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Bowling v. Wellmore Coal Corporation

May 23, 1997

CHARLES H. BOWLING,

PLAINTIFF-APPELLANT,

v.

WELLMORE COAL CORPORATION,

DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Western District of Virginia, at Abingdon.

James C. Turk, District Judge. (CA-91-20196)

Before WIDENER and ERVIN, Circuit Judges, and BULLOCK, Chief United States District Judge for the Middle District of North Carolina, sitting by designation.

ERVIN, Circuit Judge

Argued: October 28, 1996

Affirmed by published opinion. Judge Ervin wrote the opinion, in which Judge Widener and Chief Judge Bullock joined.

OPINION

Charles H. Bowling appeals from a decision of the United States District Court for the Western District of Virginia granting summary judgment in favor of Wellmore Coal Corporation in an action for the recovery of damages for personal injuries. For the reasons hereinafter explored, we affirm.

I.

This appeal arises from a tort action commenced by Charles H. Bowling ("Bowling") against the Wellmore Coal Corporation ("Wellmore") for injuries sustained when a Wellmore employee negligently operated a company coal preparation facility to which Bowling delivered coal. Bowling filed his civil suit against Wellmore on December 12, 1991.

Wellmore moved for summary judgment arguing that it was the "statutory employer" of Bowling and, as such, could not be subject to a negligence action filed by Bowling. Negligence actions against statutory employers are barred under Virginia's workers' compensation law. Va. Code Section(s) 65.2-302. Bowling moved for partial summary judgment, claiming that Wellmore was not his statutory employer but rather an "other party" under the workers' compensation law, Va. Code Section(s) 65.2-309, and thus subject to a negligence claim. *fn1

After determining that Wellmore was Bowling's statutory employer, the district court granted summary judgment for Wellmore and barred Bowling from bringing an action in negligence against the company. We agree with the reasoning and conclusions of the court below.

II.

Wellmore is a Virginia corporation with its principal place of business in Buchanan County, Virginia. Wellmore's immediate employees are primarily involved in the business of processing coal as it is brought from the mines. At the time Bowling was injured, Wellmore operated four active processing plants--three in Virginia and another in Kentucky. In addition to its processing business, Wellmore either owned or leased coal mines from which the company received its raw materials. When the accident in question occurred, Wellmore owned or leased approximately thirty coal mines. The production of coal from each mine was contracted out to various mining companies, which in turn contracted with trucking companies to haul the coal from the mine site to Wellmore's processing plants.

In 1990, Bowling was employed as a truck driver for Trivette Trucking Company ("Trivette"). Trivette had contracted with Kodiak Coal Incorporated ("Kodiak") to haul coal from Kodiak's Mine No. 2 in Floyd County, Kentucky, to the Wellmore processing plants. Kodiak was the mine contractor for Wellmore, and the mine itself had been leased to Wellmore by its owner, the Elk Horn Coal Corporation. On March 14, 1990, pursuant to the Trivette-Kodiak contract, Bowling picked up a load of coal from the Kodiak mine and delivered it to the Wellmore No. 7 loading and preparation facility in Big Rock, Virginia. While on the Wellmore premises, Bowling backed his truck onto a stockpile of coal in order to unload. A trap door in the stockpile had been left open, however, causing Bowling's truck to fall through the hole and turn over on its side. Bowling was pinned between the steering wheel and the door of the truck and suffered severe injuries as a result of the accident.

Most of the coal received at Wellmore's processing plants was delivered by independent trucking companies that worked directly with the mine operators, although Wellmore did maintain a few trucks that were occasionally used for hauling during faceups *fn2 and in emergencies. Approximately one-third of Wellmore's employees were capable of hauling coal, but hauling accounted for less than ten percent of their job duties. Wellmore never hauled coal from the Kodiak mine to its processing plants.

Wellmore retained little control over the selection, training and supervision of the truckers used to deliver coal to its preparation plants. Those responsibilities, in addition to the day-to-day mining operations, were left to the contract mining companies. Further, under the contract between Wellmore and Kodiak, Kodiak was required to obtain workers' compensation and employers' liability insurance. If Kodiak failed to provide this insurance, Wellmore agreed to do so and to hold Kodiak liable for the cost.

Wellmore had only indirect contact with the trucking companies until the trucks actually arrived at a preparation plant. Once on the plant premises, Wellmore's loader operator would direct the truckers as to where to dump their loads. If the loader operator knew of a safety risk to the truck ...


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