Scotty's Contracting and Stone, LLC v. Ashley Graves

RENDERED: AUGUST 28, 2026; 10:00 A.M. TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2024-CA-0287-MR SCOTTY’S CONTRACTING AND STONE, LLC APPELLANT APPEAL FROM BARREN CIRCUIT COURT v. HONORABLE JOHN T. ALEXANDER, JUDGE ACTION NO. 13-CI-00487 ASHLEY GRAVES; DARYL PRICE; GREG MEREDITH; JAMIE GROCE; JOHN MCINTOSH; JON LAM; KENTUCKY ASSOCIATED GENERAL CONTRACTORS SELF INSURANCE FUND; KEVIN GERALDS; MARK LOVE; STEVE NELSON; STEVEN NELSON, ADMINISTRATOR OF THE ESTATE OF LINDA NELSON; TOM LAPHAM; VANMETER CONTRACTING, INC.; VELMA DECKER, EXECUTRIX OF THE ESTATE OF KENNETH DECKER; AND VELMA DECKER, INDIVIDUALLY APPELLEES AND NO. 2024-CA-0352-MR SCOTTY’S CONTRACTING AND STONE, LLC APPELLANT  APPEAL FROM BARREN CIRCUIT COURT v. HONORABLE JOHN T. ALEXANDER, JUDGE ACTION NO. 13-CI-00487 ASHLEY GRAVES; DARYL PRICE; GREG MEREDITH; JAMIE GROCE; JOHN MCINTOSH; JON LAM; KENTUCKY ASSOCIATED GENERAL CONTRACTORS SELF INSURANCE FUND; KEVIN GERALDS; LINDA NELSON; MARK LOVE; STEVE NELSON; STEVEN NELSON, ADMINISTRATOR OF THE ESTATE OF LINDA NELSON; TOM LAPHAM; VANMETER CONTRACTING, INC.; VELMA DECKER, EXECUTRIX OF THE ESTATE OF KENNETH DECKER; AND VELMA DECKER, INDIVIDUALLY APPELLEES OPINION REVERSING AND REMANDING WITH INSTRUCTIONS ** ** ** ** ** BEFORE: ACREE, MCNEILL, AND TAYLOR, JUDGES. ACREE, JUDGE: Scotty’s Contracting and Stone, LLC (Scotty’s) appeals the Barren Circuit Court’s December 11, 2023 judgment as amended by Order entered February 1, 2024, and the interlocutory orders and judgments made final by the -2- final judgment as amended.1 We reverse the judgment and remand with instructions to dismiss all claims. BACKGROUND AND PROCEDURE In 2011, the Kentucky Transportation Cabinet (KTC) awarded a contract to Scotty’s for a road construction project. Scotty’s subcontracted with VanMeter Contracting, Inc. (VanMeter) to build retaining walls using large premanufactured forms. The workplace accident and pursuit of workers’ compensation VanMeter employees successfully constructed several sections of retaining wall before October 8, 2012. On that date, they were pouring concrete into a form they placed for the next section when it raised, toppled, and collapsed, killing VanMeter employee Kenneth Decker and injuring three of his co-workers2 (Plaintiffs/Appellees). Meredith v. Decker, No. 2016-CA-000721-MR, 2018 WL 4054940, at *1 (Ky. App. Aug. 24, 2018). 1 Included were: April 18, 2016 Order; May 13, 2016 Order; April 23, 2021 Order; April 30, 2021 Consent Judgment, Assignment, and Forbearance; October 14, 2022 Order; March 9, 2023 Calendar Order, all made final and appealable by the trial court’s December 11, 2023 Findings of Fact, Conclusions of Law, and Judgment. Both Scotty’s and Plaintiffs/Appellees filed motions to amend the December 11, 2023 Judgment. The trial court granted only the Plaintiffs/Appellees’ motion and amended the judgment by Order entered February 1, 2024. Scotty’s moved to amend the new judgment, and the trial court denied that motion by Order entered March 11, 2024. 2 Those injured were John McIntosh, Steve Nelson, and Jamie Groce. With the Estate of Kenneth Decker and the loss-of-consortium claimants Velma Decker and Linda Nelson (substituted by her estate), this group is referred to as Plaintiffs/Appellees when not identified individually. -3-  Scotty’s and VanMeter had “secure[d] payment of compensation as required by” the Kentucky Workers’ Compensation Act, KRS3 342.0011 et seq. (the Act). KRS 342.690(1). No Plaintiff/Appellee opted out of the Act’s coverage and all of them pursued its benefits. The Act was thus Plaintiffs/Appellees’ “exclusive” remedy against their employer, “in place of all other liability of such employer . . . at law or in admiralty on account of” the workplace accident. Id. Each Plaintiff/Appellee received workers’ compensation from VanMeter through its insurer. Plaintiff/Appellee Jamie Groce is an example. As with all Plaintiffs/Appellees’ claims, there was never an issue about work-relatedness, typically analyzed in the context of causation. See, e.g., Vacuum Depositing, Inc. v. Dever, 285 S.W.3d 730, 732 (Ky. 2009) (discussing Workman presumption4). The Administrative Law Judge (ALJ) awarded Groce benefits based on a 54% permanent total disability rating. Groce v. VanMeter Contracting, Inc., 539 S.W.3d 677, 681 (Ky. 2018) (quoting KRS 342.165(1)). But Groce placed the question of what actually caused the accident (primary and efficient cause) directly before the ALJ by “assert[ing] a claim for the 30% benefit enhancement . . . for a workplace injury ‘caused in any degree by the 3 Kentucky Revised Statutes. 