Utah Home Fire Insurance Co. v. Manning

UT 77 FIRE INSURANCE HOME UTAH

COMPANY, Plaintiff

Appellee, Green, MANNING; R. William

Patrick J. Services; dba

dba Green Carol L. Construction; Nar and Holmes &

C.B. Inc., Appel Services, Defendants

ver

lant .

No. 970516.

Supreme of Utah. Court

Aug. Smith, Davenport,

Eric K. Lowell V. Salt City, plaintiff. Lake Nuttall, Brown, Roger Taylor Scott D. Midvale, Manning.

RUSSON, Justice: ap- Defendant Patrick J. peals grant from the district court’s of sum- mary judgment in favor of Home Fire Utah (1) Company declaring Insurance Utah insureds, Home Fire’s William R. Green dba Green Services and Carol L. Green dba C.B. Construction, Manning’s immune pursuant suit them to the exclusive remedy provision Compensa- of the Workers’ policy the insurance issued Home Utah Fire excludes injury. work-related

BACKGROUND ¶2 Services, Holmes & Narver Inc., government entered into a contract to perform construction work at the Tooele Army Depot. & Holmes Narver thereafter agreement entered into an with William Green, Services, dba Green wherein Green siding project. would install agreement purported designate Green as contrаctor. completion siding, 3 Before Holmes Narver fired Green and excluded job him from the site. In accordance with agreement, Holmes & Narver retained scaffolding had use in erected for installing siding. Holmes & Narver temporary employees complete hired 1,1993, siding, February and on or about one accident, injury or ployer upon Manning, based suffered seri- employees, those employee. scaffolding collapsed. death injuries when the ous (1988).2 Utah Code compen- workers’ received provi- argued that this Home Fire because & Narver. from Holmes benefits sation suit, against Manning’s protected Green sion addition, May he filed an action obligated” “legally Green could not become in- against and Green’s court Green federal and, thus, injuriеs was Manning’s there for surer, Company. Home Fire Insurance Utah liability triggering coverage un- potential no negligently Manning alleged that Green Fire policy. Utah Home der insurance thereby his scaffolding, causing structed alternatively that exclu- argued even injuries. Manning asserted he was also Manning’s remedy did not provision sive bar beneficiary third-party of the an intended Green, against policy the insurance action liability Home Fire policy insurance Utah Manning’s coverage excluded of nonetheless and was entitled issued to Green had personal injury claims. damages for Utah Home of contract breach ¶ Manning countered that he could coverage to his denial of Fire’s against action Green maintain his federal response, injury In claims. Utah personal contrac- because Green in action state court Fire filed an Home Narver, employee. of not an tor Holmes that, declaratory judgment un- requesting a Manning § Code Ann. 35-1- relied Utah obligated not policy, it was der its insurance part: in relevant provides which Manning’s in indemnify or Green1 to defend any injury or death com- When for which stayed court lawsuit. The federal federal pensation payable under this shall title Manning’s pending resolution of the action wrongful or have act been proceedings. state neglect employ- a than an of court, In Utah Home Fire er, officer, state agent, employee said em- or of summary for may filed cross-motions injured employee ... ployer, that, Fire contended judgment. Utah Home and ... also claim law, functioned as an matter of Green against as a damages action maintain an contractors, subcontractors, Narver because of employee Holmes & inde- general Narver contractors, of control Holmes & retained level or property owners pendent work; result, aas exercised over his assigns, occupying or not lessees Manning, employee also an Holmes & relationship with employer-employee Narver, his federal court could not maintain time deceased at the or against of the because exclusive action Green injury death. of his or remedy provision Compensa- of the Workers’ (1988)3 (empha- § Ann. Code Utah Act, which states: that, argued also as sis law, policy Home Fire’s did matter of pursu- recover personal of his not exclude inju- title provisions of this аnt to claims. shall be ries sustained declaratory judgment In an order of remedy against

