D & D Tire v. Ouellette

131 Nev., Advance Opinion ill
IN THE SUPREME COURT OF THE STATE OF NEVADA
D & D TIRE, INC., A NEVADA No. 63810
CORPORATION D/B/A PURCELL TIRE
& RUBBER COMPANY, A FOREIGN
CORPORATION; PURCELL TIRE
COMPANY, INC., A FOREIGN FILED
CORPORATION; AND RYAN WINTLE,
Appellants, JUL 0 2 2015
vs. TRACE K LINDEMAN
CLEROF SUPREME COURT
JACK R. OUELLETTE, By aD.:1141‘712sCtEllk
Respondent.
Appeal from a district court judgment following a jury verdict
and a post-judgment order denying judgment as a matter of law and a new
trial in a personal injury action. Second Judicial District Court, Washoe
County; Janet J. Berry, Judge.
Affirmed.
Holland & Hart LLP and J. Stephen Peek and J. Robert Smith, Reno;
Thorndal, Armstrong, Delk, Balkenbush & Eisinger and Charles L.
Burcham and Kevin A. Pick, Reno,
for Appellants.
Bradley, Drendel & Jeanney and William C. Jeanney, Reno,
for Respondent.
BEFORE SAITTA, GIBBONS and PICKERING, JJ.
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OPINION
By the Court, SAITTA, J.:
In Nevada, employers and coemployees of a person injured in
the course of employment are immune from liability for the injury under
the exclusive remedy provision of the workers' compensation statutes.
Additionally, some subcontractors and independent contractors are
accorded the same status as employers or coemployees of the injured
employee and are thus immune from liability. However, a subcontractor
or independent contractor is not considered to be a statutory employee
when it is performing a major or specialized repair that the injured
worker's employer is not equipped to handle with its own work force. This
opinion addresses when an independent contractor's actions are within the
scope of a major or specialized repair so as to prevent it from claiming
immunity as a statutory employer or coemployee.
We hold that when evaluating whether an independent
contractor's actions are within the scope of a major or specialized repair, a
district court must consider the act giving rise to the injury within the
entire context of the overall specialized repair and not in isolation. Thus,
factors such as whether the presence of the contractor at the job site was
for the purpose of the specialized repair or whether the activity was in
furtherance of the specialized repair can help guide the court's analysis.
We further hold that where, as in this case, the jury is instructed on
negligence, proximate cause, and the essentiality of a finding of the
defendant's negligence, an incomplete "mere happening" jury instruction
may be duplicative and/or confusing, and thus, the district court's failure
to give such an instruction was not an abuse of discretion.
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FACTUAL AND PROCEDURAL HISTORY
Respondent Jack R. Ouellette was employed by Allied Nevada
Gold Corporation (Allied) to perform tire service work, including the
installation, removal, repair, and replacement of tires on various pieces of
mining equipment. Appellant Purcell Tire & Rubber Company is a
commercial tire retailer. 1 Among other things, it provides tire changing
and repair services to mining companies
As part of his job, Ouellette drove and operated a tire
changing boom truck owned by Purcell and leased to Allied. When a
problem developed with the boom truck's power take off unit (PTO),
Purcell contacted an independent repair company, Dakota Diesel, who
sent repairman Scott Durick to make specialized repairs to the PTO.
Purcell, as owner of the truck, also sent Ryan Wintle, a tire technician for
Purcell with responsibilities similar to those of Ouellette, to assist with
the repairs.
After the initial repairs were completed, Wintle and Durick
filled the truck with hydraulic oil. Wintle then got into the truck to move
it to another area before testing the PTO. While backing up the truck,
Wintle struck and pinned Ouellette against a dumpster, causing Ouellette
to suffer a shoulder injury.
Ouellette filed a personal injury claim against Purcell. At
trial, Purcell moved for a judgment as a matter of law on the grounds that
it was a statutory employee of Allied and was thus immune from liability
under the Nevada Industrial Insurance Act (NIIA). The district court
lAppellants D & D Tire, Inc., and Purcell Tire Company, Inc., are
subsidiaries of Purcell Tire & Rubber Company (collectively, Purcell).
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denied Purcell's motion. Purcell also requested a mere happening jury
instruction, which the district court declined to give.
