James P. Griffith v. Jellico Community Hospital, Inc.

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 5, 2009 Session

JAMES P. GRIFFITH, ET AL. v. JELLICO COMMUNITY HOSPITAL, INC.

Appeal from the Circuit Court for Campbell County

No. 13324 John D. McAfee, Judge

No. E2009-01431-COA-R3-CV - FILED MAY 28, 2010

Employee, whose employer provided services pursuant to a contract with hospital, sustained

injuries from a fall while working on hospital’s premises. Employee subsequently filed a

negligence action against hospital. The trial court permitted employer to intervene in the suit.

Hospital filed a motion for summary judgment, and after an evidentiary hearing, the trial

court found that hospital was the principal contractor pursuant to Tenn. Code Ann. § 50-6-

113 and the exclusive remedy rule barred employee’s negligence suit. The trial court granted

summary judgment in favor of hospital, and employee appealed. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the Court, in which C HARLES D. S USANO,

J R. and D. M ICHAEL S WINEY, JJ., joined.

Jay E. Kohlbusch, Knoxville, Tennessee, for the appellants, James P. Griffith and Kimberly

Griffith.

Daniel T. Swanson, Knoxville, Tennessee, for the appellee, Jellico Community Hospital, Inc.

Robert J. Uhorchuck, Chattanooga, Tennessee, for the appellee, Aramark Clinical

Technology Services, Inc.

OPINION

I. BACKGROUND

In October 2001, Jellico Community Hospital, Inc. (“Jellico”) contracted with Premier

Technology Management to provide management and technical services for Jellico’s

biomedical equipment (“the Agreement”). Aramark Clinical Technology Services, Inc.

(“Aramark”) subsequently purchased Premier Technology Management and continued to

provide services to Jellico. James Griffith (“Griffith”), an employee of Aramark, was

assigned as the on-site biomedical equipment technician to Jellico pursuant to the Agreement.

On January 25, 2006, Griffith was injured while helping a Jellico employee unload

furniture from a truck. Griffith fell off the truck and sustained injuries to his back and pelvis.

Thereafter, Aramark paid workers’ compensation benefits to Griffith for temporary total

disability, permanent partial disability, and medical expenses. Griffith and his wife,

Kimberly, then filed this action against Jellico, alleging negligence. After Griffith filed the

Complaint, Aramark obtained an order allowing it to intervene to protect its subrogation

interest under Tenn. Code Ann. § 50-6-112.1 In the Answer, Jellico denied any negligence

on its part.

Jellico filed a motion for summary judgment asserting that it was a “principal

contractor” pursuant to Tenn. Code Ann. § 50-6-113 thereby entitling it to immunity from

tort liability under the exclusive remedies provision of Tenn. Code Ann. § 50-6-108. During

a hearing on April 7, 2008, the parties disputed whether Jellico’s principal contractor status

was an issue of fact or law. The parties agreed to an evidentiary hearing to decide the issue.

The trial court denied Jellico’s motion to determine what, if any, facts were in dispute as to

Jellico’s status as a principal contractor.

On July 8, 2008, the parties appeared for the evidentiary hearing. Aramark refused

to proceed claiming that there were facts in dispute that should be decided by a jury. In light

of this, the trial court instructed the parties to exchange statements of fact to determine

whether there were any material facts in dispute concerning Jellico’s status.

After the parties filed statements of fact, Jellico renewed its motion for summary

judgment. After a hearing on March 9, 2009, the trial court determined that Jellico was the

principal contractor under Tenn. Code Ann. § 50-6-113 and Griffith’s statutory employer.

The trial court found that the services provided by Aramark were a part of Jellico’s regular

business. In granting summary judgment in favor of Jellico, the trial court held that as a

statutory employer, Jellico was immune from tort liability to Griffith because of the exclusive

remedy rule.

Griffith then filed this appeal contending that summary judgment was inappropriate

because there are material facts in dispute. Specifically, he asserts that as the moving party,

Jellico did not establish without factual controversy that either: (1) it retained the right of

1

Aramark also joined this appeal by filing a brief and stating that it completely adopted the position

of the Griffiths on appeal.