4 In Kentucky, there is “a presumption that an unexplained workplace fall arises out of the employment unless the employer presents substantial evidence to show otherwise.” Vacuum Depositing, 285 S.W.3d at 733 (citing Workman v. Wesley Manor Methodist Home, 462 S.W.2d 898, 900 (Ky. 1971)). -4- intentional failure of the employer to comply with any specific statute or lawful administrative regulation made thereunder, communicated to the employer and relative to installation or maintenance of safety appliances or methods.’” Id. Groce bore the burden of proving KRS 342.165(1)’s elements, but she failed to carry it. The ALJ “methodically examined the evidence supporting Groce’s allegations of a safety violation and was unconvinced.” Id. at 684. But the Supreme Court went further, affirming the ALJ’s factual finding that VanMeter’s employees did properly secure the form. The Court said: the ALJ did not merely conclude that Groce had failed to meet her evidentiary burden of proving that VanMeter violated 29 CFR[5] 1926.703(a)(1) [OSHA regulation governing “General requirements for formwork”] by failing to use the required push-pull pipe bracing and by failing to properly space the anchor bolts on the concrete forms; rather, the ALJ found from the evidence that VanMeter had used push-pull pipe bracing and had spaced its bolts within four-foot intervals. Thus, the ALJ affirmatively found that these alleged violations did not occur. Groce directs us to no evidence that compels a finding in opposition to the ALJ’s determination. The ALJ also expressly rejected the safety deficiencies identified by Groce’s co-worker, Steve Nelson, relating to the anchor bolt spacing and the use of tie-downs.[6] 5 Code of Federal Regulations. Kentucky incorporates this federal law. 803 Kentucky Administrative Regulations (KAR) 2:416. 6 Nelson did not testify in Groce’s workers’ compensation case. Support for Groce’s claim of VanMeter’s wrongdoing came from “the deposition testimony of Groce’s co-worker, Steve Nelson, taken from Nelson’s own worker[s’] compensation claim.” VanMeter Contracting, Inc. v. Groce, No. 2016-CA-000776-WC, 2017 WL 1369977, at *5 (Ky. App. Apr. 14, 2017), aff’d, 539 S.W.3d 677 (Ky. 2018). -5- Id. at 683–84 (emphasis added) (double emphasis original). In Groce, the Supreme Court affirmed this Court’s intermediate appellate review in which we cited evidence the ALJ received identifying a potential alternative cause of the accident—a product defect. VanMeter Contracting, Inc. v. Groce, No. 2016-CA-000776-WC, 2017 WL 1369977, at *6 (Ky. App. Apr. 14, 2017), aff’d, 539 S.W.3d 677 (Ky. 2018). VanMeter’s president testified at Groce’s hearing “that after the incident, the manufacturer of the forms reviewed the incident and stated that [VanMeter employees had used] even more anchor bolts than recommended. He testified that the wall collapsed because the anchor bolts going into the footer failed, but he did not know why this happened.” Id. In Groce, the Supreme Court quoted the investigation report of the Kentucky Labor Cabinet, Office of Occupational Safety and Health (KOSHA), which found, consistently with a failed anchor bolt, that “[a]s the employees were topping off the fill, they heard a loud pop and the entire form raised and toppled to the east toward the crane.” Groce, 539 S.W.3d at 680.7 The affirmative finding that VanMeter complied with the 7 In Groce, the Supreme Court identified this agency as the Kentucky Occupational Safety and Health Administration and using the acronym KOSHA. 539 S.W.3d at 680. Therefore, we use the same acronym. -6- federal and state safety standards made it impossible for Groce to prove an intentional disregard of those standards and the ALJ denied enhanced benefits. Plaintiffs/Appellees sue KTC engineers as third-party tortfeasors Before the ALJ ruled on Groce’s claim in December 2015, every Plaintiff/Appellee sought additional compensation in civil court, invoking jurisdiction pursuant to KRS 342.700(1) to sue the seven Kentucky Transportation Cabinet (KTC) engineers (Engineers) associated with the project.8 The complaint alleged generally that “a culture of neglect, complacency, and disregard for the safety of the public has pervaded the Kentucky Department of Highways . . . .” (Complaint ¶ 2). They said each one “negligently, carelessly, recklessly, and maliciously allowed the hazardous and unsafe conditions at The Project to continue . . . [and] should have shut the project down.” (Complaint ¶¶ 4–10). That sufficed to state a negligence claim that: (1) the Engineers had a primary duty to inspect VanMeter’s employees’ work and a second duty to shut down the project under circumstances Plaintiffs/Appellees alleged were dangerous; (2) the Engineers’ failures of both duties were alleged to have been breached; and (3) but for those breaches, Plaintiffs/Appellees would not have suffered their injuries. 