Antonini v. Hanna Industries

• Decision Date: 25 January 1978
• Docket Number: No. 9185,9185
• Citation: Antonini v. Hanna Industries, 94 Nev. 12, 573 P.2d 1184 (Nev. 1978)
• Parties: Robert ANTONINI, Appellant, v. HANNA INDUSTRIES, a Foreign Corporation, Respondent.
• Court: Nevada Supreme Court

Page 1184

573 P.2d 1184

94 Nev. 12

Robert ANTONINI, Appellant, v.HANNA INDUSTRIES, a Foreign Corporation, Respondent.

No. 9185.

Supreme Court of Nevada.

Jan. 25, 1978.

Pat J. Fitzgibbons, Las Vegas, for appellant.

Lorin D. Parraguirre, Las Vegas, for respondent.

OPINION

PER CURIAM:

Robert Antonini has appealed from an order of the district court dismissing his action in tort against Hanna Industries.The district court found that Hanna, as Antonini's employer, was statutorily immune from tort liability under the provisions of the Nevada Industrial Insurance Act (NIIA).NRS 616.010 et seq.We affirm that decision.

Antonini was injured on September 13, 1974, when a steel arch comprising part of a carwash display that he was attempting to dismantle collapsed beneath him.This display was owned by Hanna Industries, a Texas corporation, and had been exhibited by Hanna at the Las Vegas Convention Center.

Antonini was hired out of Teamsters LocalNo. 631 on September 12, 1974, by Las Vegas Convention Services, Inc.(LVCS).The normal business practice of LVCS was to contract with convention exhibitors for the assembly and dismantling of exhibits at the Convention Center.

Antonini had worked for LVCS on a number of previous occasions.In the vast majority of his past jobs with LVCS, his activities at the Convention Center had been supervised and directed exclusively by LVCS personnel, the exhibitor merely retaining control over the end result of the work.However in this instance, due apparently to the complexity of the carwash apparatus, the exhibitor Hanna Industries insisted upon the retention of complete control over the dismantling operation.While dismantling the display under the direction of "Les", an employee of Hanna, Antonini was injured.

Antonini sought and recovered an award from the Nevada Industrial Commission(NIC) under the policy of LVCS.He then brought this tort action against Hanna, alleging its liability under two alternative theories.¹First, he argues that Hanna is liable as a third-party tort-feasor under NRS 616.560.²Alternatively, he argues that even if an employment relationship arose between Hanna and himself, Hanna should nonetheless be found liable in tort as an uninsured employer under NRS 616.375.³

I.Was Hanna Industries Antonini's employer within the meaning of the NIIA ?

NRS 616.090 defines "employer" for the purposes of Nevada's workmen's compensation act to include "(e)very person, firm, and private corporation . . . which has any natural person in service."In the interpretation of this provision, this court has not deemed itself bound by common law tests of employment derived from the particular policies underlying the doctrine of vicarious liability.Heidtman v. Nevada Ind. Comm'n, 78 Nev. 25, 368 P.2d 763(1962).Rather, in keeping with the particular purposes of the Nevada Industrial Insurance Act (NIIA), we have adopted a policy of broad and liberal interpretation, Nevada Ind. Comm'n v. Bibb, 78 Nev. 377, 374[94 Nev. 15] P.2d 531 (1962), recognizing that the NIIA should operate not only for the benefit of injured workers, Industrial Commission v. Peck, 69 Nev. 1, 239 P.2d 244(1952), but also for the protection of employers against common law tort actions.Simon Service v. Mitchell, 73 Nev. 9, 307 P.2d 110(1957).SeeJackson v. Southern Pacific Company, 285 F.Supp. 388(D.Nev.1968).These dual concerns are in accord with the interpretive policies of the majority of other U.S. courts.See1A Larson, Workmen's Compensation Law, §§ 43-44.(1973)

In characterizing the relationship between an owner-contractee and a worker engaged in a particular project with respect to that owner's property, we have placed primary emphasis upon the amount of "control" exercised by the contractee over the worker.⁴Under the general term "control" several factors have been accorded substantially equal weight in determining the existence of an employment relationship.These include the degree of supervision exercised over the details of the work, the source of the worker's wages, the existence of a right to hire and fire the worker, and the extent to which the worker's activities further the general business concerns of the alleged employer.⁵Titanium Metals v. District Court, supra;McDowell Constr. Supply Co. v. Williams, 90 Nev. 75, 518 P.2d 604(1974);Nevada Ind. Comm'n v. Bibb, supra.

