Plains Trucking, LLC v. Cresap

• Decision Date: 22 August 2019
• Docket Number: No. 20190014, No. 20190022,20190014
• Parties: PLAINS TRUCKING, LLC, Petitioner v. Honorable Todd CRESAP, Judge of the District Court, North Central Judicial District, Lyle and Laurie Davis, individually and as Personal Representatives of the Estate of Trevor Davis, and on behalf of the heirs-at-law and wrongful death beneficiaries of Trevor Davis, Deceased; Missouri Basin Well Service, Inc. d/b/a MBI Energy Services, Respondents Plains Trucking, LLC, Petitioner v. Richard Hagar, Judge of the District Court, North Central Judicial District, Darian Songer Bail; Missouri Basin Well Service, Inc. d/b/a MBI Energy Services, Respondents
• Court: North Dakota Supreme Court

932 N.W.2d 541

PLAINS TRUCKING, LLC, Petitioner

v.Honorable Todd CRESAP, Judge of the District Court, North Central Judicial District, Lyle and Laurie Davis, individually and as Personal Representatives of the Estate of Trevor Davis, and on behalf of the heirs-at-law and wrongful death beneficiaries of Trevor Davis, Deceased; Missouri Basin Well Service, Inc. d/b/a MBI Energy Services, Respondents

Plains Trucking, LLC, Petitioner

v.Richard Hagar, Judge of the District Court, North Central Judicial District, Darian Songer Bail; Missouri Basin Well Service, Inc. d/b/a MBI Energy Services, Respondents

No. 20190014

No. 20190022

Supreme Court of North Dakota.

Filed August 22, 2019

Lawrence E. King (argued) and John E. Ward (appeared), Bismarck, N.D., for petitioner.

Peter W. Zuger (argued), Ronald H. McLean (on brief), and Ian McLean (on brief), Fargo, N.D., for respondents Lyle and Laurie Davis and Darian Songer Bail.

Tufte, Justice.

[¶1] Plains Trucking, LLC, petitioned this Court for supervisory writs in two separate cases to direct the district court in each case to vacate orders denying summary judgment on the ground that the lawsuits were barred by the Workforce Safety and Insurance Act, N.D.C.C. title 65. Respondent Darian Songer Bail cross-petitioned for a supervisory writ to direct the district court in his case to vacate its order determining as a matter of law that he was Plains Trucking’s employee on the date of his injury. The cases were consolidated for oral argument to this Court. We exercise our original jurisdiction by granting Plains Trucking’s petitions and denying Songer Bail’s cross-petition.

I

[¶2] Plains Trucking’s petitions seeking supervisory writs concern two civil actions that arose out of an explosion occurring on March 27, 2013. One worker, Trevor Davis, was killed, and another worker, Songer Bail, was injured in the explosion that occurred while Davis and Songer Bail were cleaning a crude oil tanker trailer owned by MBI Energy Services. Plains Trucking asserts that both Davis and Songer Bail were its employees and that the civil actions were barred by N.D.C.C. title 65.

[¶3] In April 2013, Trevor Davis’s parents, respondents Lyle and Laurie Davis, submitted an application for non-dependency benefits to Workforce Safety and Insurance ("WSI"). The application named Plains Trucking as Trevor Davis’s employer at the time of the accident. In June 2013, WSI sent the Davises a Notice of Decision Accepting Claim and Awarding Benefits. The Davises accepted the benefits awarded, and there was no request for reconsideration of WSI’s decision. In June 2014, the Davises commenced a civil action in the district court against Plains Trucking and MBI, alleging that Trevor Davis had been an independent contractor and asserting claims for negligence, strict liability, and liability under N.D.C.C. ch. 65-01, N.D.C.C. ch. 65-04, and N.D.C.C. § 65-09-02.

[¶4] In April 2013, respondent Songer Bail submitted a First Report of Injury to WSI, identifying Plains Trucking as his employer and seeking WSI benefits. In May 2013, WSI sent a Notice of Decision Accepting Claim and Awarding Benefits. Songer Bail accepted WSI’s payment of benefits, and there was no request for reconsideration of WSI’s decision. In June 2015, Songer Bail commenced his civil action against Plains Trucking and MBI, alleging that he was an independent contractor and asserting claims for negligence, strict liability, and liability under N.D.C.C. title 65.

[¶5] In the Davises' and Songer Bail’s respective civil cases, Plains Trucking moved for summary judgment, contending N.D.C.C. title 65 barred the actions. The district court in each case denied Plains Trucking’s summary judgment motion, in total or in part. In the Davises' case, the court’s order denying summary judgment recited the parties' various arguments and held "clear issues of material fact regarding the case in question" existed, making summary judgment inappropriate at that time. In Songer Bail’s case, the court granted Plains Trucking partial summary judgment, holding that Songer Bail was Plains Trucking’s employee on grounds of res judicata, but denied summary judgment on whether Plains Trucking was in compliance with N.D.C.C. § 65-04-33(2) at the time of his injuries, finding genuine issues of material fact existed. Jury trials were scheduled in both cases.

