Carlson v. GMR Transp., Inc.

• Decision Date: 27 May 2015
• Docket Number: No. 20140319.,20140319.
• Citation: 863 N.W.2d 514
• Parties: Merwin R. CARLSON and Denise E. Carlson, Plaintiffs and Appellants, v. GMR TRANSPORTATION, INC., a North Dakota Corporation, Defendant and Appellee.
• Court: North Dakota Supreme Court

863 N.W.2d 514

Merwin R. CARLSON and Denise E. Carlson, Plaintiffs and Appellants

v.GMR TRANSPORTATION, INC., a North Dakota Corporation, Defendant and Appellee.

No. 20140319.

Supreme Court of North Dakota.

May 27, 2015.

Bruce A. Schoenwald, Moorhead, MN, for plaintiffs and appellants.

Ronald H. McLean (argued), Joseph A. Wetch, Jr. (appeared), and Ian McLean (on brief), Fargo, ND, for defendant and appellee.

Opinion

VANDE WALLE, Chief Justice.

[¶ 1] Merwin and Denise Carlson appealed from a summary judgment dismissing their personal injury and loss of consortium action against GMR Transportation, Inc. Because we conclude the district court did not err in ruling as a matter of law that GMR had not lost its employer immunity under the workers' compensation laws, we affirm.

I

[¶ 2] On July 8, 2005, Merwin Carlson was injured in a traffic accident while hauling freight as a trucker under a contract with GMR. On July 5, 2006, Carlson filed a claim for workers' compensation benefits with Workforce Safety and Insurance (“WSI”), stating GMR was his employer. In response, GMR submitted a WSI form with employer information claiming Carlson was not its employee, but was an independent contractor. On October 3, 2006, WSI issued a notice of decision finding Carlson was an employee of GMR at the time of the accident and awarded him benefits. On October 26, 2006, GMR, through out-of-state attorneys who were neither licensed to practice law in North Dakota nor admitted pro hac vice at the time, requested reconsideration of WSI's October 3, 2006, decision and argued Carlson was an independent contractor. Based on the additional information submitted, WSI issued a notice of decision on January 4, 2007, reversing its October 3, 2006, decision and denying Carlson benefits because it concluded he was an independent contractor rather than an employee of GMR. After Carlson requested reconsideration, WSI issued an order on February 20, 2007, finding Carlson was an independent contractor and requiring him to repay disability and medical benefits previously awarded. Carlson requested a rehearing before an administrative law judge (“ALJ”). After a September 2007 evidentiary hearing, the ALJ recommended finding Carlson was an independent contractor and was not entitled to benefits. WSI adopted the ALJ's recommendation and the district court affirmed WSI's decision. Carlson appealed to this Court.

[¶ 3] In the meantime, Merwin Carlson commenced a federal court action against GMR, its owners, and its out-of-state attorneys alleging numerous claims for relief, including that GMR unlawfully failed to secure WSI coverage for him, and therefore GMR was liable for his work-related injuries under N.D.C.C. § 65–09–02. The federal district court granted summary judgment dismissing the action, concluding Carlson had failed to plead or prove sufficient facts to maintain a civil action under N.D.C.C. § 65–09–02 :

[T]he Court concludes that Carlson has neither pleaded nor proved sufficient facts to support a tort claim for personal injuries under N.D.C.C. § 65–09–02. Therefore, summary judgment in favor of GMR Transportation on this claim is appropriate. However, the Court also notes that Carlson is only entitled to bring a separate tort action against GMR Transportation under § 65–09–02 if he is an employee, not an independent contractor. Because the independent contractor issue is currently on appeal in the state court proceedings, the Court finds it appropriate to dismiss this claim without prejudice. If Carlson wins on appeal in state court and is ultimately found to be an employee, he may then file a tort action against GMR Transportation under § 65–09–02 to recover personal injury damages.

Carlson v. Roetzel & Andress, 2008 WL 873647 *16 (D.N.D., March 27, 2008), aff'd on other grounds 552 F.3d 648 (8th Cir.2008).

[¶ 4] In Carlson v. Workforce Safety & Ins., 2009 ND 87, ¶¶ 34–35, 765 N.W.2d 691 (“Carlson I ”), this Court held that because GMR's nonresident attorneys failed to timely comply with pro hac vice admission requirements, GMR's reconsideration request by its non-attorney agents was void, and therefore WSI's October 3, 2006, notice of decision awarding Carlson benefits could not be reheard or appealed. We remanded “for further proceedings for calculation of Carlson's average weekly wage,” an issue WSI had not addressed because it determined Carlson was an independent contractor. Id. at ¶ 36.