-2-

control over Griffith’s work; (2) it conducted its regular business and Griffith’s work was

within its regular business; or (3) it employed individuals performing the same type of work

as Griffith.

II. ISSUE PRESENTED

The sole issue presented for review is:

Whether the trial court erred in granting summary judgment in favor of Jellico.

III. STANDARD OF REVIEW

On appeal, we review the trial court’s findings of fact with a presumption of

correctness and will not disturb a trial court’s factual findings unless the evidence

preponderates against them. See Tenn. R. App. P. 13(d); Bogan v. Bogan, 60 S.W.3d 721,

727 (Tenn. 2001). In reviewing a trial court’s grant of a motion for summary judgment, this

court must determine whether the requirements of Tenn. R. Civ. P. 56 have been met.

Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000). Our inquiry involves only

a question of law with no presumption of correctness attached to the trial court’s judgment.

Id. Under Tenn. R. Civ. P. 56.04, “[s]ummary judgment is appropriate when the moving

party can show that there is no genuine issue of material fact and that it is entitled to

judgment as a matter of law.” Hannan v. Alltel Publ’g, 270 S.W.3d 1, 5 (Tenn. 2008) (citing

Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn. 1993)). In Tennessee, the

moving party who does not bear the burden of proof at trial must either:

(1) affirmatively negate an essential element of the nonmoving

party’s claim; or

(2) show that the nonmoving party cannot prove an essential

element of the claim at trial.

Hannan, 270 S.W.3d at 9. A “conclusory assertion” is not enough to shift the burden.

Id. at 5 (quoting Byrd, 847 S.W.2d at 215). It is also not enough for the moving party to

“cast doubt on a party’s ability to prove an element at trial.” Hannan, 270 S.W.3d at 8.

Therefore, a properly supported motion for summary judgment demonstrates that there

are no genuine issues of material fact and that the moving party is entitled to a judgment as

a matter of law. See Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008); see also

Staples, 15 S.W.3d at 88; McCarley v. W. Quality Food Serv., 960 S.W.2d 585, 588 (Tenn.

1998). If the moving party fails to make a properly supported motion, the non-movant’s

-3-

burden to produce either supporting affidavits or discovery materials is not triggered, and the

motion for summary judgment fails. See Martin, 271 S.W.3d at 83. If the moving party

makes a properly supported motion, then the non-moving party is required to produce

evidence of specific facts establishing that genuine issues of material fact exist. Id. at 84

(supporting citations omitted).

IV. DISCUSSION

The Tennessee Workers’ Compensation Act allows an employee, injured in an

accident while in the course and scope of employment, to recover workers’ compensation

benefits from the employer. See, e.g., Tenn. Code Ann. § 50-6-103 (2008). The exclusive

remedy provisions contained in Tenn. Code Ann. § 50-6-108, bars any other or additional

recovery that an injured employee may seek against the employer.2 See Tenn. Code Ann. §

50-6-108 (2008). Nonetheless, an injured employee may file suit and seek damages from

another party other than the employer under Tenn. Code Ann. § 50-6-112.3 Determining

coverage under the Act depends primarily on the existence of an employer-employee

relationship. See Murray v. Goodyear Tire & Rubber Co., 46 S.W.3d 171, 175 (Tenn. 2001).

Under Tenn. Code Ann. § 50-6-113, a principal contractor may be liable for workers’

compensation benefits to an employee injured while in the employ of a subcontractor.4

Because the principal contractor may be held liable for workers’ compensation benefits to

the subcontractor’s employee, the principal contractor is considered a statutory employer and

is immune from a tort action brought by an injured employee to the same extent as the

subcontractor under the exclusive remedy rule. Campbell v. Dick Broadcasting Co., Inc.,

883 S.W.2d 604, 606 (Tenn. 1994). The Act creates “statutory employers” in circumstances

where “injured employees are unable to recover compensation from their immediate

2

“The rights and remedies granted to an employee subject to this chapter, on account of personal

injury or death by accident, including a minor whether lawfully or unlawfully employed, shall 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).

3

“When the injury or death for which compensation is payable under this chapter was caused under

circumstances creating a legal liability against some person other than the employer to pay damages, the

injured worker, or the injured worker’s dependents, shall have the right to take compensation under this

chapter, and the injured worker, or those to whom the injured worker’s right of action survives at law, may

pursue the injured worker’s or their remedy by proper action in a court of competent jurisdiction against the

other person.” Tenn. Code Ann. § 50-6-112(a) (2008).

4

“A principal contractor, intermediate contractor or subcontractor shall be liable for compensation

to any employee injured while in the employ of any 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) (2008).

-4-

employers.” Goodyear Tire & Rubber Co., 46 S.W.3d at 175. The statute’s aim is to ensure

that workers will receive compensation due to injuries arising from their employment. See

Stratton v. United Inter-Mountain Tel. Co., 695 S.W.2d 947, 951 (Tenn. 1985) (citations

omitted).

In Tennessee, a court will find that a company is a principal contractor if it satisfies

one of three tests. “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 v. Trinity Communications, Inc., 275 S.W.3d 411, 421 (Tenn. 2009) (citing

Goodyear Tire & Rubber Co., 46 S.W.3d at 176; Stratton, 695 S.W.2d at 951-52).

The first two tests do not apply to this case. First, it is undisputed that Jellico did not

undertake work for another entity. Second, the trial court specifically found that Jellico did

not retain the right of control over Aramark’s employees because “. . .they [Jellico] weren’t

exercising the right to dictate to this employee as to how to maintain or what to do in

reference to this equipment. . . .” Affording a presumption of correctness to the trial court’s

factual findings, we will not disturb those factual findings unless the evidence preponderates

against them. See Randolph v. Eastman Chem. Co., 180 S.W.3d 552, 554 (Tenn. Ct. App.

2005) (citations omitted).

To determine whether a company retained the right of control, courts analyze whether

an employer-employee relationship exists. Stratton, 695 S.W.2d at 950. When analyzing

whether an employer-employee or independent contractor relationship exists, we consider

six factors, with no one factor being dispositive. Id. As outlined by our Supreme Court in

Stratton, the factors include: “(1) right to control the conduct of work; (2) right of

termination; (3) method of payment; (4) whether alleged employee furnishes his own helpers;

(5) whether alleged employee furnishes his own tools; and (6) whether one is doing ‘work

for another’.” Id. (citations omitted); see also Barber v. Ralston Purina, 825 S.W.2d 96, 99

(Tenn. Ct. App. 1991) (relying on the above factors to find that company was the statutory

employer based on “the right to control the conduct of plaintiff’s work. . . .”).

In the instant case, Pamela Hodge, Risk Manager and Chief Nursing Officer at Jellico,

testified in her supplemental deposition that Griffith was a “contract employee” and that

Jellico did not issue Griffith’s payroll checks. Ms. Hodge’s testimony also revealed that

Griffith was the only employee working on biomedical equipment at Jellico. In his affidavit,

Griffith averred that Aramark was his employer, and that Jellico did not have the power to

terminate his employment with Aramark. He also testified that “[Jellico] did not furnish my

-5-

tools nor did they schedule my work hours.” Describing his job duties at Jellico, Griffith

stated:

. . . I was to do all courtesy work I could for [Jellico] in order to keep that

customer happy and so as to not jeopardize the service contract that existed

between Aramark and [Jellico] . . . .[W]hatever such courtesy services did not

interfere with my primary duties as a technician working on medical

equipment at [Jellico], I tried to assist employees of Jellico Community

Hospital in anything that he or she may ask me to do so as to establish and

maintain good will between my employer, Aramark and the customer Jellico.

. . . However, at no time was I under direction or control of employees of

Jellico.

