Scudder v. Kennecott Copper Corp.

• Citation: 886 P.2d 48
• Decision Date: 12 September 1994
• Docket Number: No. 930247,WEYHER-LIVSEY,930247
• Parties: Richard E. SCUDDER, Plaintiff, v. KENNECOTT COPPER CORPORATION, aka Kennecott Mining Corporation, a foreign corporation, Stearns Catalytic Corporation, and John Does 2 through 10, Defendants. STEARNS CATALYTIC CORPORATION, Third-Party Plaintiff and Respondent, v.CONSTRUCTORS, INC., Third-Party Defendant and Petitioner.
• Court: Supreme Court of Utah

Page 48

886 P.2d 48

Richard E. SCUDDER, Plaintiff, v. KENNECOTT COPPER CORPORATION, aka Kennecott Mining

Corporation, a foreign corporation, Stearns

Catalytic Corporation, and John Does 2

through 10, Defendants.

STEARNS CATALYTIC CORPORATION, Third-Party Plaintiff and Respondent, v. WEYHER-LIVSEY CONSTRUCTORS, INC., Third-Party Defendant and Petitioner.

No. 930247.

Supreme Court of Utah.

Sept. 12, 1994.

Rehearing Denied Dec. 19, 1994.

J. David Nelson and Robert D. Dahle, Salt Lake City, for Scudder.

Stephen B. Nebeker, Salt Lake City, for Kennecott Copper Corp.

Robert A. Peterson and Robert W. Payne, Salt Lake City, for Stearns Catalytic Corp.

Terry M. Plant and Daniel D. Andersen, Salt Lake City, for Weyher-Livsey Constructors.

ON CERTIORARI TO THE UTAH COURT OF APPEALS

HOWE, Justice:

We granted certiorari to review the decision of the court of appeals which reversed a summary judgment, vacated a jury verdict, and ordered a new trial. Scudder v. Kennecott Copper Corp., 858 P.2d 1005 (Utah Ct.App.1993).

The court of appeals has already fully stated the facts. Id. at 1006-07. Briefly, plaintiff Richard E. Scudder was an employee of Weyher-Livsey Constructors, Inc., which had contracted to work for defendant Kennecott Copper Corp. on a modernization project. Kennecott had also contracted with defendant Stearns Catalytic Corp. to supervise and manage the construction and safety of the project. In the course of his employment, Scudder was carrying two large cans of oil down a ladder-type device when he slipped and severely injured his knee.

Scudder received workers' compensation benefits and then brought this suit against Kennecott and Stearns. Stearns filed a third-party complaint against Weyher-Livsey that was based on an indemnification agreement between Kennecott and Weyher-Livsey. The trial court granted summary judgment to Weyher-Livsey and dismissed it from the suit. Trial proceeded, and the jury returned a special verdict finding Stearns eighty percent negligent and Kennecott twenty percent negligent in causing Scudder's injuries. Scudder and Weyher-Livsey were found to be free from any negligence. The court granted Kennecott's motion for indemnification from Stearns, which in turn appealed to the court of appeals.

The court of appeals reversed the summary judgment which dismissed Weyher-Livsey. It also vacated that portion of the jury verdict that found only Kennecott and Stearns negligent, and remanded the case for a new trial. Id. at 1006. We granted Weyher-Livsey's petition for certiorari. 860 P.2d 943. Both Kennecott and Stearns have satisfied their judgments with Scudder, and he is not a party to this review.

I. NOTICE OF APPEAL

We first address a procedural matter. Weyher-Livsey contends that Stearns failed to perfect its appeal which was heard by the court of appeals by not complying with rule 3 of the Utah Rules of Appellate Procedure. ¹ It asserts that all three notices of appeal filed by Stearns were defective because they failed to specify all parties to the appeal and failed to designate that the appeal was taken from the summary judgment as well as from the final judgment that had been entered on the jury verdict.

We find that all of the notices of appeal complied with our rules. Rule 3(d) requires only specification of the parties taking the appeal, not of all the parties involved. Stearns satisfied this requirement. Rule 3(e) requires that all parties to the judgment or order being appealed be served a copy of the notice of appeal. Stearns did this. When appealing from an entire final judgment as Stearns did here, it is not necessary to specify each interlocutory order of which the appellant seeks review. In interpreting rules of appellate procedure similar to Utah's, the Arizona Court of Appeals held that when an appeal is taken from a final judgment, "[t]here is no requirement that the notice designate intermediate orders which are to be raised as issues on appeal." Rourk v. State, 170 Ariz. 6, 821 P.2d 273, 280 (Ct.App.1991); see Jerstad v. Warren, 73 Or.App. 387, 698 P.2d 1033 (1985) (holding to the same effect under an Oregon statute which reads similarly to our rules).

