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Lipps v. Southern Nevada Paving5/4/2000
Amzel Michael Lipps, Sr., appeals a district court order granting summary judgment based upon respondents' claims of immunity under the Nevada Industrial Insurance Act ("NIIA"). As we conclude that the fatally injured worker was a statutory co-employee of respondent Southern Nevada Paving, we affirm the order of the district court.
STATEMENT OF THE FACTS
This case arises from a tragic accident in which Amzel Michael Lipps, Jr., was killed while servicing a construction truck owned by respondent, Southern Nevada Paving. At the time of the accident, Southern Nevada Paving, a contractor licensed per NRS chapter 624, was performing road construction pursuant to a subcontract with Gilbert Western Construction Company, a licensed general contractor. Gilbert Western Construction Company was retained by the Fort Mohave Indian Tribe to build roads leading to its new casino project near Laughlin, Nevada. Amzel Lipps, Jr., was an employee of C & J Trucking, an independent contractor hired directly by the Tribe to service heavy equipment owned and operated by Southern Nevada Paving. Southern Nevada Paving employees supervised Amzel Lipps, Jr., and his fellow C & J Trucking employees.
Amzel Lipps, Sr., filed suit for his son's wrongful death. Thereafter, Southern Nevada Paving moved for summary judgment, claiming immunity from suit under the Nevada Industrial Insurance Act. The district court granted this motion based upon our decision in Tucker v. Action Equipment and Scaffold Co., 113 Nev. 1349, 951 P.2d 1027 (1997). Amzel Lipps, Sr., appeals.
DISCUSSION
Standard of review
Summary judgment is only appropriate when, after a review of the record viewed in a light most favorable to the nonmoving party, there remain no issues of material fact and the moving party is entitled to a judgment as a matter of law. See Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). On appeal, this court is "to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment." Bird v. Casa Royale West, 97 Nev. 67, 68, 624 P.2d 17, 18 (1981).
Immunity under the Nevada Industrial Insurance Act
The Nevada workers' compensation system provides the exclusive remedy of an employee against his employer for workplace injuries. See Frith v. Harrah South Shore Corp., 92 Nev. 447, 452, 552 P.2d 337, 340 (1976). A corollary to the immunity rule is that claims for tort damages in connection with workplace injuries are only sustainable against persons or entities other than a statutory employer or persons in the same employ. See NRS 616.560(1) (recodified as NRS 616C.215(2)(a)).
NRS 616A.210(1) states in part that all "subcontractors, independent contractors and the employees of either shall be deemed to be employees of the principal contractor for the purposes of [the NIIA]." "Therefore, NIIA provides the exclusive remedy of any employee of a subcontractor injured as a result of the negligence of another subcontractor's employee working for the same principal contractor because they are considered to be working in 'the same employ'; hence, they are statutory co-employees." Tucker, 113 Nev. at 1354, 951 P.2d at 1030 (citing Aragonez v. Taylor Steel Co., 85 Nev. 718, 719-20, 462 P.2d 754, 755 (1969)).
In Meers v. Haughton Elevator, 101 Nev. 283, 701 P.2d 1006 (1985), we adopted the so-called "normal work" test to determine whether the type of work a "subcontractor" does entitles it to NIIA immunity:
"The test (except in cases where the work is obviously a subcontracted fraction of a main contract) is
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