The opinion of the court was delivered by: J. Ronnie Greer United States District Judge
MEMORANDUM OPINION AND ORDER
Before the Court is the plaintiff's motion for partial summary judgment and the motion for summary judgment filed by defendants Josh King ("King") and Bristol Motor Speedway, Inc. ("BMS"). [Docs. 65 and 71]. These motions deal with the assertion by all defendants that they are entitled to tort immunity under the Tennessee Workers' Compensation Act. Tenn. Code Ann. § 50-6-108. The issue before the Court is whether the defendants qualify as "statutory employers" pursuant to Tenn. Code Ann. § 50-6-113 as to the plaintiff, whereby the defendants would have been liable for workers' compensation benefits had the plaintiff's employer been uninsured, thereby entitling them to the corresponding tort immunity provided by the Tennessee Workers' Compensation Act.
On March 28, 2004, the plaintiff, Jonie Shires ("Shires") was on the grounds of BMS as an employee of Levy PremiumFood Service, L.P., ("Levy"). Levy is in the business of operating restaurants and sports and entertainment related food operations. Levy has contracted with BMS to provide food services in its luxury suites and the "hospitality village." Levy's contract also purports to provide it with the authority to provide other general food concessions but Levy has not exercised this right.
On March 28, 2004, Shires was involved in shutting down Levy's operations for the day. The defendants, Manfred Wiedemann ("Wiedermann"), an employee of Stowers Rental and Supply, Inc. ("Stowers"), and King, a BMS employee, were maneuvering an industrial generator, with the help of a forklift, adjacent to a Levy tent where Shires was working. Stowers is a company from which BMS rents industrial generators and other machinery for race events.
Plaintiff alleges that through the negligent actions of Wiedemann and King, a tent pole fell, striking Shires in the head. The plaintiff has received and continues to receive workers' compensation benefits from her employer, Levy. Both BMS and Stowers, as well as Wiedemann and King, have invoked the statutory employer immunity of Tenn. Code Ann. § 50-6-113. Thus, the issue before the Court is whether the defendants constitute "statutory employers" of the plaintiff.
Summary judgment is appropriate when "there is no genuine issue of material fact." Fed.R.Civ.P. 56(c). The moving party bears the initial burden of proving that no material facts exist, and the court must draw all inferences in a light most favorable to the non-moving party. A court may grant summary judgment when the record taken as a whole could not lead a rational trier of fact to find for the non-moving party. Once the moving party has proved that no material facts exist, the non-moving party must do more than raise a metaphysical or conjectural doubt about issues requiring resolution at trial. Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir.1992) (citations omitted).
In accordance with long standing summary judgment principles, this Court must construe the evidence in this record most favorably for the plaintiff because she is the litigant opposing summary judgment. E.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88(1986); Scott v. Clay County, 205 F.3d 867, 871 (6th Cir.2000). As explained by the Sixth Circuit in Scott, "Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.... The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (citation omitted). See also Eastman Kodak v. Image Technical Services, 504 U.S. 451, 456, 112 S.Ct. 2072, 119 L.Ed.2d 265 (1992);
Adams v. Metiva, 31 F.3d 375, 378-79 (6th Cir.1994).
Tenn. Code Ann. § 50-6-113 expanded the responsibility for paying workers' compensation benefits to certain principal and intermediate contractors and subcontractors, who have become known through the cases interpreting the statute as "statutory employers." Where a principal and intermediate contractor or subcontractor might potentially be subject to liability for workers' compensation benefits, that entity is also entitled to the corresponding immunity in tort traditionally reserved to employers. See Tenn. Code Ann. § 50-6-108.
There are two different situations pursuant to which an entity will be considered a principal contractor for purposes of the act, and therefore considered the "statutory employer" of a subcontractor's employee.
A company or other business is considered a principal contractor if 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. See Barber v. Ralston Purina, 825 S.W. 2d 96, 99 (Tenn. Ct. App. 1991) . . . However even if a company contracts out work other than the type of work usually performed by its employees, a company may nevertheless be considered a principal contractor based on the right of control over the conduct of the work and over the employees of the subcontractor. See Barber, 825 S.W. 2d at 99; See also Brown, 844 S.W. at 137; Acklie, 785 S.W. 2d at 357-58; Stratton, 695 S.W. 2d at 952. We emphasize that the control test is satisfied if the proof demonstrates that the alleged employer had the right to control, regardless of whether this ...