Delanna Miller, Individually And as Administrator of the Estate of Justin Miller As Legal Guardian of Kyndell Elaine Miller, a Minor And as Legal Guardian of Justin Wayne Miller, a Minor v. Kentucky Power Company D/B/A Kentucky Power

RENDERED: NOVEMBER 3, 2023; 10:00 A.M.
TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-1200-MR

DELANNA MILLER,
INDIVIDUALLY; AND AS
ADMINISTRATOR OF THE ESTATE
OF JUSTIN MILLER; AS LEGAL
GUARDIAN OF KYNDELL ELAINE
MILLER, A MINOR; AND AS LEGAL
GUARDIAN OF JUSTIN WAYNE
MILLER, A MINOR APPELLANT

APPEAL FROM BREATHITT CIRCUIT COURT
v. HONORABLE LISA HAYDEN WHISMAN, JUDGE
ACTION NO. 17-CI-00087

KENTUCKY POWER COMPANY
D/B/A KENTUCKY POWER; AEP
KENTUCKY POWER, ASSUMED
NAME CORPORATION OF
KENTUCKY POWER COMPANY;
AMERICAN ELECTRIC POWER, AN
ASSUMED NAME CORPORATION
OF KENTUCKY POWER COMPANY;
ASPLUNDH TREE EXPERT CO.;
AND KENTUCKY POWER,
ASSUMED NAME CORPORATION
OF KENTUCKY POWER COMPANY APPELLEES
 OPINION
AFFIRMING

** ** ** ** **

BEFORE: CALDWELL, COMBS, AND KAREM, JUDGES.

CALDWELL, JUDGE: Delanna Miller appeals from the Breathitt Circuit Court’s

grant of summary judgment in favor of Kentucky Power Company based on up-

the-ladder immunity. We affirm.

FACTS

Justin Miller was tragically electrocuted and killed while trimming a

tree away from an electric utility’s right of way. He was working as an employee

of Asplundh Tree Expert Company (“Asplundh”). Asplundh performed tree

trimming right of way maintenance work pursuant to a contract with Kentucky

Power Company (“Kentucky Power”).

Delanna Miller (“Miller”) is the widow of Justin Miller. As the

administrator of her husband’s estate, Miller filed and settled a workers’

compensation claim with Asplundh. Miller also filed suit against Kentucky Power,

in her individual capacity and as administrator of the estate and the guardian of

minor children, asserting claims for wrongful death and for loss of consortium.

Kentucky Power filed a motion for summary judgment, arguing it was

entitled to up-the-ladder immunity. It cited undisputed evidence of its own and

Asplundh’s workers’ compensation coverage and of its contract with Asplundh –

-2-
for Asplundh to perform tree trimming right of way maintenance work (also called

line clearance) for Kentucky Power. Kentucky Power further argued that the tree

trimming right of way maintenance work performed by Asplundh was a regular or

recurrent part of its business. It asserted that vegetation management to further

safety and prevent outages was required by law and cited evidence that the tree

trimming right of way maintenance work was generally performed several times

per week year-round barring inclement weather.

In response, Miller asserted that Kentucky Power could not prove that

it would normally perform or be expected to perform the tree trimming work with

its own employees. Miller pointed to testimony that Kentucky Power’s own

employees did not perform this type of tree trimming work and that other electric

utilities also did not perform this kind of work with their own employees. She

argued Kentucky Power could not show the work was a regular or recurrent part of

its business as defined by General Electrical Company v. Cain, 236 S.W.3d 579

(Ky. 2007):

Work of a kind that is a “regular or recurrent part
of the work of the trade, business, occupation, or
profession” of an owner does not mean work that is
beneficial or incidental to the owner’s business or that is
necessary to enable the owner to continue in business,
improve or expand its business, or remain or become
more competitive in the market. It is work that is
customary, usual, or normal to the particular business
(including work assumed by contract or required by law)
or work that the business repeats with some degree of

-3-
 regularity, and it is of a kind that the business or
similar businesses would normally perform or be
expected to perform with employees.

Id. at 588 (emphasis added) (citation omitted).

Despite Miller’s arguments, the trial court granted Kentucky Power’s

motion for summary judgment. It cited another portion of Cain in which our

Supreme Court defined regular as meaning a “customary, usual or normal part” of

the business “including work assumed by contract or required by law” and

recurrent as meaning “repeated though not with the preciseness of a clock.”

The trial court recognized that it was undisputed that Kentucky Power

never performed the tree-trimming right of way maintenance work with its own

employees. But the trial court viewed the question of whether a business ever

performed the work at issue with its own employees as only one factor to consider

in determining whether up-the-ladder immunity applied.

