Runcorn v. Shearer Lumber Products, Inc.

Citation107 Idaho 389,690 P.2d 324
Decision Date14 September 1984
Docket NumberNo. 14758,14758
PartiesTom D. RUNCORN and Linda Runcorn, husband and wife, Plaintiff-respondents, cross-appellants, v. SHEARER LUMBER PRODUCTS, INC., a corporation, Defendant-appellant, cross- respondent.
CourtIdaho Supreme Court

R.B. Kading, Jr., and James J. Davis, of Eberle, Berlin, Kading, Turnbow & Gillespie, Chartered, Boise, Idaho, for defendant-appellant, cross-respondent.

John C. Hepworth, and John T. Lezamiz, of Hepworth, Nungester & Felton, Twin Falls, Idaho, for plaintiff-respondents, cross-appellants.

Jim Jones, Atty. Gen., and Lynn E. Thomas, Sol. Gen., Boise, and Charles R. Bush, Asst. Atty. Gen., State of Wash., Seattle, Wash., for amicus curiae.

BAKES, Justice.

This case arises out of an injury to plaintiff Tom Runcorn, a boiler repairman, whose Washington employer, Atlas Boiler & Equipment Company, contracted to repair a boiler on the premises of Shearer Lumber Products, Inc., in Elk City, Idaho. Runcorn was injured while performing repairs on one of defendant Shearer's boilers. The issues presented are: (1) whether Shearer is a statutory employer under Idaho's workmen's compensation laws, and whether all statutory employers in Idaho are immune from tort recovery by the exclusive remedies provided in the workmen's compensation statute; (2) whether Runcorn's wife should have her damages for loss of consortium reduced by the percentage of negligence attributable to her husband; (3)whether the damages awarded to Runcorn should be reduced by the workmen's compensation benefits received from the insurer of Runcorn's direct employer, Atlas; (4) whether substantial evidence was presented to sustain a jury verdict that Runcorn was comparatively negligent; and (5) whether attorney fees should have been awarded.

Atlas, of Spokane, Washington, contracted with Shearer to repair one of Shearer's two side-by-side boilers. Atlas sent a crew of five men, including Tom Runcorn as foreman, to make major repairs including the replacement of tubes and brickwork inside boiler number 1 while boiler number 2 was still active and supplying essential steam power to the lumber mill. The repair work required the Atlas employees to climb inside cavities within boiler number 1, one such cavity being called the "mud drum." During the several days of repair, water slowly leaked into the mud drum from a valve above the mud drum. In order to expel the water and other debris created by the repair work, two valves were opened on a "blow down" pipe outside the boiler extending from the bottom of the mud drum. This blow down pipe connected to the blow down pipe from boiler number 2, each boiler having two valves between it and the common connection which eventually led to a waste pond. Under normal operating conditions, the blow down valves on an active boiler are periodically opened to discharge, with pressurized steam, the impurities collected in the boiler during the steam generating process.

On the date of the accident, Tom Runcorn was inside the mud drum of boiler number 1, using a garden hose to flush water and debris out the blow down line on which both boiler number 1 valves were in the open position. An employee of Shearer, a "fireman" whose job it was to operate boiler number 2, opened the blow down valves on boiler number 2. The pressurized steam from boiler number 2 came through the common pipe back into the mud drum of boiler number 1 and severely burned Runcorn over much of his body.

Runcorn received $22,031.99 in workmen's compensation benefits from his employer's surety, the Washington Department of Labor & Industries insurance fund contributed to by his employer, Atlas. Runcorn and his wife subsequently filed this third party action against Shearer for its alleged negligence in causing the accident. A jury trial was held and a special verdict apportioned the negligence as follows: 10% to Runcorn; 60% to Shearer; and 30% to Atlas who was not a party to the action. The jury determined that the total damages sustained by Runcorn was $825,000, and the total damages for loss of consortium sustained by Linda Runcorn was $100,000. The district court then reduced Tom Runcorn's damages by 10%, the percentage of his negligence, but refused to reduce the award by the amount of the workmen's compensation benefits already received. The court also refused to reduce Linda Runcorn's award by the 10% negligence attributable to her husband. No attorney fees were allowed to the plaintiffs.

I

We first address the issue of whether Shearer is a statutory employer to Runcorn and exempt from liability. Shearer argues that under Idaho law it is a statutory employer and thus immune from tort liability by the exclusive liability rule set out in I.C. § 72-209(1). Shearer does fall within the definition of "employer" contained in I.C. § 72-102(10):

"72-102. Definitions.--Words and terms used in the workmen's compensation law, unless the context otherwise requires, are defined in the subsections which follow.

....

"(10) 'Employer' means any person who has expressly or impliedly hired or contracted the services of another. It includes contractors and subcontractors. It includes the owner or lessee of premises, or other person who is virtually the proprietor or operator of the business there carried on, but who, by reason of there being an independent contractor or for any other reason, is not the direct employer of the workmen there employed. If the employer is secured, it means his surety so far as applicable."

