Larsen v. DB Feedyards, Inc.

• Decision Date: 26 July 2002
• Docket Number: No. S-01-839.,S-01-839.
• Citation: 264 Neb. 483,648 N.W.2d 306
• Parties: Lyle D. LARSEN, Appellee, v. D B FEEDYARDS, INC., Appellant.
• Court: Nebraska Supreme Court

648 N.W.2d 306

264 Neb. 483

Lyle D. LARSEN, Appellee, v.D B FEEDYARDS, INC., Appellant.

No. S-01-839.

Supreme Court of Nebraska.

July 26, 2002.

Walter E. Zink II and Jenny L. Panko, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellant.

Clarence E. Mock and Denise E. Frost, of Johnson & Mock, Oakland, and Brent M. Bloom for appellee.

Jacqueline M. Tessendorf, of Mattson, Ricketts, Davies, Stewart & Calkins, for amicus curiaeNebraska Cattlemen, Inc.

WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

PER CURIAM.

Lyle D. Larsen was employed by D B Feedyards, Inc., on November 13, 1999, when he was injured while roping a steer owned by a customer of D B Feedyards.Larsen filed a petition against D B Feedyards in the Workers' Compensation Court seeking benefits for his injury.D B Feedyards answered by asserting that because it was an employer of farm or ranch laborers, it was excepted from the Nebraska Workers' Compensation Act under Neb. Rev.Stat. § 48-106(2)(Reissue 1998).The trial judge rejected D B Feedyards' defense and determined that Larsen was a covered employee.The review panel of the Nebraska Workers' Compensation Court affirmed.D B Feedyards appeals.

FACTS

This case was tried on stipulated facts.D B Feedyards is a Nebraska corporation with its principal place of business located slightly southeast of Craig, Nebraska.Daryl Bromm and his wife, Shirley Bromm, are the sole shareholders in the corporation.Daryl, Shirley, and their son Rodney Bromm are the only officers of the corporation.D B Feedyards was incorporated in 1973 and has remained incorporated since that time.

D B Feedyards began operation as a feedlot to feed livestock owned by Daryl and Rodney.Approximately 12 to 15 years ago, however, D B Feedyards began feeding cattle owned by other persons or entities.D B Feedyards charges a fixed amount per head, per day for the cattle it feeds owned by others.D B Feedyards averages 5,000 head of cattle on feed.At any given time, one-half to three-fourths of the cattle on the feedlot are owned by persons or entities other than D B Feedyards.Although it does not do any formal advertising, D B Feedyards provides calendars and baseball caps bearing its name to its customers.D B Feedyards occasionally solicits customers to have their cattle fed at its feedlots.D B Feedyards receives separate income for its feeding operation and files a separate corporate income tax return each year.D B Feedyards' gross revenue for the period July 1, 1999, through July 1, 2000, was $5,122,186.

D B Feedyards owns 440 acres of farm ground in its own name, which it farms.The feedlot area, including the offices, scales, and Daryl and Shirley's residence, covers 160 acres.Crops raised on the farm are delivered to the feedlot for use as cattle feed, and manure from the feedlot is spread on the farmland.D B Feedyards owns farm equipment consisting of a combine, two payloaders, and several tractors, as well as two trucks used in its feeding operations.

At all relevant times, D B Feedyards employed three employees, including Larsen.Larsen is a professional roper who was hired to perform general labor, which included sorting and treating sick cattle.On November 13, 1999, Larsen injured his right thumb while roping a steer.The steer was owned by an entity other than D B Feedyards.

On March 8, 2000, Larsen filed a petition in the Workers' Compensation Court seeking benefits for the injury to his right thumb.In its answer, D B Feedyards asserted that Larsen was employed as a farm or ranch laborer under § 48-106(2) and therefore was not a covered employee under the provisions of the Nebraska Workers' Compensation Act.By joint stipulation of the parties, the case was bifurcated so that the trial judge could first determine whether D B Feedyards fit within the exception.

In an order filed January 22, 2001, the trial judge resolved this issue in favor of Larsen, concluding:

The Court finds that the enterprise [D B Feedyards] was engaged in on November 13, 1999, while [Larsen] was roping a steer and was injured was a commercial business separate and distinct from farming and ranching.The sheer size of [D B Feedyards'] operation shows that it is more in the nature of a commercial enterprise rather than on [sic] old-fashioned farm and ranch operation.Employers operating businesses performing commercial services primarily for others, even though the task performed may commonly occur on a farm or a ranch, do not employ "farm or ranch laborers" within the meaning of Nebraska Revised Statute, Section 48-106.

