Nichols v. Jacobsen Construction Co.

This opinion is subject to revision before final
publication in the Pacific Reporter
2016 UT 19
IN THE
SUPREME COURT OF THE STATE OF UTAH
RICK J. NICHOLS,
Respondent,
v.
JACOBSEN CONSTRUCTION CO., INC.,
Petitioner.
No. 20140866
Filed April 28, 2016
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake Dep’t
The Honorable Elizabeth A. Hruby-Mills
No. 120904185
Attorneys:
William J. Hansen, Karra J. Porter, Sarah E. Spencer,
Salt Lake City, for respondent
Julianne P. Blanch, Alan S. Mouritsen,
Salt Lake City, for petitioner
JUSTICE DURHAM authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
and JUDGE JOHNSON joined.
Having recused himself, JUSTICE HIMONAS does not participate
herein; Fourth District JUDGE CHRISTINE S. JOHNSON sat.
JUSTICE JOHN A. PEARCE became a member of the Court
on December 17, 2015, after oral argument in this
matter, and accordingly did not participate.
JUSTICE DURHAM, opinion of the Court:
INTRODUCTION
¶1 Rick J. Nichols worked for a subcontractor of Jacobsen
Construction Company in 2011 when scaffolding came loose and fell
on him, causing serious bodily injury. Mr. Nichols alleges that
NICHOLS v. JACOBSEN CONSTRUCTION
Opinion of the Court
Jacobsen’s negligence caused these injuries and thus filed suit with
the district court. Jacobsen moved for summary judgment, claiming
immunity from suit under the exclusive remedy provision of the
Utah Workers’ Compensation Act. The district court granted
Jacobsen’s motion, determining that Jacobsen qualified for immunity
under the “eligible employer” statute because: (1) Jacobsen
“procure[d] work” that was “part or process of [its] trade or
business,” (2) Jacobsen “secure[d] the payment of workers’
compensation benefits” for Mr. Nichols, and (3) Jacobsen created and
maintained a “written workplace accident and injury reduction
program that [met] the requirements” of the statute. UTAH CODE
§ 34A-2-103(7)(f)(iii)(B).
¶2 Mr. Nichols appealed to the Utah Court of Appeals, which
affirmed on the “procuring work” requirement but reversed on the
“securing the payment” requirement, concluding that the length of
time that passed before Jacobsen began making workers’
compensation payments had an impact on whether Jacobsen indeed
secured payment of those benefits as the statute required. The court
of appeals did not address the workplace accident and injury
reduction program requirements.
¶3 We conclude that Jacobsen qualifies as an “eligible
employer” under the workers’ compensation statutes and has
fulfilled all three of the above requirements, thereby qualifying for
immunity from suit. We therefore affirm the district court’s grant of
summary judgment in its entirety; affirming in part and reversing in
part the court of appeals’ decision.
BACKGROUND
¶4 Jacobsen Construction Company was a general contractor
and construction manager for the City Creek Center commercial
development project in Salt Lake City. Jacobsen required its
subcontractors to participate in a “contractor-controlled insurance
program” (CCIP). Under this plan, Jacobsen purchased a single
insurance policy from a single insurer that covered all of Jacobsen’s
subcontractors. This plan included a workers’ compensation policy
that provided the first $250,000 of benefits for injured workers.
Although subcontractors could still purchase their own workers’
compensation insurance, the CCIP was “intended to be the primary
source of coverage” and would “assume primary position to
Subcontractors’ insurance in the covered areas of risk.”
¶5 Safway was one such subcontractor included in the CCIP.
On June 9, 2009, Safway signed a CCIP Enrollment Form and an
Insurance Calculation Form. Safway listed under the “Work
Description” heading that it would “erect and dismantle
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Opinion of the Court
scaffolding.” Safway received a certificate of liability insurance on
August 27, 2010.
¶6 Safway signed the Insurance Calculation Form that twice
references the CCIP manual, which in turn requires all participating
subcontractors to “compl[y] with the terms and conditions of the
Jacobsen City Creek Center CCIP Manual and the Jacobsen City
Creek Center Safety and Health Manual.”
¶7 Rick J. Nichols was an employee of Safway. On April 11,
2011, Mr. Nichols was severely injured while unloading scaffolding.