Under this flexible approach, we have held that an owner-contractee who exercised significant operational control over the details of the construction work for which he had contracted assumed employer status for the purposes of NRS 616.560.Simon Service v. Mitchell, supra;Titanium Metals v. District Court, supra;Frith v. Harrah's South Shore Corporation, supra.Conversely, in Nevada Ind. Comm'n v. Bibb, supra, we found a newsboy to be an employee rather than an independent contractor, although the newspaper had not assumed a direct supervisory role over his activities.We relied nonetheless upon the retained right to control the hours and the location of employment, the right to specify the prices at which the newspapers could be sold, and the right summarily to terminate the newsboy's services to find that an employment relationship had arisen for the purpose of providing compensation under the Act.

On the other hand, in McDowell Construction Supply Co. v. Williams, supra, we held that a seller's deliveryman did not become a "loaned employee" of the buyer merely by unloading the purchased material at the direction of the buyer at specified locations throughout a construction site.We found that the amount of operational control and supervision exercised by the buyer was insufficient to establish an employment relationship when balanced against the absence of the right to hire and fire, the right to control the details of the worker's forklift operations, the deliveryman's continued payment by the seller, and the fact that the delivery was primarily in furtherance of the course of business of the seller.⁶

The record reveals that the arrangement between LVCS and Hanna Industries was quite different from LVCS's normal contract arrangement at the Convention Center.Specifically, Hanna informed LVCS that because of the complexity of the apparatus, it wished to supervise and control the dismantling operation itself.LVCS was merely to supply a crew of workers who, under Hanna's detailed direction, would dismantle the exhibits.

Clearly, Antonini remained in the employ of LVCS while he was dismantling the exhibit.He remained on the payroll of LVCS, and was originally hired by LVCS.LVCS retained the right to fire him.Similarly, Antonini's activities were in direct furtherance of LVCS's general business.

However, under the flexible approach enunciated in our prior cases, we conclude that an employment relationship also arose between Antonini and Hanna Industries.Control over Antonini's activities was strictly and exclusively exercised by Hanna.Simon Service v. Mitchell, supra;Titanium Metals v. District Court, supra.Hanna retained the right to demand a replacement worker from LVCS if it became dissatisfied with Antonini.Such a demand would clearly have terminated Antonini's employment with LVCS under that particular contract, and thus constitutes a right to fire.McDowell Construction Supply Co. v. Williams, supra;Nevada Ind. Comm'n v. Bibb, supra.Although LVCS paid Antonini his wages, the source of those payments was Hanna, who paid LVCS for the workers it provided.Finally, Antonini's activities were clearly in furtherance of Hanna's regular business: the exhibit was in promotion of its business as a manufacturer of carwashes.Nevada Ind. Comm'n v. Bibb, supra;cf.Jackson v. Southern Pacific Company, supra.We find, therefore, that Hanna became Antonini's employer within the meaning of Ch. 616, NRS.

Antonini argues that the degree of control exercised by LVCS compels the conclusion that it, and not Hanna Industries, was his employer.However the concept of joint employment is accepted in Nevada, as it is in other jurisdictions.SeeJackson v. Southern Pacific Company, supra, at 391, citingFamous Players Lasky Corp. v. Industrial Accident Commission, 194 Cal. 134, 228 P. 5(Cal.1924).In Beaver v. Jacuzzi Bros.(8th Cir.1972), 454 F.2d 284, 285, the court stated: "As a matter of common experience and of present business practices in our economy, it is clear that an employee may be employed by more than one employer even while doing the same work."See also1A Larsen, supra, § 48.40, at 8-254.Antonini's continued employment relationship with LVCS in no way precludes another employment relationship, based upon identical activities, with Hanna Industries.

The tripartite relationship among Hanna, LVCS, and Antonini has been characterized in other jurisdictions as a "labor broker" relationship: the immediate employer LVCS contracted to provide workers for the customer Hanna, to be employed in the customer's business activities and under his direct supervision.Courts in other jurisdictions have concluded that an employment relationship results between the worker and the labor broker's customer.⁷Danek v. Meldrum Mfg. and Engineering Co., Inc., supra;Schwartz v. Riekes and Sons, supra;Beaver v. Jacuzzi Bros., supra;Wright v. Habco, Inc., supra;Daniels v. MacGregor Co., 2 Ohio St.2d 89, 206 N.E.2d 554(1965);Shipman v. Macco Corporation, 392 P.2d 9(N.M.1964).This new employment relationship is not inconsistent with the continued existence of an employment relationship with the labor broker.Smith v. Kelley Labor Service, 239 So.2d 685(La.App.1970).

We therefore conclude that Hanna Industries was Antonini's employer under the NIIA.As an employer, it is immune from third-party tort liability under NRS 616.370andNRS 616.560.

II.May Hanna be sued as a non-participating employer ?

Antonini alternatively argues that even if Hanna is an employer and is...