Case Information
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T HE U TAH C OURT OF A PPEALS
R ICK J. N ICHOLS , Plaintiff and Appellant, v.
J ACOBSEN C ONSTRUCTION C OMPANY , I NC ., Dеfendant and Appellee.
Opinion No. 20130388-CA Filed August 21, 2014 Third District Court, Salt Lake Department The Honorable Elizabeth A. Hruby-Mills No. 120904185 William J. Hansen and Karra J. Porter, Attorneys for Appellant
Julianne P. Blanch and Scott C. Powers, Attorneys for Appellee J UDGE G REGORY K. O RME authored this Opinion, in which J UDGES
J. F REDERIC V OROS J R . and J OHN A. P EARCE concurred.
ORME, Judge:
¶1 While unloаding a truckload of scaffolding equipment for a Jacobsen Construction Company (Jacobsen) project, a pile of planks fell on appellant Rick J. Nichols, an employee of a subcontractor, causing him serious injuries. Nichols brought a negligence action against Jacobsen, and Jacobsen moved for summary judgment, arguing that it was immune from Nichols’s suit because of the Workers’ Compensation Act’s exclusive-remedy provision. The trial court agreed with Jacobsen, granted its motion for summary judgment, and subsequently dismissed Nichols’s complaint with рrejudice. Because we determine that there is at least one genuine issue of material fact that precludes summary judgment, we reverse the judgment and remand the case for further proceedings.
BACKGROUND ¶2
Jacobsen, as the general contractor on a large cоnstruction
project, hired several subcontractors to provide services and
supplies. As a way to decrease costs on the project, Jacobsen opted
to set up a contractor-controlled insurance program (CCIP), under
which Jacobsen was responsible for providing workers’
compensation benefits to enrolled subcontractors and their
employees. In return, the subcontractors agreed to reduce their
bids in proportion to the amount the CCIP saved them on
insurance costs. As part of the CCIP, Jacobsеn asserts that it
maintained and enforced a comprehensive safety program, which
was described in detail in the safety manual for the project.
Safway Services, a scaffolding business, was a subcontractor
on the project and enrolled in the CCIP. Nichols worked for Sаfway
and was injured while unloading scaffolding components on
Jacobsen’s project site. Normally a forklift is used to unload the
scaffolding components due to their weight, but a Jacobsen
employee, concerned about delays, demanded that Nichols unload
the equipment by hand instead of waiting for a forklift to arrive.
While Nichols was thus engaged, a pile of planks fell and seriously
injured him. After the accident, a Safway supervisor took Nichols
to Jacobsen’s on-site office. A Jacobsen safety supervisor told
them—erroneously as it turned out—that Nichols should seek
medical assistance anywhere he wanted. The rationale expressed
at that time by the Jacobsen safety supervisor, who for whatever
reason failed to recognize the relevance of the CCIP, was that “he’s
1. On an appeal from а summary judgment, we recite the facts and
all reasonable inferences drawn therefrom in the light most
favorable to the nonmoving party—Nichols in this case.
See Orvis
v. Johnson
,
not our employee.” But the CCIP directs that injured employees of enrolled subcontractors go to a specifically designated medical facility. Acting on the Jacobsen safety supervisor’s erroneous instruction, Nichols’s coworkers took him to a different clinic for emergency medical care. The record on appeal contains three versions of what
occurred after the accident. First, there is Nichols’s own version of events, detailed in his declaration:
I filed a workers’ compensation claim with Safway, and Safway’s workers’ compensation carrier began paying on the claim.
Some months later, [I] received an unexpected telephone call from an individual who stated that he was with Jacobsen Construction and that I needed to contact Jacobsen’s workers’ compensation carrier, because Jacobsen was taking over my workers’ compensation payments. . . .
I was surprised, but I did not question it. Second, there is an email from Jacobsen’s corporate counsel to Nichols’s counsel discussing this lawsuit. It reads:
It is my understanding that there were some initial coverage disputes between Safway’s separate workers compensation insurer and Mr. Nichols resulting frоm Safway’s workers compensation insurer’s denial of benefits. It is also my understanding that the basis for this denial was Safway’s enrollment in the . . . CCIP . . . . It is finally my understanding that Safway and its separate workers compensation insurer might have acted unreasonably toward Mr. Nichols and left him without proper benefits for some period following his injury. This is unfortunate. Safway apparently delayed putting Jacobsen Construction on notice of the workers compensation claim until sometime later. However, upon learning of the ordeal, Jacobsen Construction and the Workers Compensation Fund immediately stepped in and made sure to provide benefits to Mr. Nichols . . . .
Finally, the third version of events comes from the affidavit of a safety manager for Jacobsen. In it, the safety manager states that several months after the accident
Mr. Nichols presented a claim to Jacobsen under the CCIP. After review and consideration of Mr. Nichols’ claim by Jacobsen and the [Workers’ Compensation Fund], the CCIP workers compensation carrier, Jacobsen Construction extended workers compensation benefits to Mr. Nichols. Upоn making the decision to extend benefits to Mr. Nichols, Jacobsen promptly stepped in and assisted Mr. Nichols with his claim . . . . Later, Nichols filed his lawsuit against Jacobsen. Jacobsen
moved for summary judgment, claiming that it was immune under the Workers’ Compensation Act’s exclusive-remedy provisiоn. The trial court agreed with Jacobsen, granting summary judgment on the issue of immunity and dismissing the suit with prejudice. Nichols appeals.
