Kelly v. Kraemer Constr., Inc.
| Decision Date | 25 July 2016 |
| Docket Number | A15-1751 |
| Parties | Jessica Kelly, as Trustee for the heirs and next-of-kin of Richard Roy Washburn, Deceased, Respondent, v. Kraemer Construction, Inc., Appellant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
Reversed and remanded
St. Louis County District Court
Wilbur W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota (for respondent)
Timothy R. Murphy, Cara C. Passaro, Murphy & Passaro, PA, Mendota Heights, Minnesota (for appellant)
Considered and decided by Bjorkman, Presiding Judge; Rodenberg, Judge; and Bratvold, Judge.
UNPUBLISHED OPINION
Appellant Kraemer Construction appeals the denial of its motion for summary judgment in a wrongful-death action based on negligence. We conclude that, even viewing the evidence in the light most favorable to the trustee for the heirs and next-of-kin of decedent, appellant and the decedent's employer were engaged in a common enterprise at the time of the accident. We therefore reverse and remand for the entry of summary judgment dismissing all claims against Kraemer.
Richard Washburn was killed by electrocution on October 4, 2012 while on the job as an employee of Ulland Brothers, Inc. Respondent Jessica Kelly, the mother of Washburn's two minor children, collects workers' compensation benefits through Ulland on behalf of the children. In this suit, Kelly, as trustee for Washburn's heirs and next-of-kin and respondent in this appeal, seeks tort damages for Washburn's death arising from the negligence of Kraemer.
On the day Washburn was killed, he was working with others along County Road 23, just north of Highway 210 in the City of Wright, Carlton County, Minnesota. Washburn's employer, Ulland, is a general contractor and had sub-contracted with Kraemer to replace deteriorated steel culverts that allowed a roadway to go over a stream. The job required a crane to lift and lower two cement culverts into the streambed. Kraemer supplied a crane and two workers. Ulland supplied the rigging and four workers.
The district court summarized the undisputed evidence about who did what, as follows:
Each man had a specific job: Terry Rassier [Ulland] operated a bulldozer that would push the culverts to a place so that the crane could pick them up; Rick Washburn [Ulland] would manually guide the culvert boxes while they were lowered; Jeremy Wright [Ulland] would rig the crane cable to the culvertprior to them being lifted and then once set he would go inside the culverts and connect the two culvert sections together; Matt Kisley [Ulland] assisted Jeremy Wright in connecting the culvert pieces; Mike Bergstrom [Kraemer] operated the crane; and Roger Poukka [Kraemer] was Mr. Bergstrom's oiler, essentially a signaler from the ground to ensure accuracy and safety of the culverts placements.
Workers from both crews testified that, although the assignment of tasks and responsibilities was clear, they would assist one another as needed. For example, Poukka (Kraemer) helped to maneuver the culverts as they were lowered into place and Washburn (Ulland) gave instructions to Bergstrom (Kraemer) as he operated the crane.
The crew discussed the danger posed by the proximity to the crane of an overhead power line. Early in the morning, before the first culvert was placed, Ulland employees measured a safe zone and marked an appropriate location for the crane to park for placement of the first culvert. The Kraemer crane operator, Bergstrom, double-checked and approved the measurements and markings. Later in the day, Bergstrom worked with the second Kraemer employee, Poukka, to re-park the crane for placement of the second culvert, approximately mirroring the parking location for the first culvert but without measuring or marking the ground.
The parties agree that a crane's boom and cable should generally stay at least ten feet away from power lines, because electricity can arc through the air from one conductor to another under certain conditions, and because power lines can swing in the wind. There was misty rain and wind at the time of the accident.
The first culvert was placed without incident. As the second culvert was being placed, Washburn grabbed it with his hands to maneuver it, and was electrocuted. Thecrew administered CPR and called for an emergency vehicle, but Washburn passed away within minutes. Poukka also felt a shock as he briefly touched the culvert, but he was not seriously injured.
During this litigation, Ulland and Kraemer employees testified that no part of the crane touched the power lines, but that the crane cable was about five to eight feet away from the power lines at the time Washburn was electrocuted. The record evidence indicates that either electricity arced from the power line into the crane's cable, or the power lines came into momentary direct contact with the cable due to wind and then electricity traveled down the cable into the cement culvert.
