Boettner v. Twin City Const. Co.

• Decision Date: 01 February 1974
• Docket Number: No. 8933,8933
• Citation: 214 N.W.2d 635
• Parties: Dale V. BOETTNER, Plaintiff and Appellee, v. TWIN CITY CONSTRUCTION COMPANY and Earl Wilkins, Defendants and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 635

214 N.W.2d 635

Dale V. BOETTNER, Plaintiff and Appellee, v. TWIN CITY CONSTRUCTION COMPANY and Earl Wilkins, Defendants

and Appellants.

Civ. No. 8933.

Supreme Court of North Dakota.

Feb. 1, 1974.

As Corrected Feb. 25, 1974.

Syllabus by the Court

1. An order striking an affirmative defense which is not provable under the remaining allegations of the answer is appealable.

2. An employee of one contractor, injured by the negligence of an employee of another contractor on the same project, is not foreclosed from suing the employee of the other contractor and the other contractor for negligence, under the provisions of Sections 65--01--02(5), par. c and 65--01--08, N.D.C.C.

3. Under Section 65--01--02(5), par. c, N.D.C.C., a general contractor is deemed the employer of employees of subcontractors and independent contractors operating under agreements with the general contractor only until such subcontractor or independent contractor obtains workmen's compensation coverage.

4. The Workmen's Compensation Act is to be construed liberally in favor of an injured workman so as to promote the well being of the workman.

5. The Workmen's Compensation Act is to be construed liberally in favor of the workman in determining the identity of the employer.

6. In construing statutes, that construction is preferred which minimizes conflicts between statutes.

Degnan, McElroy, Lamb, Camrud & Maddock, Grand Forks, for plaintiff and appellee.

R. Lee Hamilton, Grand Forks, for defendants and appellants.

VOGEL, Judge.

The plaintiff sued the defendants for damages for personal injuries incurred while working on a construction job at University of North Dakota campus. Defendant Wilkins is an officer and employee of defendant Twin City Construction Company. Plaintiff claims to have been injured through the negligence of Wilkins. Plaintiff was an employee of Air Control Hearing, Inc. Both defendant Twin City Construction Company and Air Control Hearing, Inc., had contracts to work on the same construction project, the construction of the Chester Fritz Auditorium at the University of North Dakota, built by the State Board of Higher Education, and each obtained workmen's compensation coverage on its employees.

In their answer the defendants allege as a separate defense that the plaintiff is a co-employee with the defendant Wilkins under the terms of the workmen's compensation laws of North Dakota, and therefore the plaintiff is precluded from suing either Wilkins or his employer. The relevant statutes are:

'65--01--02. Definitions.--Whenever used in this title:

'5. 'Employee' shall mean . . .:

'c. Persons employed by subcontractor, or by an independent contractor operating under an agreement with the general contractor, for the purpose of this chapter shall be deemed to be employees of the general contractor who shall be liable and responsible for the payments of premium for the coverage of these employees until the subcontractor or independent contractor has secured the necessary coverage and paid the premium therefor. This subdivision shall not be construed as imposing any liability upon a general contractor other than liability to the bureau for the payment of premiums which are not paid by a subcontractor or independent contractor; . . .'

Sec. 65--01--02, N.D.C.C.

'65--01--08. Contributing employer relieved from liability for injury to employee.--Where a local or out of state employer has secured the payment of compensation to his employees by contributing premiums to the fund, the employee, and the parents of a minor employee, or the representatives or beneficiaries of either, shall have no right of action against such contributing employer or against any agent, servant, or other employee of such employer for damages for personal injuries, but shall look solely to the fund for compensation.' Sec. 65--01--08, N.D.C.C.

After certain pretrial discovery proceedings, which brought out the employment relationships described above, the plaintiff moved to strike certain defenses, including the paragraph of the answer alleging that the defendants were immune to suit because of the co-employee relationship of the parties. The trial court granted the motion as to that defense, and this appeal followed.

An order striking an affirmative defense which is not probable under the remaining allegations of the answer is appealable. LaDuke v. E. W. Wylie Co., 77 N.D. 592, 44 N.W.2d 204 (1950); Granger v. Deaconess Hospital of Grand Forks, 138 N.W.2d 443 (N.D.1965).

Although the plaintiff alleges that the order striking the defense is not appealable, we have examined the pleadings and conclude that the defense is not provable under the remaining allegations of the answer, and the order is therefore appealable.

Although the contracts with the State Board of Higher Education are not before us, it appears that both Air Control Heating, Inc., and Twin City Construction Company had separate contracts with the State Board of Higher Education, which, for purposes of this appeal, we will presume to have the status of a general contractor. Neither was a subcontractor for the other. The question before us, then, is whether an employee of one contractor, which may be a subcontractor or an independent contractor operating under an agreement with a general contractor, may sue the employee of another contractor of the same status for negligently causing injuries arising during the employment.

It is a question which has not been previously before this court. Two other courts, however, have attempted to predict our decision on the question if it should reach us. Both judges are highly respected, as is the Honorable A. C. Bakken, from whose ruling this appeal was taken. One is the late United States District Judge for the District of North Dakota, the Honorable George S. Register, and the other is the Honorable Ralph B. Maxwell, Judge of the District Court of the First Judicial District of North Dakota. Unfortunately, they arrived at opposite results. Judge Register's opinion is found in Schwarze v. Farm-Rite Implement Co., 192 F.Supp. 645 (D.C.N.D.1960), while Judge Maxwell's was written in the case of Spicka v. E. K. Jenkins Co. (D.C. of Barnes County, dated December 24, 1968). Judge Bakken wrote no opinion. Since Judge Maxwell's decision is unreported, and we agree with its reasoning and conclusions, we will quote from it at length:

'It is first assumed, that at the time of the incident giving rise to suit, employees of all the subcontractors were also statutory employees of the general contractor. That assumption is based upon language of Subsection 65--01--02(5c) ((5), par. c) which reads:

'Persons employed by subcontractor, or by an independent contractor operating under an agreement with the general contractor, for the purpose of this chapter shall be deemed to be employees of the general contractor who shall be liable and responsible for the payments of premium for the coverage of these employees Until the subcontractor or independent contractor has secured the necessary coverage and paid the premium therefor. This subdivision shall not be construed as imposing any liability upon a general contractor other than liability to the bureau for the payment of premiums which are not paid by a subcontractor or independent contractor.'

'The subsection is amenable to two constructions. One is that the general contractor is deemed the employer of his subcontractor's employees only until the subcontractor obtains workmen's compensation coverage. The other is that the general contractor is deemed the continuing employer of his subcontractor's employees but is liable for payment of workmen's compensation premiums only until the subcontractor obtains coverage.

'It is the latter construction that Jenkins presses. Its position finds support in Schwarze v. Farm-Rite Implement Co., 192 Fed.Supp. 645 (1960), a decision of the U.S. District Court for the District of North Dakota. In that case the Court said:

'. . . this Court believes it both unrealistic and against public policy to construe such statute in such a manner that the general contractor would be deemed the employer of its subcontractor's employees--and, therefore, entitled to the protection of the Workmen's Compensation Act--up to and only up to such time as the subcontractor itself might come under the protection of said Act.'.

'This belief of the Court sprang from the following reasoning:

'. . . If such were to be the construction, it would no doubt be to the advantage of the general contractor to persuade its subcontractors and independent contractors to refrain from seeking coverage, if to do so would deprive the general contractor of the protection with which he is clothed prior to the taking out of such compensation insurance by his subcontractors or independent contractors.'

'This Court has great respect for the U.S. District Court for the District of North Dakota. It is therefore grieved that it is unable to adopt the conclusion...