The jury returned a verdict in favor of Ouellette. Purcell then
renewed its motion for judgment as a matter of law on the grounds that it
was a statutory employee of Allied. Alternatively, it moved for a new trial,
arguing that the district court's error in refusing to give Purcell's mere
happening jury instruction materially affected its substantial rights. The
district court denied Purcell's motion. Purcell now appeals.
DISCUSSION
Purcell argues that the district court erred in denying its
motion for judgment as a matter of law because Purcell was a statutory
employee of Allied at the time of Ouellette's injury and would thus be
immune from liability for the injury under the NIIA. Purcell also argues
that the district court abused its discretion by refusing to give a mere
happening jury instruction.
Ouellette argues that the district court did not err in denying
Purcell's motion for judgment as a matter of law because Purcell was
performing a specialized repair at the time of Ouellette's injury and thus
was not a statutory employee of Allied Ouellette also argues that the
district court did not err in refusing to give Purcell's proffered jury
instruction because it misstated Nevada law and was adequately covered
by other instructions given to the jury.
The district court did not err by denying Purcell's motion for judgment as a
matter of law
NRCP 50(a)(1) provides that a district court may grant
judgment as a matter of law "with respect to a claim or defense that
cannot under the controlling law be maintained or defeated." In deciding
a motion for judgment as a matter of law, "[t]he [district] court must view
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all evidence and inferences in favor of the nonmoving party." FGA, Inc. v.
Giglio, 128 Nev., Adv. Op. 26, 278 P.3d 490, 500 (2012). Thus, a
nonmoving party can defeat a motion for judgment as a matter of law if it
"present Es] sufficient evidence such that the jury could grant relief to that
party." Bielar v. Washoe Health Sys., Inc., 129 Nev., Adv, Op. 49, 306 P.3d
360, 368 (2013) (internal quotations omitted).
We review a district court's order granting or denying
judgment as a matter of law and its interpretation of a statute de novo.
Wyeth v. Rowatt, 126 Nev. 446, 460, 244 P.3d 765, 775 (2010) (reviewing
judgment as a matter of law de novo); Intl Game Tech., Inc. v. Second
Judicial Dist. Court, 124 Nev. 193, 198, 179 P.3d 556, 559 (2008)
(reviewing statutory interpretation de novo).
An independent contractor is not immune from liability when
performing specialized repairs
In Nevada, employers and coemployees of a person injured in
the course of employment are immune from liability under the NIIA. NRS
616B.612; Lipps v. S. Nev. Paving, 116 Nev. 497, 501, 998 P.2d 1183, 1186
(2000) (noting that coemployees are immune from liability for injuries
incurred by other employees during the course of employment under NIBS
6161B.612(3), NRS 616A.020(1), and NRS 616C.215(2)(a)). Additionally,
the NIIA is "uniquely different from industrial insurance acts of some
states in that sub-contractors and independent contractors are accorded
the same status as employees" and are immune from liability. Meers v.
Haughton Elevator, 101 Nev. 283, 285, 701 P.2d 1006, 1007 (1985)
(internal quotations omitted) (interpreting a prior version of NRS
616C.215); see also NRS 616A.210(1) ("[S]ubcontractors, independent
contractors and the employees of either [are] deemed to be employees of
the principal contractor for the purposes of [the NIIA].").
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However, not all types of subcontractors and independent
contractors are considered to be statutory employees under NRS
616A.210. Id. A subcontractor or independent contractor is not a
statutory employee if it "is not in the same trade, business, profession or
occupation as the [employer of the injured worker]." See NRS
616B.603(1)(b); Hays Home Delivery, Inc. v. Emp'rs Ins. Co. of Nev., 117
Nev. 678, 682, 31 P.3d 367, 369-70 (2001) (noting that NRS 616B.603
codifies the Meers test, discussed below, which is used to "determine [ ]
whether independent contractors are 'employees' under the NIIA").
The "normal work" test, first articulated in Meers, guides
courts as to whether a subcontractor or independent contractor is
considered to be in the same trade, business, profession, or occupation as
the employer of an injured worker. See Hays Home Delivery, Inc., 117
Nev. at 682-83, 31 P.3d at 369-70 (2001). The Meers normal work test is
not one of whether the subcontractor's activity is
useful, necessary, or even absolutely indispensable
to the statutory employer's business, since, after
all, this could be said of practically any repair,
construction or transportation service. The test
(except in cases where the work is obviously a
subcontracted fraction of a main contract) is
whether that indispensable activity is, in that
business, normally carried on through employees
rather than independent contractors.
