Littlepage v. Century Aluminum Company

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0617n.06
No. 17-5486
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
KEVIN LITTLEPAGE,
Plaintiff-Appellant,
v.
CENTURY ALUMINUM COMPANY,
Defendant-Appellee.
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ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE WESTERN
DISTRICT OF KENTUCKY
OPINION
Before: DAUGHTREY, McKEAGUE, and BUSH, Circuit Judges.
JOHN K. BUSH, Circuit Judge. Defendant Century Aluminum Company (“Century”)
is a publicly traded Delaware corporation that produces aluminum. Century Aluminum Sebree
(“Sebree”), Century’s wholly owned subsidiary, operates an aluminum-smelting facility in
Henderson, Kentucky. Plaintiff Kevin Littlepage was employed as a pot worker at that facility
when he slipped on a walkway and fell, causing his right foot to contact molten aluminum. His
boot caught fire, he suffered burns, and he lost his right foot and portions of his right leg.
Littlepage has received over $300,000 in workers’ compensation payments. In this
action, Littlepage sued Century for negligence and gross negligence, claiming that Century was
in direct control of the smelting facility and that debris and residue on the walkway caused his
fall. But because Century is immune from tort liability under a Kentucky statute that makes
workers’ compensation Littlepage’s exclusive remedy, Ky. Rev. Stat. § 342.690(1), the district
court granted summary judgment in favor of Century. For the same reason, we affirm.

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I
We review the district court’s grant of summary judgment de novo. See Gradisher v.
City of Akron, 794 F.3d 574, 582 (6th Cir. 2015). We draw all reasonable inferences in favor of
Littlepage. See Slusher v. Carson, 540 F.3d 449, 453 (6th Cir. 2008). If, on “the record taken as
a whole,” no rational trier of fact could find for Littlepage, then there is no genuine issue for
trial, and Century is entitled to judgment as a matter of law. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); see Fed. R. Civ. P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986); Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.
1989). Kentucky law governs this appeal, and we apply Kentucky law in accordance with the
controlling decisions of the Kentucky Supreme Court. See Allstate Ins. Co. v. Thrifty Rent-A-
Car Sys., Inc., 249 F.3d 450, 454 (6th Cir. 2001). If the Kentucky Supreme Court has not yet
addressed an issue presented, we predict how that court would rule in light of the decisions of the
Kentucky Court of Appeals and other “relevant data.” Ibid. (quoting Kingsley Assocs., Inc. v.
Moll PlastiCrafters, Inc., 65 F.3d 498, 507 (6th Cir. 1995)).
II
Kentucky’s Workers’ Compensation Act provides guaranteed insurance to workers,
paying benefits to employees who sustain work-related injuries, “without regard to fault.” Ky.
Rev. Stat. § 342.610(1). The Act imposes liability for those compensation payments upon the
employer, also without fault, and, in exchange, grants employers immunity from tort claims
arising from covered injuries. That immunity extends on equal terms to the “employer’s carrier.”
Ky. Rev. Stat. § 342.690(1). It is undisputed that Sebree (and not Century) was Littlepage’s
employer. The question before us is whether Century is immune from suit as Sebree’s carrier.
“Carrier,” as defined by statute, “means any insurer, or legal representative thereof,
authorized to insure the liability of employers under this chapter and includes a self-insurer.”

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Ky. Rev. Stat. § 342.0011(6). A “self-insurer” is an employer that has been authorized under the
Act to bear its own liability for workers’ compensation claims—that is, an employer approved by
the Kentucky Department of Workers’ Claims to be exempt from purchasing external insurance
to cover workers’ compensation liability. Ky. Rev. Stat. § 342.0011(6). When a subsidiary
corporation wishes to apply to be self-insured as to workers’ compensation, it must obtain and
file “a guarantee from the subsidiary’s parent corporation on Form SI-01, Self-Insurers’
Guarantee Agreement.” 803 Ky. Admin. Regs. 25:021 § 3(1)(i).
It is undisputed that Sebree (and not Century) was such a self-insurer and that Century
executed Form SI-01, thereby guaranteeing Sebree’s workers’ compensation liability and
allowing Sebree to be a self-insurer.
Century argues that because it was Sebree’s guarantor, it was Sebree’s “insurer” and thus
Sebree’s “carrier” immune from suit. Littlepage argues that Century’s status as a guarantor is
insufficient to make it a carrier; Littlepage further argues that because Century was not a self-
insurer as to its own workers’ compensation liability, Century cannot be a “carrier.”
The Kentucky Supreme Court’s recent decision in Falk v. Alliance Coal, LLC,
461 S.W.3d 760 (Ky. 2015), forecloses Littlepage’s arguments. In that case, surviving widows
and children of deceased miners sued the miners’ two employers and also sued Alliance Coal,
the parent company and sole owner of both employers. Like Sebree, the subsidiary employers in
Falk were self-insurers for the purpose of workers’ compensation, and Alliance, the parent, was
their guarantor, having executed the same Form SI-01 that Century executed here. And, as in
this case, the plaintiffs in Falk argued that Alliance “was not a ‘carrier,’ but a ‘guarantor,’ and
that guarantors have no immunity.” Falk, 461 S.W.3d at 764. The Kentucky Supreme Court
held, unanimously, that Alliance did have immunity as the subsidiary employers’ carrier, even
though (as the court recognized) a narrow interpretation of “carrier” might include only

