[¶ 1] Merwin and Denise Carlson appealed from a summary judgment dismissing their personal injury and loss of consortium action against GMR Transportation, Inc. Because we conclude the district court did not err in ruling as a matter of law that GMR had not lost its employer immunity under the workers’ compensation laws, we affirm.
I
[¶ 2] On July 8, 2005, Merwin Carlson was injured in a traffic accident while hauling freight as a trucker under a contract with GMR. On July 5, 2006, Carlson filed a claim for workers’ compensation benefits with Workforce Safety and Insurance (“WSI”), stating GMR was his employer. In response, GMR submitted a WSI form with employer information claiming Carlson was not its employee, but was an independent contractor. On October 3, 2006, WSI issued a notice of decision finding Carlson was an employee of GMR at the time of the accident and awarded him benefits. On October 26, 2006, GMR, through out-of-state attorneys who were neither licensed to practice law in North Dakota nor admitted pro hac vice at the time, requested reconsideration of WSI’s October 3, 2006, decision and argued Carlson was an independent contractor. Based on the additional information submitted, WSI issued a notice of decision on January 4, 2007, reversing its October 3, 2006, decision and denying Carlson benefits because it concluded he was an independent contractor rather than an employee of GMR. After Carlson requested reconsideration, WSI issued an order on February 20, 2007, finding Carlson was an independent contractor and requiring him to repay disability and medical benefits previously awarded. Carlson requested a rehearing before an administrative law judge (“ALJ”). After a September 2007 evidentiary hearing, the ALJ recommended finding Carlson was an independent contractor and was not entitled to benefits. WSI adopted the ALJ’s recommendation and the district court affirmed
[¶ 8] In the meantime, Merwin Carlson commenced a federal court action against GMR, its owners, and its out-of-state attorneys alleging numerous claims for relief, including that GMR unlawfully failed to secure WSI coverage for him, and therefore GMR was liable for his work-related injuries under N.D.C.C. § 65-09-02. The federal district court granted summary judgment dismissing the action, concluding Carlson had failed to plead or prove sufficient facts to maintain a civil action under N.D.C.C. § 65-09-02:
[T]he Court concludes that Carlson has neither pleaded nor proved sufficient facts to support a tort claim for personal injuries under N.D.C.C. § 65-09-02. Therefore, summary judgment in favor of GMR Transportation on this claim is appropriate. However, the Court also notes that Carlson is only entitled to bring a separate tort action against GMR Transportation under § 65-09-02 if he is an employee, not an independent contractor. Because the independent contractor issue is currently on appeal in the state court proceedings, the Court finds it appropriate to dismiss this claim without prejudice. If Carlson wins on appeal in state court and is ultimately found to be an employee, he may then file a tort action against GMR Transportation under § 65-09-02 to recover personal injury damages.
Carlson v. Roetzel & Andress,
[¶ 4] In
Carlson v. Workforce Safety & Ins.,
[¶ 5] On remand, WSI issued an order concluding it had continuing jurisdiction to review an award of benefits under N.D.C.C. § 65-05-04 and it had erroneously accepted and paid Carlson’s claim, once again determining that he was an independent contractor rather than an employee of GMR. Following a hearing, the ALJ affirmed WSI’s decision that Carlson was an independent contractor who was not entitled to benefits, and also concluded Carlson’s average weekly wage was $722 if he were later determined to be GMR’s employee. The district court affirmed and Carlson again appealed to this Court. In
Carlson v. Workforce Safety and Ins.,
[¶ 6] On February 14, 2013, Merwin and Denise Carlson commenced this action against GMR alleging it was liable for tort-based personal injury damages under N.D.C.C. § 65-09-02 because it failed to comply with North Dakota’s workers’ compensation requirements. The Carlsons also sought an award of attorney fees incurred in
Carlson I
and
Carlson II
under
II
[¶7] The Carlsons argue the district court erred in granting summary judgment dismissing their action against GMR.
[¶ 8] We have often stated our standard of review for summary judgments:
Summary judgment is a procedural device for the prompt resolution of a controversy on the merits without a trial if there are no genuine issues of material fact or inferences that can reasonably be drawn from undisputed facts, or if the only issues to be resolved are questions of law. A party moving for summary judgment has the burden of showing there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether summary judgment was appropriately granted, we must view the evidence in the light most favorable to the party opposing the motion, and that party will be given the benefit of all favorable inferences which can reasonably be drawn from the record. On appeal, this Court decides whether the information available to the district court precluded the existence of a genuine issue of material fact and entitled the moving party to judgment as a matter of law. Whether the district court properly granted summary judgment is a question of law which we review de novo on the entire record.
Deckert v. McCormick,
A
[¶ 9] GMR argues the district court erred in failing to dismiss the action because it is barred by the statute of limitations. GMR did not cross-appeal, but it may attempt to save a judgment by urging any ground asserted in the district court.
See, e.g., Estate of Clemetson,
[¶ 10] Ordinarily, the issue whether a statute of limitations bars an action should precede consideration of the merits, because if it does other issues need not be addressed.
See, e.g., Maragos v. City of Minot,
B
[¶ 11] The Carlsons argue the district court erred in ruling as a matter of law that GMR did not lose its employer immunity under the workers’ compensation laws. The Carlsons contend that GMR is liable as a matter of law under N.D.C.C. § 65-09-02.
[¶ 12] The Workforce Safety and Insurance Act “ ‘generally provides the exclusive remedy for an employee who suffers a compensable injury.’”
Richard v. Washburn Pub. Sch.,
Any employer subject to this title who is in violation of subsection 1 or 2 of section 65-04-33 ... is not protected by the immunity from civil liability granted to employers under this title for injuries to that employer’s employees for damages suffered by reason of injuries sustained in the course of employment and to the dependents and legal representatives of an employee whose death results from injuries sustained in the course of employment.
[¶ 13] Section 65-04-33, N.D.C.C., addresses consequences for the failure of employers to secure workers’ compensation coverage and provides in relevant part:
1. An employer may not employ any person, or receive the fruits of the labor of any person, in a hazardous employment as defined in this title, without first applying for workforce safety and insurance coverage for the protection of employees by notifying the organization of the intended employment, the nature of the intended employment, and the estimated payroll expenditure for the coming twelve-month period.
2. An employer who willfully misrepresents to the organization or its representative the amount of payroll upon which a premium under this title is based, or who willfully fails to secure coverage for employees, is liable to the state in the amount of two thousand dollars plus three times the difference between the premium paid and the amount of premium the employer should have paid.... An employer who willfully misrepresents to the organization or its representative the amount of payroll upon which a premium under this title is based, or who willfully fails to secure coverage for employees, is guilty of a class A misdemeanor. If the premium dueexceeds five hundred dollars, the penalty for willful failure to secure coverage or willful misrepresentation to the organization or its representative is a class C felony.
[¶ 14] Section 65-09-02, N.D.C.C., grants employees “dual remedies” for employer noncompliance,
Gepner v. Fujicolor Processing, Inc.,
An employee whose employer is in violation of section 65-04-33, who has been injured in the course of employment, or the employee’s dependents or legal representatives in case death has ensued, may file an application with the organization for an award of compensation under this title and in addition may maintain a civil action against the employer for damages resulting from the injury or death. In the action, the employer may not assert the common-law defenses of:
1. The fellow servant rule.
2. Assumption of risk.
3. Contributory negligence.
The organization is subrogated to the recovery made in the action against the uninsured employer.
[¶ 15] The district court in which a tort action is filed has the authority to determine whether the action is barred by the exclusive remedy provisions of the workers’ compensation act.
See, e.g., Richard,
[¶ 16] Here, the district court determined N.D.C.C. § 65-04-33(1) was “clearly” inapplicable because subsection (1) addresses “the situation where the employer has employees but is not participating in the system, is not paying any premiums to WSI,” and it was undisputed that GMR secured insurance and coverage for its employees during the relevant time period. The Carlsons argue the court misconstrued subsection (1) of the statute because it is “undisputed that GMR received the fruits of [Merwin Carlson’s] labor without first notifying WSI.” The Carlsons interpret subsection (1) to require an employer to notify WSI and estimate its payroll expenditure every time the employer either hires or fires an employee to be in compliance with the law.
[¶ 17] In interpreting statutes, we first look at the language and give words their plain, ordinary, and commonly understood, meaning. N.D.C.C.. § 1-02-02. We construe statutes as a whole and harmonize them to give meaning to related provisions, and interpret them in context to give meaning and effect to each word, phrase, and sentence.
See State v. Brossart,
[¶ 18] The Carlsons argue the district court erred in ruling as a matter of law that GMR did not “willfully misrepresent ]” to WSI the amount of its payroll under N.D.C.C. § 65-04-33(2). “Willful conduct” for purposes of N.D.C.C. § 65-04-33(2) means “‘conduct engaged in intentionally and not inadvertently.’”
Muldoon v. Workforce Safety and Ins. Fund,
[¶ 19] First, the statutes do not state that an employer forfeits a defense based on an employee’s alleged independent contractor status absent a prior determination of that status. Second, any adverse inference that may be drawn from GMR’s failure to seek a prior determination of independent contractor status does not preclude summary judgment on the issue under the circumstances of this case. The Carlsons appear to rely on the end result of both
Carlson I
and
Carlson II,
which left intact WSI’s initial determination that Merwin Carlson was an employee entitled to benefits. But
Carlson I
holds that a request for reconsideration filed by a nonresident attorney on a company’s behalf is void, which resulted in WSI’s initial decision becoming final and nonappealable.
[¶ 20] Whether conduct is “willful” is generally a question of fact.
See, e.g.,
[¶ 21] We conclude the district court did not err in ruling as a matter of law that GMR did not lose its employer immunity under the workers’ compensation laws.
C
[¶ 22] The Carlsons raise numerous other issues.
[¶ 23] The Carlsons argue that GMR is liable for Merwin Carlson’s personal injuries under 49 U.S.C. § 14704(a)(2) of the Federal Motor Carrier Act, but this statute does not create a private cause of action for personal injuries.
See, e.g., Schramm v. Foster,
in
[¶ 24] The summary judgment is affirmed.