Kellen v. Second Judicial Dist. Court, In and For Washoe County, Dept. No. 6, 13701

• Citation: 98 Nev. 133,642 P.2d 600
• Decision Date: 29 March 1982
• Docket Number: No. 13701,13701
• Parties: Marvell Lee KELLEN, Sierra Painting, Inc., Petitioners, v. SECOND JUDICIAL DISTRICT COURT of the State of Nevada, In and For the COUNTY OF WASHOE, DEPARTMENT NO. 6, Respondent. William B. Moore, Real Party in Interest.
• Court: Nevada Supreme Court

Page 600

642 P.2d 600

98 Nev. 133

Marvell Lee KELLEN, Sierra Painting, Inc., Petitioners, v. SECOND JUDICIAL DISTRICT COURT of the State of Nevada, In and For the COUNTY OF WASHOE, DEPARTMENT NO. 6,

Respondent.

William B. Moore, Real Party in Interest.

No. 13701.

Supreme Court of Nevada.

March 29, 1982.

Sala, McAuliffe, Hill & White and William E. Bernard, Reno, for petitioners.

Wait, Shamberger, Georgeson, McQuaid & Thompson, Fray & Benson, Reno, Prince, Yeates & Geldzahler, Salt Lake City, Utah, for respondent.

OPINION

PER CURIAM:

In this mandamus proceeding petitioners contend that the district court should be required to grant petitioners' motion for summary judgment. See NRAP 3A(b) (5).

Petitioners are named as defendants in a third-party complaint filed by William B. Moore, the real party in interest. Moore is the defendant in an action in the district court in which the plaintiff is seeking recovery for injuries allegedly sustained in an automobile accident. The third-party complaint seeks contribution from petitioners for whatever recovery the plaintiff may be awarded. Contending that they are the employer and the co-employee of the plaintiff, petitioners moved for summary judgment on the ground that they could not be held liable for contribution or equitable indemnity. The motion was denied and this petition followed.

Absent an independent duty owed to a third party, employers and co-employees are insulated by the provisions of the Nevada Industrial Insurance Act (NRS 616.010 et seq.), not only from liability to employees, but also from liability by way of indemnity to a third party. Outboard Marine Corp. v. Schupbach, 93 Nev. 158, 561 P.2d 450 (1977).

Moore argues that an independent duty exists here, namely, the "duty to the public to exercise ordinary care to avoid injury to other drivers." We disagree. The independent duty referred to in Outboard Marine is not such an abstract duty as Moore argues. Furthermore, if that duty results, in reality, from a duty and resultant liability of the employer to the employee, then that liability is exactly the type which the Act extinguishes. See Santisteven v. Dow Chemical Company, 506 F.2d 1216 (9th Cir. 1974). ¹

Accordingly, we order issuance of a writ of mandamus compelling the district court to vacate its order denying the motion for summary judgment, and to enter an order granting said motion.

Petition granted. ²

1 Moore argues that petitioners' negligence contributed to plaintiff's...