Applying the relevant factors to this case, we conclude that Jellico did not retain the

right to control Griffith’s work. Jellico did not maintain the right to terminate, issue payroll

checks, nor provide the necessary tools for the maintenance of the biomedical equipment.

We agree with the trial court’s finding.

Nevertheless, it is not a prerequisite that a court finds a company had the right of

control in order to find that it is a statutory employer under Tenn. Code Ann. § 50-6-113. See

Randolph, 180 S.W.3d at 560 (finding that plaintiff’s work was part of the regular business

of the defendant and the issue of whether the defendant had the right of control is

pretermitted); Agarwal v. Tennessee Valley Auth., No. 1:04-CV-370, 2005 WL 2219113, at

*6 (E.D. Tenn. Sept. 12, 2005) (noting if defendant fails the first test, defendant still may be

considered a “statutory employer” based upon “right of control”). In summary, a company

can demonstrate that it is a “statutory employer” under either test. Goodyear, 46 S.W.3d at

176; Randolph, 180 S.W.3d at 560, f.n. 4.

Therefore, the determinative issue of this appeal hinges on whether Griffith’s work

was a part of Jellico’s regular business. Relying heavily on the Tennessee Supreme Court’s

recent decision in Lindsey v. Trinity Communications, Inc., Griffith maintains that Jellico is

not the statutory employer because Griffith’s work was not a part of Jellico’s regular

business.

In Lindsey, Trinity Communications, a cable television provider, contracted with

Broadband Specialists for the installation of the cable system in Marion County. Id. at 415.

Thereafter, Broadband subcontracted a portion of the project to HFC Services, who hired the

plaintiff to splice cable for the installation. Id. The plaintiff was injured while splicing

cable. Id. Because HFC, the plaintiff’s primary employer, did not have workers’

compensation insurance, the trial court concluded that both Trinity and Broadband were the

-6-

plaintiff’s statutory employers. Id. at 416. Trinity, arguing that it was not the statutory

employer under section 50-6-113(a), appealed the trial court’s finding.5 Id. In reversing the

trial court’s finding, the Tennessee Supreme Court held that Trinity was not the plaintiff’s

statutory employer because it “did not retain a right of control over the project, did not

perform new system construction as a regular part of its business, and did not have

employees who routinely performed such construction. . . .” Id. at 423. The Court reasoned:

A company who routinely contracts out more extensive repairs and

maintenance projects and whose employees only occasionally perform “small

maintenance tasks” is not a principal contractor. In this case, Trinity’s practice

was to contract out new system construction. Hunter testified that at the time

of Lindsey’s injury, Trinity’s employees were incapable of performing the

same type of work as Broadband and HFC.

Id. (citation omitted). The Court explained that determining whether a company is a statutory

employer is a “fact specific inquiry, relative to the size and scope of the business.” Id. at 422.

Therefore, due to the “small size and limited number of employees,” the installation of the

new system could not be “a regular part of [Trinity’s] business.” Id. (citing Goodyear, 46

S.W.3d at 177 (holding that a painting job was not a regular part of the business because it

was more extensive and specialized than a regular maintenance project)).

Griffith and Aramark contend that the services provided through the Agreement

concern the maintenance, repair, and calibration of biomedical equipment. They contend that

it is specialized work that is not a part of Jellico’s regular business and none of Jellico’s

employees perform such work. According to Griffith and Aramark, Jellico cannot be the

statutory employer because Jellico does not have employees that perform the same type of

work as Aramark. In light of the Court’s decision in Lindsey and the specialized nature of

the work provided by Aramark to Jellico, they contend, at the very least, there is a dispute

in material facts concerning whether the services provided by Aramark constitute the regular

business of Jellico. We disagree.

At first blush, it appears that Griffith and Aramark advance a compelling argument.

However, after a closer review of our Supreme Court’s decision in Lindsey and other relevant

case law, their argument fails. Their argument ignores the factual distinctions between the

case at bar and the facts of Lindsey.