II

[¶6] We have discussed circumstances under which we may exercise our supervisory jurisdiction to grant relief:

Our authority to issue supervisory writs derives from N.D. Const. art. VI, § 2, and N.D.C.C. § 27-02-04. The authority to issue supervisory writs is discretionary; it cannot be invoked as a matter of right. This Court determines whether it should exercise its original jurisdiction to issue remedial writs on a case-by-case basis. Courts generally will not exercise supervisory jurisdiction where the proper remedy is an appeal merely because the appeal may involve an increase of expenses or an inconvenient delay. We exercise our authority to issue supervisory writs rarely and cautiously, and only to rectify errors and prevent injustice in extraordinary cases in which there is no adequate alternative remedy.

State v. Haskell , 2017 ND 252, ¶ 7, 902 N.W.2d 772 (quoting Roe v. Rothe-Seeger , 2000 ND 63, ¶ 5, 608 N.W.2d 289 (internal citations and quotations omitted)).

[¶7] We may exercise our supervisory jurisdiction "where a case ‘embodies important public and private interests in the significance of the exclusive-remedy directives of the Workers Compensation Act’ and bears a ‘suggestion that expensive and extensive ... discovery will be necessary before trial.’ " Haskell , 2017 ND 252, ¶ 8, 902 N.W.2d 772 (quoting Mitchell v. Sanborn , 536 N.W.2d 678, 683 (N.D. 1995) ). "An order or judgment denying a motion for summary judgment is not appealable, nor is it reviewable upon appeal from a partial judgment involving other aspects of the case." Haskell , at ¶ 8 (quoting Hellman v. Thiele , 413 N.W.2d 321, 329 (N.D. 1987) ). In these cases, if Plains Trucking’s argument prevails, Plains Trucking has statutory immunity from suit but would still need to fully litigate these actions before seeking a final adjudication of that immunity. As in Haskell , we conclude these are appropriate cases for us to exercise supervisory jurisdiction.

III

[¶8] Plains Trucking argues N.D.C.C. title 65 abolishes the district courts' jurisdiction for all claims by an employee against an employer for workplace injuries where the injured employee has received workers' compensation benefits.

[¶9] Title 65, N.D.C.C., is a legislatively created compromise for claims between injured workers and their employers. See Richard v. Washburn Pub. Sch. , 2011 ND 240, ¶ 11, 809 N.W.2d 288 ; Trinity Hosps. v. Mattson , 2006 ND 231, ¶ 11, 723 N.W.2d 684. Section 65-01-01, N.D.C.C., declares that "for workers injured in hazardous employments, ... sure and certain relief is hereby provided regardless of questions of fault and to the exclusion of every other remedy, proceeding, or compensation, except as otherwise provided in this title, and to that end, all civil actions and civil claims for relief for those personal injuries and all jurisdiction of the courts of the state over those causes are abolished except as is otherwise provided in this title."

[¶10] Under the Act, an employee "gives up the right to sue the employer in exchange for sure and certain benefits for all workplace injuries, regardless of fault." Trinity Hosps. , 2006 ND 231, ¶ 11, 723 N.W.2d 684. When a worker is an employee, the Act generally provides the exclusive remedy for the employee who suffers a compensable injury. See N.D.C.C. § 65-01-01.1 ("The sole exception to an employer’s immunity from civil liability under this title, except as provided in [N.D.C.C. ch. 65-09], is an action for an injury to an employee caused by an employer’s intentional act done with the conscious purpose of inflicting the injury."); N.D.C.C. § 65-01-08 (An injured employee does not have a claim for relief against the "contributing employer or against any agent, servant, or other employee of the employer for damages for personal injuries, but shall look solely to the fund for compensation."); N.D.C.C. § 65-04-28 ("Employers who comply with the provisions of [N.D.C.C. ch. 65-04] shall not be liable to respond in damages at common law or by statute for injury to or death of any employee."); N.D.C.C. § 65-05-06 ("The payment of compensation or other benefits by the organization to an injured employee, or to the injured employee’s dependents in case death has ensued, are in lieu of any and all claims for relief whatsoever against the employer of the injured or deceased employee.").

[¶11] In Vail v. S/L Servs., Inc. , 2017 ND 202, ¶¶ 13-16, 900 N.W.2d 271, we discussed "a worker’s status as an employee or as an independent contractor under our workers' compensation law, and the parameters of an employee’s exclusive or dual remedy for compensable injuries under that law":

Under N.D.C.C. § 65-01-03(1), "[e]ach individual who performs services for another for remuneration is presumed to be an employee of the person for which the services are performed, unless it is proven that the individual is an independent contractor under the common-law test." SeeWorkforce Safety & Ins. v. Larry’s On Site Welding , 2014 ND 81, ¶¶ 15-22, 845 N.W.2d 310 (discussing common-law test for independent contractor under workers' compensation law). [The person] asserting an individual is an independent contractor and not an employee has the burden of proving that fact. N.D.C.C. § 65-01-03(1).

If a worker is an employee, the Workforce Safety and Insurance Act generally provides the exclusive remedy for the employee who suffers a compensable injury. Carlson v. GMR Transp., Inc. , 2015 ND 121, ¶ 12, 863 N.W.2d 514. However, an employer must comply with the Act’s requirements for the exclusive remedy provisions to apply. Id. Section 65-04-28, N.D.C.C.,

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