the exclusive September district court remedy dated against be and shall the exclusive officer, Fire’s for sum- granted Utah Home motion any agent the em- or Manning’s mo- mary denied judgment law ployer ... and no action at purposes of ruled that for against or tion. The court maintained Compensation officer, agent employee of Workers’ This is now found Utah Code that it Home Fire also contended 1.Utah wife, indemnify Green’s Carol have to defend 34A-2-105 Construction, to whom it had L. Green dba C.B. policy. an identical insurance Carol issued Code Ann. is now found at Utah installing siding. apparently assisted -106(4) (1997). 34A-2-106(l) interests, unity purposes Given their clarity, we will to William Green and refer policy issued to him. the insurance operatives regularly Narver of Holmes & and was workers or business, immune from suit under same or in or therefore about the same establishment, hire, remedy provision. court contract of written, express implied, properly oral or ... but ruled that Utah Home Fire including any person coverage Manning’s pursu- employ- claims whose denied ment is casual provisions in the insurance and not the usual course certain ant to trade, business, coverage. occupation appeal This policy that excluded employer. followed. 35-1-43(1) (1988).5 §Ann. Utah Code OF STANDARD REVIEW determining whether reviewing district opposed worker acted as an summary grant judgment, court’s we independent purposes contractor for of law, questions namely, presented with of Compensation inquiry the Workers’ our precluded whether long employer focused on whether the Compensation Act Workers’ See, right had the to control the worker. and, injuries for his work-related if Averett, 249-50; e.g., 909 P.2d at v. Stricker not, whether Utah Home Fire’s insurance Comm’n, 603, 849, Industrial 55 Utah P. 188 policy nevertheless excludes of (1920). Regardless parties 851 of how the in his claims federal court action. relationship, intended to structure their a rulings do not defer We to the district court’s worker is considered to have been an em issues, on these but review them for correct ployee employer right had the to con 246, Grange, ness. See Averett v. 909 P.2d trol the worker’s manner or method of exe (Utah 1995). Specifically, 248 we review See, cuting carrying or out e.g., the work. holding correctness of the district court’s Bethers, Bаmbrough 1286, v. 552 P.2d 1291- disputed that there were no issues of materi (Utah 1976); Sommerville v. Industrial application governing al fact and its of the Comm’n, 504, 718, 113 Utah 196 P.2d

law. See id. (1948); Comm’n, Parkinson v. Industrial (1946); 110 Utah 172 P.2d see DISCUSSION Averett, (explaining 909 P.2d at 250 inquiry 9 Our threshold is whether inquiry focuses not on relationship, intended Green functioned ‍​‌‌​​‌​​‌​​​​‌​​​​​‌‌​‌‌‌‌​‌​‌​‌​‌‌​‌​‌‌​‌‌‌‌‌‌‌‍as an contrac- created). relationship in but on fact We have tor or an of Holmes & Narver for consistently right held that “it is the to con purposes Compensation of the Workers’ determinative; trol which is degree (the “Act”). The “independent Act defines [actually control asserted] is not essential.” contractor” as Bambrough, 552 P.2d at 1291 in any person engaged performance in the of original); Hughes see also Hinds v. Herm & who, any work for another while so en- Sons, Inc., 1978). gaged, employer of the in pertains all that to the execution of the 11 In Harry Young L. & Sons work, subject Ashton, (Utah 1975), is not to the rule or control 538 P.2d 316 this court engaged only that, explained general, in the performance job piece of a definite paid is one who is hired and a work; employer and is to the subordinate salary, wage, rate, per- a or at a fixed to only effecting a result in accordance employer’s form the work as directed employer’s design. with the subject and who is a com- to 1—42(2)(b) § (Supp. Utah Code Ann. 35— paratively high degree per- of control in 1992).4 The “employee” Act defines forming contrast, those duties. an inde-

each pendent the service of engaged contractor is one who is employer] employs particular [which one or project piece more to do some provision 4. This is now found at Utah Code Ann. is now found at Utah Code Ann. ' 34A-2-103(2)(a) 34A-2-104(l)(b) (Supp.1998). (Supp.1998). sum, agreement, Holmes & Narver retained the

