Franks v. Olson, 97-147

• Decision Date: 05 March 1999
• Docket Number: No. 97-147,97-147
• Citation: 975 P.2d 588
• Parties: James FRANKS, Appellant (Plaintiff), v. Linne OLSON; and GESCO Management Corp., a Wyoming corporation, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 588

975 P.2d 588

James FRANKS, Appellant (Plaintiff), v. Linne OLSON; and GESCO Management Corp., a Wyoming corporation, Appellees (Defendants).

No. 97-147.

Supreme Court of Wyoming.

March 5, 1999.

Vance Countryman of Hooper Law Offices, P.C., Riverton, Wyoming, Representing Appellant.

Michael Rosenthal and Dominique D.Y. Cone of Hathaway, Speight & Kunz, Cheyenne, Wyoming, Representing Appellees.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and TAYLOR, ^* JJ.

THOMAS, Justice.

The primary issue in this case is whether James Franks (Franks) is foreclosed from recovering damages for personal injuries from Linne Olson, a retired President and General Manager of L.M. Olson, Inc., because of the provisions of the Wyoming Worker's Compensation Act, Wyo. Stat. Ann. §§ 27-14-101 through 27-14-805 (Michie Repl.1991). Franks sought recovery for injuries he sustained when concrete blocks in a retaining wall that was being rebuilt fell on him, alleging that Linne Olson was negligent in designing the project. Franks was employed by L.M. Olson, Inc. (Olson), and Linne Olson had been retained as a casual employee by Olson for the project of rebuilding the retaining wall. The major question depends on whether Linne Olson was an employee of Olson. The trial court ruled that Linne Olson was an employee of Olson, and it entered summary judgment in favor of Linne Olson. The record discloses no genuine issues of material fact relating to Linne Olson's employment status, and liability on his part is foreclosed by the provisions of the Wyoming Worker's Compensation Act. The Order Granting Motion for Summary Judgment of Defendant Linne Olson is affirmed.

A second issue is raised with respect to whether Linne Olson and two other individuals, who were employees of Olson, also were employed by GESCO Management Corp. (GESCO) so that it could be sued under a theory of vicarious liability. Consistent with its ruling about the status of Linne Olson, the trial court determined that all three were employees of Olson, not GESCO. Based on that ruling, a summary judgment also was entered in favor of GESCO. On this question, the record discloses no genuine issues of material fact, and the law correctly was applied to those facts. GESCO has no vicarious liability as an employer of any of the individuals named in the complaint. The Order Granting Motion for Summary Judgment of Defendant GESCO Management Corp. is affirmed.

In the Brief of Appellant, filed on behalf of Franks, these issues are raised:

Whether Linne Olson, hereafter referred to as Linne, was a co-employee of the Appellant as defined by and therefore entitled to Summary Judgment as a matter of law.

Whether there was an issue of fact precluding the entry of Summary Judgment in favor of GESCO.

In the Brief of Appellees, filed on behalf of Linne Olson and GESCO, the issues that are raised are stated in this way:

A. Did the trial court properly grant summary judgment to defendant/appellee Linne Olson?

B. Did the trial court properly grant summary judgment in favor of defendant/appellee GESCO Management Corporation ("GESCO")?

The Reply Brief of Appellant does not set forth any additional issues.

In 1989, Linne Olson was the President and General Manager of Olson. When he retired in December of 1990, his son, Gregg Olson, assumed his duties, and continues in the positions of President and General Manager. Counting stock owned by his wife, Linne Olson remained a majority shareholder in Olson. He serves as a member of the board of directors, and receives a fee for attending meetings. During the year of 1989, Olson commenced the construction of a building in Rawlins on a tract of land that was owned by the corporation. Linne Olson was active when the project was started, but he retired before it was completed.

In order to create a level surface for parking at the new building, Olson built a barrier on the east side of the property. The barrier consisted of two foot by two foot by four foot concrete blocks placed end to end on top of the ground surface at the property boundary. Each of those blocks weighed approximately 2,500 pounds. Fill dirt then was packed against the blocks to create the level parking surface. After it was completed, the building was leased to the Bureau of Land Management (BLM), and Olson later sold the property to another party who continued to lease it to the BLM.

The lot adjacent to the parking area was utilized for a trailer court, which is owned by Jewell Withrow. In 1991, the Withrows recognized that the vegetation on the property bordering the BLM building was dying. Investigation disclosed that, at the time the parking lot was constructed, a layer of the defoliant was spread upon the ground beneath the asphalt to retard weed growth. It appeared that the defoliant had migrated under the retaining wall and onto the Withrow property. Ron Withrow, the ex-husband of Jewell Withrow, contacted Linne Olson about the problem.

