Riсk J. NICHOLS, Respondent, v. JACOBSEN CONSTRUCTION CO., INC., Petitioner
No. 20140866
Supreme Court of Utah
April 28, 2016
2016 UT 19
¶ 16 With respect to our exclusive appellate jurisdiction over criminal matters, subsection 78A-3-102(4)(a) states “[t]he Supreme Court may transfer to the Court of Appeals any of the matters over which the Supreme Court has original appellate jurisdiction, except capital felony convictions or an appeal of an interlocutory order of a court of record involving a charge of a capital felony.” Beginning with the reference to a “court of record” in the latter portion of the exclusive jurisdiction clause, subsection 4(a) repeats verbatim the statement of original appellate jurisdiction in subsection 3(h) for interlocutory appeals, but the first portion of the same clause, pertaining to direct appeals, omits the term “involving” in reference to appellate challenges to a capital conviction. By omitting the term “involving” in relation to direct appeals, the exclusive jurisdiction clause is narrower than any reading that might apply to the reference to capital felony convictions within the separate description of original jurisdiction. Thus, the direct appeals described in subsection 78A-3-102(4)(a) encompass only direct challenges to capital convictions.8
¶ 17 It follows that the appeal in this case is not within our exclusive appellate jurisdiction. Mr. Smith previously filed a direct appeal of his sentence and the denial of his motion to withdraw his plea. The decision from which his subsequent appeal was brought did not constitute an adjudication of the validity of his conviction. It only denied a postjudgment request to reinstate the right to appeal, and his appeal of that decision does not constitute a direct challenge to his conviction. Accordingly, we transfer this appeal back to the court of appeals.
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 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
¶ 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 cоmmercial 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 Insurаnce Calculation Form. Safway listed under the “Work Description” heading that it would “erect and dismantle 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 wаs 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 beсause “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
¶ 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
¶ 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
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 1212. We also review questions of statutory interpretation and the grant of summary judgment for correctness. Monarrez v. UDOT, 2016 UT 10, 368 P.3d 846. “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
¶ 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 progrаm.
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 prove that it “procures work to be done wholly or in part for the employer.”
¶ 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
¶ 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 prоper 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.”
¶ 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 requirеd by
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.”
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.
¶ 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
¶ 27 Based on all of the foregoing, we hold that in order to “secure[] the payment of workers’ compensation benefits” under Section
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
¶ 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 cоntractor 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, 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.”
¶ 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 orаl 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
¶ 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
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
- be “based on clearly stated goals and objectives for meeting those goals“;
- “promote[] safe and healthful working conditions“;
- include a “documented review” at least semiannually describing how goals are met;
- describe “how managers, supervisors, and employees are responsible for implementing” the Safety Program;
- describe “how continued participation of management will be established, measured, and maintained“;
- describe “the methods used to identify, analyze, and control new or existing hazards, conditions, and operations“;
- describe how it will be “communicated to all employees so that the employees are informed of work-related hazards and controls“;
- describe “how workplace accidents will be investigated and corrective action implemented“;
- describe “how safe work practices and rules will be enforced“;
- include a “written agreement” that gives the eligible employer the “right to control the manner or method by which the work is executed“;
- include a “written agreement” that gives the сontractor 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
- 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.
¶ 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
¶ 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.”
¶ 40 Jаcobsen 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 сonclude 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
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 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.
CHRISTINE M. DURHAM
Justice