Kolar v. Cassia County Idaho

• Decision Date: 28 December 2005
• Docket Number: No. 30727.,30727.
• Citation: 142 Idaho 346,127 P.3d 962
• Court: Idaho Supreme Court
• Parties: J. Steven KOLAR and Shelly L. Kolar, husband and wife, Plaintiffs-Appellants, v. CASSIA COUNTY IDAHO, Scott J. Hitt, Burley Highway District, Albion Highway District, Defendants-Respondents.

127 P.3d 962

142 Idaho 346

J. Steven KOLAR and Shelly L. Kolar, husband and wife, Plaintiffs-Appellants, v. CASSIA COUNTY IDAHO, Scott J. Hitt, Burley Highway District, Albion Highway District, Defendants-Respondents.

No. 30727.

Supreme Court of Idaho, Twin Falls, November 2005 Term.

December 28, 2005.

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Parker Law Firm, Twin Falls, and DeHaan & Associates, Twin Falls, for appellants. Harry DeHaan argued.

Naylor & Hales, P.C., Boise, for respondent Albion Highway District. Colleen D. Zahn argued.

Moore & Baskin, LLP, Boise, for respondent Burley Highway District. Michael Moore argued.

Anderson Julian & Hull, Boise, for respondent Cassia County. Brian Julian argued.

JONES, Justice.

This appeal gives us occasion to consider the "statutory employer" provision in Idaho's worker's compensation scheme, I.C. § 72-223(1). Appellant Steven Kolar was employed by an engineering firm and working on the respondents' road construction project when he was run over by a dump truck driven by an employee of one of the respondents. Mr. Kolar sued and the district court entered summary judgment in the respondents' favor, ruling the respondents were his so-called statutory employers and thus immune from suit.

I.

The United States Forest Service owns Howell Canyon Road, which leads from Albion, Idaho, to, among other places, the Pomerelle Mountain Resort in southern Idaho. In the 1960s the Forest Service entered into an agreement with respondents Cassia County, Albion Highway District, and Burley Highway District, whereby those local agencies would maintain Howell Canyon Road and the Forest Service would provide the funds. The respondents are parties to a 1991 agreement among themselves relating to the maintenance of the road. According to this agreement, Burley Highway District agreed to provide the personnel, equipment, and management necessary to maintain the road. Cassia County and Albion Highway District would provide the funds for maintaining the road. They all agreed to be jointly and severally liable for damage to persons or property occurring in the course of maintenance of the road. By the late 1990s the road began to deteriorate and so the respondents commenced a project to improve it.¹ In 2000 Burley Highway District contracted with JUB Engineers, Inc., an engineering firm, to provide engineering services on this project. It does not appear that representatives from either Cassia County or Albion Highway district were signatories to the Burley Highway District-JUB Engineers agreement. Mr. Kolar was employed as an "engineering tech" with JUB Engineers.

In 2001, Mr. Kolar was on the construction site working for his firm when he was run over by a dump truck driven by one Scott Hitt, a Burley Highway District employee. Mr. Kolar suffered severe injuries and received worker's compensation benefits from the firm for which he worked. After complying with the Idaho Tort Claims Act, Mr. Kolar sued the respondents for negligence in 2003. The respondents moved for summary judgment, contending that they were Mr. Kolar's statutory employers under I.C. § 72-223 and hence immune from suit under the exclusivity-of-remedies provisions in I.C. §§ 72-209 and 72-211. The district court agreed and entered summary judgment in their favor. The court neglected, though, to address Mr. Kolar's argument that § 72-223 violated his rights to equal protection and due process under the Fourteenth Amendment to the United States Constitution, so Mr. Kolar filed a motion to reconsider. After a hearing, the court issued another written decision, ruling § 72-223 did not violate the Equal Protection Clause and affirmed its prior decision. For reasons unknown to us, it did not discuss the due process claim.

II.

We have before us two principal issues. First, we must decide whether the district court had jurisdiction to determine whether the respondents were Mr. Kolar's statutory employers. Second, we consider whether the respondents were Mr. Kolar's statutory employers or whether they were third parties amenable to suit.

Before discussing these questions, however, an issue in Cassia County's response brief should be discussed and disposed of. Cassia County contends it owed no duty to Mr. Kolar. This issue was never raised in the district court, either in writing or at either of the two hearings on the motion for summary judgment.² The district court did not rule on the matter. In other words, this appeal is the first time the argument has appeared. We have on many occasions said we will not entertain issues or theories not raised in the court below. Kirkman v. Stoker, 134 Idaho 541, 544, 6 P.3d 397, 400 (2000). We see no reason to start doing so now.

