dissenting.
Most respectfully, I feel required to dissent from the majority opinion in what is to me a particularly disturbing case.
As a point of departure, I am not in disagreement with the conclusion expressed in the majority opinion to the effect that the coverage provisions of Workmen’s Compensation acts should be liberally construed, but that their immunity provisions should be narrowly construed. See, Bryant v. Old Republic Insurance Co., 431 F.2d 1385 (6th Cir. 1970). However, I have definite reservations concerning the majority’s finding support for such construction in what it concludes to be the inadequacy of the dollar compensation paid under the requirements of the Kentucky Act. Any such inadequacy as may exist must be the subject of legislative, not judicial, readjustment. And with all due respect, I do not find the scholarly writings of experts in the field persuasive, and in any event not controlling, in the light of the fact that the fundamental philosophy of Workmen’s Compensation acts is that remuneration be provided on a no-fault basis in return for employers’ immunity from common law liability.
My concern arises from the fact that in a long and thoughtful Memorandum Opinion, Judge Hermansdorfer correctly stated the *664factual prerequisites for a finding of immunity under the Act, and went on to find that each was satisfied under the circumstances of this case. I can find no reason to hold the following finding of fact made by Judge Hermansdorfer clearly erroneous: “The undisputed course of conduct between Blue Diamond and Scotia, considered as contracting parties, is clear. The intent of the parties as to their respective functions in the Oven Fork, Kentucky mining operation and the consideration to be exchanged between them are beyond doubt. I find a contract to exist between the parties from 1962 to date." It seems to me to be no accident that Judge Hermansdorfer used the word “find,” since it appears clear that the requisite determinations constitute findings of fact. The question of the existence of an implied contract is certainly the sort of issue which, in an appropriate case, would be submitted to a jury.
The majority opinion proceeds through the litany of the requirements of a formal contract, and without difficulty demonstrates that they are not all to be found in the circumstances giving rise to the present litigation. However, it is clear that no such formal contract is required in order to provide immunity. For example, in Upper Elkhorn Coal Co. v. Thornberry, Ky.App., 564 S.W.2d 842 (1977), the Coal Company was being sued for Workmen’s Compensation benefits. The Company argued that it was not a contractor under the Act, and thus not liable for benefits. A partnership owned the lease for the coal fields, and had contracted with the decedent’s employer to produce coal and deliver it to Upper Elk-horn. Despite the fact that there was no contract at all with Upper Eikhorn, much less a “formal” one, the court held that the company was liable for benefits under the Act as a “contractor” because the two partners were acting for the benefit of Upper Eikhorn. It noted that the purpose of the arrangement was to secure production for Eikhorn, and that the benefit of all coal production fell to Upper Eikhorn. Similarly, in this case, there may not be a formal contract, but there is certainly an “arrangement,” through which Blue Diamond obtains the benefit of the production of coal. It is worth emphasizing, too, that the majority’s decision means that a parent company cannot be held liable for Workmen’s Compensation benefits owed to the employees of its subsidiary. While that result may be attractive in the present case, in the long run such a conclusion may well have more unfortunate than beneficial effects.
I would affirm the judgment of the district court.