101 Nev. at 286, 701 P.2d at 1007 (internal quotations omitted); see also
Oliver v. Barrick Goldstrike Mines, 111 Nev. 1338, 1349, 905 P.2d 168, 175
(1995) (holding that the "same trade" language in NRS 616.262, replaced
by NRS 616B.603, refers to the Meers test). With regard to subcontracted
maintenance activities, "[t]he general rule is that major repairs, or
specialized repairs of the sort which the employer is not equipped to
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handle with his own force, are held to be outside his regular business."
Meers, 101 Nev. at 286, 701 P.2d at 1007-08 (internal quotations omitted).
Purcell's interpretation of the Meers normal work test is
incorrect
Purcell concedes that the job of repairing the truck's PTO
would be considered a specialized repair under Meers. However, it argues
that Dakota Diesel performed the specialized repair, while Wintle was
merely there to "monitor the repair process." Purcell further argues that
even if Wintle was performing a specialized repair on the day of
Ouellette's injury, Wintle was not performing a specialized repair at the
time Ouellette was actually injured.
In making its argument, Purcell contends that the focus of the
normal work test is on the work being performed at the time the injury
occurred. Therefore, because Wintle was moving the tire changing boom
truck at the time of Ouellette's injury, which was work normally
performed by employees of Allied, Purcell argues that Wintle was not
performing a specialized repair at the time of Ouellette's injury. In
support of its argument, Purcell relies on State Industrial Insurance
System v. Ortega Concrete Pumping, Inc., which held that under the
normal work test, "the relevant factual inquiry. . . is whether [the
contractor who caused the accident] was in the 'same trade, business,
profession or occupation' as [the injured employee] at the time of the
accident." 113 Nev. 1359, 1363-64, 951 P.2d 1033, 1036 (1997) (emphasis
added). Purcell also relies on Employers Insurance Company of Nevada v.
United States, which held that a principal contractor was immune under
the NIIA as the statutory employee of the subcontractor because the work
that the subcontractor "was performing at the time of his injury" was
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normally carried out by the principal contractor. 322 F. Supp. 2d 1116,
1118 (D. Nev. 2004) (emphasis added).
We reject Purcell's narrow interpretation of the Meers normal
work test. Purcell effectively argues that the relevant inquiry under
Meers is whether, at the exact moment of an employee's injury, the activity
being performed by the subcontractor or independent contractor was
normally performed by the injured worker's employer. Purcell misstates
the holdings of Ortega and Employers Insurance Company. In Ortega, this
court foundS the district court's failure to apply the Meers test was error,
and we reversed and remanded so that it could apply the proper analysis.
113 Nev. at 1364, 951 P.2d at 1036. Because the Ortega court did not
actually apply the Meers normal work test, its holding is inapposite to the
current case. Id. And in Employers Insurance Company, the district court
examined whether the defendant was the statutory employer "at the time
of the accident" by examining the circumstances surrounding the
employment, not the acts at the exact moment of the injury. 322 F. Supp.
2d at 1118. Thus, nothing in the reasoning of either case supports
Purcell's contention.
Furthermore, Purcell's narrow interpretation could readily
create absurd results. Under Purcell's reasoning, the status of a worker
performing specialized repairs would change from moment-to-moment
depending on whether that particular task is normally performed by
employees of the primary contractor. For instance, repairing an engine
valve on a vehicle might be considered a specialized repair, but checking
the oil level afterwards would not be if the primary contractor's employees
normally check the oil level of the vehicles they are driving. Thus, the
status of the work that an independent contractor is performing could
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repeatedly alternate between a specialized repair and something else
during the same overall repair.
Winne was performing a specialized repair at the time of Ouellette's
injury
In rejecting Purcell's narrow interpretation of Meers, we hold
that in order to determine whether a subcontractor or independent
contractor was engaged in a specialized repair under the Meers test, and
therefore whether that subcontractor or independent contractor is liable
for any injuries caused to workers during the course of that specialized
repair, the court must consider the subcontractor or independent
contractor's activity leading to a worker's injury within the context of their
other actions, both before and after the injury, and not in isolation. In this
case, we hold that Wintle's presence at the mine for the purpose of a
specialized repair was sufficient to establish that he was not acting as an
employee of Allied at the time of the injury.