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insurance companies and not parent corporations acting as guarantors. See id. at 794–95 (“The
legislature could have more narrowly defined carrier as an insurance company, which it did
when it defined ‘insurance carrier.’ . . . Furthermore, the legislature could have stated that only
an insurance carrier is immune from liability. However, the legislature chose to define carrier
more broadly, thus extending immunity beyond insurance companies[.]”) (citation omitted).
The Kentucky Supreme Court articulated the reasons why its result was a sensible
reading of the workers’ compensation statute:
[O]ur holding is in harmony with one of the purposes of the Act, to extend
benefits to employees without the need to prove fault, while protecting employers
from tort liability.
The Workers’ Compensation Act is social legislation, a product of
compromises by workers and employers. Workers agree to forego
common law remedies in exchange for statutory benefits awarded
without regard to fault. Employers agree to pay such benefits and
to forego common law defenses in exchange for immunity from
tort liability . . . . In other words, an employer’s immunity follows
its liability for workers’ compensation benefits.
Labor Ready, Inc. v. Johnston, 289 S.W.3d 200, 204–205 (Ky. 2009).
The legislature has extended this immunity to carriers and contractors, which both
bear actual or potential liability for workers’ compensation benefits. KRS
342.690.
In order to qualify for a self-insured certificate, Alliance had to certify that it had
adopted a resolution authorizing “joint and several liability for all the workers’
compensation claims asserted against” [its subsidiaries]. Alliance is liable for
claims against its subsidiaries, just as a contractor may be liable for claims against
its sub-contractor and just as a carrier is liable for claims against its insured.
Therefore, Alliance is entitled to the immunity that follows its liability.
Falk, 461 S.W.3d at 765–66.
To be sure, Falk is not completely on all fours with the present case. There are two
apparent distinctions. First, in Falk, the workers’ compensation benefits were paid by checks
drawn on the account of Alliance, the parent. Second, Alliance itself was a self-insured
employer as to its own workers’ compensation liability. But neither of these considerations is

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legally significant to the outcome of Falk: what mattered was that the subsidiary employers were
self-insured as to their workers’ compensation liability and that Alliance was their guarantor as
to such liability. That Alliance acted upon that guarantee by itself disbursing the payments that
were ultimately made is of no consequence. Nor can it reasonably be deemed to matter whether
Alliance was self-insured or carried outside insurance as to its liability for its own workers’
compensation claims. Falk stands for the proposition that a parent company, when it has
guaranteed the workers’ compensation liability of its wholly owned subsidiary, is that
subsidiary’s “carrier” and enjoys the same immunity from suit extended to the subsidiary by the
Kentucky Workers’ Compensation Act. To the extent that Falk stops short of stating that
proposition expressly, we find ample support in Falk to conclude that the Kentucky Supreme
Court would uphold that proposition if asked. And that proposition is sufficient to decide this
case: Century guaranteed Sebree’s workers’ compensation liability, and, in exchange, it enjoys
the same immunity from suit as Sebree.
Further supporting our decision today is our previous decision in Malkiewicz v. R.R.
Donnelly & Sons Co., 932 F.2d 968 (6th Cir. 1991) (unpublished table decision). Malkiewicz
involved Tennessee’s similar workers’ compensation statute; the issue there was “whether the
guarantor of a self-insured employer’s obligations is entitled to the same immunity as a workers’
compensation insurer.” Malkiewicz v. R.R. Donnelly & Sons Co., 703 F. Supp. 49, 50 (M.D.
Tenn. 1989). There, as here, the injured worker’s employer was the wholly owned subsidiary of
its parent company, which had guaranteed its subsidiary’s payment of workers’ compensation
benefits. The district court held that the parent was entitled to immunity, we certified the
question to the Tennessee Supreme Court, that court agreed with the district court, Malkiewicz v.
R.R. Donnelly & Sons Co., 794 S.W.2d 728, 730 (Tenn. 1990), and, accordingly, we entered an
order affirming the district court. Malkiewicz, 932 F.2d 968, at *1. At no point in any of the

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three courts’ discussions in that case did the question arise whether the parent was itself a self-
insured employer; all that mattered was that the parent was the subsidiary’s guarantor as to
workers’ compensation. So, too, in this case.
Finally, Littlepage argues that that our decision in Boggs v. Blue Diamond Coal Co.,
590 F.2d 655 (6th Cir. 1979), compels reversal. But the issue in Boggs was whether the
employer’s parent corporation was also the worker’s “employer” or “contractor” under the
workers’ compensation statute. Boggs had nothing to do with whether a guarantor was a
“carrier” or “insurer.” Moreover, even to the extent that Boggs might be read to imply an answer
contrary to Falk, the Kentucky Supreme Court in Falk expressly disclaimed such an implication:
To reiterate, a parent company that completely “self-insures” the liability of its
subsidiary as provided in the regulations, is a carrier and immune from tort
liability, just as its subsidiary is. To the extent Boggs holds otherwise, it is
incorrect.
Falk, 461 S.W.3d at 766.
III
Falk, admittedly, represents at least a small triumph of legislative purpose over text:
“insurer” is, after all, commonly understood to refer to one who provides indemnity in exchange
for the payment of a premium—not to a mere surety. But it is beyond our purview to second-
guess the Kentucky Supreme Court, especially when it has recently, unanimously, and
unequivocally answered the question that decides this case.
We therefore AFFIRM the district court’s grant of summary judgment in favor of
Century.

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