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Lipps v. Southern Nevada Paving5/4/2000
whether that indispensable activity is, in that business, normally carried on through employees rather than independent contractors."
Id. at 286, 701 P.2d at 1007 (quoting Bassett Furniture Industries, Inc. v. McReynolds, 224 S.E.2d 323 (Va. 1976)). As we noted in Tucker, the 1991 Nevada State Legislature enacted NRS 616.262 (recodified as NRS 616B.603), which provides in part:
"1. A person is not an employer for the purposes of [this chapter] if:
(a) He enters into a contract with another person or business which is an independent enterprise; and
(b) He is not in the same trade, business, profession or occupation as the independent enterprise.
3. The provisions of this section do not apply to:
(a) a principal contractor who is licensed pursuant to chapter 624 of NRS."
In Tucker, we reiterated our conclusion in Oliver v. Barrick Goldstrike Mines, 111 Nev. 1338, 1349, 905 P.2d 168, 174-75 (1995), that NRS 616B.603 is a codification of the test set forth in Meers. However, based upon this provision, we concluded in Tucker that workplace immunity issues must be resolved by first determining whether the workplace injury took place in a construction setting. If not, the statutory/Meers test applies. In the construction context, we held that:
" emaining consistent with Oliver, further examination is required in construction cases. Initially, if the defendant in a construction case is not a principal contractor licensed pursuant to NRS chapter 624, or is not working pursuant to a construction agreement with such a licensed principal contractor, the Meers test must be applied to determine immunity. On the other hand, if the defendant in a construction case is a principal contractor licensed pursuant to NRS chapter 624, or is a licensed contractor working pursuant to a construction agreement with a licensed principal contractor, and the defendant is performing part of the construction work for which it is licensed when the injury occurs, that contractor is immune from further suit as a matter of law. No further factual analysis is necessary."
Tucker, 113 Nev. at 1357, 951 P.2d at 1032 (footnotes omitted).
It is uncontroverted that Amzel Lipps, Jr., was the direct employee of C & J Trucking, not Southern Nevada Paving. It is also uncontroverted that C & J Trucking was not a contractor licensed under NRS chapter 624 and that C & J Trucking was retained separately by the Tribe, a non-NIIA participant. In Tucker, the defendant and the injured workers' direct employer were both licensed contractors. The question is whether Southern Nevada Paving's status as a principal contractor under NRS chapter 624, given the fact that this matter arises in the construction context and given the fact that Amzel Lipps, Jr., was working with Southern Nevada Paving on this construction project, compels the district court's decision under Tucker.
We conclude that the immunity provisions of the NIIA obtain as a matter of law. First, the matter at hand is a construction case in which Southern Nevada Paving, a licensed contractor under NRS chapter 624, was working pursuant to a construction agreement with a licensed principal contractor at the time of the accident. See NRS 616B.603(3); Tucker, 113 Nev. at 1357, 951 P.2d at 1032. Second, C & J Trucking was an "independent contractor" working through its employees at the jobsite and is deemed a statutory co-employee of Southern Nevada Paving. See NRS 616A.210(1).
Accordingly, Amzel Lipps, Jr., an employee of C & J Trucking was a statutory co-employee of Southern Nevada Paving for the purposes of the NIIA, and appellant's
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