Nevada Appellate Courts Advance Opinions for December 12, 2019
D & D Tire v. Ouellette (Nev. Supreme Ct. – July 2, 2015)
In Nevada, employers and coemployees of a person injured in the course of employment are immune from liability for the injury under the exclusive remedy provision of the workers’ compensation statutes. Additionally, some subcontractors and independent contractors are accorded the same status as employers or coemployees of the injured employee and are thus immune from liability. However, a subcontractor or independent contractor is not considered to be a statutory employee when it is performing a major or specialized repair that the injured worker’s employer is not equipped to handle with its own work force.
The issue is when is an independent contractor’s actions within the scope of a major or specialized repair so as to prevent it from claiming immunity as a statutory employer or coemployee.
Ouellette was employed by Allied Nevada Gold Corporation (Allied) to perform tire service work, including the installation, removal, repair, and replacement of tires on various pieces of mining equipment. Purcell Tire & Rubber Company was a commercial tire retailer. Among other things, it provided tire changing and repair services to mining companies.
As part of his job, Ouellette drove and operated a tire changing boom truck owned by Purcell and leased to Allied. When a problem developed with the boom truck’s power take off unit (PTO), Purcell contacted an independent repair company, Dakota Diesel, who sent repairman Durick to make specialized repairs to the PTO. Purcell, as owner of the truck, also sent Wintle, a tire technician for Purcell with responsibilities similar to those of Ouellette, to assist with the repairs.
After the initial repairs were completed, Wintle and Durick filled the truck with hydraulic oil. Wintle then got into the truck to move it to another area before testing the PTO. While backing up the truck, Wintle struck and pinned Ouellette against a dumpster, causing Ouellette to suffer a shoulder injury.
Ouellette filed a personal injury claim against Purcell. At trial, Purcell moved for a judgment as a matter of law on the grounds that it was a statutory employee of Allied and was thus immune from liability under the Nevada Industrial Insurance Act (NIIA). The district court denied Purcell’s motion. Purcell also requested a mere happening jury instruction, which the district court declined to give. The jury returned a verdict in favor of Ouellette. Purcell then renewed its motion for judgment as a matter of law on the grounds that it was a statutory employee of Allied. Alternatively, it moved for a new trial, arguing that the district court’s error in refusing to give Purcell’s mere happening jury instruction materially affected its substantial rights. The district court denied Purcell’s motion. Purcell appealed
Purcell argued that the district court erred in denying its motion for judgment as a matter of law because Purcell was a statutory employee of Allied at the time of Ouellette’s injury and would thus be immune from liability for the injury under the NIIA. Purcell also argued that the district court abused its discretion by refusing to give a mere happening jury instruction.
Ouellette argued that the district court did not err in denying Purcell’s motion for judgment as a matter of law because Purcell was performing a specialized repair at the time of Ouellette’s injury and thus was not a statutory employee of Allied. Ouellette also argued that the district court did not err in refusing to give Purcell’s proffered jury instruction because it misstated Nevada law and was adequately covered by other instructions given to the jury.
An independent contractor is not immune from liability when performing specialized repairs
In Nevada, employers and coemployees of a person injured in the course of employment are immune from liability under the NIIA. Additionally, the NIIA is uniquely different from industrial insurance acts of some states in that sub-contractors and independent contractors are accorded
the same status as employees and are immune from liability.
However, the Nevada Supreme Court explained that not all types of subcontractors and independent contractors are considered to be statutory employees under NRS 616A.210. A subcontractor or independent contractor is not a statutory employee if it is not in the same trade, business, profession or occupation as the employer of the injured worker.
