Maynard v. Flanagin Bros., Inc.
| Decision Date | 24 October 1985 |
| Docket Number | No. 3-1084,3-1084 |
| Citation | 484 N.E.2d 71 |
| Parties | 1984-1985 O.S.H.D. (CCH) P 27,407 Jeffrey MAYNARD and Patricia Maynard, Appellants, v. FLANAGIN BROTHERS, INC., Appellee. A 273. |
| Court | Indiana Appellate Court |
Michael S. Baechle, Patrick J. Dougherty, Spangler, Jennings, Spangler & Dougherty, P.C., Merrillville, for appellants.
F. Joseph Jaskowiak, Hoeppner, Wagner & Evans, Valparaiso, for appellee.
Maynard appeals from a summary judgment in favor of Flanagin Brothers. Two issues are presented for our review:
I. What statute did the Indiana Department of Labor rely upon for its authority to pass construction industry regulations?
II. Does the statute relied upon by the Department of Labor actually grant that power to the Department?
Reversed.
When the sides of a 16 foot deep trench collapsed, Maynard was buried in mud and received severe personal injuries. The trench had been excavated for sewer lines. It had not been shored or sloped to prevent such accidents.
For purposes of a summary judgment proceeding, Flanagin Brothers, Inc. was a prime contractor. The owner of a subdivision accepted a bid from K. Klem, Maynard's employer, to do the sewer work; Klem subcontracted the excavation work to Smit and Sons. Maynard sued all three contractors.
Summary judgment was granted in favor of Flanagin based on the general rule that a prime contractor is not liable to injury to servants of an independent contractor. Maynard argued the trial court should apply one of the five exceptions to the general rule because Flanagin was charged by law or contract with a specific duty. The basis for this duty, Maynard contended, was found in the construction industry regulations. Among other things, the regulations required all trenches deeper than six feet to be either shored or sloped. The trial court held the construction industry regulations were promulgated by the Department of Labor under the authority of the Occupational Safety and Health Act (OSHA), and OSHA stated the Act does not create a private right of action. Therefore, the court held Flanigan owed no duty to Maynard.
The facts are not in dispute. We apply the same standard on review as the lower court. Integrity Insurance Co. v. Lindsey (1983), Ind.App., 444 N.E.2d 345, 347.
The parties dispute which statute gives the Department of Labor the authority to promulgate regulations covering the construction industry. The significance of the distinction is that rules promulgated under the Occupational Safety and Health Act (OSHA), as Flanagin contends the construction industry rules were, specifically states such rules do not create a private right of action. See IND.CODE 22-8-1.1-48.3. Accordingly, Flanagin feels the trial court was correct in holding no duty was owed to Maynard.
Statutory authority citations are not a part of the official text of any rule or regulation and do not affect the meaning, application or construction of any rule. IND.CODE 4-22-2-11(b)(4). Where the official text of the regulation states the statute from which it draws its authority, it can be assumed the agency passing the regulation did indeed rely on that particular statute.
The construction industry regulations promulgated by the Division of Labor specifically state:
610 IND.ADMIN.RULES 5-1-1(B)(1).
Within IC 22-1-1 the only provision granting the Department of Labor power to adopt regulations is IC 22-1-1-11(a):
We hold IC 22-1-1-11(a) is the statute that the Department of Labor relied upon as granting it the power to pass regulations covering the construction industry.
Flanagin argues IC 22-1-1-11(a) allows the Department of Labor to adopt regulations governing employers and employees but not prime contractors. Thus, the regulations cannot impose a specific duty on Flanagin.
A general or prime contractor is not liable for injury to an employee of an independent contractor. Prest-O-Lite Co. v. Skeel (1914), 182 Ind. 593, 106 N.E. 365, 367. Five exceptions 1 exist to this rule but the only exception applicable here is where a party by law or contract is charged with a specific duty.
The construction industry regulations do apply to prime contractors, and they do impose a specific duty on contractors. To support this conclusion, we begin our analysis by setting out the pertinent parts of the regulations and by examining the split of opinions which exist among the different districts of the Court of Appeals.