On the morning of his injury, Mr. Nichols and another Safway
employee drove to a construction site to unload scaffolding. Safway
had reserved a forklift for the men to use to assist with the
unloading, but when the men arrived at the site there was no forklift
available. A Jacobsen employee demanded that the men unload the
scaffolding by hand because “the project was behind schedule.”
Mr. Nichols stayed on the ground while the other Safway employee
climbed onto the truck’s flatbed. Mr. Nichols began cutting the
bands that held the individual scaffolding planks together in order
to unload the planks. As Mr. Nichols was cutting through one of the
bands, several planks came crashing down on him, with the weight
of the impact snapping one of the bands of Mr. Nichols’ hard hat.
¶8 After the accident, a Safway supervisor came to the site to
take Mr. Nichols to speak with one of Jacobsen’s safety supervisors.
The Jacobsen supervisor told the Safway supervisor to take
Mr. Nichols “wherever you want” for medical assistance because
“he’s not our employee.” Mr. Nichols then filed a workers’
compensation claim, but there is a dispute over who initially paid
the benefits. Mr. Nichols alleges he initially filed the claim with
Safway’s insurance carrier, but Jacobsen claims it has paid from “day
one and dollar one.” It is undisputed, however, that Jacobsen has
paid over $100,000 in benefits and continues to pay as losses accrue.
¶9 Mr. Nichols filed a negligence action against Jacobsen in the
district court. Jacobsen argued that it was immune from tort liability
based on the Utah Workers’ Compensation Act’s exclusive-remedy
provision. The parties then agreed to stay discovery while Jacobsen
moved for summary judgment on the question of whether it
qualified for immunity under the “eligible employer” statute. See
UTAH CODE § 34A-2-103(7)(f)(iii)(B). The statute required Jacobsen to
establish that it had (1) “procure[d] work” that was “part or process
of [its] trade or business,” (2) “secure[d] the payment of workers’
compensation benefits” for Mr. Nichols, and (3) created and
maintained a “written workplace accident and injury reduction
program that [met] the requirements” of the statute. Id.
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Opinion of the Court
¶10 The district court granted Jacobsen’s motion for summary
judgment. First, with respect to the “procuring work” requirement,
the district court found in its order that Mr. Nichols did not provide
the court with any “admissible factual or legal basis for th[e]
assertion . . . [that] delivery of supplies on its face would seem not to
qualify as procuring work that is part or process of [Jacobsen’s] trade
or business.” Additionally, the court found that the “plain language
of the statute seems to support the delivery of supplies [is] clearly in
furtherance of [Jacobsen’s] work.” Second, with respect to “securing
the payment” of workers’ compensation benefits, the court found
that Jacobsen met this requirement when it enrolled Safway as a
subcontractor in its insurance program. And finally, with respect to
the “workplace accident and injury reduction program”
requirement, the court found that Jacobsen had submitted several
documents demonstrating its compliance with the statute, and that
although Mr. Nichols “question[ed] many of the facts surrounding
these documents,” he did not “produce[] any evidence of
[Jacobsen’s] failure to comply with the statutory mandates.”
¶11 Mr. Nichols appealed to the Utah Court of Appeals, which
affirmed on the first requirement (procuring the work), but reversed
on the second requirement (securing the payment). Nichols v. Jacobsen
Constr. Co., 2014 UT App 201, 334 P.3d 514. The court concluded that
there was a genuine dispute of fact as to whether Jacobsen secured
the payment of Mr. Nichols’ benefits, because the parties disputed
whether Jacobsen paid the benefits from “day one and dollar one” or
whether Safway initially secured the payment of the benefits, and
Jacobsen stepped in at a later date. Id. ¶¶ 11–12. The court held that
Jacobsen would not qualify for immunity “if a significant time
passed” before Jacobsen started paying Mr. Nichols’ benefits. Id.
¶ 13. The court of appeals did not address the third requirement that
Jacobsen create and maintain a “written workplace accident and
injury reduction program.” See UTAH CODE § 34A-2-103(7)(f)(iii)(B)
(III).
¶12 We granted certiorari on the issue of whether the “securing
the payment” provision includes a timing requirement for actual
payment of benefits, and the issue of the proper interpretation of the
word “work.” We have jurisdiction under Utah Code section 78A-3-
102(3)(a).
STANDARD OF REVIEW
¶13 On certiorari, we give the court of appeals’ decision no
deference and review its decision under a correctness standard.