The trial court further noted precedent stating that the fact that a

business may never use its own employees to perform the work at issue does not

necessarily preclude up-the-ladder immunity. Specifically, it quoted Cabrera v.

JBS USA, LLC, 568 S.W.3d 865 (Ky. App. 2019):

whether JBS employees ever performed this type of work
with its own employees or had employees skilled enough
or trained to do it is not dispositive of this issue. Persons
or entities who engage another to perform a part of the
work which is a recurrent part of their business, trade, or
occupation are considered “contractors” under the Act

-4-
 even if they never perform that type of work with their
own employees.

Id. at 869-70 (citing Fireman’s Fund Ins. Co. v. Sherman & Fletcher, 705 S.W.2d

459, 462 (Ky. 1986)).

The trial court determined that the tree trimming line clearance work

at issue was recurrent because it was performed frequently1 and that it was regular

because it was required by law.2 So, it concluded that this work was a regular or

recurrent part of the work of Kentucky Power’s business and that Kentucky Power

was therefore entitled to up-the-ladder immunity.

Miller then filed the appeal before us now3 in a timely manner. She

contends that Fireman’s Fund was modified by Cain and that Cabrera (decided by

this Court) is inconsistent with Kentucky Supreme Court precedent including Cain.

1
The trial court characterized the tree-trimming right of way maintenance work as being
performed daily. Based on our review of the record, testimony indicated that such tree trimming
right of way maintenance work was performed several times per week year-round barring
inclement weather – if not technically daily, nearly so. Miller does not dispute that this type of
work was performed on a frequent basis.
2
In concluding the work at issue was required by law, the trial court cited Section 3 of 807
Kentucky Administrative Regulations (“KAR”) 5:041 as requiring electric utilities to comply
with the National Electric Safety Code (“NESC”). And it quoted Section 218 of the NESC:
“vegetation that may damage ungrounded supply conductors should be pruned or removed.”
(Record (“R.”), p. 617). Miller does not appear to dispute that Kentucky Power was required by
law to manage vegetation around its distribution lines.
3
Miller had filed an earlier appeal (No. 2022-CA-0325-MR). The trial court’s initial order
granting summary judgment in Kentucky Power’s favor stated the order was “final and
appealable”; however, this initial order granting summary judgment did not adjudicate Kentucky
Power’s third-party claim against Asplundh nor did it state there was no just cause for delay.
Thus, we determined that the order initially granting summary judgment was an interlocutory,

-5-
She further contends that Kentucky Power cannot show that it would normally

perform or be expected to perform the work at issue with its own employees – so

she argues this work was not a regular or recurrent part of its business as defined

by Cain. Therefore, she asserts that Kentucky Power is not entitled to up-the-

ladder immunity and that the summary judgment in its favor was improperly

granted.

ANALYSIS

Standard of Review

In reviewing the trial court’s grant of summary judgment, “we must consider

whether the circuit court correctly determined that there were no genuine issues of

material fact and that the moving party was entitled to judgment as a matter of

law.” Cabrera, 568 S.W.3d at 868. We do not defer to the trial court’s decision to

grant summary judgment since “summary judgment involves only questions of law

and not the resolution of disputed material facts” and we review the trial court’s

interpretation of the law de novo. Id.

Furthermore, in reviewing the trial court’s grant of summary judgment

de novo, an appellate court “must also view the record in a light most favorable to

non-appealable order. See Rules of Civil Procedure (“CR”) 54.01; CR 54.02(1). So, we
concluded we lacked jurisdiction and entered an order dismissing the appeal in No. 2022-CA-
0325-MR. The present appeal, on the other hand, is undisputedly taken from a final and
appealable order.

-6-
the nonmoving party and resolve all reasonable doubts in that party’s favor.” A.H.

v. Louisville Metro Government, 612 S.W.3d 902, 908 (Ky. 2020) (citing Steelvest,

Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991)).

Despite the non-deferential standard of review, we discern no

reversible error in the trial court’s grant of summary judgment.

Trial Court Properly Concluded Kentucky Power Was Entitled to
Up-the-Ladder Immunity

KRS4 342.610(1) states: “Every employer subject to this chapter shall

be liable for compensation for injury, occupational disease, or death without regard

to fault as a cause of the injury, occupational disease, or death.” And KRS

342.610(2)(b) defines an employer subject to such workers’ compensation liability

as including a contractor who subcontracts any part of a contract “to have work

performed of a kind which is a regular or recurrent part of the work of the trade,

business, occupation, or profession of such person[.]”