The regulations are as follows:
"Sec. 1. ADMINISTRATION AND DEFINITIONS.
(A) Purpose--
(1) The intent and purpose of this Code [610 IAC 5-1 ] is to provide and establish minimum standards flexible enough to cover all phases of construction.
(2) This Code [610 IAC 5-1 ] or rule shall be administered by the Commissioner of Labor and his duly authorized representatives.
(C) Definitions and Interpretations--
(1) The words 'shall' and 'will' shall be deemed mandatory.
(2) The words 'should' and 'may' shall be deemed advisable.
(3) This code [610 IAC 5-1 ] shall apply to all persons, firms, or corporations engaged in the general construction industry.
(4) The term general construction industry shall be deemed to include all phases of construction of ... sewers, excavations ...
* * *
* * *
(6) The prime contractor of a project shall be deemed as being responsible for compliance with the provisions of this Code. In the event there is more than one prime contractor on a project, each shall be responsible for compliance of this Code [610 IAC 5-1 ] within the area of his jurisdiction.
(7) In the event the prime contractor sub-lets all or parts of the prime contract, the sub-contractors shall be jointly responsible with the prime contractor for compliance with this Code [610 IAC 5-1 ], within the area of the sub-contractors jurisdiction.
(8) The term 'prime contractor' shall be interpreted as being the person, firm or corporation that is responsible to the awarding unit for direct or indirect completion of all or part of the over-all project.
* * *
* * *
(24) Shoring and/or bracing shall be placed in every trench over six feet in depth, regardless of soil type, excepting solid rock, unless banks are sloped.
(25) Shoring and bracing shall be carried down with trench.
* * *
* * *
(28) The bracing and shoring of trenches shall be carried along with the excavation and shall not be omitted. Where a backhoe or ditching machine is used, shoring shall be placed as close as possible to the lower end of the boom."
* * *
* * *
610 IAC 5-1-1 to -14.
The first case addressing the applicability of the construction regulations was decided by the Second District in 1974. Jones v. Indianapolis Power & Light Co. (1973), 158 Ind.App. 676, 304 N.E.2d 337.
The First District followed the Jones v. IPALCO rationale in Hale v. Peabody Coal Company (1976), 168 Ind.App. 336, 343 N.E.2d 316. The rationale used in Hale was:
"It has been previously held that these regulations do not apply beyond the basic employer-employee relationship and do not affect the common law rule exempting the contractee from liability to the employees of an independent contractor. Jones v. Indianapolis Power and Light Co., supra. This result is consistent with the statute authorizing the regulations which reads in part:
'... the commissioner of labor is hereby authorized ... (a) to ... adopt rules ..., applicable to either employers or employees, or both ...' (Emphasis added.) IC 1971, 22-1-1-11, Ind.Ann.Stat. 40-2140 (Burns 1965 Repl.).
Since Powered was not Hale's employer in the present case, the rules and regulations cited by Hale are inapplicable."
We do not agree with the rationale in Hale. Jones v. IPALCO held the defendant in that case was not a prime contractor so the construction industry rules imposed no duty. We do not disagree with that holding, but we do disagree with both Jones v. IPALCO and Hale in holding that IC 22-1-1-11 authorizes the promulgation of regulations that cover only employers or employees and not contractors.
A comparison of the statute partially cited by Hale 2 with the statute set out in full, supra, shows it was intended to provide authority for more than just the adoption of rules for employers or employees. The first part of the statute allows for the commissioner of labor to "investigate and adopt rules ... for the prevention of accidents in every employment or place of employment ..." (emphasis added). The second part of the statute allows the commissioner to "adopt, amend or repeal reasonable rules applicable to either employers or employees." (emphasis added). Both parts of the section authorize regulations for the purpose of preventing "industrial accidents or occupational diseases." Clearly, the legislature meant to allow regulations covering the construction industry when it referred to "every employment or place of employment." To hold otherwise is to render...
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