dissenting:
Respectfully I dissent from the majority opinion. The issue in this case, as stated by both parties as well as the majority opinion, is whether the emissions testing performed by TSA was a “regular or recurrent” part of LG&E’s business. The basic facts are not disputed. However, the weight to be given to certain facts, the inferences to be drawn from the proven facts, the inferences to be drawn from facts not proven, and the conclusions that should be reached are hotly contested. The majority believes that these inferences and conclusions can be decided as a matter of law in a motion for summary judgment. I disagree.
In Elkhorn Coal Co. v. Adams, Ky., 313 S.W.2d 421 (1958), the issue was whether the claimant in a workmen’s compensation case was an employee of the coal company or an independent contractor. The coal company, the appellant, argued that the question of whether the claimant was an employee was a question of fact. The Court agreed. After recognizing that the facts were not in dispute, the Court held:
A decision on this question involves the weighing of the facts shown and drawing a reasonable inference therefrom. [Cite omitted].
“The drawing of inferences from other facts in the record is a function of the board and the weight to be given to those facts is for the board to determine.”
Like jury determinations, inferences and conclusions to be drawn from proven basic facts are questions of fact. [Cites omitted]. [Emphasis added].
Id. at 423.
In another worker’s compensation ease the Court held that the inferences to be drawn *825from established facts was to be decided by a fact finder. The Court in Jackson v. General Refractories Co., Ky., 581 S.W.2d 10, 11 (1979), stated, “[w]hen one of two reasonable inferences may be drawn from the evidence, the finders of fact may choose.”
Because inferences and conclusions from proven facts remain questions of fact, I believe that Goldsmith v. Allied Building Components, Ky., 833 S.W.2d 378 (1992), clearly applies to this case, contrary to the majority’s holding that it is distinguishable and nondispositive. In Goldsmith, the Court held “[t]o have benefit of the immunity provision of the Act, Components must also demonstrate to the satisfaction of the trier of fact that providing rough carpentry labor was a regular or recurrent part of its business.” Id. at 381. I believe that Goldsmith holds that when a defendant raises this affirmative defense, a jury should determine what constitutes “regular or recurrent part of its business.”
In this case the weight to be given to the fact that emission testing was required by the EPA, the weight to be given to the frequency of the testing and the amount of control that LG&E had over the testing, and the inferences to be drawn from all of the evidence are decisions for the fact finder. These decisions are not appropriate for a judge to determine as a matter of law in a motion for summary judgment. Consequently, I would reverse the summary judgment.
Furthermore, to prevent the “twin devils” of costs and delay, as suggested in the Goldsmith dissent, on remand of this case the trial should be bifurcated. First, the question of whether the emission testing was a regular or recurrent part of LG&E’s business should be decided by the jury. If the jury decides that it was regular or recurrent, then the lawsuit should be dismissed. If, on the other hand, the jury decides that the testing was not regular or recurrent, then the trial should proceed on the plaintiffs tort claims of negligence.