Linne Olson had enjoyed a long friendship and business relationship with Ron Withrow, and Linne Olson and Gregg Olson agreed that Linne would work on the problem with Withrow, on behalf of Olson. A series of meetings occurred between Linne Olson, Gregg Olson, and Ron Withrow, and Olson agreed to treat the contaminated soil to neutralize the defoliant and to build a new retaining wall. Linne Olson designed the plans for the new retaining wall between the properties. Ron Withrow, who had extensive excavating experience, contracted to perform all the excavating work, with the remaining work on the project to be accomplished by Olson.

Linne Olson delivered his sketch of the retaining wall to the Olson supervisor, and Olson's employees worked at the job site for several days prior to the accident that is the subject matter of this case. They had been tearing down the old fence, removing fence posts, and clearing away bushes and other debris. Franks joined the Olson crew, consisting of two other Olson employees, for the first time on May 13, 1992, and the accident occurred on the same day.

At the time the crew arrived, Withrow already had started using a backhoe to dig a trench adjacent to the concrete blocks forming the old retaining wall. Franks and another member of the crew were working in the trench some distance away from Withrow when they heard the bucket of the backhoe strike against the blocks. One of the concrete blocks near the backhoe fell into the trench, and a domino effect resulted in which all of the concrete blocks began to topple over, one after the other. The other employee stepped out of the trench unharmed, but Franks was pinned by one of the falling blocks. He alleges injuries to his hamstring muscles, thigh, buttock and back.

In his original complaint, filed on March 14, 1995, Franks named ten defendants, including Linne Olson. Linne Olson filed a motion for summary judgment, asserting that he was employed by Olson; was a co-employee of Franks; and the Wyoming Worker's Compensation Act barred Franks' complaint for ordinary negligence. The trial court agreed with Linne Olson's position, and it granted his motion for summary judgment.

On May 13, 1996, Franks filed a First Amended Complaint in which he asserted additional claims against additional defendants, including GESCO. Franks' theory as to GESCO was that GESCO had been employed by Olson to provide management services for Olson's general contractor business. He contended that, in its management capacity, GESCO engaged the services of Linne Olson to design the retaining wall in question. Franks alleged that Linne Olson negligently designed the retaining wall project, and that his negligence was the direct and proximate cause of Franks' injuries. Franks contended that GESCO, as the employer of Linne Olson, was vicariously liable for his negligent acts.

GESCO was a party to a written agreement with Olson pursuant to which GESCO provided management services and personnel. Of particular interest in this case, GESCO provided the services of Gregg Olson, the President and General Manager of Olson, and Fred Hansen, the Controller and Corporate Secretary. The agreement provided that the services "shall be performed pursuant to the direction and control of the Board of Directors of [Olson] * * *." As consideration for these management services, Olson reimbursed GESCO for the salaries of Gregg Olson and Fred Hansen on a monthly basis. Gregg Olson explained on the record that GESCO did not exercise any direct or indirect control over Olson business operations. He also stated that GESCO provided no safety training for Olson or any of its employees. Safety training and safety information were provided by Olson supervisors at each respective job site. Whenever necessary, Fred Hansen compiled safety information to distribute to Olson supervisors. Finally, GESCO contended that Linne Olson was not employed by GESCO, and, for that reason, Franks' claim of vicarious liability was fallacious.

GESCO relied upon this information in filing its motion for summary judgment. The trial court agreed with GESCO's position, and granted the motion for summary judgment. The trial court found that Franks had failed to present any genuine issue of material fact and that GESCO was entitled to judgment as a matter of law. Franks' appeal is taken from the respective orders granting Linne Olson's and GESCO's motions for summary judgment.

Our review of an order of the trial court granting a summary judgment is a de novo review. Krier v. Safeway Stores 46, Inc., 943 P.2d 405, 408 (Wyo.1997); Knudson v. Hilzer, 551 P.2d 680, 685 (Wyo.1976). We examine the record from the perspective most favorable to the party who opposed the motion to determine whether a genuine issue exists as to any material fact that prevents disposition of the case as a matter of law. Nowotny v. L & B Contract Industries, Inc., 933 P.2d 452, 455 (Wyo.1997) (quoting Thomas by Thomas v. South Cheyenne Water and...