Swichtenberg v. Brimer, CA-CV

CourtCourt of Appeals of Arizona
Citation171 Ariz. 77,828 P.2d 1218
Docket NumberCA-CV
PartiesMarvin R. SWICHTENBERG and Rose Swichtenberg, husband and wife, Plaintiffs-Appellants, v. Jack BRIMER and Jane Doe Brimer, husband and wife, Defendants-Appellees. 188-532.
Decision Date19 September 1991

TAYLOR, Judge.

Marvin R. Swichtenberg appeals from a judgment dismissing his negligence action against defendant Jack Brimer. The parties urge the following issues on appeal: (1) did Brimer's statements to his worker's compensation carrier and at his deposition that Swichtenberg was not his employee estop him from claiming immunity under A.R.S. § 23-1022(A) as Swichtenberg's employer; (2) do genuine issues of material fact exist which would require a trial on the question whether Brimer was Swichtenberg's employer; (3) did Swichtenberg waive his right to deny he was Brimer's employee by naming Brimer as his employer on his worker's compensation claim; (4) assuming Brimer was Swichtenberg's employer, may Swichtenberg nevertheless pursue a negligence claim against Brimer based on actions and conditions that did not arise from or relate to Brimer's business; and (5) did Brimer lack exclusive possession and control over the skylight through which Swichtenberg fell, and if so, was Brimer thereby protected from liability for allegedly installing the skylight in violation of the Mesa building code. We hold that equitable estoppel cannot be applied to preclude Brimer from contending that the trial court lacked subject matter jurisdiction under A.R.S. § 23-1022(A). We further hold that under the circumstances of this case, the question whether Brimer was protected from tort liability by A.R.S. § 23-1022(A), including resolution of disputed fact issues, was for the trial court to determine, and that the record contains substantial evidence to support the trial court's conclusion that Brimer was protected.


Viewed in the light most favorable to sustaining the judgment, the record reveals the following facts. Beginning in June of 1985 and continuing through the date of the accident that generated this litigation, appellee Jack Brimer engaged in business as the sole proprietor of B & B Associates. As B & B Associates, Brimer provided general management for the homeowners associations connected with Villa Patrician, Country Club Heights, Woodridge Lake and The Landings, all condominium complexes in Maricopa County. As general manager of each association, Brimer was responsible for taking care of the lawns, pools, general upkeep, painting, outside repair work, trees, waterways, accounting and collecting association monthly fees.

Each homeowners association's monthly fees were deposited to its separate checking account. Checks were then written either directly to persons who provided services for the association's benefit or to B & B Associates to reimburse it for expenses incurred on the association's behalf.

Approximately a year and a half before the accident, Swichtenberg told Brimer he would like to have a job painting at the complexes Brimer managed. Brimer and Swichtenberg agreed on wages and other terms, and Swichtenberg began painting approximately fifty townhouses at The Landings. After Swichtenberg finished his painting project at The Landings, Brimer had him paint the garage roofs and trim at Villa Patrician and all 152 units at the Country Club Heights complex. There was no written employment agreement between Brimer and Swichtenberg.

Swichtenberg was paid $7.00 per hour when he painted for the various townhouse associations. Brimer purchased a heavy duty ladder for Swichtenberg's use, and The Landings Homeowners Association paid for it. Brimer also furnished Swichtenberg with painting supplies including paint brushes and paint, which were also paid for by The Landings.

Swichtenberg testified that Brimer would merely tell him what he wanted done, and Swichtenberg would do it. He testified that before his accident he painted part of the buildings at The Landings, and then Brimer sent him to Country Club Estates to finish a painting project previously started at that location. He then returned to The Landings and completed that project.

Brimer testified he tried to control the manner in which Swichtenberg did his work to ensure safety. He testified he told Swichtenberg to watch himself and informed him of any potential problems of which he was aware. Swichtenberg, however, did not get instructions from Brimer each morning when he reported to work.