8 Greg Meredith, Chief District Engineer; Kevin Geralds, Engineer Supervisor; Ashley Graves, Transportation Engineering Supervisor; Tom Lapham, Transportation Engineer; Mark Love, Tech. Transportation Engineer; Jon Lam, Staff Engineer; and Daryl Price, Project Engineer. -7- Engineers claim qualified immunity In addition to denying the allegations, the Engineers argued they were entitled to qualified official immunity. The trial court ruled they were not. In Meredith v. Decker, supra, this Court affirmed the trial court, stating the Engineers’ primary “duty to inspect the concrete forms prior to the pouring of the concrete” was ministerial. 2018 WL 4054940, at *3. However, there was the secondary duty to “shut the construction project down due to said unsafe work conditions[.]” Id., at *2. Such a duty was conditioned on a predicate fact—that if the Engineers had satisfied their primary duty to inspect, they would have discovered “a recognized danger . . . to be imminent, . . . in the opinion of the SE [Section Engineer].” Id. (quoting trial court order (quoting KTC Construction Guidance Manual (May 2009), p. 1 of 2) (hereafter CGM)). When the trial court ruled on the Engineers’ immunity claim on April 18, 2016, the predicate fact of VanMeter employees’ failure to secure the concrete form was not established. Therefore, to determine whether the duty to shut down the project was ministerial or discretionary, the trial court had to assume VanMeter employees committed a discoverable violation of a CGM requirement that established the duty. (Order, Apr. 18, 2016). As said in Meredith, this Court had to indulge the same assumption to review the trial court’s order on appeal. -8-  Bound in Meredith by the narrow scope of interlocutory appeal jurisdiction, this Court was appropriately circumspect. We did not decide, nor did we need to decide, whether the assumed predicate fact actually existed as the parties asked us to do. Meredith, 2018 WL 4054940, at *1 (“[W]e lack jurisdiction to resolve most of the arguments presented” as summary judgment grounds.). “To be clear,” we said, “whether the KTC Engineers failed to perform within the scope of their duties, or proximately caused any legally cognizable damages cannot be addressed at this point because doing so would determine the substantive claims of negligence asserted in this litigation.” Id., at *3 (emphasis original). The arguments we could not reach in the five appeals consolidated in Meredith were returned to the trial court, resolved, appealed, and are now properly before us. Hence, we need to set out the background to those arguments here. Engineers pursue third-party claims against Scotty’s and VanMeter Soon after the Engineers filed their answer denying the allegations of Plaintiffs/Appellees’ complaint, the trial court allowed them to bring third-party claims against Scotty’s and VanMeter for contractual and common law indemnity. As motion practice proceeded, they based the contractual indemnity claim on their interpretation of Kentucky’s Standard Specifications for Road and Bridge Construction, section 107.13.9 Section 107.13 reads in its entirety: 9 The trial court dismissed KTC Engineers’ claim for common law indemnity against Scotty’s. -9-  107.13 RESPONSIBILITY FOR DAMAGE CLAIMS. The Contractor shall indemnify and save harmless the Commonwealth, the Department [of Highways], and all its officers, agents, and employees from all suits, actions, or claims of any character brought on account of any of the following: 1) injuries or damages sustained by any person or property resulting from the Contractor’s act; 2) neglecting safeguarding the work; 3) acts, omissions, neglect, or misconduct; 4) claims or amounts recovered from any infringement of patent, trademark, or copyright; and 5) claims or amounts arising or recovered under Workers Compensation Act, or any other law, ordinance, order, or decree. The Department will retain money due the Contractor in amounts sufficient to cover the cost of such suits, actions, or claims for the use of the Commonwealth. By executing this Contract, the parties do not intend to create for the public or any of its members a third party beneficiary, or to authorize anyone not a party to the Contract, a suit for personal injuries or property damage.