Energy Claims Ltd. v. Catalyst Inv. Grp. Ltd., 2014 UT 13, ¶ 17, 325 P.3d
70; Turner v. Univ. of Utah Hosps. & Clinics, 2013 UT 52, ¶ 13, 310 P.3d
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1212. We also review questions of statutory interpretation and the
grant of summary judgment for correctness. Monarrez v. UDOT, 2016
UT 10, __P.3d__. “To the extent an issue involves a factual question,
we ‘view the facts and all reasonable inferences drawn therefrom in
the light most favorable to the nonmoving party’”—in this case—
Mr. Nichols. Id. ¶ 7 (citation omitted).
ANALYSIS
¶14 As set forth in Utah Code section 34A-2-105(1), recovery
under Utah’s Workers’ Compensation Act is an injured employee’s
“exclusive remedy against the employer[,] . . . in place of any and all
other civil liability whatsoever, at common law or otherwise.” This
exclusive remedy provision has been extended to general contractors
who qualify as “eligible employers” and meet certain requirements
of the statute. Utah Code section 34A-2-103(7)(f)(i) defines an
“eligible employer” as an employer who “procures work to be done
wholly or in part for the employer by a contractor, including . . . all
subcontractors under the contractor . . . [and] all persons employed
by any of these subcontractors.” Then, in order for an “eligible
employer” to be considered an “employer” and be eligible for the
exclusive remedy provision, a contractor must satisfy certain
conditions. The contractor must (1) “procure[] work to be done that
is part or process of [the contractor’s] trade or business,”
(2) “secure[] the payment of workers’ compensation benefits for the
contractor or subcontractor,” and (3) meet specific statutory
requirements with regard to a “written workplace accident and
injury reduction program.” UTAH CODE
§§ 34A-2-103(7)(f)(i), -103(7)(f)(iii)(B).
¶15 We conclude that Jacobsen qualifies as an eligible employer
and has met the specific requirements of the statute. First, Jacobsen
procured the work of Mr. Nichols’ subcontractor Safway by entering
into an agreement to erect and dismantle scaffolding for the City
Creek project. Second, Jacobsen satisfied the statutory requirements
for securing the payment of workers’ compensation benefits by
enrolling Safway in the CCIP. Third, Jacobsen fulfilled the statutory
requirements regarding the workplace accident and injury reduction
program.
I. UNDER THE PLAIN MEANING OF THE STATUTE, JACOBSEN
PROCURED THE “WORK” OF SAFWAY AND ITS EMPLOYEES
AS PART OF JACOBSEN’S “TRADE OR BUSINESS”
¶16 Before a contractor may qualify for immunity under this
particular statute, it must satisfy a threshold condition that it
qualifies as an “eligible employer.” This requires the contractor to
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Opinion of the Court
prove that it “procures work to be done wholly or in part for the
employer.” UTAH CODE § 34A-2-103(7)(f)(i)(B). The contractor must
additionally show that it procures this work as “part or process” of
its “trade or business.” Id. § 103(7)(f)(iii)(B)(II). The parties agree that
Jacobsen “procured” something from Safway, but disagree as to the
proper interpretation of the word “work.”
¶17 When we interpret a word within a statute, we first consider
its plain meaning. J.M.W. v. T.I.Z. (In re Adoption of Baby E.Z.), 2011
UT 38, ¶ 15, 266 P.3d 702. In looking to determine “the ordinary
meaning of nontechnical terms of a statute, our ‘starting point’ is the
dictionary.” Rent-A-Center W., Inc. v. Utah State Tax Comm’n, 2016 UT
1, ¶ 15, 367 P.3d 989 (citation omitted). If not “‘plain’ when read in
isolation, [a word] may become so in light of its linguistic, structural,
and statutory context.” Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9,
248 P.3d 465.
¶18 The word “work” is defined as “[p]hysical and mental
exertion to attain an end, esp[ecially] as controlled by and for the
benefit of an employer; labor.” Work, BLACK’S LAW DICTIONARY (9th
ed. 2009). At the time of his injury, Mr. Nichols was unloading
scaffolding. Mr. Nichols therefore argues that Safway was a mere
supplier and argues that Jacobsen procured only materials from
Safway, urging us to adopt a definition of “work” that would limit it
to labor and would not include the mere supplying of materials.
