990 N.W.2d 605
N.D.2023Background:
- In December 2019 a crane jib extension fell at a Gateway jobsite, injuring employee David Kutcka and killing employee Austin Dejno, who worked for subcontractor MC Mill Workers (MCMW).
- MCMW was contractually required to obtain and maintain workers’ compensation coverage; MCMW paid premiums for Kutcka and Dejno and WSI accepted claims and awarded benefits.
- Plaintiffs (Kutcka, Dejno’s estate, and wrongful-death plaintiff Tammy Dejno) sued general contractor Gateway for negligence; Gateway moved for summary judgment asserting statutory-employer immunity under the workers’ compensation scheme.
- The district court granted summary judgment, concluding Gateway was a statutory employer under N.D.C.C. § 65-04-26.2(1) and therefore immune under N.D.C.C. § 65-04-28.
- The Supreme Court reviewed whether the § 65-04-26.2 deeming provision makes a general contractor the injured workers’ employer for purposes of the exclusive-remedy/immunity provisions, and whether the 2019 amendment to § 65-04-26.2(1) expanded immunity.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gateway is the statutory employer entitled to immunity under N.D.C.C. § 65-04-28 | The § 65-04-26.2 deeming rule is a premium-collection device only; Gateway is not the workers’ employer for immunity purposes | The deeming language makes subcontractor employees employers of the general contractor for the whole Act, so Gateway is immune | Reversed: Gateway is not the injured workers’ employer for § 65-04-28 immunity because it did not “engage or receive the services” and the deeming provision creates a legal fiction limited to premium collection |
| Whether the 2019 amendment to § 65-04-26.2(1) expanded immunity to general contractors | The amendment broadened premium/penalty liability but did not change the scope of immunity | The amendment removed contingency language and thus extended employer/immunity status to general contractors | Held for Plaintiffs: the 2019 changes only expanded premium-collection targets and did not grant general contractors immunity when subcontractor paid premiums |
| Whether prior precedent or the “modern trend” supports granting general-contractor immunity | Cases (E.W. Wylie, Boettner) and statutory structure show deeming is for premium collection, not immunity | Some out-of-state trends and selective readings of Trinity Hospitals support broader immunity | The Court held precedent supports Plaintiffs’ construction; Trinity Hospitals is limited to parent/subsidiary premium arrangements and does not change the rule here |
Key Cases Cited
- State v. E.W. Wylie Co., 58 N.W.2d 76 (N.D. 1953) (held immunity attaches only as between an employer and its employee; distinguishing premium-collection rule from immunity)
- Boettner v. Twin City Construction Co., 214 N.W.2d 635 (N.D. 1974) (construed the deeming/premium-collection provision as not precluding an injured subcontractor employee from suing)
- Trinity Hosps. v. Mattson, 723 N.W.2d 684 (N.D. 2006) (construed "contributing employer" immunity in a parent-subsidiary/premium-payment context)
- Brendel Constr., Inc. v. N.D. Workforce Safety & Insurance, 953 N.W.2d 612 (N.D. 2021) (confirmed § 65-04-26.2 operates as a premium-collection statute)
- Cervantes v. Drayton Foods, L.L.C., 582 N.W.2d 2 (N.D. 1998) (led to later legislative amendment addressing contributing-employer immunity)