work, who usually for a set total subject right performance or execution way, to direct her] own job in his [or do the work, its full discretion of Green’s to exercise or controls and only minimal restriction work, to Green’s control satisfactory com- only its responsible employed, to fire which workmen Green pletion. reason, employees for to monitor Green’s considered as bear- main facts to be daily basis, and to Green’s work dictate (1) relationship here are: what- ing on the days worked. and hours Green agreements exist con- ever covenants only right direction and control Narver re- cerning the 13 Not did Holmes & work, express right whether tain to control Green’s over the fire; (3) (2) systematically right. Repre- implied; to hire and exercised ...; inspected payment sentatives of Holmes Narver the method day. three each furnishing equipment. work two or times Green’s something representatives If the considered Stricker; 318; P. at Id. see also work, they required wrong with the independent contractors uti (explaining that required to make corrections. bringing about lize own methods simply relate to the corrections result). assessing given rela contracted work but also tracted result Green’s we consider whatever tionship, not do of the work. Green’s details and method concerning right of agreements con exist testimony is repre- uncontroverted that the trol, the also take into account actual but we repeatedly sentatives of Holmes & Narver dealings parties the control the and between gave him directions and instructions concern- Averett, See, e.g., in fact that was asserted. ing simply rather than the details his work (considering parties’ 909 at 249-50 con contemplated the result. Holmes & Narver arrangements and on-site activities tractual siding the even mandated that Green install employee). defendant was to conclude to from right from left rather than left to hand, there are 12 the case right. disputed material fact concern no issues of required 14 Holmes Narver also & right to control ing & Narver’s Holmes respect approval its Green obtain with to agreement speci parties’ the Green’s work: fact, employed. each Green worker right, fiеs and the actual control exer such occasion, prevented & Narver one Holmes controversy. In view of cised the particular hiring individual. evidence, Holmes it is clear that uneontested Lodge As in Rustler v. Industrial stated the to retained and exercised & Narver “ Commission, independent ‘An contractor instance, work conduct. For control Green’s do the and accom- employ can others to work parties’ agreement stated that “[Green] result plish contemplated without perform by work directed agrees [the] to contractee, consent of the while in accordance with the Narver] & [Holmes 227, (Utah 1977) 562 P.2d 228 cannot....’” rights, “all and that contract documents” Comm’n, 65 (quoting Ludlow v. Industrial options of discretion ‍​‌‌​​‌​​‌​​​​‌​​​​​‌‌​‌‌‌‌​‌​‌​‌​‌‌​‌​‌‌​‌‌‌‌‌‌‌‍privileges, and exercise (1925)). P. by to work reserved or with said Finally, daily reports in the given Narver] be main [Holmes & required, Green had to Holmes & Narver tained and exercised with added.) concerning his agree report information (Emphasis extensive [Green].” (1) work, including of his men the hours each provided “[Green] shall not ment also they job, per- on the duties employ any employment whose and worked workmen what, wrong formed, on the objected anything, went performance of the work reason”; (2) daily Narver’s job, results of Holmes & [Holmes Narver] & in connec- daily report inspections, the corrections made must submit written “[Green] equipment inspections, the Quality Rep tion those Narver’s] Control [Holmes site, equipment not job left on resentative”; “[w]orking hours left on the and site, job equipment and materials through Thursday, a.m. to 5:00 the Monday 6:30 site, job whether Holmes express of their received on p.m.” under the terms inspected approved contractors, general contractors, & Narver had such equipment materials. From the infor- occupying contractors ... not employer- submitted, mation Green Holmes & Narver employee relationship with [him] the time in turn various di- issued instructions and of his or death.” Utah Code performing to follow in rections for Green § 35-1-62 Hence, job. despite the fact that ¶ Manning’s argument prem parties’ agreement specified payment of a faulty assumption ised on the that one who completing job lump sum for and that qualify does not as an under sec equipment, would furnish his own 42(6)(a) must be considered de supports evidence as a whole the district 35-1— fault a that, subcontractor or an con court’s determination as a matter of law, subject tractor Green acted as Holmes & Narver’s em- to suit under section 35-1-62. 