Wintle was at the mine on the day of Ouellette's injury
because the truck's PTO required specialized repair. Purcell sent Wintle
to the site specifically to accompany Durick, who was hired to make those
specialized repairs. 2 Even if Wintle's only purpose at the mine that day
was to "monitor the repair process" of the truck, as Purcell claims, Wintle
was nonetheless there for the sole purpose of the specialized repair. To
put it another way, Wintle would not have been at the mine that day but
for the specialized repair. Because Wintle was at the mine on the day of
Ouellette's injury for the purpose of a specialized repair, we hold that
2 VVhen asked why he was at the mine on the day of the accident,
Wintle testified that he went there "to assist and facilitate Mr. Durick in
repairs to the 508 boom truck."
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there was sufficient evidence for the jury to find that Wintle and Purcell
were performing a specialized repair under Meers at the time of
Ouellette's injury, and were therefore not statutory employees of Allied
under NRS 616B.603 and NRS 616A.210.
Even under Purcell's narrow interpretation of Meers, we hold
that, when looked at in context, Wintle would still have been acting in
furtherance of the specialized repair at the time of Ouellette's injury and
thus be considered to be performing a specialized repair under Meers.
Wintle arrived at the mine with Durick, the Dakota Diesel repairman
Purcell had engaged to perform the specialized repair work. Both Durick
and Wintle testified that Wintle actively assisted Durick in the specialized
repair. Wintle testified that "[he] was going out to assist and
facilitate. . . Durick in repairs to the 508 boom truck." Durick testified
that Wintle assisted him in his work on the truck, stating that
[Wintle and I] had to drain all of the hydraulic oil.
We drained the transmission fluid out, removed
the hydraulic pump, and the power takeoff unit,
mounted the new one on, had to do some setup
procedure on it, got that all mounted, filled the
tranny back full of oil, and remounted the
hydraulic pump
After Durick and Wintle performed the initial repairs, they "got to a point
where [they] needed hydraulic oil" and drove the truck from the tire pad to
the shop where the hydraulic oil was kept. After filling the truck with
hydraulic oil, Durick testified that he and Wintle were next going to "take
pressure checks and. . . were going to operate the crane to make sure it
was operating and functioning properly." Ouellette testified that this was
to see if the repairs were successful. Wintle then asked Durick if he
"wanted to do the pressure checks and the function checks right there,"
but Durick wanted to first move the truck to the tire pad because the shop
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area was congested. Wintle then got into the truck to move it to the tire
pad, a move that led to Ouellette's injury.
Thus, while employees of Allied may usually drive the truck
and fill it with hydraulic oil, in the context of Wintle's other actions, it is
clear that in this case he was acting in furtherance of the overall
specialized repair at the time of Ouellette's injury. Therefore, even had
evidence not been presented that Wintle was at the mine solely for the
purpose of the specialized repair, there was sufficient evidence
demonstrating that Wintle was still in the process of performing a
specialized repair at the time of Ouellette's accident. Accordingly, Purcell
was not a statutory employee of Allied under NRS 616B.603 and NRS
616A.210, and we hold that the district court did not err in denying
Purcell's motion for judgment as a matter of law regarding NRS
616B.612's application.
The district court did not improperly reject Purcell's jury instruction
We review a decision to admit or refuse jury instructions for
an abuse of discretion or judicial error. Ins. Co. of the W. v. Gibson Tile
Co., 122 Nev. 455, 463, 134 P.3d 698, 702-03 (2006). We review de novo
whether a jury instruction accurately states Nevada law. Cook v. Sunrise
Hosp. & Med. Ctr., LLC, 124 Nev. 997, 1003, 194 P.3d 1214, 1217 (2008).
Although "a party is entitled to jury instructions on every theory of fits]
case that is supported by the evidence," Johnson v. Egtedar, 112 Nev. 428,
432, 915 P.2d 271, 273 (1996), the offering party must demonstrate that
the proffered jury instruction is warranted by Nevada law. NRCP
51(a)(1).
At trial, the district court rejected the following jury
instruction offered by Purcell:
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The mere fact that there was an accident or
other event where someone was injured is not in
and of itself a sufficient basis for negligence.
