Krol v. CF&I Steel

• Decision Date: 14 March 2013
• Docket Number: Court of Appeals No. 12CA0226
• Parties: Stanislaw Krol, Plaintiff-Appellant, v. CF&I Steel, a/k/a CF&I Steel, LP, d/b/a Rocky Mountain Steel Mills, d/b/a RMSM, d/b/a Colorado Steel Mills, d/b/a Pueblo Metals Company, d/b/a CF&I Fabricators, d/b/a Pueblo Railroad Service Company, Defendant-Appellee.
• Court: Colorado Court of Appeals

2013 COA 32

Stanislaw Krol, Plaintiff-Appellant,

v.CF&I Steel, a/k/a CF&I Steel, LP, d/b/a Rocky Mountain Steel Mills, d/b/a RMSM,d/b/a Colorado Steel Mills, d/b/a Pueblo Metals Company, d/b/a CF&I Fabricators, d/b/a Pueblo Railroad Service Company, Defendant-Appellee.

Court of Appeals No. 12CA0226

COLORADO COURT OF APPEALS

Announced March 14, 2013

Pueblo County District Court No. 09CV97

Honorable Deborah R. Eyler, Judge

JUDGMENT REVERSED AND CASE

REMANDED WITH DIRECTIONS

Division VII

Opinion by JUDGE J. JONES

Bernard and Richman, JJ., concur

James M. Croshal, Pueblo, Colorado, for Plaintiff-Appellant

Faegre Baker Daniels LLP, Colin C. Deihl, Denver, Colorado; SNR Denton US LLP, Alan G. Gilbert, Tiffany L. Amlot, Chicago, Illinois, for Defendant-Appellee

¶1 Plaintiff, Stanislaw Krol, an employee of SK's Industrial Management, LLC (SKIM), sued defendant, CF&I Steel, in tort for injuries he suffered while he was on CF&I's property training a CF&I employee. The district court granted CF&I's motion for summary judgment, concluding that the Workers' Compensation Act of Colorado, sections 8-40-101 to 8-47-209, C.R.S. 2012 (the Act), provided Mr. Krol's exclusive remedy because (1) Mr. Krol was doing work while "on" CF&I's property when he was injured, see § 8-41-402, C.R.S. 2012; and (2) the training was part of CF&I's regular business, such that CF&I ordinarily would have performed that function itself if it had not contracted it out to SKIM, see § 8- 41-401, C.R.S. 2012.

¶2 We conclude that the court erred in entering summary judgment for CF&I. Section 8-41-402 expressly provides that an entity is deemed a statutory employer thereunder only if the injured person did work both "on and to" real property or improvements thereon owned by the purported statutory employer. The district court's ruling that the injured person need only have been "on" the property when he was injured is contrary to the plain language of the statute, from which we see no legally viable reason to depart. There is a question of material fact as to whether Mr. Krol was doing work "to" CF&I's real property (or improvements thereon), precluding summary judgment based on section 8-41-402.

¶3 Summary judgment based on section 8-41-401 is also inappropriate at this stage of the case. CF&I did not raise that statute in moving for summary judgment. The court raised the statute on its own, in the order granting summary judgment, without providing Mr. Krol with any notice or opportunity to present argument and factual evidence relating thereto. That course of action ordinarily is procedurally improper, and we cannot conclude that the court's error in this regard was harmless.

I. Background

¶4 CF&I owns a rail mill in Pueblo, Colorado. It has several industrial cranes on that property, many of which are inside buildings.

¶5 In July 2002, CF&I and Alpine Crane entered into a contract obligating Alpine Crane to maintain and inspect CF&I's cranes. In January 2007, however, CF&I and SKIM entered into a contract obligating SKIM to train CF&I's employees to maintain and inspect the cranes, apparently in an effort to save CF&I money it was continuing to pay Alpine Crane.

¶6 That month, Mr. Krol went to the mill to provide inspection training as called for by the CF&I-SKIM contract. While Mr. Krol was standing on top of one of the cranes, training a CF&I employee how to inspect a crane, the crane moved. Mr. Krol was injured as a result.

¶7 Mr. Krol received workers' compensation benefits through SKIM's workers' compensation insurance. He sued CF&I, asserting various tort claims. Following about a year of litigation, CF&I moved for summary judgment. It did so based solely on section 8- 41-402, contending that the undisputed facts established that Mr. Krol was on its property when he was injured; therefore, it was Mr. Krol's "statutory employer"; and therefore, Mr. Krol could not seek additional compensation from CF&I as a matter of law.

¶8 Mr. Krol opposed CF&I's summary judgment motion. He did not dispute that he was on CF&I's property when he was injured. But he argued that the express language of section 8-41-402 provides that it applies only when the injured person was doing work both "on and to" another's property, and that there was at least a genuine issue of fact whether he was doing work to CF&I's property when he was injured.