35-l-42(6)(a) ployee. Section application is limited in specific which, purpose, to its as this court ¶ Manning irrespective contends that explained, protect is “‘to “right-to-control” test, traditional irresponsible and uninsured subcontractors qualify Green does not as an by imposing liability presum ultimate on the Holmes & Narver under section 35-1- ably responsible principal contractor, who 42(6)(a) Code, provides: which power, has it within choosing subcon any person employer procures If who is an tractors, pass upon responsibility wholly part work to be done upon appropriate insist compensation protec him a contractor over whose work he ” tion for their workers.’ Bennett v. Indus control, supervision retains and this Comm’n, 1986) trial part process work is a in the trade or Larson, (quoting 1C A. Compen Workmen’s contractor, business (1986)). sation Law 49.14 persons him, employed by all all subcon- safeguards against him, “unscrupulous principal tractors under persons and all may attempt contractors” who ployed by any to avoid re of these subcontractors[ ] sponsibility insuring for original are considered workers on their “ projects by employer. ‘subdividing] regular op subcontractors, among erations escaping thus 35-l-42(6)(a) § (Supp.1992) Utah Code Ann. employment direct relations with the work added).6 Manning maintains that relegating ers and compensation them for provision, under this even Holmes & Nar- protection to small contractors who fail to ver supervision retained control or over ” carry compensation ... insurance.’ Pinter work, Green’s part that work was not a 305, Constr. Co. v. Frisby, 678 P.2d 307-08 process of Holmes & Narver’s trade or busi- (Utah 1984) (quoting Larson, ness; thus, Workmen’s an was not but 49.11). Compensation Thus, § Law must instead be considered a subcontractor 35-l-42(6)(a) applies or an independent subject to the contractor to suit limited circum pursuant 35-1-62, assigning stance of provides responsibility to section which for work an employee “may compensation ers’ coverage: claim quali com- those who pensation fy “employees” [under the and ... Act] as under it are so considered damages against maintain an action only sub- insofar principal as the contractor оf the provision perform is now found at Utah Code Ann. the work in the normal course of its (1997). § 34A-2-103 trade or business. 35-l-42(6)(c) (Supp.1992). Utah Code Ann. arguing 7. part that Green’s work was not a Manning contends that Holmes & Narver did not business, process of Holmes & Narver's trade or business, siding install in the normal course of its following provision relies on the in but subcontracted such work to others as a mat- injury: effect at the time of his however, Manning's argument, ter of course. is portion A project of a construction subcon- misguided. herein, explained right-to- As part tracted to others be considered a control test determines whether a worker is an process general in the trade or business of the employee protected by remedy pro- the exclusive contractor, building only general if the build- vision. contractor, ing regard without to whеther it employees, would need additional would (1988). Al- Code Aun. ultimately procur- er.” Utah responsible for project coverage though temporary employee, was ing workers’ Bennett, See, employee of Holmes & 726 P.2d at 431-33 he is e.g., considered them. Salazar, princi- makes v. P.2d this See Ghersi (explaining that Narver. 1994). (Utah securing Consequently, workers’ liable for pal contractor person hired coverage remedy provision precludes Man- exclusive subcontractor). purposes of For all other ning other Act, right-to- Compensation injuries, including the Workers’ Holmes & Narver for a worker is liability determines whether potential control test Green. there no employee.8 considered an triggering in federal court action Fire’s coverage under Home insurance therefore, conclude, 18 We policy. ruling err in as a court did not the district Green was matter of law that argues that since Man- dissent the Work purposes & Narver for Holmes ning’s after Green’s em- accident occurred Compensation This ac Act. conclusion ers’ terminated, ployment & Narver with Holmes long-standing policy court’s cords with this injuries. Manning can for his sue Green Compensation Act should Workers’ argument, and would use dissent raises this pur its liberally to effectuate construed rulings, de- the district court’s it reverse See, Brown e.g., Smith v. poses. spite fact that it was not addressed be- Alfred 27 Utah 2d parties on nor fore the district court policy, have stated that with that we line aside, the in appeal. That dissent as to whether a “proper to resolve dоubt remedy provision accord with [the favor of worker (section 35-1-62, 35-1-60), section Professor Bennett, being employee.” an] worker holding subject, the treatise on the Larson’s inconsistent It would indeed be Mays, 780 P.2d 1252 Riddle being of worker doubts favor to resolve 1989), underlying purposes worker is when the considered compensation laws of state workers’ situations, seeking but not Utah. being here, sued ‍​‌‌​​‌​​‌​​​​‌​​​​​‌‌​‌‌‌‌​‌​‌​‌​‌‌​‌​‌‌​‌‌‌‌‌‌‌‍where the worker is such Compensa 21 The Workers’ employee. another compensate is intended employee under Workers’ 19 As job-related injuries, employees for but also to the Compensation entitled job-related liability protect against them affords, including the protections the remedy provision of The exclusive conduct. injuries against sustained protection suit рurpose latter clear: the Act makes this Narver. by employees other of Holmes & compensation pursu- right to remedy The recover provision states that The exclusive inju- provisions of this title for may to the injured not maintain an ant employee an ... injuries by employee an shall be “against her ries sustained law for or action officer, any remedy against officer, employ- agent employee or of the any 35-l~42(6)(a). 35-l-42(6)(a) purposes of section employee for statutory standard of section 8. The 678 P.2d right-to-control See Pinter Constr. equivalent the test. not is the legislatively employer provision 35-l-42(6)(a) "statutory is a expressly allows for em- Section nonemploy- by employ- scheme which conceded to he created ployeеs a subcontractor deemed general brought deliberately the ees within contrac- person who hired ees of the Kienke, English v. 848 P.2d person may despite [Act].” of the fact that that have tor (Utah 1993). stan- To the extent two any control over sub- retained or exercised Moreover, compared, the level of control can be employees. this dards supervision 42(6)(a) or its contractor contemplated "statutory under section 35—1— employ- explained court degree requisite equat- is less than cannot be ee” standard of section 35-1-42 qualify subject an be as right-to-control trol to which one must stan- ed with common law right-to-control test. See employee distinguishing employees between dard for Bennett, Bennett, (noting term at 432 that "the 726 P.2d See cоntractors. statutory 'supervision stan- "indepen- [under or control’ An be an at 431-32. individual general requires that the contractor dard] law stan- dent contractor” under the common project”). qualifying over the retain ultimate control time dard while at same agent employer of the ... and none of these capacities; enumerated as al- discussed, no at law be against ready action maintained he employ- functioned as an employer against officer, agent ee of Holmes & Narver. upon of the based ¶ 24 The dissent mistakenly relies accident, employ- or death of an on section 65.13 of Professor Larson’s trea- ee. compensation tise on workers’ law. That (emphasis Utah Code Ann. in determining states that whether added). against protection provided suit is barred from his or her any employee; this section extends to controlling “[t]he fact is the there is no distinction between current and relationship the’parties at the time of oc- employees former of the same injury.” currence of the 6 Arthur Larson & dissent, project. the same Under the howev- Larson, Lex A. Compen- Larson’s Workers’ er, negligent if an but his em- 65.13, sation Law at 12-17 This ployment happens to end that negli- before section of the treatise and the cited cases injures gence injured another nothing therein have immunity to do with employee would free to negligent sue the from suit between co-employees; neverthe- damages. for tort There is no less, the dissent language adds bracketed justification allowing rational quotatiоn its of this section indicating other- employee in such a circumstance to collect wise. See 37. The error in this is infra pursue benefits under the Act and common co-employee immunity is addressed damages limiting law remedy while completely part different treatise injured employees compen- to workers’ manner that contradicts posh the dissent’s Moreover, sation. proposed dissent’s re- §§ tion. See Larson 72.00 to 72.34. In ref- scope striction on the remedy of the exclusive typically erence to a worded exclusive reme- provision’s contained in the dy provision, equal scope to section 35-1- plain language. 60 of the Utah provides, the treatise “It is now well established that the effect of this interpretation, Under the dissent’s general type of clause is to bar all suits protect liability, themselves against coemployees by injured employees.” ployees purchase would need liability in- § 72.21, Id. at 14-146 prior jobs surance for their despite work on The treatise further “immunity states that they the fact were covered workers’ coemployee only attaches to the when the they insurance per- when eoemployee acting in the course of his addition, formed that work. whenever employment.” 