¶19 Jacobsen disagrees with the characterization of Safway as a
mere supplier, and points to Safway’s CCIP enrollment agreement in
which Safway wrote in the “Work Description” section that it would
“erect and dismantle” scaffolding. 1 The court of appeals resolved
this disagreement in favor of Jacobsen and determined that
“unloading equipment for a construction project, even without any
additional responsibilities, readily falls under the plain meaning of
1 Mr. Nichols argues that language in Jacobsen’s CCIP Manual
specifically excludes from “work” the supplying of materials.
Indeed, the CCIP Manual does state that “[n]o insurance coverage
provided by [Jacobsen] under the CCIP shall extend to the activities
or products of suppliers . . . .” However, the CCIP Manual qualifies
“suppliers” by including the words “whose employee(s) perform no
on-site work or are engaged solely in the loading, unloading, stocking,
testing or hauling of equipment, supplies or materials.” (emphasis
added.) Given that Safway’s work was to entail not only supplying
but also erecting and dismantling scaffolding, Safway employees
were clearly anticipated to be on-site and engage in more than solely
unloading scaffolding supplies.
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the word ‘work.’” Nichols v. Jacobsen Const. Co., 2014 UT App 201,
¶ 9, 334 P.3d 514.
¶20 We agree that the appropriate interpretation of “work”
favors Jacobsen. Applying the plain meaning of “work” here,
supplying, erecting, and dismantling of scaffolding would
necessarily require the physical and mental exertion of Safway
employees, which exertion would be controlled by and for the
benefit of Jacobsen. Additionally, the fact that at the time of his
injury Mr. Nichols was unloading scaffolding materials is irrelevant.
This is because the question here is not about what particular task an
individual employee of a subcontractor is doing at any given
moment while on the job. Rather, the proper question is about the
work that was procured by a contractor from a subcontractor, and
that work here included not only supplying, but also erecting and
dismantling scaffolding.
¶21 Surrounding statutory language provides further support
for this interpretation: the work procured is to be done “wholly or in
part” as “part or process” of the employer’s “trade or business.”
UTAH CODE § 34A-2-103(7)(f)(i)(B), -103(7)(f)(iii)(B)(II). Here,
Jacobsen’s “trade or business” was construction of the City Creek
project. Bennett v. Indus. Comm’n, 726 P.2d 427, 431 (Utah 1986) (“The
trade or business of a general contractor in the construction business
is construction . . . .”). Safway’s work was “part” of the construction
“process” because it was “part of the operations which directly
relate[d] to the successful performance of” Jacobsen’s City Creek
construction project. Id.; accord Pinter Const. Co. v. Frisby, 678 P.2d
305, 309 (Utah 1984) (the phrase “a ‘part or process in [the
employer’s] trade or business’ . . . includes ‘those operations which
enter[] directly into the successful performance of the commercial
function of the principal employer’” (citation omitted)); see also
Rogers v. Hansen, 317 N.W.2d 905, 908 (Neb. 1982) (“Obviously, the
work of a subcontractor is ordinarily within the usual course of
business of the principal contractor . . . .”).
¶22 Because Safway’s supplying, erecting, and dismantling of
scaffolding was “work” procured by Jacobsen to be done “wholly or
in part” as “part or process” of Jacobsen’s “trade or business,”
Jacobsen is an “eligible employer” for purposes of the exclusive
remedy provision, and the court of appeals properly concluded that
Jacobsen “procures work” as required by Utah Code
section 34A-2-103(7)(f)(iii)(B)(II).
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II. THE COURT OF APPEALS INCORRECTLY CONCLUDED
THAT THERE WAS A QUESTION OF FACT AS TO WHETHER
JACOBSEN “SECURED” THE PAYMENT OF WORKERS’
COMPENSATION BENEFITS FOR MR. NICHOLS
¶23 The second condition a contractor must satisfy in order to be
eligible for the exclusive remedy provision is that the contractor
must “secure[] the payment of workers’ compensation benefits for
the contractor or subcontractor.” UTAH CODE
§ 34A-2-103(7)(f)(iii)(B)(I). The parties disagree about two things:
first, what satisfies this condition—whether a contractor must
provide workers’ compensation insurance or must make actual
payment of the benefits; and second, whether Jacobsen properly
insured Safway and its employees.
