Mack v. Frohlick Crane Service, Inc., 71--372

• Decision Date: 14 November 1972
• Docket Number: No. 71--372,71--372
• Parties: Arthur MACK, Plaintiff-Appellant, v. FROHLICK CRANE SERVICE, INC., Defendant-Appellee. . I
• Court: Colorado Court of Appeals

Page 36

505 P.2d 36

31 Colo.App. 457

Arthur MACK, Plaintiff-Appellant, v. FROHLICK CRANE SERVICE, INC., Defendant-Appellee.

No. 71--372.

Colorado Court of Appeals, Div. I.

Nov. 14, 1972.

Rehearing Denied Dec. 15, 1972.

Certiorari Granted Jan. 29, 1973.

Almon & Barsotti, Charles Ginsberg, Denver, for plaintiff-appellant.

Darwin D. Coit, Denver, for defendant-appellee.

SMITH, Judge.

Plaintiff was employed by B and L Wrecking Company, a general contractor engaged in demolishing a building. Defendant, Frohlick Crane Service, contracted with B and L to furnish a crane for the project, together with employees to operate and service it. Plaintiff was allegedly struck by the crane and injured. Workmen's compensation was accepted by plaintiff from B and L through its insurance carrier, the State Compensation Insurance Fund. Subsequently, plaintiff brought this action against Frohlick for negligence.

The action was dismissed by the trial court upon defendant's motion for summary judgment based upon C.R.S.1963, 81--9--1. The trial court concluded that an employee of a general contractor could not sue a subcontractor on the same job when both the subcontractor and general contractor were insured under workmen's compensation.

An injured employee is not precluded from bringing an action against a third party tort-feasor by electing to accept benefits under the workmen's compensation act. Krueger v. Merriman Electric, 29 Colo.App. 492, 488 P.2d 228. In Krueger, C.R.S.1963, 81--9--1, was construed to protect from a negligence action only those statutorily liable under the workmen's compensation statutes.

Defendant relies on Nicks v. Electron Corp., 29 Colo.App. 114, 478 P.2d 683. In that case, an employee of a subcontractor was barred from suing the general contractor by application of C.R.S.1963, 81--9--1. The contractor was held to be an 'employer' under the statute which placed on the general contractor ultimate responsibility for the payment of benefits under the act for the injury or death of an employee of the subcontractor.

In the present case, plaintiff is an employee of the general contractor. Defendant, as a subcontractor, is not in any sense an employer of plaintiff and is not responsible under the workmen's compensation statutes. Hence, defendant is not an 'employer' under C.R.S.1963, 81--9--1, and is a 'third party' subject to suit by plaintiff.

We reverse and remand for further proceedings consistent herewith.

SILVERSTEIN, C.J., and COYTE...