[10] VanMeter answered the third-party complaint. Scotty’s answered and filed a cross-claim against VanMeter for indemnity. Motion practice then ensued. 10 None of the briefs quote section 107.13 in full. They all exclude the last two unnumbered paragraphs. -10-  In the same April 18, 2016 order we reviewed, in part, in Meredith, the trial court addressed summary judgment motions filed by the parties to the third-party claims. The court denied the Engineers’ motion for summary judgment on Plaintiffs/Appellees’ claim after seeing “evidence that could lead a reasonable juror to find that the failure of the [Engineers] to comply with the Construction Guidance Manual and the Kentucky Standard Specifications for Road and Bridge [Construction11] was a proximate cause of [their] injuries.” (Order, Apr. 18, 2016). When the Engineers suggested section 107.13 (incorporated by reference in both Scotty’s contract and VanMeter’s subcontract) required Scotty’s and VanMeter to indemnify the Engineers for the Engineers’ own negligence, both responded with summary judgment motions. When VanMeter disputed that interpretation, the Engineers changed their approach, stating “Standard Specification 107.13” grants the Engineers a right “to be reimbursed in amounts sufficient to cover the costs of such suits, actions, or claims” brought against them by reason of Scotty’s or VanMeter’s actions (or of their respective employees) and “that these expenses should be recovered from VanMeter through a claim of indemnity at the end of this action.” (Id.) 11 The trial court cited Kentucky Standard Specification 601.03.12(A) that prohibits “deposit[ing] concrete in forms until . . . the Engineer has inspected forms and materials.” See Meredith, 2018 WL 4054940, at *3 (“KTC employees had a duty to inspect the concrete forms prior to the pouring of the concrete.”). -11-  In ruling on VanMeter’s summary judgment motion, the trial court rejected the Engineers’ argument that section 107.13 requires VanMeter to indemnify them for their own breaches of duty when sued in their individual capacity. It said, “when there is a doubt as to the meaning of an indemnity clause the construction should be against the contention that the contract was meant to indemnify against an indemnitee’s own negligence.” (Order, Apr. 18, 2016) (citing Fosson v. Ashland Oil and Refining Co., 309 S.W.2d 176, 178 (Ky. 1957)). The trial court dismissed the Engineers’ contractual indemnity claim against VanMeter. VanMeter remained in the case to defend Scotty’s pending cross-claim. Scotty’s too moved for summary judgment on the same ground as VanMeter. This time, the trial court interpreted section 107.13 differently. The trial court cited subsection (2) of section 107.13 which says the “Contractor shall indemnify and save harmless the Commonwealth, the Department [of Highways], and all its officers, agents, and employees from all suits, actions, or claims of any character brought on account of . . . (2) neglecting safeguarding the work . . . .” (Order, May 13, 2016). Attempting to clarify, the trial court said Scotty’s “is not being asked to indemnify” the Engineers for their negligence but “with respect to loss caused by its own alleged negligence.” (Id.) It only ruled it was not impossible for Scotty’s to be found liable. (Order, Apr. 23, 2021). The trial court said, “the duty to ‘safeguard the work’ would appear to encompass a responsibility -12- to see that safety standards were met[,]” but expressly questioned “[i]f there is such a duty[.]” (Id.) Still, it denied Scotty’s summary judgment motion. This is the point at which the Engineers claimed qualified immunity in Meredith v. Decker. Upon that opinion’s remand of the case, the parties commenced a new round of motion practice. Amid this second round, and outside the proceedings, counsel for the Engineers and Plaintiffs/Appellees negotiated an assignment of claims, a consent judgment, and a forbearance and indemnity agreement. Assignment of claims and consent judgment The Assignment of Rights of Claims identifies