O'Malley v. Ulland Bros.

Decision Date06 June 1996
Docket NumberNo. C1-94-2110,C1-94-2110
Citation549 N.W.2d 889
PartiesMichael C. O'MALLEY, et al., petitioner, Appellants, v. ULLAND BROTHERS, et al., Respondents, Max Johnson Trucking, Respondent.
CourtMinnesota Supreme Court

Syllabus by the Court

General contractor and subcontractor on a highway repair project were employers engaged in a "common enterprise," and therefore an employee of a subcontractor injured on the job who had elected to receive workers' compensation benefits from the subcontractor was precluded from bringing a suit for damages against general contractor and its employee.

When there is no genuine issue of material fact or factual inference and the only issue for the court is a question of law, resolution of the matter by summary judgment is proper.

Kenneth R. White, Farrish, Johnson & Maschka, Mankato, for Appellants.

Janet Stellpflug, Gilmore, Aafedt, Forde, Anderson & Gray, P.A., Minneapolis, for Respondents.

Considered and decided by the court en banc without oral argument.


ANDERSON, Justice.

Michael C. O'Malley, an employee of Max Johnson Trucking, was injured when the "belly-dump" truck driven by him was struck from behind by a road grader driven by Ulland Brothers, Inc. employee, John Lee. At the time of the injury, O'Malley was working on a repair project for Interstate Highway 90 near Stewartville, Minnesota. Ulland Brothers was the general contractor for the project and Max Johnson was a subcontractor hired by Ulland Brothers. Following his injury, O'Malley applied for and received workers' compensation benefits from Max Johnson. O'Malley and his wife, Mary Jo, also sued Ulland Brothers and Lee for damages, alleging negligence. Ulland Brothers and Lee brought Max Johnson into the action as a third-party defendant. Ulland Brothers and Lee then moved for summary judgment, asserting that O'Malley's action was precluded by the "common enterprise" exception to the rule that an injured employee may bring a tort action against a third party. Max Johnson also moved for summary judgment. The district court granted both summary judgment motions, and on appeal the Minnesota Court of Appeals affirmed. We affirm.

The material facts are not in dispute. 1 Respondent Ulland Brothers, Inc. was the general contractor for the repair of a ten-mile section of Interstate 90 near Stewartville, Minnesota. The project involved removal of the existing pavement, excavation of any soft spots by digging a "subcut" in the soft area, refilling the area with a more stable material, and then repaving. Ulland Brothers subcontracted with respondent Max Johnson Trucking to load, haul and stockpile sand, gravel and bituminous material to and from the construction site and to maintain the hauling road. Ulland Brothers and other subcontractors excavated the material from the roadway, and Max Johnson hauled the excavated material away in "belly-dump" trucks trailers or tandem trucks, and dumped it in a pit about one mile from the construction site.

The construction site activities of Ulland Brothers and Max Johnson required that Ulland Brothers employees work in close harmony with the Max Johnson drivers in the process of removing the old material, loading it up, and hauling it away. The material removed from the construction site was deposited in a pit by the Max Johnson drivers, and then leveled by a Ulland Brothers employee operating a bulldozer. The Ulland Brothers superintendent would decide which area to excavate or subcut and communicate his decision to the Max Johnson supervisor. Both Ulland Brothers and Max Johnson employees did the filling of a particular subcut. Ulland Brothers kept a road grader in the portion of the subcut that was being filled. The granular material, called "sugar sand," used to fill the subcut was loaded on the Max Johnson trucks from the same pit to which the excavated material had been hauled. The Ulland Brothers supervisor directed the trucks by pointing to the area where he wanted the sugar sand dumped, and it was understood that it was the supervisor's responsibility to assist Max Johnson drivers if they should get stuck during the dumping process.

Belly-dump trucks tended to become stuck in the sugar sand because the load was dumped underneath the truck and in front of the rear wheels. If a belly-dump truck got stuck, a road grader or a bulldozer would be used to push the truck out of the sand by coming up behind the truck, slowly connecting with the belly-dump's "stinger," and pushing the stuck belly-dump out of the sand. The stinger is a metal device protruding from the rear of the belly-dump truck, placed there for use when the truck is pushed from behind. Ulland Brothers instructed its employees on how to properly push belly-dump trucks which had become stuck in the sand.