Kraemer moved for summary judgment, claiming that the district court lacked subject-matter jurisdiction under the Workers' Compensation Act and the common-enterprise doctrine. The district court denied Kraemer's motion for summary judgment, concluding that genuine issues of material fact existed concerning the applicability of the common-enterprise doctrine. This appeal followed.
Generally, an order that denies a motion for summary judgment is not appealable unless the district court has certified that the question presented is important and doubtful. Minn. R. Civ. App. P. 103.03. Here, the district court denied Kraemer's motion to certify the question. But "an order denying summary judgment in an employee's negligence action is immediately appealable when dismissal is sought based on the district court's lack of subject matter jurisdiction." McGowan v. Our Savior's Lutheran Church, 527 N.W.2d830, 831-32 (Minn. 1995). "Where the [Workers' Compensation] Act provides the employee's exclusive remedy, the district courts have no jurisdiction." Id. at 833. Because Kraemer seeks dismissal of the suit for want of subject-matter jurisdiction, the district court's order denying summary judgment is immediately appealable.
We review summary-judgment decisions de novo. LeDoux v. M.A. Mortenson Co., 835 N.W.2d 20, 22 (Minn. App. 2013). We determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Mumm v. Mornson, 708 N.W.2d 475, 481 (Minn. 2006). "A fact is material if it affects the outcome of the case." Yath v. Fairview Clinics, N.P., 767 N.W.2d 34, 40 (Minn. App. 2009). In determining which facts are "material" for summary judgment, we are mindful that "[t]he common enterprise test focuses on the activities of the workers, rather than the common goals of the employers . . . ." O'Malley v. Ulland Bros., 549 N.W.2d 889, 895 (Minn. 1996). We view the evidence in the light most favorable to the party opposing summary judgment. Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn. 2008). Here, we view the evidence in the light most favorable to Kelly.
Under the Workers' Compensation Act, an injured employee (or the representative of a deceased employee) may seek workers' compensation benefits from the employer or sue a third party for damages, but not both, if the employer and the third party were engaged "in the due course of business in . . . furtherance of a common enterprise" at the time of the injury. Minn. Stat. § 176.061, subds. 1, 4 (2014); LeDoux, 835 N.W.2d at 22. Two employers are engaged in a "common enterprise" when (1) they are working on the sameproject, (2) their employees are "working together on a common activity," and (3) their employees are "exposed to the same or similar hazards." LeDoux, 835 N.W.2d at 22 (citing McCourtie v. U.S. Steel Corp., 253 Minn. 501, 506, 93 N.W.2d 552, 556 (Minn. 1958)).
The issue is whether Kraemer and Ulland were engaged in a common enterprise at the time of Washburn's death. If the two employers were engaged in a common enterprise, the Workers' Compensation Act is the exclusive remedy because Kelly has collected workers' compensation benefits. Under the first factor of the three-part test, the parties agree that the two crews were working on the "same project." The parties disagree about the other two factors.
"Working together on a common activity"
Respondent's principal argument on appeal is that there is a genuine issue of material fact concerning the common-activity factor. The common-activity factor is satisfied where "[i]t was not only contemplated that [two groups of employees] would work together, [but that] it was essential to avoid chaos at the site." O'Malley, 549 N.W.2d at 896. "To be common, the employees' activities must not merely overlap minimally, they must be 'interdependent.'" LeDoux, 835 N.W.2d at 23 (quoting O'Malley, 549 N.W.2d at 895). "The test emphasizes the common activities of the workers rather than the common goals of the employers." Schleicher v. Lunda Constr. Co., 406 N.W.2d 311, 313 (Minn. 1987).
For example, we have held that two groups of employees who independently contribute to "building of a structure" do not satisfy the common-activity prong. LeDoux, 835 N.W.2d at 23 (). On the other hand, the Minnesota Supreme Court has held that the employers of a dump-truck driver and a road-grader driver were engaged in a common activity when one rear-ended the other at the site of a shared road-repair project. O'Malley, 549 N.W.2d at 895-96 (...
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