A. An Employer “Secures the Payment” of Workers’ Compensation
Benefits When it Provides its Subcontractors and Their Employees
with a Qualifying Insurance Policy
¶24 We first turn to the question of whether an employer
“secures the payment of worker’s compensation benefits” by
providing workers’ compensation insurance coverage or whether it
must make actual payment of workers’ compensation benefits.
Mr. Nichols argues that the statute requires a contractor to actually
pay the workers’ compensation benefits itself. However, there is no
language to support such a requirement. Rather, the language of the
statute plainly states that the provision of workers’ compensation
insurance is what is required in order to “secure the payment of”
workers’ compensation benefits.
¶25 Section 34A-2-103(7)(f)(iii)(B)(I) states that the required
“payment of workers’ compensation benefits” is to be secured
“pursuant to Section 34A-2-201.” In turn, section 34A-2-201 provides
three alternative methods of securing the payment, one of which
states that “[a]n employer shall secure the payment of workers’
compensation benefits for its employees by . . . insuring, and keeping
insured, the payment of this compensation” either through the
Workers’ Compensation Fund or through another authorized
workers’ compensation insurance provider in Utah. This provision
thus “imposes an unconditional obligation on employers to be
properly insured.” Thomas A. Paulsen Co. v. Indus. Comm’n, 770 P.2d
125, 127 n.4 (Utah 1989) (emphasis added). “The duty, therefore,
imposed on the employer by this section is merely to provide a
qualifying insurance policy.” Smith v. Am. Express Travel-Related
Servs., 765 F. Supp. 1061, 1064 (D. Utah 1991) (holding that securing
the payment does not require an employer to be the guarantor of an
employee’s actual receipt of benefit payments). The employer
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therefore is required to “insure” the securing of the payment, not
“ensure” that the actual payment is made.
¶26 The structure of the statute further supports the conclusion
that the provision of workers’ compensation insurance, and not
actual payment of the benefits themselves, is the requirement.
Section 34A-2-103(7)(f)(iii) provides for three alternative ways in
which a contractor, as an eligible employer, can qualify for the
exclusive remedy provision. First, under subsection (A), an eligible
employer will qualify if it “is liable for and pays workers’
compensation benefits as an original employer . . . because the
contractor or subcontractor fails to comply with” the statutory
requirement to maintain those benefits. UTAH CODE
§ 34A-2-103(7)(f)(iii)(A) (emphasis added). The second alternative,
under subsection (B), is the only one that Jacobsen relies upon in this
case, and requires simply “securing” the payment of benefits. The
third alternative, under subsection (C), also lists as one of its
requirements that the contractor is liable for “payment of workers’
compensation benefits if the contractor or subcontractor fails to
comply with” the statutory requirement to maintain those benefits.
Id. § 34A-2-103(7)(f)(iii)(C)(II) (emphasis added). In only one of these
subsections did the legislature choose to state that an eligible
employer must secure the payment of benefits—Section
34A-2-103(7)(f)(iii)(B). The United States Supreme Court has stated
that a legislative body “generally acts intentionally when it uses
particular language in one section of a statute but omits it in
another,” which canon applies with “particular force” when such
statutory language is “in close proximity.” Dep’t of Homeland Sec. v.
MacLean, 135 S. Ct. 913, 919 (2015). The interpretation of “securing
the payment” most consistent with that canon and with our goal of
supporting the legislature’s purpose and intent is that a contractor
must simply maintain a valid insurance policy meeting the statutory
requirements, not that the contractor must guarantee that a
subcontractor applies for and receives insurance benefits.
¶27 Based on all of the foregoing, we hold that in order to
“secure[] the payment of workers’ compensation benefits” under
Section 34A-2-103(7)(f)(iii)(B)(I), an eligible employer must obtain
and maintain workers’ compensation insurance as provided in
Section 34A-2-201, and that evidence of actual payment of benefits is
not required.
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B. Jacobsen Secured the Payment of Workers’ Compensation Benefits when
It Enrolled Safway in Its CCIP Insurance Program and Maintained the
Coverage Throughout Safway’s Contract
¶28 In this matter, the court of appeals reversed the grant of
summary judgment to Jacobsen. We must therefore determine
whether there is a genuine dispute of any material fact that would
preclude summary judgment. The record shows that Safway
enrolled in Jacobsen’s CCIP program starting in June 2009.
