Singer v. New Tech Engineering L.P.

• Decision Date: 22 March 2010
• Docket Number: No. S-09-0024.,S-09-0024.
• Citation: Singer v. New Tech Engineering L.P., 227 P.3d 305, 2010 WY 31 (Wyo. 2010)
• Parties: Leonard SINGER, Appellant (Plaintiff), v. NEW TECH ENGINEERING L.P., Individually and through Vicarious Liability for New Tech Safety Limited, Appellee (Defendant).
• Court: Wyoming Supreme Court

227 P.3d 305

2010 WY 31

Leonard SINGER, Appellant (Plaintiff), v.NEW TECH ENGINEERING L.P., Individually and through Vicarious Liability for New Tech Safety Limited, Appellee (Defendant).

No. S-09-0024.

Supreme Court of Wyoming.

March 22, 2010.

Representing Appellant: Mark L. Carman of Carman Law Office, P.C., Billings, Montana; and Cody L. Balzer of Balzer Law Firm, P.C., Loveland, Colorado.Argument by Mr. Carman.

Representing Appellee: Roger E. Shumate and James C. Worthen of Murane & Bostwick, LLC, Casper, Wyoming.Argument by Mr. Shumate.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

HILL, Justice.

[¶ 1] After suffering debilitating injuries while working on a drilling rig owned by Caza Drilling (Caza) in northeastern Wyoming, Leonard Singer brought a negligence case against New Tech Engineering (New Tech), the company who hired safety coaches to provide "safety services" on the rig.The district court granted New Tech's summary judgment motion, and denied Mr. Singer's partial summary judgment motion, absolving New Tech from any responsibility in Mr. Singer's injuries.We affirm the district court.

ISSUES

[¶ 2]Leonard Singer lists the issues as follows:

A.Are there questions of material fact regarding whether Mr. Harrington was an employee/agent or independent contractor?

B.Does the Restatement (Second) of Torts§ 429 impose liability upon New Tech regardless of the employment status of Mr. Harrington?

C.Is New Tech directly and vicariously liable by its assumption of affirmative duties of safety pursuant to its agreement with Caza, regardless of the employment status of Mr. Harrington?

D.Did New Tech undertake a non-delegable duty when it agreed to provide safety services for an ultra-hazardous undertaking rendering it directly and vicariously [liable] regardless of the employment status of Mr. Harrington?

New Tech recites the issues this way:

I.The district court properly found that Gary Harrington was an independent contractor and not an employee/agent.

II.The district court properly held that Restatement (Second) of Torts§ 429 does not impose liability upon New Tech, even if Mr. Harrington is an independent contractor.

III.The district court properly found that Appellee New Tech Engineering did not assume any affirmative safety duties.

IV.The district court properly found that Appellee New Tech Engineering did not have a non-delegable duty.

FACTS

[¶ 3] In 2002, it was Caza's practice to have safety coaches on rig sites.Customers of Caza wanted the coaches present and, wanting to satisfy their customers, Caza made sure the coaches were a fixture on the rig.Having previously experienced problems hiring insured safety coaches, Caza decided to hire its coaches through an engineering company that would provide the coach with liability insurance.Caza also wanted to maintain control over its safety program and decided that New Tech¹ would facilitate both wishes.New Tech was "primarily a placement service," as it provided Caza with three names of safety coaches, and Caza decided which person to hire.

[¶ 4] From the choices given to Caza by New Tech, Caza hired Gary Harrington² as its safety coach.The chain of command is not altogether clear, but Harrington believed that he worked under Caza's Health, Safety and Environmental Director, Harry Olds, although Olds believed Harrington supervised "himself."Nevertheless, Harrington received his orders and directions from Caza employees and reported to Caza supervisors.Caza decided where the safety coaches worked on a day-to-day basis and had the power to terminate the safety coaches.Although Harrington "checked in" with New Tech only every six to eight weeks, he received his paycheck through New Tech and was provided liability insurance by New Tech.Caza, however, retained the right to terminate the safety coaches by calling New Tech and requesting a new safety coach.New Tech would never terminate a safety coach; they would simply refrain from using that individual's services again.

[¶ 5] Harrington was on duty during Leonard Singer's shift on the Natrona County drilling rig on July 27, 2002.Singer, who was a Caza employee, was injured and rendered totally disabled while working on the rig.Singer filed suit against New Tech alleging that New Tech's actions (and inactions) contributed to his injuries.New Tech asserted that it had neither direct nor vicarious liability for Singer's injuries because it engaged Harrington as an "independent contractor" to perform the safety duties assigned to him by Caza.The district court agreed and granted New Tech's motion for summary judgment.The court also denied Singer's partial summary judgment motion, absolving New Tech from any responsibility by application of the independent contractor rule and rejection of any exceptions to the rule.