the Engineers as “Assignors” and the Plaintiffs/Appellees as “Assignees” and, in pertinent part, states as follows: • “Assignors may possess certain claims, including, but not limited to, indemnity against Scotty’s . . . and VanMeter . . . [and] desire to convey, transfer, and assign to Assignees all of Assignors’ whatever rights . . . .” • “. . . for good and valuable consideration, . . . Assignors and Assignees hereby agree as follows: o Assignors hereby assign to Assignees whatever claims, rights, title, and interest in, to, and arising from their claims[;] o “Assignees further agree . . . to further indemnify and forever hold harmless all Assignors . . . [against all claims relating to the subject legal action] but not specifically limited to any claim attempting to be asserted by Scotty’s . . . or VanMeter[.]” -13- (Assignment of Rights of Claims, tendered Aug. 26, 2020). In addition to the assignment of claims, Plaintiffs/Appellees and the Engineers also tendered a consent judgment. It says, in pertinent part: • “While [Engineers] deny liability . . . [they] recognize that they may be subject to liability, . . . may be uninsured and have insufficient assets to satisfy a potential judgment . . . [and] have some risk of being bankrupted[;]” • “In determining the extent of Plaintiffs’ compensatory damages, evidence may be submitted by affidavits or reports[;]” • “In consideration of the Assignment of Claims, . . . [Plaintiffs/Appellees] agree to forbear any and all attempts to collect from [Engineers] any judgment or award on any claims asserted against [Engineers] in this action . . . and to forbear any and all attempts to collect from or proceed against [Engineers] for any damages awarded[;]” • “. . . [Engineers] make no promises, assurances, or representations as to any claims or rights they may have against said parties and their insureds.” • “[Plaintiffs/Appellees] agree to forbear execution against the [Engineers], on any and all claims or awards[;]” • “[Plaintiffs/Appellees] shall dismiss, without prejudice, their claims against [Engineers], subject to the Assignment of Rights of Claims[;]” • “If it is ultimately determined that [Engineers’] claims against Scotty’s . . . and/or VanMeter . . . are not valid or [Plaintiffs/Appellees] cannot recover thereon for any reason, this Order and the forbearance contained therein are still to be given its full force and effect, and [Plaintiffs/Appellees] shall have no further cause of action against [Engineers].” -14- (Consent Judgment, Assignment, and Forbearance, tendered Aug. 26, 2020). Scotty’s and VanMeter objected and filed new motions for summary judgment. Plaintiffs/Appellees responded with their own motions to modify previous orders and to enter the assignment and the consent judgment. Trial court rules on flurry of motions The trial court’s April 23, 2021 order began by deciding Scotty’s summary judgment motion. Contrary to the trial court’s prior ruling that section 107.13 does not indemnify the Engineers for their own negligence, the Engineers were again making that very argument. In response, Scotty’s cited KRS 371.180 which prohibits provisions in construction services contracts indemnifying the party letting the contract or its employees and agents for their own negligence. The trial court denied Scotty’s motion, reiterating its previous holding that the Engineers “have a viable contractual indemnification claim under § 107.13(1) and (2) . . . based on Scotty’s alleged negligence, not that of the KTC [Engineers] themselves.” (Order, Apr. 23, 2021) (emphasis added). The trial court then cited subsection (3) of section 107.13 and ruled in a completely contradictory way. The Engineers persuaded the trial court that section 107.13(3) does authorize what KRS 371.180 prohibits. Disregarding the statute and its own immediately preceding ruling, the trial court said: -15-  For subsection (3) to have meaning, it must provide for indemnity by Scotty’s to the KTC [Engineers] for their own negligence, as it refers to “all . . . claims of any character brought on account of . . . [a]cts, omissions, neglect, or misconduct.” While this type of provision is disfavored, it is not against public policy. (Order, Apr. 23, 2021) (citing Speedway Superamerica, LLC v. Erwin, 250 S.W.3d 339, 342 (Ky. App. 2008)) (emphasis added). The trial court attempted to explain that its ruling did not conflict with KRS 317.180 by citing the Engineers’ follow-up argument “that they