We note also the standard by which we review this case. Mr. Kolar's claims were disposed of on a motion for summary judgment. Summary judgment is proper only if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Idaho R. Civ. P. 56(c).

A.

Mr. Kolar argues first that the district court lacked jurisdiction to determine whether the respondents were his statutory employers. For this theory he cites I.C. § 72-707, which provides: "All questions arising under this law, if not settled by agreement or stipulation of the interested parties with the approval of the [Industrial C]ommission, except as otherwise herein provided, shall be determined by the [C]ommission."

The statutory grant of exclusive jurisdiction to the Industrial Commission for "all questions arising under" the worker's compensation scheme does not include a grant of exclusive jurisdiction to interpret and apply the statutory employer provision insofar as those tasks are necessary to determine whether, in an ordinary common-law negligence suit, a defendant is the plaintiff's statutory employer. See Dominguez v. Evergreen Resources, Inc., 142 Idaho 7, 121 P.3d 938 (2005) (courts have jurisdiction to determine whether exception to I.C. § 72-209(3) applies; courts have jurisdiction over tort suits outside the worker's compensation scheme). This is nothing new—as the respondents point out, we have previously implicitly endorsed such exercise of jurisdiction by the district court for such questions. For example, in Robison v. Bateman-Hall, Inc., 139 Idaho 207, 76 P.3d 951 (2003), we considered the district court's interpretation of § 72-223 in deciding whether the defendants were the plaintiff's statutory employers. Although the district court's jurisdiction to answer the question was not raised as an issue, we expressed no concern that the district court had improperly appropriated for itself a question properly reserved for the Industrial Commission.

The cases on which Mr. Kolar relies do not help his case. In West v. State, 112 Idaho 1038, 739 P.2d 337 (1987), the plaintiff sued the Industrial Commission and the State Insurance Fund alleging both entities had dealt improperly with the plaintiff's workers' compensation claim. 112 Idaho at 1039, 739 P.2d at 338. The plaintiff had moved the Commission to reopen the proceedings before she sued in district court. Id. The district court dismissed the plaintiff's claim and on appeal this Court suspended action in the district court suit. Id. Idaho Code § 72-733 strips district courts of any jurisdiction to "review, vacate, set aside, reverse, revise, correct, amend, or annul any order or award of the commission, or to suspend or delay the execution or operation thereof, or to enjoin, restrain or interfere with the commission in performance of its duties." So, said the Court:

It is clear that the essence of [the plaintiff's] complaint before the district court is that she was injured in an industrial accident and received an inadequate award for those injuries. Presently pending before the Commission is [the plaintiff's] motion to set aside the award and reopen the proceedings. It is likewise clear that the district courts are expressly forbidden to exercise any jurisdiction in any cause seeking in any way to interfere with the actions or jurisdiction of the Industrial Commission.

Id. The question in West, whether a district court had jurisdiction to review the Industrial Commission's award, is not anything like the question in this case.

And neither was the question in Idaho State Ins. Fund. v. Turner, 130 Idaho 190, 938 P.2d 1228 (1997). In that case, the State Insurance Fund sued a worker's compensation claimant to recover disability benefits paid to him. 130 Idaho at 191, 938 P.2d at 1229. The Insurance Fund contended it was subrogated to the claimant's award paid by the liable third party under § 72-223. Id. Idaho Code § 72-223(3) grants an injured worker's employer a right of subrogation in the employee's rights against the third party, where that employer has compensated its injured employee for acts committed by a third party. Because the Insurance Fund's right to subrogation arose under the worker's compensation scheme, the Court ruled that "[w]hether [the State Insurance Fund] is entitled to subrogation pursuant to I.C. § 72-223(3) is a question arising under the worker's compensation law which is within the exclusive jurisdiction of the Industrial Commission." Id.

Even if Mr. Kolar's case were different enough to render the rule from Dominguez inapplicable, Mr. Kolar's theory is incompatible with the statutory scheme. The Legislature granted a common-law right of action in an injured worker against a third party. I.C. § 72-223(2). The Legislature did not bother to define "third party" but it expressly provided two categories of employers that are not. See I.C. § 72-223(1). Since status as a statutory employer is a defense to a common law negligence action, deciding whether a defendant is a third party or a statutory employer, when that defense is raised,...