There is no dispute that Shearer "contracted the services of another." There is no dispute that Shearer is the "owner" of the premises where the injury occurred and the "proprietor or operator of the business there carried on." The operation of a lumber mill business necessarily carries with it the maintenance of the boilers providing power. Cf Miller v. FMC Corp., 93 Idaho 695, 471 P.2d 550 (1970) (plant maintenance is within the business of reducing and refining phosphate); see also Loughmiller v. Interstate Farmlines, Inc., 107 Idaho 179, 687 P.2d 569 (1984) (lessor, who leased a truck with a driver was statutory employer to driver). The test of whether a party is an "employer" under the definition of I.C. § 72-102(10) does not require the employer to control the means by which the work is performed. Miller v. FMC Corp., supra; Adam v. Titan Equipment Supply Corp., 93 Idaho 644, 470 P.2d 409 (1970). Accordingly, the trial court erred in this case by instructing the jury in Instruction No. 31:

"The integral test [of employer under I.C. § 72-102(10) ] is whether the contract gives, or Shearer Lumber Products, Inc., assumed, the right to control the time, manner, and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract."

The right-to-control test is relevant in determining whether the injured person is an employee covered by workmen's compensation, or whether the person is an independent contractor not entitled to workmen's compensation protection, Anderson v. Gailey, 97 Idaho 813, 555 P.2d 144 (1976). The right-to-control test may also be relevant if for some reason in a particular case a distinction must be made between a direct employer and a non-direct employer. In the present case the right-to-control test has no relevance since there is no dispute that Runcorn was an employee under the control of Atlas, his direct employer. However, under the expanded definition of "employer" in I.C. § 72-102(10), which was "designed to prevent an employer from avoiding liability under the workmen's compensation statutes by subcontracting the work to others" who may be irresponsible and not insure their employees, Adam v. Titan Equipment Supply Corp., 93 Idaho at 646, 470 P.2d at 411, an employee may have more than one employer. The definition includes the direct employer/subcontractor, a contractor over the subcontractor, and a qualifying proprietor or operator of a business over the contractor. This does not mean that the qualifying proprietor or operator is the statutory employer of the contractor and subcontractor; it does mean that the qualifying proprietor or operator is the "employer" of the contractor's and subcontractor's employees, and the contractor is also an "employer" of the subcontractor's employees. See I.C. § 72-216(1). In the present case, both Atlas as the direct employer and Shearer as the "proprietor or operator of the business there carried on," qualify as Runcorn's employers. I.C. § 72-102(10).

Having clarified the definition of a statutory employer, we now must decide whether the status of a statutory employer exempts all such employers from tort liability as third parties under I.C. § 72-223. The defendants cite Adam and Miller, along with dicta 1 in Tucker v. Union Oil Co. of California, 100 Idaho 590, 603 P.2d 156 (1979), for the proposition that all employers within the definition of I.C. § 72-102(10) are immune from tort liability as a third party. We do not agree. The exclusive liability of an employer under I.C. § 72-209(1), and the exclusive remedies of an employee under I.C. § 72-211, are both specifically made "subject to the provisions of section 72-223." I.C. § 72-223 provides that the workmen's compensation law does not disturb the injured employee's right to sue a third party for "legal liability to pay damages," and further that "[s]uch third party shall include those employers described in section 72-216, having under them contractors or subcontractors who have in fact complied with the" statute requiring procurement of workmen's compensation insurance. (Emphasis added.) Shearer was an employer, described in I.C. § 72-216, since it had under it a contractor, Atlas, and Shearer was liable for workmen's compensation benefits to Runcorn if Atlas had not provided the coverage. See Loughmiller v. Interstate Farmlines, Inc., 107 Idaho 179, ...

To continue reading

Request your trial
56 cases
  • Lee v. Colorado Dept. of Health
    • United States
    • Colorado Supreme Court
    • 31 Marzo 1986
    ...totally barred. E.g., White, 66 Wis.2d 563, 225 N.W.2d 442; see also Nelson, 246 Ark. 247, 437 S.W.2d 799; Runcorn v. Shearer Lumber Products, Inc., 107 Idaho 389, 690 P.2d 324 (1984). Criticism of the derivative approach has led some courts to treat a claim for loss of consortium as a sepa......
  • Tichenor v. Santillo
    • United States
    • New Jersey Superior Court — Appellate Division
    • 22 Mayo 1987
    ...separate, cause of action, and thus an injured party's negligence reduces a per quod award). See also Runcorn v. Shearer Lumber Products, Inc., 107 Idaho 389, 394, 690 P.2d 324, 329 (1984), where the court said: We agree with the majority [of jurisdictions considering the issue under compar......
  • McCoy v. Colonial Baking Co., Inc.
    • United States
    • Mississippi Supreme Court
    • 28 Noviembre 1990
    ...("Loss of consortium is a wholly derivative action arising from injury to the claimant's spouse."); Runcorn v. Shearer Lumber Products, Inc., 107 Idaho 389, 690 P.2d 324, 329 (1984) ("It would be inconsistent 'to hold that an injured party's negligence would bar or limit his recovery for di......
  • Adams v. Northland Equip. Co.
    • United States
    • Wisconsin Supreme Court
    • 22 Julio 2014
    ...do not abrogate the common law right to maintain an action against a third party tortfeasor. See, e.g., Runcorn v. Shearer Lumber Prods., 107 Idaho 389, 690 P.2d 324, 328 (1984) (“the workmen's compensation law does not disturb the injured employee's right to sue a third party for ‘legal li......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT