Barron v. Kerr-Mcgee Rocky Mountain Corp.
Decision Date | 20 September 2007 |
Docket Number | No. 06CA1333.,06CA1333. |
Citation | 181 P.3d 348 |
Parties | Muriel BARRON and Fernando Gallardo, Plaintiffs-Appellants, v. KERR-McGEE ROCKY MOUNTAIN CORPORATION, a Delaware corporation, Defendant-Appellee. |
Court | Colorado Court of Appeals |
Bernard, Lyons, Gaddis & Kahn, P.C., Bradley A. Hall, Richard N. Lyons, II, Longmont, Colorado, for Plaintiffs-Appellants.
Grund, Dagner & Nelson, P.C., John W. Grund, David S. Werber, Denver, Colorado, for Defendant-Appellee.
Opinion by Judge J. JONES.
In this premises liability action, plaintiffs, Muriel Barron and Fernando Gallardo, appeal the district court's summary judgment in favor of defendant, Kerr-McGee Rocky Mountain Corporation, after determining that Kerr-McGee was the statutory employer of Barron's late husband and Gallardo, and therefore immune from suit under sections 8-41-102 and 8-41-402, C.R.S.2006. We affirm.
Barron's husband and Gallardo were employed by a contractor hired by Kerr-McGee to install an oil storage tank at a saltwater disposal facility owned and operated by Kerr-McGee. Kerr-McGee does not own the real property on which the facility is located. Kerr-McGee has several storage tanks at the facility, ranging in size from twelve feet by fifteen feet to thirty feet by fifteen feet. The storage tanks are affixed to the real property on concrete slab foundations.
While Barron's husband and Gallardo were working on the storage tank, an explosion occurred, killing Barron's husband and injuring Gallardo. Plaintiffs received workers' compensation benefits from the contractor.
Plaintiffs commenced this action against Kerr-McGee, asserting claims under the premises liability statute, section 13-21-115, C.R.S.2006. Kerr-McGee moved for summary judgment, arguing that it was the statutory employer of Barron's husband and Gallardo under section 8-41-402, which imposes the obligations of the Workers' Compensation Act (the Act), sections 8-40-101 to -47-209, C.R.S.2006, on owners of real property or improvements to real property who retain contractors to work on the property, but immunizes the statutory employer from all civil liability. See Wagner v. Coors Energy Co., 685 P.2d 1380, 1382 (Colo.App.1984). Kerr-McGee asserted that the storage tank on which Barron's husband and Gallardo were working was an improvement to real property within the meaning of section 8-41-402, and that it was therefore immune from plaintiffs' suit.
The district court granted summary judgment in Kerr-McGee's favor, finding as a matter of law that the storage tank was an improvement to real property, and that Kerr-McGee was a statutory employer and therefore immune from liability on plaintiffs' tort claims. Plaintiffs appeal.
Plaintiffs contend the district court erred in determining that the storage tank was an improvement to real property under the Act because there was no evidence that (1) the storage tank increased the capital value of the real property, or (2) the owner of the real property considered the tank an improvement. We are not persuaded.
Summary judgment should be granted only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. C.R.C.P. 56(c); Premier Farm Credit, PCA v. W-Cattle, LLC, 155 P.3d 504, 512 (Colo.App. 2006). We review the district court's order granting summary judgment de novo. Cyprus Amax Minerals Co. v. Lexington Ins. Co., 74 P.3d 294, 298-99 (Colo.2003); Premier Farm Credit, 155 P.3d at 512.
An employer that complies with the provisions of the Act is immune from all civil actions that may be brought by an employee for a work-related injury. The Act is an employee's exclusive remedy for such an injury. § 8-41-102; see Triad Painting Co. v. Blair, 812 P.2d 638, 641 (Colo.1991); Cowger v. Henderson Heavy Haul Trucking Inc., 179 P.3d 116, ___ (Colo.App. 2007). The Act also provides immunity to an entity found to be a "statutory employer" of an employee. Finlay v. Storage Tech. Corp., 764 P.2d 62, 63-64 (Colo.1988).