Pursuant to KRS 342.690 (Exclusiveness of liability), statutory

employers who are subject to workers’ compensation liability under KRS

342.610(2) – including contractors who subcontract out regular or recurrent work

of their business – are not subject to any other form of liability for work injuries if

they secure payment for workers’ compensation:

4
Kentucky Revised Statutes.

-7-
 If an employer secures payment of compensation as
required by this chapter, the liability of such employer
under this chapter shall be exclusive and in place of all
other liability of such employer to the employee, his legal
representative, husband or wife, parents, dependents,
next of kin, and anyone otherwise entitled to recover
damages from such employer at law or in admiralty on
account of such injury or death. For purposes of this
section, the term “employer” shall include a “contractor”
covered by subsection (2) of KRS 342.610, whether or
not the subcontractor has in fact, secured the payment of
compensation. The liability of an employer to another
person who may be liable for or who has paid damages
on account of injury or death of an employee of such
employer arising out of and in the course of employment
and caused by a breach of any duty or obligation owed by
such employer to such other shall be limited to the
amount of compensation and other benefits for which
such employer is liable under this chapter on account of
such injury or death, unless such other and the employer
by written contract have agreed to share liability in a
different manner.

KRS 342.690(1).

Construing together KRS 342.610 and KRS 342.690, employers

subject to workers’ compensation liability who secure payment for workers’

compensation are immune from other, non-workers’ compensation claims for work

injuries. This immunity is often referred to as “exclusive remedy” immunity. A

party asserting entitlement to exclusive remedy immunity bears the burden of

proving this affirmative defense. See Cain, 236 S.W.3d at 585 (“[A] premises

-8-
owner who asserts exclusive remedy immunity must both plead and prove the

affirmative defense.”).5

Such exclusive remedy immunity from tort claims for work injuries

extends “up-the-ladder” from subcontractors directly employing workers to

qualifying contractors:

the term “employer,” for purposes of coverage under the
Act and corresponding workers’ compensation immunity,
includes “contractors” which are defined by the Act in
relevant part as follows: “A person who contracts with
another . . . (b) [t]o have work performed of a kind which
is a regular or recurrent part of the work of the trade,
business, occupation, or profession of such person shall
for the purposes of this section be deemed a contractor,
and such other person a subcontractor.” KRS
342.610(2); see also KRS 342.690(1). If a defendant
qualifies as a contractor, “it has no liability in tort to an
injured employee of a subcontractor.”

In other words, tort immunity under the Act
extends “up the ladder” from the subcontractor that
employs an injured person to the entities that contracted
with the subcontractor, so long as the injured person’s
employer has workers’ compensation coverage, and the
up the ladder entities contracted “to have work performed
of a kind which is a regular or recurrent part of the work”
of their business.

5
Based on our review of the record, Kentucky Power pled the affirmative defense of exclusive
remedy immunity pursuant to KRS 342.290. And Miller does not assert it failed to plead this
affirmative defense in her appellate briefs.

-9-
Cabrera, 568 S.W.3d at 869 (footnote and citations omitted).6 Accord Cain, 236

S.W.3d at 585.

There appears to be no dispute that Kentucky Power contracted with

Asplundh to have the tree trimming work performed or that both Kentucky Power

and Asplundh had workers’ compensation coverage. However, the parties dispute

whether this work performed by Asplundh was a regular or recurrent part of the

work of Kentucky Power’s business.

Miller quotes language from Kentucky Supreme Court precedent

indicating that the “regular or recurrent” work of a business in this context entails

work that the business’s employees would normally perform or would be expected

to perform. See Cain, 236 S.W.3d at 588. She cites evidence in the record casting

doubt on whether the tree trimming work at issue here would normally be

performed or be expected to be performed by Kentucky Power’s employees. For

example, she points to testimony from Kentucky Power representatives that the

tree trimming work at issue here was never performed by Kentucky Power

employees but instead by subcontractors’ employees. She also cites testimony

about other electric utilities also subcontracting out such tree trimming work rather

6
Our Supreme Court discussed public policy considerations for extending tort immunity to
statutory employers subject to workers’ compensation liability in Falk v. All. Coal, LLC, 461
S.W.3d 760, 765 (Ky. 2015) (noting purpose of workers’ compensation laws to allow injured
workers to obtain benefits without having to prove fault while employers who agree to pay such
benefits receive tort immunity; also recognizing this immunity extends to contractors and carriers
who are also actually or potentially liable for workers’ compensation benefits).