II. INDEMNITY AGREEMENT AND SUMMARY JUDGMENT

The trial court granted summary judgment to Weyher-Livsey although, as noted by the court of appeals, the basis is not entirely clear. Scudder, 858 P.2d at 1007 n. 2. The court of appeals reversed the summary judgment, holding that the indemnification agreement between Kennecott and Weyher-Livsey expressed a clear and unequivocal intent that Weyher-Livsey was obligated to indemnify Kennecott and Stearns against any and all liabilities. This included liability arising because of Kennecott's or Stearns' negligence unless the liability arises as a result of the sole negligence or willful misconduct of Kennecott or Stearns. The court of appeals also held that the exclusive remedy provision of the Workers' Compensation Act, Utah Code Ann. § 35-1-60, did not impose any bar to the operation of the indemnification agreement. ² Scudder, 858 P.2d at 1009-10.

We need not, and do not, here decide whether the summary judgment was granted in error. Any error was harmless in view of the jury finding that Weyher-Livsey was not negligent in causing Scudder's injuries. To require reversal, error must be substantial and prejudicial in the sense that there is a reasonable likelihood that in its absence there would have been a different result. State v. Kozik, 688 P.2d 459, 461 (Utah 1984) (citing State v. Urias, 609 P.2d 1326 (Utah 1980)). In reviewing the record, we find that the jury was instructed on the duty which Weyher-Livsey owed to Scudder. ³ Stearns does not contend that the instruction was erroneous or inadequate. In addition, Weyher-Livsey was (1) mentioned several times during the presentation of evidence, (2) referred to throughout closing argument, and (3) listed on the special verdict form so that fault, if any, could be apportioned to it. ⁴ In light of all this, the jury nevertheless did not apportion any fault to Weyher-Livsey. We do not believe that there is a reasonable likelihood that even if Weyher-Livsey had remained in the suit because of any obligation it may have had under the indemnity provision and was present at trial, defending itself, the verdict would have been any different. The court of appeals, however, concluded that it was prejudicial error for Weyher-Livsey to be absent from trial:

It is logical that in apportioning liability the jury would seek to impose full liability on parties actually involved in the lawsuit, and not on Weyher-Livsey, a phantom defendant who did not participate in the trial. Moreover, the jury was likely left with the impression that, as a result of Weyher-Livsey's dismissal from the case by the trial judge, it could not be negligent and therefore liable for Scudder's injuries. Had Weyher-Livsey been required to participate in the trial, and to explain its actions and responsibilities, there is a reasonable probability that the jury would have found Weyher-Livsey negligent and apportioned at least some liability to Weyher-Livsey. If the jury had found Weyher-Livsey negligent and apportioned any liability to it, the indemnification agreement between Kennecott and Weyher-Livsey would have required Weyher-Livsey to indemnify Kennecott and Stearns in full. Consequently, the absence of Weyher-Livsey at trial as a result of the erroneous grant of summary judgment was sufficiently prejudicial so as to undermine our confidence in the ultimate verdict.

Scudder, 858 P.2d at 1011.

In essence, the court of appeals reasoned that it was probable that the jury did not apportion any fault to Weyher-Livsey because it did not participate in the trial. Weyher-Livsey asserts that this reasoning contradicts two of our recent decisions, and we agree. In Sullivan v. Scoular Grain Co. of Utah, 853 P.2d 877, 878 (Utah 1993), we concluded that "the purpose and intent of the Utah Liability Reform Act require that a jury account for the relative proportion of fault of a plaintiff's employer that may have caused or contributed to an accident, even though the employer is immune from suit." Therefore, Weyher-Livsey was correctly included on the special verdict form even though it had been previously dismissed from the case through summary judgment. Like the instant case, the employer in Sullivan was immune under the exclusive remedy provision of the Workers' Compensation Act. Sullivan thoroughly analyzed a situation very similar to the instant case but did not require the immune employer to be present and participate in the trial itself. Having the fault of the immune employer accounted for is sufficient. Id. at 878, 881.

Similarly, in Ericksen v. Salt Lake City Corp., 858 P.2d 995 (Utah 1993), an injured employee sued Salt Lake City and the Salt Lake Airport. The city, in turn, filed a third-party complaint against the employer, who was immune under the exclusive remedy provision of the Workers' Compensation Act. The trial court granted summary judgment in favor of the employer, holding that it had no duty to indemnify the city. Nevertheless, the employer was listed on the special verdict form over the objection of the plaintiff employee that the employer should not have been included in the apportionment of fault. Consistent with Sullivan, we upheld the special verdict: "Apportionment of an employer's fault does not subject the employer to civil liability, but ensures that no defendant is held liable to any claimant for an amount of damages in excess of...