72.23, §Id. at 14-154. workplace injuries occur, investigations co-employee’s injury-causing conduct required would be to determine whether the occurred in the employment, course of injuries were former co-employee protected against suit. The who could be sued and from whom the еm- cases cited in section 72.23 of the treatise ployer or its workers’ carrier uphold principle. this No distinction is made could seek legislature indemnification. The regard to whether co-employee could not have intended such results. employed still at injury. the time of ¶ 23 The dissent relies on section 35-1-62 support. provision, however, for That speaks event, our determina nothing immunity against about suit between governed by tion is issue, the statutes at Rather, co-employees. it states that in- an which also indicate long that as as an em jured employee may sue “third-par- certain ployee’s injury-causing conduct occurred entities, ty” “subcontractors, including gener- scope employment, course and of he or contractors, contractors, al she is immune from suit employees. other property [and] ... occupying instance, owners an For in defining persons” “third sub employee-employer relationship suit, ject with the in- states, section 35-1-62 “When jured employee or deceased at the time of his injury or death ... shall have been injury or death.” Utah Code Ann. 35-1-62 wrongful neglect act or of a (1988) Green acted in employer, officer, than an Justice, STEWART, dissenting: employer, the employee said agent, such third employee [sue] injured ¶ I dissent. §Ann. 35-1-62 Utah Code person.” inquiry on whether language focuses the ¶ This opinion majority plain The flouts injury caused the was person who §§ language and controlling 35-1-601 and officer, his agent, employee at the time of Compensation Act of the Workers’ neglect. The clear wrongful aсt or her misstates, and effect overrules sub person engages implication a silentio, holding Mays, of Riddle v. neglectful (Utah 1989). conduct while as wrongful or majority’s The view P.2d 1252 person is not “third a then for to address improper that it is the dissent sue, injured employee may person” whom the issue hand is incorrect. issue injury it, occurs. regardless raised, of when the duty to it is our address been Cf. Inc., Jantec, v. 317 Or. explain opinion. Fields I at the end of this employee (holding that 99-100 ¶ Patrick Man- 31 The issue is whether J. alleged on based not sue former injured employee Nar- ning, an of Holmes & during employment occurred negligence that (H ver, N), has a common Inc. relationship though employee’s even Green, dba action William R. Green after new took not occur until liability in- public Green Services’ Services. business). Here, negli alleged Green’s over challenges Manning’s right to surance carrier employee while was an gence occurred he sue Green. Accordingly, Manning Holmes & Narver. injuries.9 for cannot sue Green his siding on contracted to install 32 Green discharged building H N but was a for & triggered is not 26 Because prior hiring Manning. N H & N’s H & liability insurance under Utah Home Fire’s held out as an Green itself applicability policy, we need consider but, H&N, working tractor while policy’s The district court exclusions. statutory H employee because summary judgment in fa- correctly entered far-reaching had control of Green’s con- & N Fire. Home vor of Utah majority job, on as the states.3 duct Manning never an H & N at was ¶ 27 Affirmed. same time that Green was otherwise, (statutory makes no differ- HOWE, Associate 28 Chief Justice ence) Hof N.& DURHAM, and Justiсe Justice Chief Manning severely while concur in RUSSON’s ZIMMERMAN Justice scope employment in the course and opinion. majority opinion clearly that Green was distinguishable Riddle 3.The rules case curiam). (Utah 1989) Mays, (per actuality, 780 P.2d 1252 was a v. Riddle held & N. In Green of H 35-1-62, pursuant a to section “statutory employee” of & N. See Utah Code H pre- Owens-Coming was not direct cluded from 35-1-42; Oil Lee Chevron bringing against an em- an action (Utah 1977). "employee” or Whether Owens-Corning. ployee of subcontractor of “statutory employee,” is not however. significant- here See id. situation Green under barred from ly di- and Green were different: both remedy provision While H of section 35-1-60. relying employees & Narver. rect of Holmes conduct, on-job of Green’s & N controlled much Riddle, be- dissent draws no distinction lump provided sum the contract with who under the tween workers prоvide payment to ‍​‌‌​​‌​​‌​​​​‌​​​​​‌‌​‌‌‌‌​‌​‌​‌​‌‌​‌​‌‌​‌‌‌‌‌‌‌‍Green right-to-control test and workers who are "statu- job. say necessary perform To equipment herein, fully tory employees." explained As statutory employee and a that Green the same. two fully H & N is consis- with to provision and is has been renumbered 1. This being Con- with Green's also tent § 34A-2-105 now found at Code , See, e.g., purposes. Bennett for tractor (1997). Comm'n, 1986); 726 427 P.2d Industrial Oil, (Utah 1977). 565 P.2d 1128 Lee v. Chevron provision is has been renumbered and 2. This 34A-2-106(l) § at Utah Code Ann. now found -106(4) (1997). to 252 nonsense, compen- employer especially N. He received workers’ when H & the injured H N and then sued Green for