5

Broadband did not challenge the trial court’s finding that it was a statutory employer. Lindsey, 275

S.W.3d at 421, f.n. 4. However, Broadband’s workers’ compensation insurance carrier, Texas Mutual

Insurance Company, appealed the trial court’s decision for multiple reasons including want of personal and

subjection matter jurisdiction. Id. at 416.

-7-

In the case at bar, the trial court determined that Jellico was Griffith’s statutory

employer because his work was a part of Jellico’s regular business. Specifically, the trial

court found that “because of the regulations concerning the licensing of this hospital, they

have to keep someone there. . .to maintain the equipment. And therefore, it is in the regular

course of their business.” Jellico’s business consists of providing medical care to its patients.

In an affidavit, Ms. Hodge described Jellico’s services to include “diagnostic testing,

evaluation and treatment of its patients through the use of biomedical equipment” and that

“[t]he use of biomedical equipment is necessary and essential to Jellico Community

Hospital’s business of providing medical care to its patients.” Ms. Hodge further testified

that the Agreement covered at minimum 700 pieces of equipment at Jellico, including but not

limited to:

[U]ltrasound machines, mammography units, x-rays, collimators, generators,

monitors, gastroscopes, broncoscopes, endoscopes, oximeters, thermometers,

glucose analyzers, patient beds, infusion pumps, defibrillators, vaporizers,

ventilators, opthalmoscopes, incubators, telemetry, anesthesia machines,

microscopes, spirometers, autoclaves, electroencephalography units (EEG),

electrocardiogram units (EKG), oscilloscopes, pacemakers, centrifuges,

aspirators, audioscopes, nebulizers, Doppler units.

The Agreement provided that Aramark would assume responsibility for the upkeep of

Jellico’s biomedical equipment.

In particular, the Agreement outlines Aramark’s obligations concerning the

biomedical equipment. Pursuant to the Agreement, Aramark assumed responsibility for the

following services: (1) monitoring equipment for safety and proper performance in

accordance with industry standards; (2) providing systems for documentation of testing

according to the schedule provided by healthcare regulating agencies, (3) arranging for the

repair of equipment as reasonably requested by Jellico; (4) providing planned maintenance

inspections when scheduled and safety testing as needed; and (5) assisting in compliance

with current biomedical safety regulations and standards.

To operate as a hospital, Jellico must hold a license from the State.6 Holding a license

in Tennessee as a general hospital requires Jellico to comply with state regulations mandated

by the Tennessee Department of Health.7 Ms. Hodge attested to both state and federal

6

“No person, partnership, association, corporation, or state, county or local government unit, or

division, department, board or agency thereof, shall establish, conduct, operate, or maintain in the State of

Tennessee any hospital without having a license.” Tenn. Comp. R. & Regs. 1200-08-01-.02 (2009).

7

“To be licensed as a general hospital, the institution shall maintain and operate organized facilities

(continued...)

-8-

regulations in her deposition and affidavit, and she testified that Jellico relied on Aramark’s

services in order to comply with those regulations.8 Principally, both the federal and state

regulations direct a hospital offering radiological services to satisfy specific requirements.

One of those requirements includes:

Periodic inspections of equipment must be made and hazards identified must

be promptly corrected.

See 42 C.F.R. § 482.26(b)(2) (2009); see also Tenn. Comp. R. & Regs. 1200-08-01-.06(7)(d)

(2009). Jellico also offers services in nuclear medicine; under the State Standards for

Hospitals, nuclear medical equipment must be:

1. Maintained in safe operating condition; and

2. Inspected, tested, and calibrated at least annually by qualified personnel.

Tenn. Comp. R. & Regs. 1200-08-01-.07(3)(h) (2009).

7

(...continued)

and services to accommodate one or more non-related persons for a period exceeding twenty-four (24) hours

for the diagnosis, treatment or care of such persons and shall provide medical and surgical care of acute

illness, injury or infirmity and obstetrical care. All diagnosis, treatment and care shall be administered by

or performed under the direction of persons currently licensed to practice the healing arts in the State of

Tennessee. In addition, a general hospital must specifically provide:

1. An organized staff of professional, technical and administrative personnel.

2. A laboratory with sufficient equipment and personnel necessary to perform biochemical,

bacteriological, serological and parasitological tests.

3. X-ray facilities which shall include, as a minimum requirement, a complete diagnostic

radiographic unit.

4. A separate surgical unit which shall include, as minimum requirements, one operating room, a

sterilizing room, a scrub-up area and workroom.

5. Obstetrical facilities which shall include, as minimum requirements, one delivery room, a labor

room, a newborn nursery, an isolation nursery, and patient rooms designated exclusively for obstetrical

patients.

6. An emergency department in accordance with rule 1200-08-01-.07(5) of these standards and

regulations.” Tenn. Comp. R. & Regs. 1200-08-01-.01(38)(a) (2009).

8

Regarding federal regulations, Ms. Hodge referenced the requirements of the Medicare/Medicaid

program for hospitals offering radiological, laboratory, and surgical service. She testified that over 50% of

Jellico’s patients “are on Medicare or Medicaid. Loss of Medicare/Medicaid approved provider status would

result in a loss of a substantial percentage of business.” The specific requirements can be found at 42 C.F.R.

§ § 482.26, 482.27 , and 482.51.

-9-

The State’s standards governing hospitals regulate the mode and manner in which

Jellico provides services to patients. See generally Tenn. Comp. R. & Regs. 1200-08-01-

.07(m) and Tenn. Comp. R. & Regs. 1200-08-01-.06(8)(a). Further, in order to continue its

accreditation with the Joint Commission on Accreditation with Healthcare Organizations

(“JCAHO”), Jellico relied on Aramark’s servicing of the biomedical equipment.9 Therefore,

to meet state and federal standards and to ensure the safe treatment and diagnosis of patients,

Jellico contracted with Aramark for the repair, maintenance, and calibration of the equipment

used for patient care. Because the proper and safe operation of the equipment is essential to

Jellico’s business of providing health care, we find the trial court properly determined that

Griffith’s work was part of Jellico’s regular business.

The instant case is similar to Randolph v. Eastman Chem. Co.. In Randolph, a worker,

the employee of a subcontractor, was injured while working at the defendant company’s

premises. 180 S.W.3d at 553. The defendant company did not have the technology to

conduct electromagnetic testing and it contracted that project to the worker’s employer – the

subcontractor. Id. at 555. After finding that the company was the worker’s statutory

employer, the trial court granted summary judgment and dismissed the worker’s tort suit. Id.

at 554. On appeal, the worker argued, like Griffith in this case, that the company could not

be considered his “statutory employer” because the company lacked the technology for its

employees to perform the same type of work. Id. at 558. Distinguishing our Supreme

Court’s decision in Goodyear, this court rejected the worker’s argument because:

Unlike the painting of the duct in Goodyear, the evidence in the present case

demonstrates that the work performed during a shutdown must be done on a

continual basis i.e. every two years, in order for the plant to operate properly,

effectively, and in compliance with applicable safety regulations.

Id. Key to the reasoning in Randolph was the continual nature of the work performed by the

subcontractor’s employee.

In this case, although Griffith was the only biomedical equipment technician working

at Jellico, he performed his duties on a daily and continual basis. Ms. Hodge explained that

Griffith’s work was perpetual because:

9

The Agreement specifically references the safety testing of the equipment based on the intervals

provided by JCAHO. Section 3.7(c) states: “Provide planned maintenance inspections when scheduled and

safety testing as needed. . . . [Aramark’s] planned maintenance program includes preventative maintenance

and routine safety testing and systems performance verification. Test intervals are established based on

requirements outlined by the manufacturer of the applicable equipment, JCAHO and the critical function of

the items of equipment.”

-10-

[I]t was a daily – there’s so much equipment that has to be maintained. And

to do the preventive maintenance, that is a continual thing that somebody has

to work at. There’s so many pieces of equipment.