On July 2, 1991, appellant Michael C. O'Malley was driving a belly-dump truck for Max Johnson. Respondent John Lee, a Ulland Brothers employee, was driving a road grader equipped with a 10- to 12-foot blade. Lee was smoothing out the sand which was being placed in a subcut and was also pushing out trucks which became stuck in the sand. Lee stated in his deposition that he pushed out about 20 trucks an hour. He acknowledged that "truck after truck" would get stuck. When describing how Ulland Brothers and Max Johnson employees worked together on the project, Lee explained:

Max Johnson worked with us. We worked together all summer. Sometimes they'd haul material to our plant, sometimes they were hauling in the roadbed, sometimes we'd get a few of their trucks, we'd ask to get their trucks and they'd help us. They'd help us to haul dirt out, or if we needed a truck or if--and we worked together all summer that way. It was varying degrees. That particular day, [the day of the accident] they were hauling sand. Most other days they were doing whatever we needed or they needed. * * * [W]e'd send messages through each other, their boss or our boss would say, you know, we've got to get this done, or we need a different kind of material, or I'm going to have enough material. So we'd tell the Max Johnson people, they'd go tell their loader operator, or we'd borrow equipment back and forth once in a while. * * * [I]f they wanted something watered, Johnson did, because their trucks were hauling, we'd go water it for them. If we needed a truck to haul something, they'd give us a truck. If they wanted the road bladed, it was getting too rough for their trucks, I'd go blade it for them. I'd tell Mike [O'Malley] we were getting enough material or how much I needed and cut him off.

When asked whether everyone involved in the operation knew in general what everybody's job was and tried to observe each other and to integrate the effort, Lee answered, "We have to, sir, or else we'll have chaos."

Ulland Brothers' superintendent stated that Max Johnson and Ulland Brothers employees were equally subject to hazardous conditions at the site, including: fires or explosions from gas pipes or other causes; extreme weather conditions; collisions between vehicles or pieces of equipment operated by workers on site; or collisions between a vehicle or piece of equipment and a worker on the ground. The general manager for Max Johnson stated that all employees on the project were exposed to the same hazards, including fire or explosion, collisions between vehicles or between vehicles and people, vehicle rollovers, and exposure to hazardous materials.

On the day of the accident, public highway traffic was not routed through the project, and there was no risk from such traffic for any of the workers. O'Malley was delivering sugar sand to subcut no. 6 and had partially dumped his load when he became stuck in the sand. Lee, driving a road grader, approached O'Malley's truck from behind in order to push it out of the sand. Lee's truck made contact with O'Malley's and pushed it free. O'Malley stated that he was jolted on the impact, thrown to the floor of the truck, and injured. O'Malley filed for and collected workers' compensation benefits from Max Johnson's insurer for the injury he sustained in this accident.

O'Malley subsequently commenced an action against Ulland Brothers, alleging negligence, and seeking past and future medical costs and other damages. O'Malley's wife, Mary Jo, sought damages for loss of consortium. Ulland Brothers and John Lee filed a third-party complaint against Max Johnson, alleging, among other things, negligence in failing to provide a safe workplace and negligence in failing to train its employees in the safe operation of a belly-dump truck, as well as negligent operation of the belly-dump truck itself.

Ulland Brothers and Lee moved for summary judgment, arguing that Ulland Brothers and Max Johnson were engaged in a common enterprise, and therefore O'Malley's election to receive workers' compensation benefits from Max Johnson precluded his additional claim against Ulland Brothers. Max Johnson moved for summary judgment on the third-party complaint and supported Ulland Brothers' motion for summary judgment. The district court granted both motions and dismissed all claims. The court found that Ulland Brothers and Max Johnson were engaged in a common enterprise and that O'Malley's negligence action was precluded because he had elected to receive workers' compensation benefits from his employer. O'Malley appealed, and the court of appeals affirmed the district court.


Summary judgment is proper when there is no genuine issue of material fact and either party is entitled to judgment as a matter of law. Minn.R.Civ.P. 56.03. On appeal from summary judgment, the role of the reviewing court is to review the record for the purpose of answering two questions: (1) whether there are any genuine issues of material fact to be determined, and (2) whether the district court erred in its application of the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn...

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