sation from & not work for the em- negligence prior to ployer that occurred prior employee at time when the N, employment allegedly that with H and employer worked for the and therefore was injuries. At his the time of Man- co-employee. say injured caused never a To that accident, ning’s employment had no employee cannot sue at common law former N, relationship with H & em- either as an officers, employers agents, and former and statutory ployee employee'. or as a huge constitutes a distortion of the Act. majority opinion 34 The holds that be- an employee cause Services had been corollary 37 A principle right of the to prior H N the H of & to time & N hired compensation for an industrial accident is Manning, Manning and Green were co-em- persons all sharing employment the re- ployees, although they had never been em- lationship injury the time the are im- of time, ployees of H & N the and same mune from law a common action for dаm- therefore was barred under section Thus, ages. for purpose determining the of 35-1-60 of the Green. right employee’s compensation, the to and injured employee 35 Under the purpose determining also for the of an em- to compensation entitled workers’ if he is ployee’s right sue third injured by an accident that the occurs in damages, employment the existence scope employment. and course his See relationship at the time the accident occurs (1988).4 § Utah Code Ann. If that employee’s right determines both the met, test makes no difference whether compensation immunity and the the em- a co- officers, ployer agents, employ- and its injured employee, of the or a third ees from a common law action for the same person. scope “course and of employ- accident. Professor Larson states: ment” applicability defines the of the Act as controlling establishing fact in ex- both and the [of clusiveness the workers’ scope remedy provision. exclusive remedy] relationship parties of the Section 35-1-60 establishes the fundamental injury. at the time occurrence of the principle “right compen- to recover times, Their relationship at other such as injuries sation em- sustained the employer’s co-employ- time [or ployee” scope in the course and bringing ee’s] misconduct or the time of ployment by is the exclusive the suit is immaterial. remedy “against and shall be Larson, Arthur Larson & Lex A. Larson’s remedy against officer, exclusive Compensation 65-13, Workеrs’ Law at 12- (Em- agent, employer.” precise That is added.) phasis ly what following courts have held: See majority To reach the result Ill., Corp. 681, Hull v. Aurora 89 A.D.2d does, necessary it is to add words to (N.Y.App.Div.1982); N.Y.S.2d Konken statutory language section 35-1-60 that v. Oakland Farmers’ Elevator Legislature employ. did not In effect the (Minn.Ct.App.1988); N.W.2d 304-06 Du majority adds the word “former” to the Int’l, Von v. Rockwell 116 Wash.2d “officer,” “employer,” “agent,” terms (1991)(en banc). 878-79 “employee,” expanding remedy far, provision beyond far Legisla- majority what the opinion I asserts that provided ture past rationality. and even To have misstated the content of Professor Lar- say an employee in the course son’s erroneously Treatise have referred scope employment of his is a co-employ- suppоrt to section 65.13 as proposi- for the previously ee of who one worked the same tion that determining the critical time for been renumbered and is now found at Utah Code Ann. 34A-2-401 employee. The injured is deemed to be an employee can sue anoth- who an whether damages section states: the time the accident. er for any injury When or death which com- majority’s that I assertion have The pensation payable under shall this title wrong. simply To section 65.13 misstated wrongful act or have the been language of section 65.13 repeat the critical neglect person employ- than of a an controlling in establish- 12-17: “The at fact er, officer, agent, employee of said em- compensa- the workers’ ing exclusiveness [of injured may ployer, employee the ... par- remedy] relationship the is the compensation may claim and ... also have the at the time the occurrence ties damages against an such third action for added.) Their rela- injury.”5 (Emphasis person..... “is immaterial.” tionship at other times Id. purposes For the of this section majority applies states that this notwithstanding provisions the of Section determining employer respect to who an with 1^42, injured employee the or his heirs 35— say language simply not The above does is. may personal representative main- also 63.13 caption to section states that. against damages tain an action for subcon- injury broadly: [the exclu- “Time of controls contractors, tractors, general Furthermore, logical sivity] as a defense.” cоntractors, property their les- owners or matter, injury if the controls the time assigns, occupying employ- sees or an employer, is an how determination of who relationship injured er-employee injury not can the time of control deter- his employee or deceased at time of employee? The same mination of who is an any injury or death. injwry or When and, questions, must both standard control payable compensation death for which below, exactly that is what Utah shown shall have been caused under this title provides. neglect wrongful act or of a asserting majority opinion, after 40 The officer, agent, employer, other than erroneously at 12-17 of that section 65.13 