ISSUE AND STANDARD OF REVIEW
¶6 Nichols argues that the trial court erred in ruling, as a matter of law, that his claims were barred by the exclusive-remedy provision of Utah’s Workers’ Compensation Act. Wе review a grant of summary judgment for correctness. Orvis v. Johnson , 2008 UT 2, ¶ 6, 177 P.3d 600. When the party moving for summary judgment bears the burden of proof, such as a defendant would bear when claiming the affirmative defense of immunity, then the moving party “has an affirmative duty to provide the court with facts that demonstrate both thаt the party is entitled to judgment as a matter of law and that there are no material issues of fact that would require resolution at trial.” See id . ¶ 19. If there is a genuine issue as to any material fact, then summary judgment is inappropriate. See Utah R. Civ. P. 56(c).
ANALYSIS
¶7 Utah law provides injured employees a “right to recover
compensation” from their employers exclusively through the
Workers’ Compensation Act.
See
Utah Code Ann. § 34A-2-105(1)
(LexisNexis 2011)
.
This exclusive-remedy provision grants
protection to employers from “an action at law” outside this
statutory scheme.
Id
. For purposes of the statute, if “an employer
рrocures any work to be done wholly or in part for the employer”
by a contractor or a subcontractor, “and this work is a part or
process in the trade or business of the employer,” then “all persons
employed by the contractor, all subcontractors under the
contractor, and all persons employed by any of these
subcontractors, are considered employees of the original
employer.”
See id
. § 34A-2-103(7)(a)(ii) (Supp. 2013).
See also
Pinnacle Homes, Inc. v. Labor Comm'n
,
Nichols, it was an “employer” under the terms of the statute—a
statutory employer.
See Pinnacle Homes
,
¶9 Our first step in interpreting a word used but not defined in
a statute is to consider its plain meaning.
See In re Adoption of Baby
E.Z.
,
¶10 As a statutory employer , however, Jaсobsen is only eligible for the exclusive-remedy protection if it meets the requirements of section 34A-2-103(7)(f)(ii)–(iii). Among other things, it must have secured the payment of Nichols’s benefits. See id . § 34A-2- 103(7)(f)(iii). By so doing, an eligible statutory employer indicates that it has an “employee–employer relationship” with thе injured employee within the context of the overall statutory scheme. See id. 3. Jacobsen’s CCIP sought to treat mere unloading differently—a matter we touch upon in footnote 4.
§ 34A-2-106(4) (LexisNexis 2011) (indicating that general contractors “who do not occupy an employee–emplоyer relationship with the injured” employee are not protected by the exclusive-remedy provision).
¶11 After due consideration of the record, we determine that there is a genuine issue of material fact concerning whether Jacobsen secured the payment of benefits such that it had a statutory employer–employee relationship with Nichols. While it is undisputed that at some point Jacobsen “stepped in” through its CCIP to secure the payment of benefits to Nichols, it is unclear what happened prior to that. Nichols claims that Sаfway initially secured the payment of his benefits through its separate insurer and that he received benefits for months before Jacobsen voluntarily took over making the payments. Jacobsen’s corporate counsel’s understanding was that Safway’s separate workers’ сompensation insurer left Nichols “without proper benefits”—or that perhaps Nichols’s claim was denied entirely. Finally, 4. Even aside from the Jacobsen safety supervisor’s comment that Nichols’s medical care was not Jacobsen’s responsibility, it would not be irrational for Niсhols to file through Safway’s separate insurer instead of through Jacobsen’s CCIP considering that a provision of the CCIP states that “[n]o insurance coverage provided by [Jacobsen] under the CCIP shall extend to the activities or products of suppliers . . . whose employee(s) . . . are engaged solely in the loading, unloading, stocking, testing or hauling of equipment, supplies or materials.” At oral argument, Nichols’s appellate counsel conceded that, but for the accident, Nichols likely would have gone beyond unloading and actually assisted in erecting the scaffolding on site. For the purposes of this opinion, however, it is enough to observe that Nichols would not have been irrational in assuming that he was not covered by the CCIP, especially given the flawed instruction originally given to him by the Jacobsen safety supervisor who told him hе was on his own, and therefore not irrational in applying for benefits through Safway’s separate insurer.
Jacobsen’s safety manager testified that Nichols waited a few months and then applied directly to Jacobsen’s CCIP for benefits and that Jacobsen then “stepped in” to help.
¶12 Nichols asserts that Jacobsen may have stepped in and belatedly made payments in anticipation of a lawsuit as a way to back in to the exclusive-remedy provision in the statute. On the other hand, Jacobsen’s counsel asserted during oral argument that the faсts in the record support the conclusion that “from day one and dollar one, Jacobsen was paying the workers’ compensation benefits.” We conclude that such disparate positions can only be explained by genuine disputes of material fact in the reсord before us.
¶13 Not only do these facts conflict, but they are also material to the disposition of the case. If a significant time passed in which Jacobsen failed to secure the payment of benefits to Nichols, then Jacobsen would likely fail to meet the requirement contained in section 34A-2-103(7)(f)(iii)(B)(I) and would not be considered an eligible employer for the purposes of the exclusive-remedy provision of the statute. Accordingly, we determine that genuine issues of material fact exist that preclude resolution by summary judgment.
CONCLUSION
¶14 Because wе determine that a genuine issue of material fact exists as to who originally secured the payment of Nichols’s benefits, we must also conclude that summary judgment was improper under these circumstances. See Utah R. Civ. P. 56(c). We reverse the trial court’s grant of summary judgment and its subsequent dismissal of Nichols’s negligence claim against Jacobsen. We remand to the trial court for such further proceedings as may now be in order, consistent with this opinion.