This decision was affirmed without an opinion by a three-judge review panel of the Workers' Compensation Court.D B Feedyards perfected a timely appeal to the Nebraska Court of Appeals and filed a petition to bypass, which we granted.

ASSIGNMENTS OF ERROR

D B Feedyards assigns, restated, that the trial judge's decision as affirmed by the review panel erred as a matter of law in its determination as to Larsen's injury sustained on November 13, 1999, that D B Feedyards was not an excepted employer within the meaning of § 48-106(2) and therefore in its conclusion that Larsen was a covered employee subject to the provisions of the Nebraska Workers' Compensation Act.

STANDARD OF REVIEW

An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law.Rodriguez v. Monfort, Inc.,262 Neb. 800, 635 N.W.2d 439(2001);Thornton v. Grand Island Contract Carriers,262 Neb. 740, 634 N.W.2d 794(2001);Foote v. O'Neill Packing,262 Neb. 467, 632 N.W.2d 313(2001).

ANALYSIS

Jurisdiction.

Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.Scottsdale Ins. Co. v. City of Lincoln,260 Neb. 372, 617 N.W.2d 806(2000);Billingsley v. BFM Liquor Mgmt.,259 Neb. 992, 613 N.W.2d 478(2000);Airport Auth. of Village of Greeley v. Dugan,259 Neb. 860, 612 N.W.2d 913(2000).For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken; conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders.Chief Indus. v. Great Northern Ins. Co.,259 Neb. 771, 612 N.W.2d 225(2000);Thompson v. Kiewit Constr. Co.,258 Neb. 323, 603 N.W.2d 368(1999).When an appellate court is without jurisdiction to act, the appeal must be dismissed.Thompson v. Kiewit Constr. Co., supra.

Larsen argues that because the trial judge's order merely gave him the opportunity to proceed to the merits of his claim and did not resolve the issue of compensation, the order is not final and may not be appealed.We disagree.

The three types of final orders which may be reviewed on appeal are (1) an order which affects a substantial right and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on summary application in an action after judgment is rendered.See, Neb.Rev.Stat. § 25-1902(Reissue 1995);State v. Gibbs,253 Neb. 241, 570 N.W.2d 326(1997);Richardson v. Griffiths,251 Neb. 825, 560 N.W.2d 430(1997);Tess v. Lawyers Title Ins. Corp.,251 Neb. 501, 557 N.W.2d 696(1997).It is well settled that a workers' compensation case is a "special proceeding" for appellate purposes.SeeThompson v. Kiewit Constr. Co., supra.The order of the trial judge as affirmed by the review panel eliminated what would have been a complete defense to the claim and thus affected a substantial right of D B Feedyards.SeeSID No. 1 v. Nebraska Pub. Power Dist.,253 Neb. 917, 573 N.W.2d 460(1998).Accordingly, we have jurisdiction of this appeal.

Larsen as Covered Employee.

D B Feedyards appeals the decision of the trial judge as affirmed by the review panel concluding that Larsen was covered under the Nebraska Workers' Compensation Act.D B Feedyards specifically claims that because it was engaged in the business of farming or ranching, it is an excepted employer under § 48-106(2) and that, therefore, its employee Larsen was not covered by the Nebraska Workers' Compensation Act.Larsen argues in response that D B Feedyards was primarily engaged in a commercial enterprise, that D B Feedyards is not an excepted employer, and that the trial judge correctly concluded that Larsen was an employee covered by the Nebraska Workers' Compensation Act.In view of the statute, the case law, and the facts of this case, we agree with the conclusion of the trial judge as affirmed by the review panel that Larsen was a covered employee.

The Nebraska Workers' Compensation Act applies to employers described in § 48-106(1), but it does not apply to employers identified in § 48-106(2).The statutory language at issue in this case, § 48-106(2), provides in pertinent part, "The following are ... not within the provisions of the Nebraska Workers' Compensation Act: ... employers of farm or ranch laborers...."We long ago observed that the agricultural exception statutes in other states generally focus on the characteristics of the laborer who is excluded from workers' compensation coverage, whereas under Nebraska's statutory language, the agricultural exception focuses on the employer of such laborer.In Keefover v. Vasey,112 Neb. 424, 427, 199 N.W. 799, 800(1924), we specifically stated, "It is worthy of note that in these other states the emphasis seems to be placed upon the exclusion of the laborer, while in this state it rests upon the exclusion of the employer of such labor."We have further noted that the classification of the exception as a function of the employer's status is a legislative prerogative.Id.See, also, Leppert v. Parker,218 Neb. 63, 352 N.W.2d 180(1984);Otto v. Hahn,209 Neb. 114, 306 N.W.2d 587(1981).

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