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Edward F. Heimbrock Co. v. Marine Sales and Service Inc.3/3/1989
MILLER, JUDGE. This is an appeal from an Order of the Jefferson Circuit Court dismissing appellant's action for failure to state a claim. Kentucky Rules of Civil Procedure (CR) 12.02(f).
The facts are these: Gary T. Hubbuch was injured on the slopes of Paoli Peaks, Indiana, while snow-skiing February 3, 1985. Gary and his wife filed suit against the appellee, Marine Sales & Service, Inc. (Marine Sales), for injuries suffered, directly and derivatively. It was alleged that Marine Sales had negligently repaired or adjusted Gary's skis and bindings.
Gary's employer, appellant/Edward F. Heimbrock Co., Inc. (Heimbrock), also sued Marine Sales to recover lost earnings and future profits sustained as a result of Gary's injuries. Gary is the principal stockholder and president of Heimbrock which is engaged in the construction of brick furnaces. It is alleged that Gary is the company's chief salesman, traveling through Kentucky and the mid-east region of the United States to secure new customer accounts. Further, it is asserted that Gary was "the only person who had the technical knowledge to make competitive bids for jobs and who had sufficient skills to value the cost of labor and materials to complete a job properly."
Upon motion of Marine Sales, the trial court dismissed Heimbrock's claim under CR 12.02(f). It is from this order that Heimbrock appeals.
The sole issue on appeal is whether Heimbrock has a cause of action against Marine Sales for economic loss (lost earnings and profits) allegedly sustained as a result of the latter negligently injuring Gary, Heimbrock's key owner/employee. In other words, may an employer maintain an action to recover damages from a tort-feasor who has negligently injured the employer's worker ? Under an appropriate set of facts not here present, the answer may well be "yes." There appears to be no direct authority in this Commonwealth. It seems, however, the weight of modern decisions denies recovery. See Rolling Fashion Mart v. Mainor, 341 S.E.2d 61 (N.C. App. 1986)(citing a host of authority). The denial is largely based upon recognition that the present-day employer/employee relationship is contractual in nature, varying from the common-law rule that a servant was a chattel, the loss of which effectively deprived a master of property.
The common-law rule permitting a master to recover for loss of services of his servant injured by the trespass of a third party has fallen into considerable disregard. See Frank Horton & Co., Inc. v. Diggs, 544 S.W.2d 313 (Mo. Ct. App. 1976), and I. J. Weinrot & Son, Inc. v. Jackson, 40 Cal. 3d 327, 708 P.2d 682, 220 Cal. Rptr. 103 (1985); Annot., 4 A.L.R.4th 504 (1981). In Weinrot & Son, it was observed that the common-law rule was never extended to business employees, but was limited to menial or domestic servants.
Appellant bases its argument upon two cases, to wit: Mattingly v. Sheldon Jackson College, 743 P.2d 356 (Alaska 1987); and People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 495 A.2d 107 (1985).
In Mattingly, the employer (Mattingly) sought recovery for economic loss sustained as a result of tortious injuries to his employees. The employees were sent to the campus of the Sheldon Jackson College to clean a drainpipe. Employees of the college had dug and braced a trench in which Mattingly's employees were to perform the work. The trench collapsed, injuring Mattingly's employees. Mattingly's suit to recover economic damages as a result of the loss of services of his employees was dismissed by the trial court. On appeal, the Alaska Supreme Court reversed, holding that Mattingly,
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