[¶ 5] On remand, WSI issued an order concluding it had continuing jurisdiction to review an award of benefits under N.D.C.C. § 65–05–04 and it had erroneously accepted and paid Carlson's claim, once again determining that he was an independent contractor rather than an employee of GMR. Following a hearing, the ALJ affirmed WSI's decision that Carlson was an independent contractor who was not entitled to benefits, and also concluded Carlson's average weekly wage was $722 if he were later determined to be GMR's employee. The district court affirmed and Carlson again appealed to this Court. In Carlson v. Workforce Safety and Ins., 2012 ND 203, ¶ 19, 821 N.W.2d 760 (“Carlson II ”), we held that WSI's exercise of its continuing jurisdiction was beyond the scope of our remand in Carlson I, and the law of the case doctrine precluded WSI from using its continuing jurisdiction to re-adjudicate whether Carlson was GMR's employee. We affirmed the ALJ's decision that Carlson's average weekly wage was $722 and reversed and remanded for WSI to award Carlson benefits based on the ALJ's calculation. Id. at ¶¶ 22, 27.

[¶ 6] On February 14, 2013, Merwin and Denise Carlson commenced this action against GMR alleging it was liable for tort-based personal injury damages under N.D.C.C. § 65–09–02 because it failed to comply with North Dakota's workers' compensation requirements. The Carlsons also sought an award of attorney fees incurred in Carlson I and Carlson II under the tort-of-another doctrine. Denise Carlson asserted a claim for loss of consortium. GMR moved for summary judgment of dismissal on numerous grounds, including that the action was barred under the applicable six-year statute of limitations under N.D.C.C. § 28–01–16 and that it was an employer immune from suit under N.D.C.C. § 65–04–28. The Carlsons brought a cross-motion for summary judgment asserting, among other things, that GMR was liable for the Carlsons' damages as a matter of law. The district court granted summary judgment dismissing the action because “there is simply nothing in the record that would allow me or any other fact finder” to conclude that GMR willfully misrepresented to WSI or its representative the amount of payroll upon which a premium for workers' compensation coverage was based under N.D.C.C. § 65–04–33(2).

II

[¶ 7] The Carlsons argue the district court erred in granting summary judgment dismissing their action against GMR.

[¶ 8] We have often stated our standard of review for summary judgments:

Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.

Deckert v. McCormick, 2014 ND 231, ¶ 9, 857 N.W.2d 355 (quoting Capps v. Weflen, 2014 ND 201, ¶ 7, 855 N.W.2d 637).

A

[¶ 9] GMR argues the district court erred in failing to dismiss the action because it is barred by the statute of limitations. GMR did not cross-appeal, but it may attempt to save a judgment by urging any ground asserted in the district court. See, e.g., Estate of Clemetson, 2012 ND 28, ¶ 13, 812 N.W.2d 388.

[¶ 10] Ordinarily, the issue whether a statute of limitations bars an action should precede consideration of the merits, because if it does other issues need not be addressed. See, e.g., Maragos v. City of Minot, 191 N.W.2d 570, 571 (N.D.1971). Although GMR did not raise the statute of limitations as an affirmative defense in its answer as required by N.D.R.Civ.P. 8(c), but instead “reserve[d] all affirmative defenses,” when a district court permits an unpled affirmative defense to be raised in a motion for summary judgment and where there is no prejudice or surprise to the nonmoving party, we have treated the court's consideration of the issue as effectively granting a motion to amend the answer to assert the affirmative defense. See Kambeitz v. Acuity Ins. Co., 2009 ND 166, ¶¶ 10–12, 772 N.W.2d 632; Leet v. City of Minot, 2006 ND 191, ¶¶ 5–8, 721 N.W.2d 398; see also5 C. Wright and A. Miller, Federal Practice and Procedure § 1277 (2004), and cases collected therein. Here, the Carlsons argued their action was not barred by the statute of limitations. The court decided to base its decision on the issue of immunity rather than the statute of limitations because “there ... probably are ... fact questions that would make summary judgment on that issue alone inappropriate,” even though the court believed “the statute of limitations probably has expired.” Under these circumstances, we decline to address the statute of limitations issue.

B

[¶ 11] The Carlsons argue the district court erred in ruling as a matter of law that GMR did not lose its...