injured said only to the Professor Larson’s treatise refers depen- in of deаth of his case is, employer of who an then determination may the in- claim dents in that co- error this is “[t]he states jured personal heirs or or his immunity in a is addressed com- representative may have an action for also pletely part of the treatise in a different against persons. damages third posi- manner that contradicts the dissent’s Code Supra §§ id. 72.00 to 72.34.” tion. See say, majority patently false to as the It is 35-1-62, section Under does, that those sections contradict dis- “may may and ... also claim 72 to 72.34 do not address sent. Sections against damages [a] third have action injured question of whether an all ... “maintain an action person” and prior employee of the ployee sue a contractors, subcontractors, general issue, employer. That аs to when neces- occupying contractors exists, is sary employment relationship ad- relationship with the an employer-employee above, dressed, in as stated section 65.13. the time or deceased short, H & N Utah Act or death.” Section 35-1-62 of the “employer-employee relation- not have an explicit that the time of the accident makes ship” at the time who with Green is deemed controls Indeed, “employer” is. the terms 65.13 at 12-17 5. The next sentence section employer’s "employee” reciprocal. miscon- One exist states that the time “of cannot Furthermore, example is an of factors that are irrelevant duct” of a the use the other. without compen- establishing exclusiveness of the Larson does not limit "for Profеssor instance” remedy. suggest, is absurd to as the sation majority implicitly It general principle applicability of stated does, time for deter- disingenuous sug- plainly 65.13. It is mining who is an Act is gest otherwise. determining from the time for who different injury. was a former stringent Green than the determining test for a injury, At the time that time. statutory employer. point The is incorrect. independent a third and an was both independent An clearly contractor can meet It that contractor. follows has a right to control test and still be a statuto- statutory right damages. to sue Green for ry employee, as occurred with to majority opinion goes 43 Much of the to Green. Lee Corp., See v. Chevron Oil great length prove (Utah 1977). that Green was an P.2d 1128 point employee of H & N. That is uncontest- ¶46 Finally, improper it is nоt for the ed; but, although not critical in the above Court to address the issues discussed in the 35-1-62, analysis based on section it is also brief, Manning, dissent. Patrick in his as- statutory employ- true that Green was also a “against serts that he has a claim of H&N. ee “pursuant Services” which is actionable Mays, 44 Riddle v. 780 P.2d 1252 35-1-62(4), Utah Code Annotated.” 1989), compels also conclusion Man- Indeed, Manning specifically relies on the ning may sue Green under section 35-1-62. statutory language set out above that Riddle was an Owens-Corning raising found section 35-1-62. Fiberglass Corp. Mays The defendant was entirely appropriate. these issues is Even employed by Mountain States Insulation issue, addressing had not raised the Corp., Owens-Corning. a subcontractor of proper. court, it would still be appellate An injured by Mays. was Riddle The triаl court in discharging duty its sworn decide case damages dismissed Riddle’s action for law, on the merits of the substantive is obli- against Mays and Mountain States on the “ gated ground ‘necessary to address those remedy that Riddle’s issues exclusive proper Assocs., workers’ under section 35-1- decision.’” Kaiserman appealed ground Town, Riddle on the Inc. v. Francis 977 P.2d his direct and actual (Utah 1998) Owens-Corn- (quoting Falk v. Corp., Keene ing, agents employees and its im- were 645, 659, 113 Wash.2d mune from suit under section 35-1-60. On (1989)). ought Courts never to decide a case appeal, accepted this Court the trial court’s on the attorney basis of which scores the finding Owens-Corning was the statuto- points most par- the contest between the ry employer Mays and held that under obligation ties. The of this Court runs to the Pate v. Marathоn Steel parties, attorneys. not the attorneys If the (Utah 1989), damages Riddle could recover argue have failed to precisely an issue as it section 35-1-62 a statutory framed, might best be appellate is for an who was con- court, nevertheless, to decide the issue cor- tractor for purposes. precisely That is rectly: ignore “We should not be forced to the situation statutory here —Green was a just parties law because the have not employee, perforce pursued arguments.” raised or obvious Id. tractor. at 464. majority dismisses Riddle asserting that Mountain States Insulation

Corp. was a subcontractor of Owens-Corn-

ing; but that did not obviate the fact that

Mountain statutory States was also a em-

ployee Owens-Corning. Accordingly,

Mays could sue Mountain States under sec- ‍​‌‌​​‌​​‌​​​​‌​​​​​‌‌​‌‌‌‌​‌​‌​‌​‌‌​‌​‌‌​‌‌‌‌‌‌‌‍though Mays 35-1-62 even and Moun-

tain States were both of Owens-

Corning. majority maintains that Green statutory but not a

ployee, determining because the test for to control —is more —the

Case Details

Case Name: Utah Home Fire Insurance Co. v. Manning

Court Name: Utah Supreme Court

Date Published: Aug 24, 1999

Citation: 985 P.2d 243

Docket Number: 970516

Court Abbreviation: Utah