-10-
than expecting their own employees to perform this work – perhaps suggesting an

industry-wide practice. She further points to testimony showing that Kentucky

Power employees did not actively supervise or manage the vegetation management

right of way work performed by Asplundh other than perhaps to direct that such

vegetation management be scheduled for certain areas.

Construing this evidence in the light most favorable to Miller, perhaps

this evidence indicates the tree trimming work would not normally be performed

by or be expected to be performed by Kentucky Power employees. Nonetheless,

we conclude that the trial court did not err in determining that Kentucky Power

was entitled to summary judgment based on up-the-ladder immunity under the

largely undisputed facts here.

As we recently stated in Cabrera, “Persons or entities who engage

another to perform a part of the work which is a recurrent part of their business,

trade, or occupation are considered ‘contractors’ under the Act even if they never

perform that type of work with their own employees.” 568 S.W.3d at 869-70,

(citing Fireman’s Fund, 705 S.W.2d at 462). See also Pennington v. Jenkins-Essex

Const., Inc., 238 S.W.3d 660, 664 (Ky. App. 2006), disc. review denied (Dec. 12,

2007) (citing Fireman’s Fund, 705 S.W.2d at 461-62).

Further, we reject Miller’s argument that Cain modified Fireman’s

Fund. Our Supreme Court quoted Fireman’s Fund, 705 S.W.2d at 462 in Cain,

-11-
236 S.W.3d at 586 (subcontractor’s employee performing rough carpentry in

Fireman’s Fund was considered statutory employee of premises owner/contractor

in building construction business because “rough framing carpentry is work of a

kind which is a regular or recurrent part of the work of the business of building

construction”). But our Supreme Court did not expressly state in Cain that it was

disturbing any holding in Fireman’s Fund.

In fact, our Supreme Court again cited Fireman’s Fund in a case

rendered a few years after Cain to state that: “A contractor that never performs a

particular job with its own employees can still come within KRS 342.610(2)(b).”

Doctors’ Associates, Inc. v. Uninsured Employers’ Fund, 364 S.W.3d 88, 92 (Ky.

2011). And our Supreme Court was certainly aware of and even quoted Cain in

Doctor’s Associates. 364 S.W.3d at 92 (quoting Cain, 236 S.W.3d at 588)

(including within a description of what regular or recurrent work of a business

entails: “[I]t is of a kind that the business or similar businesses would normally

perform or be expected to perform with employees. The test is relative, not

absolute.”).

In light of our Supreme Court’s similar reliance on Fireman’s Fund in

Doctor’s Associates, our opinion in Cabrera relying on the Fireman’s Fund rule is

-12-
not inconsistent with binding Supreme Court precedent.7 Thus, we discern no error

in the trial court’s relying on Cabrera as binding precedent from this Court.

Furthermore, as discussed by the trial court, the evidence undisputedly

showed the work at issue was repeated frequently and required by law. Thus, this

undisputed evidence showed the work met definitions of regular or recurrent work

in Cain, 236 S.W.3d at 586-87; Daniels v. Louisville Gas and Elec. Co., 933

S.W.2d 821, 824 (Ky. App. 1996); and Cabrera, 568 S.W.3d at 870.

We welcome further clarification from our Supreme Court concerning

the proper application of language in Cain about how expectations about whether

the work would normally be performed by a business’s own employees should

play a part in determining whether the work at issue is a regular or recurrent part of

the business’s work.

As Miller points out, some recent opinions from a federal court

construing Kentucky law and from our Supreme Court may appear to require

consideration of expectations about whether the work would normally be

performed by the business’s own employees to determine questions of up-the-

7
Arguably, some may perceive the language in Doctor’s Associates that a contractor who never
performs a task with its own employees may still come within KRS 342.610(2)(b) to be
inconsistent with language in Cain stating that the regular or recurrent work of a business is work
which would normally be performed by the business’s own employees. To the extent there is
inconsistency between Cain and Doctor’s Associates, we must give more weight to Doctor’s
Associates as it is the more recent decision. See, e.g., 5 Am. Jur. 2d Appellate Review § 518
(2023) (“If decisions of the state supreme court are inconsistent, lower courts will follow the
state supreme court’s most recent pronouncement.”).