are not properly considered contractors within the meaning of KRS 371.180(1)(b) [because] . . . [t]he Transportation Cabinet is the contractor in this instance[,]” not its employees. (Id.) “Accordingly,” the order continues, “the Court grants the motion to modify the May 13, 2016 order to clarify that Scotty’s has a contractual obligation to indemnify the [Engineers] for . . . negligence on the part of the [Engineers] themselves.” (Id.) (emphasis added). Finally, the order addressed Plaintiffs/Appellees’ and the Engineers’ motion to enter the consent judgment. Scotty’s and VanMeter opposed its entry on collusion grounds. The trial court did not perceive the risk of collusion “to be so great as to automatically invalidate an otherwise valid assignment of claims.” (Id.) (quoting Associated Ins. Serv., Inc. v. Garcia, 307 S.W.3d 58, 69 (Ky. 2010)). The trial court found that Kentucky law favors “claim assignments coupled with a consent judgment or other settlement arrangement and a covenant -16- not to execute, subject to some assessment that the settlement reflects a reasonable calculation of damages.” (Id.) (quoting Garcia, 307 S.W.3d at 68). The trial court said, “Presumably [the trial court itself] could ensure . . . a reasonable damages determination . . . [or] a better way . . . would be to review a damages award arising from arbitration.” (Id.) Therefore, Scotty’s and VanMeter’s “assertion that a calculation of damages is or would be unreasonable is not a basis to deny entry of a proposed judgment.” (Id.) The trial court next rejected Scotty’s argument that “the effect of the proposed consent judgment is to permit [VanMeter’s] employees to circumvent the exclusive-remedy policy of the Workers’ Compensation Act as reflected in KRS 342.690(1).” (Id.) Scotty’s expressly pleaded the Act as an affirmative defense to the third-party complaint. “[U]nder the facts of the instant case,” said the trial court, “neither an employer nor its insurer is liable to a covered employee if the consent judgment is entered. Scotty’s would, at most, be liable to the KTC [Engineers] to whom they theoretically owe a duty of indemnity.” The trial court found the Act “was not a bar to entry of the [consent judgment].” (Id.) Scotty’s was concerned the Engineers would be ill-motivated to mount a defense because Plaintiffs/Appellees agreed to forbear all collection efforts against them. Scotty’s filed a motion “to participate in further proceedings regarding liability and damages.” (Order, Oct. 14, 2022). Plaintiffs/Appellees -17- responded that “Scotty’s is only involved in this case to the extent that it owes a contractual duty to indemnify the KTC [Engineers]; that contract does not provide Scotty’s a right to be involved in the tort claim between [Plaintiffs/Appellees] and the KTC [Engineers].” (Id.) The trial court said it found no authority “that a party without a duty to defend has a right to do so, particularly when the indemnitees (in this action, the KTC [Engineers]) are already represented . . . .” (Id.) Scotty’s further pressed its argument that comparative fault and apportionment issues must still be considered. The Engineers themselves demanded apportionment in their answer to Plaintiffs/Appellees’ complaint, obviously to lessen their share of damages in any judgment that might be obtained against them. They repeated that demand in the consent judgment. Still, the trial court rejected the demands and arguments for apportionment, saying, “The arguments about comparative negligence and apportionment are not compelling because, as [Plaintiffs/Appellees] note, Scotty’s has no direct liability due to the exclusive-remedy effect of the Workers’ Compensation Act.” (Id.) The trial court further said, “Scotty’s motion to participate in the determination of damages is denied to the extent Scotty’s seeks to put on evidence or cross-examine witnesses.” (Id.) Scotty’s fears were confirmed when the Engineers “gave notice . . . [they] would no longer be actively participating and/or defending against -18- [Plaintiffs/Appellees’] claims as a result of the Court’s Order of April 23, 2021,” approving the consent judgment that included Plaintiffs/Appellees’ agreement to forbear from collecting the judgment against the Engineers from the Engineers. (Engineers’ Notice of Non-Participation, Nov. 16, 2022). At the hearing to set trial, the court disregarded Scotty’s demand for a jury trial,12 stating it would conduct a bench trial “[u]nder the