Kerr-McGee contends it was the statutory employer of Barron's husband and Gallardo under section 8-41-402(1), which provides as relevant here:
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 [the Act].
The sole issue in this appeal is whether the storage tank on which Barron's husband and Gallardo were working falls within the statutory meaning of an improvement to real property as a matter of law, thereby qualifying Kerr-McGee as a statutory employer and entitling it to summary judgment.
The term "improvement" is not defined by the Act. Where a term "is not defined by the statute, ... we must assume that the General Assembly intended that th[e] phrase be given its usual and ordinary meaning." Enright v. City of Colorado Springs, 716 P.2d 148, 149 (Colo.App.1985) ( ); see also Anderson v. M.W. Kellogg Co., 766 P.2d 637, 640 (Colo. 1988) ( ). Where, as here, the material facts are undisputed, "the question whether a particular item is an improvement to real property is a question of law." Stanske v. Wazee Elec. Co., 690 P.2d 1291, 1293 (Colo. App.1984) (Stanske I), aff'd, 722 P.2d 402 (Colo.1986) (Stanske II).
An improvement to real property is commonly understood as "[a]n addition to real property, whether permanent or not; esp[ecially] one that increases its value or utility or that enhances its appearance." Black's Law Dictionary 773 (8th ed.2004). In other contexts, the supreme court has held that in determining the meaning of the term "improvement," the court's primary focus must be the "nature of the activity involved." Anderson, 766 P.2d at 640-41 (quoting Stanske II, 722 P.2d at 406-07).
Thus, a component that is an essential and integral part of a larger system may be an improvement. See Two Denver Highlands Ltd. P'ship v. Dillingham Constr. N.A., Inc., 932 P.2d 827, 830 (Colo.App.1996) ( ); Embree v. Am. Cont'l Corp., 684 P.2d 951, 952 (Colo.App.1984) ( ). This is so even if the item could be removed from the property. Enright, 716 P.2d at 150 ( ); Stanske I, 690 P.2d at 1293 ( ).
We reject plaintiffs' contention that the party claiming immunity must demonstrate that the alleged improvement increased the capital value of the real property, and that summary judgment here was inappropriate because Kerr-McGee did not present any such evidence. We note initially that plaintiffs did not raise this argument in the district court, but raise it on appeal because the district court, in ruling on Kerr-McGee's motion for summary judgment, cited definitions of "improvement" that indicate an increase in capital value is a relevant factor. Plaintiffs' contention fails.
In support of their position, plaintiffs point to three dictionary and reference book definitions of improvement which note that an improvement to property is a permanent addition to real property that may, among other things, enhance the real property's capital value. See 41 Am.Jur.2d Improvements § 1 (2005); Black's Law Dictionary 761 (7th ed.1999); Webster's Third New International Dictionary 1138 (1976). When considered together, however, the definitions on which plaintiffs rely, like that quoted above, suggest that an increase in capital value is one of several factors that may indicate that an item is an improvement. See 41 Am.Jur.2d Improvements § 1 ( ); Black's Law Dictionary 761 (7th ed.1999) (defining "improvement" as "[a]n addition to real property, whether permanent or not; esp. one that increases its value or utility or that enhances its appearance" (emphasis added)); Webster's Third New International Dictionary 1138 (defining "improvement" as "a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs" (emphasis added)).
Further, plaintiffs have not cited any legal authority that requires consideration of whether the item increases the real property's capital value when evaluating whether an item constitutes an improvement to real property. None of the Colorado decisions we have reviewed which addressed the meaning of the term considered the increase in the capital value of the real property. See Anderson, 766 P.2d at 641; Stanske II, 722 P.2d at 406-07; Two Denver Highlands Ltd. P'ship, 932 P.2d at 830; Enright, 716 P.2d at 150; Stanske I, 690 P.2d at 1293; Wagner, 685 P.2d at 1382; Embree, 684...
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