According to the CCIP, the workers’ compensation policy covering
Safway and its employees would be issued upon review by the CCIP
administrator of Safway’s enrollment forms and completion of the
procedures specified in the CCIP. Safway received a certificate of
insurance coverage on August 27, 2010, several months before
Mr. Nichols’ accident.
¶29 Mr. Nichols alleges that he first received workers’
compensation payments through Safway’s separate workers’
compensation policy, and that only later did Jacobsen voluntarily
elect to take over the payment of his claims. But Mr. Nichols’
argument is immaterial. There is no indication anywhere in the
statute that an employer must exercise control over how quickly—or
even whether—its insurer recognizes the existence of a claim and
begins making payments. Indeed, there is no statutory language
addressing this issue in any way. Whether an employee of a
subcontractor files a claim with that subcontractor’s separate
workers’ compensation insurance provider or with the general
contractor’s workers’ compensation insurance provider, and
whether and when either provider then makes payment of benefits
to the employee, are entirely separate issues from the question of
whether the general contractor had a workers’ compensation
insurance policy in place that covered the subcontractor and its
employees. 2
¶30 We conclude the undisputed facts show that Jacobsen
properly insured Safway and its employees under the CCIP,
2 If Mr. Nichols had applied for workers’ compensation benefits
through Jacobson, presumably he would have been covered. The
circumstances wherein a Jacobsen employee purportedly
misinformed Mr. Nichols may have complicated the situation in
terms of Mr. Nichols’ expectations, but it is irrelevant as to whether
Safway and its employees were covered under the CCIP policy. The
purported misinformation does not negate everything Jacobsen did
to comply with the statute, and does not mean that Jacobsen did not
properly “secure the payment” of benefits for Safway and its
employees.
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therefore fulfilling the “securing the payment” requirement
necessary to satisfy the second condition of the exclusive remedy
provision, and we therefore reverse the court of appeals’ decision on
this point.
III. JACOBSEN MEETS THE WORKPLACE ACCIDENT AND
INJURY REDUCTION PROGRAM’S STATUTORY
REQUIREMENTS
¶31 The third major requirement for an eligible employer to be
able to rely on the exclusive remedy provision is that the employer
must meet several requirements with respect to a “written
workplace accident and injury reduction program.” UTAH CODE
§ 34A-2-103(7)(f)(iii)(B)(III). The district court found for Jacobsen on
this issue; noting that Jacobsen had submitted documents
demonstrating its compliance with the statute, and although
Mr. Nichols questioned “many of the facts surrounding these
documents,” he did not “produce[] any evidence of [Jacobsen’s]
failure to comply with the statutory mandates.”
¶32 The court of appeals did not address this statutory
requirement, presumably because it found a material dispute of fact
as to whether Jacobsen’s alleged untimely payments were consistent
with “securing” the payment of benefits for Mr. Nichols, and this
was enough to remand the case for trial. Although the parties did
not ask this court to review this issue in their petition and cross-
petition for certiorari, Mr. Nichols addressed it in his reply brief,
arguing that this court could alternatively affirm the court of
appeals’ remand on this ground. At oral argument, Jacobsen agreed
that we have the power to decide this issue and asked this court to
reach the issue here rather than remand to the court of appeals. At
this court’s request, Mr. Nichols then submitted a supplemental brief
on the workplace accident and injury reduction program issue.
A. We May Decide Whether Jacobsen Has Met the Safety Program
Requirements, Despite the Court of Appeals Not Addressing This Question
¶33 While it is true that “[r]eview on certiorari is limited to
examining the court of appeals’ decision and is further
circumscribed by the issues raised in the petitions,” Coulter & Smith,
Ltd. v. Russell, 966 P.2d 852, 856 (Utah 1998), this does not limit our
power to review questions decided by the district court and not
reached by the court of appeals, where those questions are fully
briefed and fairly included within the issues being decided upon by
this court. See UTAH R. APP. P. 49(a)(4) (“Only the questions set forth
in the petition or fairly included therein will be considered by the
Supreme Court. . . . The statement of a question presented will be
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deemed to comprise every subsidiary question fairly included
therein.” (emphasis added)); cf. State v. James, 819 P.2d 781, 795 (Utah
1991) (“Issues that are fully briefed on appeal and are likely to be
presented on remand should be addressed by this court.” (citation
omitted)).
