Lead Opinion
This appeal raises the question of the proper application of the election of remedies and common enterprise provisions of the workers’ compensation law, Minn.Stat. § 176.061, subds. 1 and 4 (1986).
Plaintiff Donald Schleicher, a truck driver injured while unlоading concrete at a construction site, sued general contractor Lunda Construction Co. and subcontractor Advance Shoring Co. in tort for negligence, after collecting workers compensation benefits from his employer, Cemstone Products Co. Ramsey County District Court found that Schleicher’s common law action for negligence against Advance was barred
We take the facts, as we must, in the light most favorable to the parties against whom summary judgment was granted. Abdullah, Inc. v. Martin,
In August 1974, Cemstone, Schleicher’s employer, was supplier of concrete to a bridge construction job on 1-94. Advance, another subcontractor, owned and ran a hopper-сonveyor system that received the concrete and transported it along the bridge deck to the placing and finishing crew. Lunda, the general contractor, did the placing and finishing of the concrete. Advance had two employees at the construction site, one at either end of the hopper-conveyor system. These two employees were responsible for running the conveyor system, regulating the amount of concrete in the hopper, and distributing the concrete to the Lunda finishing crew.
The Cemstone truck drivers delivered the concrete from the plant to the job site. A Cemstone employee was at the job intermittently to coordinate the deliveries. A driver would pick up a truckload of concrete at the plant and drive through traffic to the construction site. At the site, the driver would pull onto the unpaved area, back up 100 feet or so to the hopper, and pull in next to another truck. Two trucks could park side by side at the hopper with about twelve tо eighteen inches between them. The driver would climb up on the back of the truck and, when the truck beside him had finished, would swing his truck’s chute into the hopper and work the controls for releasing the concrete into the hopper. When the unloading was finished, the driver would scrape out the chute. This was a fast operation and one of the Advance employees would occasionally help scrape out the chute, swing it out of the way, and tell the driver to pull away. The next truck, already at the hopper, would start unloading.
At the time of the accident, Schleicher was delivering his third load of the morning to the site. As the truck beside him at the hopper was pulling away, its chute caught on the hopper and caused the whole hopper-conveyor system to move. The equipment swung and pinned Schleicher against his truck, injuring him. Schleicher received workers compensation benefits from his employer Cemstone.
The question is whether the election of remedies and common enterprisе provisions of the workers’ compensation law apply to the facts of this case so as to bar the employee from his common law negligence action against Advance, a third party. Minnesota Statutes § 176.061, subds. 1 and 4 (1986), provides that an injured еmployee may proceed against the employer for benefits or against a third party for damages, but not against both if the employer and the third party are engaged in a common enterprise.
Prior to the adoption of the Workmen’s Cоmpensation Act in 1913, an injured employee had a common-law right of action
We recounted the history of section 176.-061 in McCourtie v. United States Steel Corp.,
(1) The employers must be engaged on the same project;
(2) The employees must be working together (common activity); and
(3) In such fashion that they are subject to the same or similar hazards.
Id. at 506,
More recently in Kaiser v. Northern States Power Co.,
Advance argues that it was all one coordinated activity. The Cemstone concrete and drivers, the Advance hopper-conveyor system, and the Lunda placing аnd finishing crew all had to be available at the same time. Concrete was delivered to the site and spread directly into place. If it was delivered too slowly, an Advance employee would pitch in and help expedite the unloading. All this, Advanсe argues, points to a common activity. However, the duties of the delivery crew and of the conveyor and finishing crews overlapped minimally and were not interdependent except in the
A long line of cases holds that mere delivery does not establish a common enterprise. See, e.g., Urbanski v. Merchants Motor Freight,
Only a few cases cited by Advance have found a common enterprise, and those were early cases which have for the most part lost their vitality. In Rasmussen v. George Benz & Sons,
We find, in a search of our cases, no solid basis for a common enterprise. We hold, therefore, that the election of remedies and common enterprise provisions of the workers’ compensation law, Minn.Stat. § 176.-061, subds. 1 and 4, do not apply to the facts of this case so as to bar the emplоyee from his common law negligence action against a third party. Schleicher may sue the third party Advance for damages in tort. The granting of summary judgment was improper. We affirm the decision of the court of appeals.
Affirmed.
Notes
. Minn.Stat. § 176.061, subd. 1 and 4 (1986), reads:
Subd. 1. [Election of remedies.] If an injury or death for which benefits are payable occurs under circumstances which create a legal liability for damages on the part of a party other than the employer and at the time of the injury or death that party was insured or self-insured in accordance with this chapter, the employee, in case of injury, or the employee’s dependents, in the case of death, may proceed either at law against that party to recover damages or against thе employer for benefits, but not against both.
******
Subd. 4. [Application of subdivisions 1, 2, and 3.] The provisions of subdivisions 1, 2, and 3 apply only if the employer liable for benefits and the other party legally liable for damages are insured or self-insured and engaged, in the due cоurse of business in, (a) furtherance of a common enterprise, or (b) in the accomplishment of the same or related purposes in operations on the premises where the injury was received at the time of the injury.
. These provisions have remained essentially unchanged since 1923. Compare Minn.Stat. § 176.061 (1986) with Act of April 16, 1923, ch. 279, § 1, 1923 Minn.Laws 374-75.
Dissenting Opinion
(dissenting):
I respectfully dissent. I would reverse the court of appeals and affirm the trial court’s grant of summary judgment on the grounds that as a matter of law there existed here a common enterprise exempting the appellants from common law liability. As the majority opinion demonstrates, resolution of the “common enterprise” issue is usually on an ad hoc basis depending upon relevant facts. In this case no factual dispute exists relative to the paving entеrprises. While examination of our prior cases in this area clearly indicates that they are largely irreconcilable on principle, nevertheless, it occurs to me that if this continuous, unified paving operation, demanding the closest coordination of work activity among these three concerns and their employees, does not constitute in law a common enterprise, it will, indeed, be an extremely rare combination of facts and circumstances that will give rise to such a finding. I concur with the trial court’s finding that Cemstone’s connection with this closely integrated paving project consisted of much more than merely delivering concrete to the job site at the time of the injury. So far as the actual paving process was concerned, the employees of the