procedure contemplated by Garcia, [supra,] [to] determine the existence and amount of compensatory damages for each [of the Plaintiffs/Appellees], and to ascertain whether punitive damages are warranted.” (Judgment, Dec. 11, 2023). Over Scotty’s objections, the court scheduled the bench trial. (Order, Nov. 17, 2022). Trial court conducts trial with only Plaintiffs/Appellees’ participation Trial commenced on March 8, 2023, as scheduled and is generally noteworthy for its non-adversarial nature. Only Plaintiffs/Appellees participated. Most sat in the gallery with relatives who would testify. Plaintiffs/Appellees’ counsel discussed with the trial court the rule regarding separation of witnesses, 12 Plaintiffs/Appellees also demanded a trial by jury in their complaint. The Engineers too demanded a trial by jury in their third-party complaint. As far as our review reveals, no party waived their jury trial demand. Failure to object to a bench trial does not constitute a waiver of the right to a jury trial, even after also participating in the bench trial to its conclusion. Hazard Coal Corporation v. Knight, 325 S.W.3d 290 (Ky. 2010). -19- KRE13 615, but did not invoke it. The judge said it was his practice not to invoke the rule sua sponte, and he did not. Witnesses heard one another’s testimony. After an opening statement, counsel for Plaintiffs/Appellees presented evidence of duty, breach, and causation by calling an expert never disclosed to any other party, engineer Harold Deatherage.14 Plaintiffs/Appellees and their families were the only other witnesses to testify. No one cross-examined any witness. No one presented countervailing evidence responsive to Plaintiffs/Appellees’ evidence. After the trial, the court reviewed several exhibits and depositions before making its findings of fact as set out in the following paragraphs. Recognizing the duties the Engineers owed during trial According to Mr. Deatherage, Greg Meredith, as Chief District Engineer, and his subordinate Engineers “had safety responsibilities with respect to, inter alia, the project at the heart of this case . . . [and were] obligated to comply with the applicable construction standards.”15 That duty to inspect was not 13 Kentucky Rules of Evidence. 14 We viewed the trial video transcript and do not question or have reservations about Mr. Deatherage’s qualifications as an expert or the veracity of his testimony. As explained in our analysis, however, his opinions are based on the assumption, not a proven fact that VanMeter failed to comply with federal and state safety regulations. 15 The trial court identified these as “OSHA [federal Occupational Safety and Health Administration] regulations, the Kentucky Standard Specifications for Road and Bridge Construction (the Standard Specifications), and the Kentucky Construction Guidance Manual (CGM).” -20- conditioned upon any fact other than that VanMeter employees were proceeding with their work. However, the trial court found the secondary duty—the duty to stop work—was conditioned upon certain facts. The trial court said the Engineers “had the ability to shut down the project if standards were not being followed” by VanMeter’s employees. (Id.) (emphasis added). They only owed a duty “to stop work on the project if they observed unsafe conditions.” (Judgment, Dec. 11, 2023). Thus, the existence, danger, and observability of such predicate conditions needed to be proved. But the court received no evidence to establish those necessary predicate facts that would have given rise to the Engineers’ duty to shut down the project. That is, there was no evidence that VanMeter employees failed to comply with standards which an inspection would have revealed as “a recognized danger” that was “imminent, . . . in the opinion of the SE [Section Engineer].” (KTC Construction Guidance Manual (May 2009), p. 1 of 2). To find a breach of duty to shut down the project and the duty itself, Mr. Deatherage assumed the cause of the accident was VanMeter’s employees’ violation of safety standards, just as the trial court did before him. Finding breach The court held the Engineers breached the duty to inspect as follows: 13. The proof identified five primary failures on this project: -21-  a. Failure to enforce strict compliance with applicable safety procedures . . . ; b. Failure to require certified engineering plans before allowing work to proceed on the retaining wall . . . ; c. Failure to enforce OSHA regulations regarding