Alexander v. Morrison-Knudsen Co.

• Decision Date: 17 June 1968
• Docket Number: No. 22018,MORRISON-KNUDSEN,22018
• Citation: 166 Colo. 118,444 P.2d 397
• Parties: Lewis M. ALEXANDER and Ruth M. Alexander, Plaintiffs in Error, v.COMPANY, Inc., a Delaware corporation, Colorado-Ute Electric Association, Inc., a Colorado corporation, and Yampa Valley Electric Association, Inc., a Colorado corporation, Defendants in Error.
• Court: Colorado Supreme Court

Page 397

444 P.2d 397

166 Colo. 118

Lewis M. ALEXANDER and Ruth M. Alexander, Plaintiffs in Error, v. MORRISON-KNUDSEN COMPANY, Inc., a Delaware corporation,

Colorado-Ute Electric Association, Inc., a Colorado

corporation, and Yampa Valley Electric Association, Inc., a

Colorado corporation, Defendants in Error.

No. 22018.

Supreme Court of Colorado, In Department.

June 17, 1968.

Rehearing Denied Sept. 9, 1968.

Walter L. Gerash, John S. Carroll, E. Michael Canges, Earl S. Wylder, Denver, for plaintiffs in error

Harold Clark Thompson, Alious Rockett, Francis L. Bury, Feay B. Smith, Jr., Denver, for defendant in error, Morrison-Knudsen Co., Inc.

Shivers, Banta & McMartin, Englewood, John J. Conway, Denver, John A. Hughes Duane O. Littell, Ronald C. Hill, Denver, Marvin L. Brown, Steamboat Springs, for defendant in error, Yampa Valley Electric Assn., Inc.

Montrose, for defendant in error, Colorado-Ute Electric Assn., Inc.

KELLEY, Justice.

This case is here on writ of error directed to a judgment of dismissal entered by the District Court of Routt County. The parties appear in the same relative position as they appeared in the trial court.

Sometime prior to May 27, 1963, Morrison-Knudsen contracted with Colorado-Ute Electric Association, Inc. (Colorado-Ute), to construct an electric power plant (the project) near Hayden, Routt County, Colorado.

The plaintiff Lewis Alexander, a crane operator employed by Morrison-Knudsen, was seriously injured on May 27, 1963, in the course of his employment on the project. His injuries constitute the basis for the damages claimed in the first claim of the complaint. In a second claim for relief, Ruth, wife of Lewis, claimed damages for loss of consortium caused by the injuries suffered by her husband. The defendants will be referred to collectively or by given name. It should be noted that this is not a workmen's compensation case, but a claim for damages, based upon negligence.

According to the plaintiffs' complaint, the site of the accident was in Route County on premises owned by Colorado-Ute and Yampa Valley Electric Association, Inc. (Yampa Valley), and the cause of the injuries complained of was an uninsulated high voltage electric power line owned and operated by Colorado-Ute and Yampa Valley, from which an electric charge leaped to the boom of the crane being operated by the plaintiff Lewis Alexander. It is not necessary to elaborate on the facts relating to the accident and the injuries because of the peculiar posture of the proceedings.

The judgment to which the writ of error is directed was entered by the District Court of Routt County on August 16, 1965, and in material part states:

'That defendants' Motion for Summary judgment filed with the Court on the 12th day of May, 1965, is granted and the plaintiffs' complaint is dismissed, with prejudice;

'Even though it may not be necessary to rule thereon, it is further ordered that the motion to dismiss of Morrison-Knudsen Company, Inc., a Delaware corporation, is granted; and the motion to dismiss of Colorado-Ute Electric Association, Inc., a Colorado corporation, is granted;

'It is further ordered that plaintiffs' motion to set aside or vacate attempted voluntary dismissal is denied.'

It is necessary to consider separately the correctness of the judgment as it relates to each defendant, because of the difference in the relationships between the several defendants and the plaintiffs and because of the variety of motions and pleadings directed to the complaint.

MORRISON-KNUDSEN

Morrison-Knudsen is a general contractor standing in the relationship of employer to the plaintiff Lewis Alexander. It filed a motion to dismiss for failure to state a claim upon which relief can be granted. In support of its motion Morrison-Knudsen filed affidavits to show that Lewis Alexander had not rejected the Workmen's Compensation Act prior to going to work for Morrison-Knudsen; that it had workmen's compensation insurance in effect and was otherwise in conformance with the act. There was no traverse of the allegations as to the relationship between the parties or as to the compliance by the employer with the Workmen's Compensation Act.

