D & D Tire, Inc. v. Ouellette

• Decision Date: 02 July 2015
• Docket Number: No. 63810.,63810.
• Citation: 131 Nev. Adv. Op. 47,352 P.3d 32
• Parties: D & D TIRE, Inc., a Nevada Corporation d/b/a Purcell Tire & Rubber Company, a Foreign Corporation; Purcell Tire Company, Inc., a Foreign Corporation; and Ryan Wintle, Appellants, v. Jack R. OUELLETTE, Respondent.
• Court: Nevada Supreme Court

352 P.3d 32

131 Nev. Adv. Op. 47

D & D TIRE, Inc., a Nevada Corporation d/b/a Purcell Tire & Rubber Company, a Foreign Corporation; Purcell Tire Company, Inc., a Foreign Corporation; and Ryan Wintle, Appellants

v.Jack R. OUELLETTE, Respondent.

No. 63810.

Supreme Court of Nevada.

July 2, 2015.

Holland & Hart LLP and J. Stephen Peek and J. Robert Smith, Reno; Thorndal, Armstrong, Delk, Balkenbush & Eisinger and Charles L. Burcham and Kevin A. Pick, Reno, for Appellants.

Bradley, Drendel & Jeanney and William C. Jeanney, Reno, for Respondent.

Before SAITTA, GIBBONS and PICKERING, JJ.

OPINION

By the Court, SAITTA, J.:

In Nevada, employers and coemployees of a person injured in the course of employment are immune from liability for the injury under the exclusive remedy provision of the workers' compensation statutes. Additionally, some subcontractors and independent contractors are accorded the same status as employers or coemployees of the injured employee and are thus immune from liability. However, a subcontractor or independent contractor is not considered to be a statutory employee when it is performing a major or specialized repair that the injured worker's employer is not equipped to handle with its own work force. This opinion addresses when an independent contractor's actions are within the scope of a major or specialized repair so as to prevent it from claiming immunity as a statutory employer or coemployee.

We hold that when evaluating whether an independent contractor's actions are within the scope of a major or specialized repair, a district court must consider the act giving rise to the injury within the entire context of the overall specialized repair and not in isolation. Thus, factors such as whether the presence of the contractor at the job site was for the purpose of the specialized repair or whether the activity was in furtherance of the specialized repair can help guide the court's analysis. We further hold that where, as in this case, the jury is instructed on negligence, proximate cause, and the essentiality of a finding of the defendant's negligence, an incomplete “mere happening” jury instruction may be duplicative and/or confusing, and thus, the district court's failure to give such an instruction was not an abuse of discretion.

FACTUAL AND PROCEDURAL HISTORY

Respondent Jack R. Ouellette was employed by Allied Nevada Gold Corporation (Allied) to perform tire service work, including the installation, removal, repair, and replacement of tires on various pieces of mining equipment. Appellant Purcell Tire & Rubber Company is a commercial tire retailer.¹ Among other things, it provides tire changing and repair services to mining companies.

As part of his job, Ouellette drove and operated a tire changing boom truck owned by Purcell and leased to Allied. When a problem developed with the boom truck's power take off unit (PTO), Purcell contacted an independent repair company, Dakota Diesel, who sent repairman Scott Durick to make specialized repairs to the PTO. Purcell, as owner of the truck, also sent Ryan Wintle, a tire technician for Purcell with responsibilities similar to those of Ouellette, to assist with the repairs.

After the initial repairs were completed, Wintle and Durick filled the truck with hydraulic oil. Wintle then got into the truck to move it to another area before testing the PTO. While backing up the truck, Wintle struck and pinned Ouellette against a dumpster, causing Ouellette to suffer a shoulder injury.

Ouellette filed a personal injury claim against Purcell. At trial, Purcell moved for a judgment as a matter of law on the grounds that it was a statutory employee of Allied and was thus immune from liability under the Nevada Industrial Insurance Act (NIIA). The district court denied Purcell's motion. Purcell also requested a mere happening jury instruction, which the district court declined to give.

The jury returned a verdict in favor of Ouellette. Purcell then renewed its motion for judgment as a matter of law on the ground that it was a statutory employee of Allied. Alternatively, it moved for a new trial, arguing that the district court's error in refusing to give Purcell's mere happening jury instruction materially affected its substantial rights. The district court denied Purcell's motion. Purcell now appeals.

DISCUSSION

Purcell argues that the district court erred in denying its motion for judgment as a matter of law because Purcell was a statutory employee of Allied at the time of Ouellette's injury and would thus be immune from liability for the injury under the NIIA. Purcell also argues that the district court abused its discretion by refusing to give a mere happening jury instruction.