¶34 In this case, the court of appeals was asked to determine
whether the district court correctly found that Jacobsen met the three
requirements to qualify for the exclusive remedy provision under
Utah Code section 34A-2-103(7)(f)(iii)(B). In answering this
overarching question, the court of appeals did not reach the
requirement included within this section. As both parties fully
briefed this requirement to the court of appeals and to this court, and
we conclude this is a subsidiary question fairly included within the
larger question of Jacobsen’s eligibility for the exclusive remedy
provision, we will decide this issue on the merits.
B. The Record Is Sufficient to Determine That Jacobsen Met the
Requirements of the Statute
¶35 A contractor’s written workplace accident and injury
reduction program (Safety Program) must meet several statutory
requirements. First, the contractor must adopt, post, and enforce a
Safety Program that complies with Utah Code section
34A-2-111(3)(d). Id. § 34A-2-103(7)(f)(iii)(B)(III). Section 111(3)(d), in
turn, may be broken down into twelve requirements for a qualifying
Safety Program. 3 The Safety Program must:
(1) be “based on clearly stated goals and objectives for
meeting those goals”;
(2) “promote[] safe and healthful working conditions”;
(3) include a “documented review” at least semiannually
describing how goals are met;
(4) describe “how managers, supervisors, and employees are
responsible for implementing” the Safety Program;
(5) describe “how continued participation of management will
be established, measured, and maintained”;
(6) describe “the methods used to identify, analyze, and
control new or existing hazards, conditions, and operations”;
3 Although the statute expresses some of these requirements
permissively, subsection (3)(d) is clear that if an employer is relying
on the “eligible employer” provision—section 34A-2-103(7)(f)—the
Safety Program must include all twelve requirements as outlined in
this opinion. See UTAH CODE § 34A-2-111(3)(d).
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(7) describe how it will be “communicated to all employees so
that the employees are informed of work-related hazards and
controls”;
(8) describe “how workplace accidents will be investigated
and corrective action implemented;
(9) describe “how safe work practices and rules will be
enforced”;
(10) include a “written agreement” that gives the eligible
employer the “right to control the manner or method by
which the work is executed”;
(11) include a “written agreement” that gives the contractor
the right to “remove the subcontractor from the work site,” or
prohibit an employee from working on the project, based on
noncompliance with the Safety Program; and
(12) include a “written agreement” that gives the employer
the right to “inspect on a regular basis the equipment of a
contractor or subcontractor,” and to “require that the
contractor or subcontractor repair, replace, or remove” unsafe
equipment.
Id.
¶36 Once again, we are tasked with determining whether the
district court correctly granted Jacobsen’s motion for summary
judgment. Before we can reinstate summary judgment, we must be
able to conclude that the undisputed facts show that summary
judgment was proper. We have carefully reviewed the statute, the
record, and each party’s arguments and counter-arguments, and
conclude that the undisputed facts show that Jacobsen has complied
with all statutory requirements. 4 Although Mr. Nichols asserts that
We note there is a lacuna in the record as to whether Jacobsen
4
“posted” the safety program on site, as evidence of this requirement
was not submitted in discovery and Jacobsen’s safety supervisor
Mark Chavez failed to address this requirement in his affidavit.
However, given that the parties agreed to limited discovery and
Jacobsen’s otherwise overwhelming demonstration of conformity
with the statute, we conclude it would defeat the legislature’s
purpose of “reduc[ing] litigation and improv[ing] the coverage for
otherwise uninsured contractors” to reverse summary judgment on
this singular and minor uncertainty. See supra Part I.
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NICHOLS v. JACOBSEN CONSTRUCTION
Opinion of the Court
Jacobsen did not comply with several requirements, most of
Mr. Nichols’ arguments stem from three mistaken assumptions. 5
¶37 First, Mr. Nichols asserts that although Safway signed the
CCIP Enrollment Form and Insurance Calculation Form, Safway
never signed the CCIP manual or the Safety and Health Manual
directly, and therefore presumably did not have notice of the
documents’ terms. Mr. Nichols argues that as a consequence, all the
provisions in those documents are not binding on Safway. We
disagree. Although it would be administratively preferable for a
contractor to have its subcontractors sign one incorporated
document containing all of the statutory requirements, it is enough
that the subcontractor signs a document that incorporates by
reference the other necessary documents. Safway signed the
Insurance Calculation Form that references two different provisions
of the CCIP Manual, and the CCIP Manual in turn explicitly binds
subcontractors to the terms of both the CCIP Manual and the Safety
and Health Manual. Therefore, we reject Mr. Nichols’ arguments
that there was no “written agreement.”