While Swichtenberg was painting for B & B Associates, he received checks from both B & B and from the individual townhouse associations. All the checks were signed by Brimer, either in his capacity as manager of the various associations or as sole proprietor of B & B Associates. No deductions were taken from Swichtenberg's checks for federal taxes, state taxes or social security. Brimer testified that the associations looked to B & B to "pick up all employee relationships" and then bill the associations for the gross amounts due. He testified the associations did not want to file the federal taxes and "all of this other stuff associated with having an employee of their own."

During Swichtenberg's tenure, Brimer repeatedly asked him for a certificate of insurance. Swichtenberg kept assuring Brimer he had one, but did not produce it. In late 1985 Swichtenberg spent several months in Texas. Sometime in or before early January of 1986, Swichtenberg returned from Texas and called Brimer, telling him he wanted to go back to painting. Brimer testified that he told Swichtenberg:

... that if he did not give me a certificate of insurance before I would start paying him again that he would have to be under the State Fund to make sure that everyone was covered.

Brimer's testimony continued:

The only thing is that I could not get him to give me a certificate of insurance.

Q. What did you do about that?

A. What did I do? I figured if I had no certificate of insurance that he would have to go under the State Fund as an employee.

Q. Of whom?

A. Of B & B. B & B had carried the workmen's comp for quite a [while], I don't know how long, quite a while, but we had had State Fund for quite a while.

Q. When did you put Marvin on as an employee of B & B?

A. The day of the accident, when he started. Excuse me, the day that he actually started was when it really was.

Q. Started painting at The Landings again?

A. Yes, well whether it was the 7th or 8th or 9th, or whatever it was of January.

Brimer testified there was a fairly large number of two and three bedroom townhouses to be painted at The Landings. He testified he wanted Swichtenberg to paint a three bedroom townhouse and a two bedroom townhouse to see how long they took and how much paint was used, so that Brimer could estimate the total cost for painting up to fifty more townhouses. The two bedroom townhouse Brimer selected for painting was owned by Brimer personally, as his residence.

Brimer's townhouse included a jacuzzi in a small patio area. After Brimer moved in, he enclosed the patio area and had a skylight installed over the jacuzzi. These improvements were not made as part of Brimer's job as manager of The Landings, but were improvements personally constructed and for his private use.

On January 10, 1986, Swichtenberg started painting Brimer's townhouse. After painting a portion of the outside walls, he climbed the ladder to the top of the building to paint the parapet wall. As he moved off the ladder and onto the roof, he stepped through the skylight and fell into the jacuzzi, suffering injuries.

After the accident, Swichtenberg filed a worker's compensation claim naming "B & B Assoc.--Jack Brimer and Assoc." as his employer. On January 27, 1986, a representative of the State Compensation Fund contacted Brimer concerning Swichtenberg's accident. At that time Brimer indicated Swichtenberg had not returned to work but might return to work in two to three weeks. Brimer did not question the validity of Swichtenberg's claim. On January 30, 1986, the Fund mailed Swichtenberg a notice of claim status indicating that his claim against B & B Associates had been accepted for benefits. It informed him that the notice would become final if he did not apply for a hearing within 90 days.

On March 25, 1986, at the request of a representative of the liability carrier for The Landings Homeowners Association, Brimer wrote to the Fund as follows:

There has been an error made concerning the State Fund Insurance workman's compensation for Marvin Swichtenberg, Sr. due to the fact that he was an employee of The Landings Homeowners Association for 3 days prior to the accident and in the confusion the claim was turned in under B & B Associates.

The claim should have been made under The Landings' Homeowners Association policy # 147149-9 instead of B & B Associates policy # 147141-6.

Mr. Lou Ferguson of the Claims Department of Farmers Insurance Company requested that I write you this letter, to straighten this matter out.

After Brimer's letter of March 25, 1986 was received, the Fund transferred the charges for Swichtenberg's accident from the B & B Associates policy to The Landings Homeowners Association's policy.

In a 1986 deposition, Brimer testified that Swichtenberg was employed by The Landings when he was injured. In a 1988 deposition, however, Brimer testified that Swichtenberg was made an employee of B & B Associates just prior to the accident and that The Landings had no employees when Swichtenberg was injured.

Swichtenberg's affidavit in the trial court stated in part:

1. When I was hired to paint at The Landings in January of 1986, my understanding was that I was being hired by The Landings, that...

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