The record as outlined brings into play that part of R.C.P. Colo. 12(b) which provides that:

'* * * If, on a motion asserting the defense * * * to dismiss for failure of the pleading to state a claim upon Consequently, the Routt County District Court's order granting Morrison-Knudsen's motion for summary judgment must be affirmed 'if the pleadings * * * together with the affidavits * * * show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law * * *.' R.C.P. Colo. 56(c); Norton v. Dartmouth Skis, Inc., 147 Colo. 436, 364 P.2d 866; Field v. Sisters of Mercy, 126 Colo. 1, 245 P.2d 1167. It is clear from the pleadings and the affidavits that the plaintiff Lewis Alexander and Morrison-Knudsen were subject to the Workmen's Compensation Act and that Lewis Alexander's injuries arose 'out of and in the course of his employment on May 27, 1963 while working for said Morrison-Knudsen Company * * *,' as alleged in the complaint.

which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in rule 56 * * *.'

Having brought itself within the ambit of the Workmen's Compensation Act, Morrison-Knudsen is not subject to a common law action for damages and the plaintiffs are limited to the remedies specified in the act. This conclusion is spelled out in C.R.S. 1963, 81--3--2, in these words:

'Any employer who has elected to and has complied with the provisions of this chapter, including the provisions relating to insurance, shall not be subject to the provisions of section 81--3--1; nor shall such employer be subject to any other liability whatsoever for the death of or personal injury to any employee, except as provided in this chapter; And all causes of action, actions at law, suits in equity, and proceedings whatever, and all statutory and common law rights and remedies for and on account of such death of, or personal injury to any such employee and accruing to any and all persons whomsoever, are hereby abolished except as provided in this chapter.' (Emphasis added.)

The plaintiff Ruth Alexander is in no better position than her husband. Her rights under the situation here are strictly derivative and are controlled by the all-inclusive language of the italicized portion of the statute just quoted. In addition to delimiting remedies available to those subject to its provisions, the Workmen's Compensation Act delineates the rights of all dependents of a compensably injured workman, including the wife. See C.R.S. 1963, chapter 81, article 11.

Consequently, the trial court correctly, as a matter of law, dismissed plaintiffs' complaint as to Morrison-Knudsen under the provisions of Rule 56(c).

COLORADO-UTE

The complaint alleges that:

'* * * MORRISON-KNUDSEN * * * and COLORADO-UTE * * * entered into a written contract whereby MORRISON-KNUDSEN * * * agreed to construct an electric power plant * * *.

'* * * MORRISON-KNUDSEN * * * ordered the plaintiff LEWIS M. ALEXANDER to take a truck-mounted crane with a 45-foot boom to remove dirt, brush, and other debris from a site On premises owned by the COLORADO-UTE ELECTRIC ASSOCIATION, INC. * * *' (Emphasis added.)

The complaint then alleges numerous acts of negligence attributable to Colorado-Ute, which resulted in the injuries to Lewis Alexander. The plaintiffs contend that 'certainly Morrison-Knudsen And Colorado-Ute could Not both be considered the employer of Lewis M. Alexander within the meaning of the statute.' Although citing no authority for this position, we will assume for the purpose of this discussion that plaintiffs had in mind Great Western Sugar Co. v. Erbes, 148 Colo. 566, 367 P.2d 329, where an employee The record here reflects that Morrison-Knudsen before commencing such work insured and kept insured its liability for compensation, as provided in C.R.S. 1963, chapter 81; consequently, Colorado-Ute is not subject to any liability of any kind to the Alexanders.

of a contractor was permitted to recover damages from the owner for injuries sustained while working on the owner's premises. Apparently Erbes was noted by the General Assembly inasmuch as it amended C.R.S. '53, 81--9--2. The amended law became effective on April 18, 1963, some five weeks prior to the date of plaintiff's unfortunate accident. C.R.S. 1963, 81--9--2. Under the law as amended, the owner, in circumstances such as we have here, is deemed to be 'an employer.' It provides that if the contractor or subcontractor undertaking to do work for the owner of property is unable to meet his responsibilities under the act, then those responsibilities devolve upon the owner. Stewart v. Industrial Commission, Colo., 428 P.2d 367. However, if the contractor undertaking to do such work 'shall before commencing such work insure and keep insured his liability for compensation,' the owner of the property shall be free of responsibility to the injured workman, including tort liability. C.R.S. 1963, 81--9--2(2).

YAMPA VALLEY

Although alleged to have been a co-owner of the land on which the accident occurred, it does not appear that Yampa Valley 'contracted out' the work to Morrison-Knudsen. So, under the state of the pleadings at this point, it is not possible to bring Yampa Valley within the terms of C.R.S. 1963, 81--9--2. More importantly, the judgment under review disposed of plaintiffs' claim against Yampa Valley solely on the basis of the 'defendants' Motion for Summary Judgment filed with the Court on the 12th day of May, 1965.' The motion of May 12, 1965, relied upon the 'double dismissal' provision of Rule 41(a)(1) of the Colorado Rules of Civil Procedure.

Rule 41(a)(1) relates to...