¶38 Second, Mr. Nichols asserts that even if Safway agreed to
the terms of the CCIP Manual and the Safety and Health Manual, the
manuals’ provisions are inapplicable to a “mere supplier” who
performs no on-site work. As we have already concluded that
Safway was not a mere supplier, but rather was hired to “erect and
dismantle” scaffolding, this argument fails. Additionally, the statute
is not directed to the manner in which a subcontractor participates in
the Safety Program, but rather to the establishment of the
contractor’s Safety Program overall.
¶39 Third, Mr. Nichols asserts that Jacobsen did not have the
“right to control the manner or method by which the work is
executed.” UTAH CODE § 34A-2-111(3)(d)(ii)(A). Mr. Nichols opines
that Jacobsen did not include this right so as to not open itself up to
“retained control” claims. See Thompson v. Jess, 1999 UT 22, ¶ 15, 979
P.2d 322 (defining “retained control” as the “unique circumstance
where an employer of an independent contractor exercises enough
control over the contracted work to give rise to a limited duty of
care, but not enough to become an employer or a master of those
over whom the control is asserted”).
5 Although Mr. Nichols disputes the evidence with respect to
each of the individual requirements, many of these arguments may
be combined into the three main arguments which we will address
and clarify here. For any remaining arguments, we conclude there is
no a genuine dispute of material fact and therefore decline to
address them.
14
Cite as: 2016 UT 19
Opinion of the Court
¶40 Jacobsen has pointed to several ways in which it had the
right to control the method or manner of its subcontractors’ work.
For example, inter alia, the Safety and Health Manual required all
enrolled subcontractors to have an on-site safety supervisor present
at all times while work was being performed for Jacobsen. Jacobsen
maintained discretion to remove any person from the City Creek
project not in compliance with the Safety and Health Manual.
Jacobsen required all visitors to check-in with a Jacobsen receptionist
before entering the site. And finally, Jacobsen reserved the right to
require its subcontractors to increase general liability control
measures if Jacobsen determined that existing measures were
inadequate.
¶41 We conclude as a matter of law that Jacobsen satisfied the
“right to control” test. As the foregoing evidence in the record makes
clear, Jacobsen went above and beyond the “right to control” that
the statute requires. We note that the traditional “right to control”
test is not appropriate in the context of whether Jacobsen qualifies
for immunity under the eligible employer statute. See Pinnacle Homes,
Inc. v. Labor Comm’n, 2007 UT App 368, ¶ 20, 173 P.3d 208. In the
workers’ compensation context, right to control “requires only that
the general contractor retain ultimate control over the project.”
Bennett v. Indus. Comm’n, 726 P.2d 427, 432 (Utah 1986). If the
contractor has shown that its “subcontractor’s work is a part or
process of the general contractor’s business, an inference arises that
the general contractor has retained supervision or control over the
subcontractor.” Id. We have already determined that Safway’s work
erecting and dismantling scaffolding was “part or process” of
Jacobsen’s business, see supra Part I, and Jacobsen has additionally
demonstrated its ability to control its subcontractors according to the
terms of its Safety and Health Manual. Therefore, Jacobsen has met
its burden to show it maintained the right to control Safway and,
accordingly, Mr. Nichols. We conclude Jacobsen has met all of the
statutory requirements.
CONCLUSION
¶42 Jacobsen qualifies for the exclusive remedy provision of the
Workers’ Compensation Act and is thus immune from Mr. Nichols’
negligence action. Jacobsen satisfied the threshold condition of being
an “eligible employer” by procuring work from Safway to be done as
part of its construction business. As an eligible employer, Jacobsen
has successfully shown that it qualifies as an “employer” for
purposes of the exclusive remedy provision and thus is immune
from suit by (1) “securing the payment” of workers’ compensation
benefits through enrolling Safway in its insurance program and
15
NICHOLS v. JACOBSEN CONSTRUCTION
Opinion of the Court
maintaining that insurance, and (2) showing that it created and
maintained a workplace safety and accident program that meets all
of the statutory requirements. We therefore affirm in part and
reverse in part the court of appeals’ opinion, thereby affirming in
whole the decision of the district court.
16