Without safe and functioning biomedical equipment, Jellico would not be able to conduct its

business as a hospital. In contrast to Lindsey, where a small company contracted out a major

construction project, Jellico, as a hospital, depended on the contracted work with Aramark

to ensure that it: complies with Tennessee Licensure requirements; maintains its status as

an approved health care provider under Medicare and Medicaid; keeps its accreditation; and

provides safe services to patients. Griffith’s argument fails because it ignores the continual

nature of the services provided by Aramark. Furthermore, Griffith’s argument does not

account for the connection between the maintenance of the biomedical equipment to Jellico’s

basic functions as a general hospital.

As this court found in Randolph, the decision in Lambert v. Tennessee Valley Auth.,

No. 1:01-CV-330, 2002 WL 32059747 (E.D. Tenn. Sept. 17, 2002) is instructive.10 In

Lambert, a subcontractor’s employee was injured while performing maintenance work on an

ice-blowing auger at a TVA nuclear power plant. 2002 WL 32059747, at*1. The injured

employee filed a negligence suit; the primary issue was whether the exclusive primary rule

barred the suit. Id. The district court held that TVA was the principal contractor under Tenn.

Code Ann. § 50-6-113 because the employee’s maintenance work was part of TVA’s regular

business and of the type of work usually performed by TVA employees. 2002 WL

32059747, at *4-5. In explaining its decision, the court reasoned:

As part of its operation of nuclear power plants, TVA routinely and

continuously engages in modification and maintenance services on its

facilities. Regular maintenance and repair work are an inherent part of

carrying on the enterprise of operating nuclear power plants.

2002 WL 32059747, at *4.

Similarly, in the case at bar, having a biomedical equipment technician that works

daily, like Griffith did, is inherent to the operation of Jellico as a hospital. Due to the nature

of Jellico’s business – providing medical care – routine maintenance and repair of biomedical

equipment is critical to patient safety. Jellico consistently contracts out the maintenance and

repair of their biomedical equipment. In fact, Ms. Hodge testified that after Griffith’s injury,

another biomedical equipment technician filled in to perform Griffith’s former duties, and

that a biomedical equipment technician consistently works at Jellico. At summary judgment,

10

In Randolph, this court noted that the Lambert decision was not binding but found the reasoning

persuasive. 180 S.W.3d at 560.

-11-

as the moving party, Jellico had the burden of showing without factual controversy that it is

Griffith’s statutory employer. Through the exhibits of the applicable state and federal

regulations, the Agreement, and Ms. Hodge’s testimony, Jellico demonstrated that no

material facts were in dispute and that it was entitled to summary judgment as a matter of

law. After doing so, Jellico triggered Griffith’s burden to show that material facts were in

dispute. However, Griffith did not sustain his burden. Griffith did not produce any evidence

challenging Jellico’s proof – proof that established the essential nature of a biomedical

equipment technician’s work to Jellico’s operation. If we were to accept Griffith’s argument

that his work was not a part of Jellico’s regular business, we would have to overlook the

importance of maintaining safe biomedical equipment to the treatment and diagnosis of

patients.

Accordingly, we affirm the trial court’s grant of summary judgment in favor of Jellico.

We conclude that Jellico is Griffith’s statutory employer because his work as a biomedical

equipment technician was an essential and regular part of Jellico’s business as a general

hospital. The trial court correctly determined that Jellico was a principal contractor under

Tenn. Code Ann. § 50-6-113 and properly dismissed Griffith’s negligence claim under the

exclusive remedy rule contained in Tenn. Code Ann. § 50-6-108.

V. CONCLUSION

The judgment of the trial court is affirmed in its entirety, and this cause is remanded

to the trial court for collection of the costs below. Costs on appeal are assessed one-half

against Appellants, James Griffith and Kimberly Griffith and one-half against Appellee,

Aramark Clinical Technology Services, for which execution may issue, if necessary..

_________________________________

JOHN W. McCLARTY, JUDGE

-12-