-13-
ladder immunity. See Black v. Dixie Consumer Products LLC, 835 F.3d 579, 585

(6th Cir. 2016) (interpreting Cain as establishing a three-part test for determining

whether up-the-ladder immunity applies, including an inquiry into whether the

work was “work that Dixie or similar businesses would normally perform or be

expected to perform with employees”).8 See also Tryon Trucking, Inc. v. Medlin,

586 S.W.3d 233, 239 (Ky. 2019) (noting Cain definition of regular or recurrent

work of a business including provision that “it is of a kind that the business or

similar businesses would normally perform or be expected to perform with

employees”).

Miller also contends that Medlin indicates it is necessary to establish

the business’s own employees would have the equipment, training, skills, and

capability to perform the work to show that the work is a regular or recurrent part

of the work of the business. See id. at 240-41.

In response, Kentucky Power asserts that the work at issue in Black

and Medlin and Cain was not work required by law – unlike Cabrera in which the

injured worker had been performing sanitation services required by law in a meat

packing plant. 568 S.W.3d at 869. In Cabrera, we quoted Cain’s language about

consideration of whether the work would normally be performed or be expected to

be performed by the business’s own employees. 568 S.W.3d at 870. But we did

8
Of course, we are not bound by a federal court’s interpretation of Kentucky state law.

-14-
not expressly discuss any evidence in this regard. And we ultimately upheld the

trial court’s conclusion that the sanitation work was a regular or recurrent part of

the work of the meat packing plant’s business and the trial court’s dismissal of

claims against JBS based on up-the-ladder immunity. See id. at 869-70.

Kentucky Power suggests that Cabrera indicates that proving the

work would normally be performed or be expected to be performed by the

business’s own employees is not required to show regular or recurrent work if the

work is required by law. However, Cain does not expressly address if

consideration of any expectations that the work would normally be performed by

the business’s own employees is necessary when the work is required by law –

possibly because the work at issue there was not required by law. See 236 S.W.3d

at 587-88 (summarizing relevant inquiries for determining whether work at issue is

part of the regular or recurrent work of a business); 236 S.W.3d at 589-604

(describing facts of work at issue in individual cases discussed in Cain opinion).

Miller points out that the work at issue in Medlin and Black was

required by contract. See Medlin, 586 S.W.3d at 235-36; Black, 835 F.3d at 585.

So, the work at issue in these cases clearly qualifies as regular in the sense of being

required by contract. But Medlin and Black still call for consideration of whether

the work would normally be expected to be performed by the business’s own

-15-
employees to determine if it was part of the regular or recurrent work of the

business.

Nonetheless, we construe Cain and Cabrera together with other

published precedent from Kentucky appellate courts discussed herein to support

the trial court’s conclusion that the work here qualified as regular or recurrent work

and that Kentucky Power was entitled to up-the-ladder immunity. For example,

we perceive the overarching gist of Cain to be that construction or demolition

projects are generally not considered to be part of the regular or recurrent work of a

premises owner’s business in most circumstances whereas routine maintenance is

generally considered regular or recurrent work of a premise owner’s business in

most circumstances. Cain, 236 S.W.3d at 588. And the tree trimming right of way

maintenance work performed by Asplundh certainly appears to be more akin to

routine maintenance than major construction or demolition projects.

Furthermore, this Court has construed Cain as not setting forth a new

test for up-the-ladder immunity but merely summarizing the same test set forth in

prior precedent. In fact, in a decision rendered after Cain, we expressly rejected

the argument that a contractor must show both that 1) the work was both

“customary to the business or repeated with a degree of regularity” (i.e., regular or

recurrent) and 2) “of a kind normally performed or expected to be performed by

-16-
employees” to qualify for up-the-ladder immunity. Forbes v. Dixon Elec., Inc.,

332 S.W.3d 733, 738 (Ky. App. 2010), disc. review denied (Mar. 16, 2011).

In sum, the trial court properly applied binding precedent in

concluding there were no genuine issues of material fact and that Kentucky Power

was entitled to summary judgment on the basis of up-the-ladder immunity due to

the undisputed evidence of its workers’ compensation coverage, the recurrent

nature of the work performed on a near-daily basis, and the fact that the tree

trimming right of way maintenance work was required by law. See Cabrera, 568

S.W.3d at 870.

Further arguments raised in the parties’ briefs which are not discussed

herein have been determined to lack merit or relevancy to our resolving this

appeal.

CONCLUSION

For the foregoing reasons, we AFFIRM the Breathitt Circuit Court’s

judgment.

ALL CONCUR.

-17-
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE
KENTUCKY POWER COMPANY:
L. Dustin Riddle
Salyersville, Kentucky Wendell S. Roberts
Donald R. Yates, II
Ashland, Kentucky

Randall Scott May
Hazard, Kentucky

-18-