[¶ 6] On appeal, Singer contends that Harrington was an employee/agent of New Tech and not an independent contractor.Furthermore, he argues that regardless of the employment status of Harrington, New Tech is liable under the Restatement (Second) of Torts§ 429, and also because New Tech assumed affirmative duties of safety.Finally, Singer argues that New Tech undertook a non-delegable duty by "agreeing to provide safety services."

DISCUSSION

ISSUE I

[¶ 7] Singer's first argument on appeal is that there are genuine issues of material fact regarding whether Harrington was an employee/agent of New Tech or an independent contractor.The district court determined that Harrington was an independent contractor.New Tech agrees with the district court's assessment and encourages this Court to affirm the summary judgment motion.

[¶ 8]We evaluate the propriety of a summary judgment by employing the same standards and using the same materials as the district court.Cook v. Shoshone First Bank,2006 WY 13, ¶ 11, 126 P.3d 886, 889(Wyo.2006).Thus, our review is plenary.Birt v. Wells Fargo Home Mortg., Inc.,2003 WY 102, ¶ 7, 75 P.3d 640, 647(Wyo.2003).

Wyo. R. Civ. P. 56 governs summary judgments.A summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.W.R.C.P. 56(c).When reviewing a summary judgment, we consider the record in the perspective most favorable to the party opposing the motion and give that party the benefit of all favorable inferences which may be fairly drawn from the record.We review questions of law de novo without giving any deference to the district court's determinations.

Loredo v. Solvay Am., Inc.,2009 WY 93, ¶ 10, 212 P.3d 614, 618(Wyo.2009)(quotingCathcart v. State Farm Mut. Auto. Ins. Co.,2005 WY 154, ¶ 11, 123 P.3d 579, 586(Wyo.2005)).

"A genuine issue of material fact exists when a disputed fact, if it were proven, would establish or refute an essential element of a cause of action or a defense that the parties have asserted."Christensen v Carbon County,2004 WY 135, ¶ 8, 100 P.3d 411, 413(Wyo.2004)(quotingMetz Beverage Co. v. Wyoming Beverages, Inc.,2002 WY 21, P 9, 39 P.3d 1051, 1055(Wyo.2002)).The party requesting a summary judgment bears the initial burden of establishing a prima facie case for summary judgment.If he carries his burden, "the party who is opposing the motion for summary judgment must present specific facts to demonstrate that a genuine issue of material fact exists."Id.We have explained the duties of the party opposing a motion for summary judgment as follows:

"After a movant has adequately supported the motion for summary judgment, the opposing party must come forward with competent evidence admissible at trial showing there are genuine issues of material fact.The opposing party must affirmatively set forth material, specific facts in opposition to a motion for summary judgment, and cannot rely only upon allegations and pleadings . . ., and conclusory statements or mere opinions are insufficient to satisfy the opposing party's burden."

The evidence opposing a prima facie case on a motion for summary judgment"must be competent and admissible, lest the rule permitting summary judgments be entirely eviscerated by plaintiffs proceeding to trial on the basis of mere conjecture or wishful speculation."Speculation, conjecture, the suggestion of a possibility, guesses, or even probability, are insufficient to establish an issue of material fact.Cook,¶ 12, 126 P.3d at 890, quotingJones v. Schabron,2005 WY 65, PP 9-11, 113 P.3d 34, 37(Wyo.2005).

Hatton v. Energy Elec. Co.,2006 WY 151, ¶¶ 8-9, 148 P.3d 8, 12-13(Wyo.2006).

Loredo,¶ 10, 212 P.3d at 618-19.

[¶ 9] With regard to determining whether an individual is an employee or independent contractor, we have previously stated that:

The overriding consideration in distinguishing between master-servant relationships and employer-independent contractor relationships is the employer's right to control the means and manner of the work.See, e.g., Stratman v. Admiral Beverage Corp.,760 P.2d 974, 980(Wyo.1988);Cline v. State, Dep't. of Family Services,927 P.2d 261, 263(Wyo.1996);Noonan v. Texaco, Inc.,713 P.2d 160, 164(Wyo.1986).

Such a right to control is a prerequisite of the master-servant relationship.Conversely, the absence of such a right of control is a prerequisite of an independent contractor relationship.Master-servant and independent contractor are thus opposite sides of the same coin; one cannot be both at the same time with respect to the same activity; the one necessarily negatives the other, each depending on opposite answers to the same right of control inquiry.

Coates v. Anderson,2004 WY 11, ¶ 7, 84 P.3d 953, 957(Wyo.2004).When a worker is an independent contractor, the employer is typically interested only in the results of the work and does not direct the details of . . . how the work is performed.Noonan,713 P.2d at 166;Natural Gas Processing Co. v. Hull,886 P.2d 1181, 1186(Wyo.1994).

When an express...