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D & D Tire, Inc. v. Ouellette

Supreme Court of Nevada

July 2, 2015

D & D TIRE, INC., A NEVADA CORPORATION D/B/A PURCELL TIRE & RUBBER COMPANY, A FOREIGN CORPORATION; PURCELL TIRE COMPANY, INC., A FOREIGN CORPORATION; AND RYAN WINTLE, Appellants,
v.
JACK R. OUELLETTE, Respondent

Appeal from a district court judgment following a jury verdict and a post-judgment order denying judgment as a matter of law and a new trial in a personal injury action. Second Judicial District Court, Washoe County; Janet J. Berry, Judge.

Holland & Hart LLP and J. Stephen Peek and J. Robert Smith, Reno; Thorndal, Armstrong, Delk, Balkenbush & Eisinger and Charles L. Burcham and Kevin A. Pick, Reno, for Appellants.

Bradley, Drendel & Jeanney and William C. Jeanney, Reno, for Respondent.

BEFORE SAITTA, GIBBONS and PICKERING, JJ. We Concur: Gibbons, J., Pickering, J.

OPINION

Page 33

SAITTA, J.:

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. This opinion addresses when an independent contractor's actions are within the scope of a major or specialized repair so as to prevent it from claiming immunity as a statutory employer or coemployee.

Page 34

We hold that when evaluating whether an independent contractor's actions are within the scope of a major or specialized repair, a district court must consider the act giving rise to the injury within the entire context of the overall specialized repair and not in isolation. Thus, factors such as whether the presence of the contractor at the job site was for the purpose of the specialized repair or whether the activity was in furtherance of the specialized repair can help guide the court's analysis. We further hold that where, as in this case, the jury is instructed on negligence, proximate cause, and the essentiality of a finding of the defendant's negligence, an incomplete " mere happening" jury instruction may be duplicative and/or confusing, and thus, the district court's failure to give such an instruction was not an abuse of discretion.

FACTUAL AND PROCEDURAL HISTORY

Respondent Jack R. 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. Appellant Purcell Tire & Rubber Company is a commercial tire retailer.[1] Among other things, it provides 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 Scott Durick to make specialized repairs to the PTO. Purcell, as owner of the truck, also sent Ryan 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 now appeals.

DISCUSSION

Purcell argues 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 alsa argues that the district court abused its discretion by refusing to give a mere happening jury instruction.

Ouellette argues 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 alsa argues that the district court did not err in refusing to give Purcell's proffered jury instruction ...


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