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BROCK v. CATERPILLAR, INC.

Nos. 94-5077, 94-5078.

94 F.3d 220 (1996)

Gary W. BROCK, Plaintiff-Appellee, Cross-Appellant, v. CATERPILLAR, INC., Defendant-Appellant, Cross-Appellee, Robert Whittaker and Old Republic Insurance Company, Intervenors-Appellees.

United States Court of Appeals, Sixth Circuit.

Decided August 26, 1996.

Attorney(s) appearing for the Case

Phyllis L. Robinson, Hyden, KY, Asa P. Gullett, III (argued and briefed), Teresa G.C. Reed, Gullett, Combs & Branham, Hazard, KY, for Plaintiff-Appellee, Cross-Appellant.

Ralph D. Carter, Barrett, Haynes, May, Carter & Roark, Hazard, KY, for Intervenor-Appellee Old Republic Insurance Company in No. 94-5077.

Joel D. Zakem, Commonwealth of Kentucky, Labor Cabinet, Division of Special Fund, Louisville, KY, for Intervenor-Appellee Robert Whittaker in No. 94-5077.

Leslie W. Morris, II (briefed), Eileen M. O'Brien, Stoll, Keenon & Park, Lexington, KY, William F. Maready (argued and briefed), Robinson, Maready, Lawing & Comerford, Winston-Salem, NC, for Defendant-Appellant, Cross-Appellee.

Before MERRITT, Chief Judge, KEITH and WELLFORD, Circuit Judges.

WELLFORD, J., delivered the opinion of the court, in which MERRITT, C.J., joined. KEITH, J. (pp. 226-27), delivered a separate opinion concurring in part and dissenting in part.

WELLFORD, Circuit Judge.

Plaintiff, Gary Wayne Brock, was a longtime bulldozer operator for Nally & Hamilton ("N & H"), a reclamation company doing work in coal mining areas in mountainous Harlan County, Kentucky. In June of 1990, Brock began work on a "high wall" where strip...

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