Ouellette argues that the district court did not err in denying Purcell's motion for judgment as a matter of law because Purcell was performing a specialized repair at the time of Ouellette's injury and thus was not a statutory employee of Allied. Ouellette also argues that the district court did not err in refusing to give Purcell's proffered jury instruction because it misstated Nevada law and was adequately covered by other instructions given to the jury.

The district court did not err by denying Purcell's motion for judgment as a matter of law

NRCP 50(a)(1) provides that a district court may grant judgment as a matter of law “with respect to a claim or defense that cannot under the controlling law be maintained or defeated.” In deciding a motion for judgment as a matter of law, “[t]he [district] court must view all evidence and inferences in favor of the nonmoving party.” FGA, Inc. v. Giglio, –––Nev. ––––, ––––, 278 P.3d 490, 500 (2012). Thus, a nonmoving party can defeat a motion for judgment as a matter of law if it “present[s] sufficient evidence such that the jury could grant relief to that party.” Bielar v. Washoe Health Sys., Inc., ––– Nev. ––––, ––––, 306 P.3d 360, 368 (2013) (internal quotations omitted).

We review a district court's order granting or denying judgment as a matter of law and its interpretation of a statute de novo. Wyeth v. Rowatt, 126 Nev. 446, 460, 244 P.3d 765, 775 (2010) (reviewing judgment as a matter of law de novo); Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 198, 179 P.3d 556, 559 (2008) (reviewing statutory interpretation de novo).

An independent contractor is not immune from liability when performing specialized repairs

In Nevada, employers and coemployees of a person injured in the course of employment are immune from liability under the NIIA. NRS 616B.612 ; Lipps v. S. Nev. Paving, 116 Nev. 497, 501, 998 P.2d 1183, 1186 (2000) (noting that coemployees are immune from liability for injuries incurred by other employees during the course of employment under NRS 616B.612(3), NRS 616A.020(1), and NRS 616C.215(2)(a) ). Additionally, the NIIA is “uniquely different from industrial insurance acts of some states in that sub-contractors and independent contractors are accorded the same status as employees” and are immune from liability. Meers v. Haughton Elevator, 101 Nev. 283, 285, 701 P.2d 1006, 1007 (1985) (internal quotations omitted) (interpreting a prior version of NRS 616C.215 ); see also NRS 616A.210(1) (“[S]ubcontractors, independent contractors and the employees of either [are] deemed to be employees of the principal contractor for the purposes of [the NIIA].”).

However, not all types of subcontractors and independent contractors are considered to be statutory employees under NRS 616A.210. Id. A subcontractor or independent contractor is not a statutory employee if it “is not in the same trade, business, profession or occupation as the [employer of the injured worker].” See NRS 616B.603(1)(b) ; Hays Home Delivery, Inc. v. Emp'rs Ins. Co. of Nev., 117 Nev. 678, 682, 31 P.3d 367, 369–70 (2001) (noting that NRS 616B.603 codifies the Meers test, discussed below, which is used to “determine[ ] whether independent contractors are ‘employees' under the NIIA”).

The “normal work” test, first articulated in Meers, guides courts as to whether a subcontractor or independent contractor is considered to be in the same trade, business, profession, or occupation as the employer of an injured worker. See Hays Home Delivery, Inc., 117 Nev. at 682–83, 31 P.3d at 369–70 (2001). The Meers normal work test is

not one of whether the subcontractor's activity is useful, necessary, or even absolutely indispensable to the statutory employer's business, since, after all, this could be said of practically any repair, construction or transportation service. The test (except in cases where the work is obviously a subcontracted fraction of a main contract) is whether that indispensable activity is, in that business, normally carried on through employees rather than independent contractors.

101 Nev. at 286, 701 P.2d at 1007 (internal quotations omitted); see also Oliver v. Barrick Goldstrike Mines, 111 Nev. 1338, 1349, 905 P.2d 168, 175 (1995) (holding that the “same trade” language in NRS 616.262, replaced by NRS 616B.603, refers to the Meers test). With regard to subcontracted maintenance activities, “[t]he general rule is that major repairs, or specialized repairs of the sort which the employer is not equipped to handle with his own force, are held to be outside his regular business.”

Meers, 101 Nev. at 286, 701 P.2d at 1007–08 (internal quotations omitted).

Purcell's interpretation of the Meers normal work test is incorrect

Purcell concedes that the job of repairing the truck's PTO would be considered a specialized repair under Meers. However, it argues that Dakota Diesel performed the specialized repair, while Wintle was merely there to “monitor the repair process.” Purcell further argues that even if Wintle was performing a specialized repair on the day of Ouellette's injury, Wintle was not performing a specialized repair at the time Ouellette was actually injured.

In making its argument, Purcell contends that the focus of the normal work test is on the work being...