The instruction was based on Gunlock v. New Frontier Hotel Corporation,
which held, in relevant part, that "Whe mere fact that there was an
accident or other event and someone was injured is not of itself sufficient
to predicate liability. Negligence is never presumed but must be
established by substantial evidence." 78 Nev. 182, 185, 370 P.2d 682, 684
(1962), abrogated on other grounds by Foster v. Costco Wholesale Corp.,
128 Nev., Adv. Op. 71, 291 P.3d 150, 156 (2012).
The omitted portions of Purcell's jury instruction were adequately
covered by other instructions
While Purcell's proffered jury instruction accurately reflects
the first part of the Gunlock mere happening instruction, it omits the
second part, stating that "[n]egligence is never presumed but must be
established by substantial evidence." 78 Nev. at 185, 370 P.2d at 684.
Therefore, Purcell's proffered jury instruction, by itself, is an inaccurate
statement of Nevada law. However, in civil cases, "if an instruction is not
technically correct, the instruction should be examined in the context of all
instructions given to the jury" in deciding whether "the jury was•
sufficiently and fairly instructed." Gordon v. Hurtado, 96 Nev. 375, 380,
609 P.2d 327, 330 (1980).
Here, the statement that "[n]egligence is never presumed" is
merely a restatement of the first part of the Gunlock reasoning presented
above, 78 Nev. at 185, 370 P.2d at 684 ("The mere fact that there was an
accident . .. is not of itself sufficient to predicate liability."), and the
concept that negligence "must be established by substantial evidence" was
adequately covered by other jury instructions stating the burden of proof
for a claim of negligence; see, e.g., Jury Instruction No. 20 (stating the
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elements that Ouellette must prove to prevail on a negligence theory and
that those elements must be proven by a preponderance of the evidence).
Thus, when taken as a whole with the other jury instructions given by the
court, we find that Purcell's proposed jury instruction would have
sufficiently and fairly instructed the jury on Gunlock's holding. See
Gordon, 96 Nev. at 380, 609 P.2d at 330.
Purcell's proposed jury instruction was adequately covered by other
instructions
"[T]he number of instructions to be given is discretionary with
the court." Duran v. Mueller, 79 Nev. 453, 460, 386 P.2d 733, 737 (1963).
"If one instruction adequately covers a given theory of liability or defense,
it is preferable that the court refuse additional instructions relating to the
same theory, though couched in different language." Id.
Where other jury instructions "adequately cover[ ] negligence,
proximate cause, and the essentiality of a finding of defendants'
negligence to permit a verdict for [the] plaintiff," a mere happening
instruction is duplicative or confusing. Gagosian v. Burdick's Television &
Appliances, 62 Cal. Rptr. 70, 73 (Ct. App. 1967); see also Kennelly v.
Burgess, 654 A.2d 1335, 1341 (Md. 1995) ("Even the use of a proper 'mere
happening' instruction can lead to confusion in the minds of jurors .
Simmons v. Monarch Mach. Tool Co., 596 N.E.2d 318, 324 (Mass. 1992)
(holding that a mere happening instruction was redundant to an
instruction which stated that "if the defendant acted with reasonable care
under the circumstances, then it is not negligent and not liable to the
plaintiff even though the plaintiff might have been injured"), abrogated on
other grounds by Vassallo v. Baxter Healthcare Corp., 696 N.E.2d 909, 910
(Mass. 1998).
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Here, the district court's jury instructions covered the issues of
negligence, proximate cause, and the essentiality of a finding of Purcell's
negligence. See Jury Instruction No. 18 (stating that Ouellette had the
burden to prove that his injury was caused by Purcell's negligence); Jury
Instruction No. 20 (stating the elements that Ouellette must prove to
prevail on a negligence theory and that those elements must be proven by
a preponderance of the evidence); Jury Instructions Nos. 21-26 (defining
negligence, contributory negligence, proximate cause, and duty of care).
Therefore, the district court did not abuse its discretion by refusing to give
Purcell's incomplete mere happening jury instruction. See Gagosian, 62
Cal. Rptr. at 73.
CONCLUSION
Because there was sufficient evidence demonstrating that
Wintle was present at the mine for the purpose of a specialized repair and
acting in furtherance of the specialized repair when he caused Ouellette's
injury, Purcell was not immune from liability for Ouellette's injury under
NRS 616B.612. Thus, the district court did not err in denying Purcell's
motion for judgment as a matter of law. Furthermore, the district court
did not abuse its discretion in refusing to give an incomplete mere
happening jury instruction because to do so would have been duplicative
and/or confusing.
J.
We con
Gibboffs
J.
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