¶9 The district court noted the statute's plain language, but ruled that it applies whenever an injured person was doing work while on another entity's property, even if the injured person was not doing work to the property. Because there was no dispute that Mr. Krol was on CF&I's property when he was injured, the court concluded that CF&I was Mr. Krol's statutory employer and was therefore entitled to immunity under section 8-41-402.

¶10 The court went on to find (the court said it "also finds") that "training its employees is part of the regular business of [CF&I]," that if CF&I did not contract out that work it would do the work itself, and that SKIM had carried adequate workers' compensation insurance. Citing Black v. Cabot Petroleum Corp., 877 F.2d 822 (10th Cir. 1989), a case involving the predecessor to section 8-41- 401, the court granted summary judgment to CF&I on the basis of section 8-41-401 as well.¹

II. Standard of Review

¶11 We review an order granting summary judgment de novo, applying the same principles that guided the district court's determination. Hamon Contractors, Inc. v. Carter & Burgess, Inc., 229 P.3d 282, 290 (Colo. App. 2009). Thus, we will affirm such an order only when the pleadings and supporting documents clearly demonstrate that no issue of material fact exists and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Lombard v. Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 570 (Colo. 2008). In considering whether the moving party has ultimately established its entitlement to summary judgment, we must grant the nonmoving party the benefit of all favorable inferences that reasonably may be drawn from any uncontested facts, and we must resolve any doubts as to whether a triable issue of material fact exists against the moving party. Lombard, 187 P.3d at 570.

III. Section 8-41-402

¶12 CF&I relies on subsection (1) of section 8-41-402, which provides in relevant part as follows:

Repairs to real property – exception for liability of occupant of residential real property. (1) Every person, company, or corporation owning any real property or improvements thereon and contracting out any work done on and to said property to any contractor, subcontractor, or person who hires or uses employees in the doing of such work shall be deemed to be an employer under the terms of articles 40 to 47 of this title. Every such contractor, subcontractor, or person, as well as such contractor's, subcontractor's, and person's employees, shall be deemed to be an employee, and such employer shall be liable as provided in said articles to pay compensation for injury or death resulting therefrom to said contractor, subcontractor, or person and said employees or employees' dependents and, before commencing said work, shall insure and keep insured all liability as provided in said articles. . . .

(Italicized emphasis added.)

¶13 The upshot of this provision, construed with related provisions, is that, if the landowner is a statutory employer thereunder, and the contractor, subcontractor, or person hired to do the work carries workers' compensation insurance covering the injured party's injuries, the injured party is deemed an employee of that statutory employer, and the injured party may not seek damages from the statutory employer. See §§ 8-41-102, 8-41-104, 8-41-402(2), C.R.S. 2012.

¶14 The first question we must answer is whether, as CF&I contends and the district court concluded, an injured person need only have been "on" the landowner's property when performing work for section 8-41-402 to apply, or whether, as Mr. Krol contends, an injured person must have been both on the property and doing work "to" the property for it to apply.

¶15 This question presents an issue of statutory interpretation.² In interpreting a statute, our primary goals are to discern and give effect to the General Assembly's intent. Hassler v. Account Brokers of Larimer Cnty., Inc., 2012 CO 24, ¶15; L & R Exploration Venture v. Grynberg, 271 P.3d 530, 533 (Colo. App. 2011). We look first to the statutory language, giving the words and phrases used therein their plain and ordinary meanings. Hassler, ¶15; L & R Exploration Venture, 271 P.3d at 533. We read the language in the dual contexts of the statute as a whole and the comprehensive statutory scheme, giving consistent, harmonious, and sensible effect to all of the statute's language. Jefferson Cnty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010); BP Am. Prod. Co. v. Patterson, 185 P.3d 811, 813 (Colo. 2008). After doing this, if we determine that the statute is not ambiguous, we enforce it as written and do not resort to other rules of statutory construction. Denver Post Corp. v. Ritter, 255 P.3d 1083, 1089 (Colo. 2011); Carruthers v. Carrier Access Corp., 251 P.3d 1199, 1203 (Colo. App. 2010).

¶16 Though CF&I contends that there is "no authority" for interpreting the statute to apply only if the injured person was doing work both "on and to" the property, we cannot help but observe that the statute itself plainly includes such language. § 8- 41-402(1) ("any work done on and to said property"). Ordinarily, the use of the word "and" in a statute is intended to be conjunctive – that is, where a statute connects requirements by means of "and," both requirements must be met for the operative provision to apply. People v. Parcel of Property, 841 N.E.2d 928, 939-40 (Ill. 2005); see 1A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction§ 21:14, at 177-79, 184, 189 (7th ed. 2009).³

¶17 The district court concluded, however, that to require that...