the shoring of retaining walls . . . ; d. Failure to inspect anchoring before allowing the wall to be poured . . . ; and e. Failure to ensure that VanMeter had competent personnel on site to make certain that the retaining wall was being safely constructed according to standards. (Id.) The finding of breach here was not because the Engineers tried and negligently failed, but because they did not try at all. They did not inspect. Assumption rather than determination of facts was the basis of finding a duty to shut down the project. All that was factually established was that the Engineers did not shut down the project before the accident occurred. As we discuss in the analysis, there was insufficient evidence either to prove the fact that VanMeter employees improperly anchored the form or to deem the testimony in depositions to constitute a judicial admission to that effect. Finding causation The trial court concluded the seven Engineers’ “failure to enforce strict compliance with safety laws, rules, and regulations was a substantial contributing factor to the collapse of the wall.” (Id.) But the trial court found no -22- party at fault other than the Engineers. The court apportioned 100% of the fault among the Engineers only, effectively finding their breach of duty to inspect to be the sole proximate cause. See KRS 411.182. The trial court determined VanMeter, its employees including Plaintiffs/Appellees, and Scotty’s bore no responsibility or fault for the collapse at all. (Judgment, Dec. 11, 2023). Findings of damages The trial court’s judgment then turned to proof of damages reiterating the consent judgment’s ruling “that [Plaintiffs/Appellees] could submit written reports to prove damages.” (Judgment, Dec. 11, 2023). Scotty’s and VanMeter were prohibited from submitting such reports and so the trial court considered only the reports submitted by Plaintiffs/Appellees. The court accepted the written reports of an economics professor, an orthopedist, and an individual with a master’s degree in Rehabilitation Counseling. They did not testify and only submitted reports, but the trial court found “[t]hese witnesses qualify as experts in their respective fields.” (Id.). After summarizing the Plaintiffs/Appellees’ current circumstances, the trial court awarded each one significant compensatory damages. The trial court then moved on to address why the Engineers’ conduct justified making an example of them with an award of punitive damages, stating: -23-  This case presents clear and convincing evidence of gross negligence, which makes an award of punitive damages appropriate . . . . Given the roles of these [Engineers] as the supervisors of highway construction in southern Kentucky, it is relevant to consider the elements of both punishment and deterrence when determining punitive damages in this matter. . . . A punitive damages award would be appropriate to deter the type of gross negligence in evidence here. The hope would be to deter gross negligence on the part of these named [Engineers], those similarly situated, as well as others performing ministerial duties on behalf of the public. (Id.) The trial court set exemplary damages at $10,000,000.00. The court knew its prior order approved of Plaintiffs/Appellees’ agreement to forbear collecting any damages from the Engineers. The court was aware of its other order that Scotty’s must indemnify the Engineers for those same damages—compensatory and punitive damages alike.16 On February 1, 2024, the court entered its final judgment against Scotty’s, as follows: 1. The Estate of Kenneth Decker shall recover of Scotty’s the sum of $437,587.00; 2. Velma Decker shall recover of Scotty’s the sum of $2,000,000.00 for loss of consortium; 3. John McIntosh shall recover of Scotty’s the sum of $1,684,234.92; 4. Jamie Groce shall recover of Scotty’s the sum of $4,730,084.98; 5. Steve Nelson shall recover of Scotty’s the sum of $2,731,823.00; 16 The December 11, 2023 Judgment “incorporates all conclusions of law set out in prior orders[.]” -24-  6. Linda Nelson shall recover of Scotty’s the sum of $1,000,000.00 for loss of consortium; 7. Plaintiffs shall recover punitive damage from Scotty’s in the amount of $10,000,000.00 to be prorated among Plaintiffs in the same proportion as each Plaintiff’s share of the total compensatory damages awarded[.] Following entry of that order, Scotty’s brought this timely appeal. STANDARD OF REVIEW When reviewing a judgment after a bench trial,