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Tucker v. Action Equipment and Scaffold Co.12/30/1997
Appeal from an order of the district court granting a motion to dismiss for failure to state a claim and judgment of dismissal with prejudice. Eighth Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Affirmed.
Appellants Joseph Tucker and Kevin Clark (collectively referred to as "Tucker and Clark") were employed by respondent Malco, Inc. ("Malco"), a drywall company, which was hired by a general contractor. Tucker and Clark were injured when the scaffolding they were working on collapsed. The company providing the scaffolding, respondent Action Equipment and Scaffold Co., Inc. ("Action"), was a licensed contractor pursuant to NRS chapter 624.
After Tucker and Clark collected industrial insurance benefits through Malco, they sued Action. Action filed a motion to dismiss, claiming it was immune from suit under the Nevada Industrial Insurance Act ("NIIA") because it was a subcontractor "in the same employ" as Malco and Tucker and Clark, under the general contractor, pursuant to NRS 616.560(1) (a) (recodified as NRS 616C.215(2) (a)). Tucker and Clark opposed the motion, arguing that the "normal work" test, articulated in Meets v. Haughton Elevator, 101 Nev. 283, 701 P.2d 1006 (1985), applied in their favor, exempting Action from the protection of immunity. The district court granted the motion to dismiss in Action's favor, and Tucker and Clark appeal.
FACTS
In 1992, Marnell Corrao Associates, Inc. ("Marnell"), a general contractor, hired Malco as a drywall subcontractor for a construction project on a complex and uniquely configured church called the Shrine of the Most Holy Redeemer ("the Shrine"). On October 29, 1992, and November 9, 1992, Malco and Action executed two agreements for Action to supply, erect, and dismantle the scaffolding required to complete Malco's contract with Marnell on the Shrine. Action supplied and erected the scaffolding as required in November 1992.
On November 17, 1992, two Malco employees, Tucker and Clark, were working on the scaffolding when it failed to support their weight, throwing them to the ground and causing personal injury . Tucker and Clark filed a claim with the State Industrial Insurance System ("SIIS") through their employer, Malco, and were paid $124,823.77 and $62,771.75, respectively.
On March 1, 1994, Tucker and Clark filed a complaint for negligence and strict liability against Action pursuant to NRS 616.560(1) (a), which allows injured workers to sue certain third persons. On April 18, 1994, Action brought a third-party complaint against Malco for indemnification.
On February 27, 1995, Action filed its motion to dismiss Tucker and Clark's complaint for failure to state a claim. The focus of. its motion was that Action was immune from liability pursuant to NRS 616.560(1) (a) because it was "in the same employ" as Tucker and Clark; therefore, Tucker and Clark's exclusive remedy was SIIS benefits.
On March 14, 1995, Tucker and Clark filed their opposition to Action's motion, claiming that Action was not "in the same employ." Rather, they argued that the "normal work" test, set out in Me, 101 Nev. at 283, 701 P.2d at 1006, (hereinafter "the Meets test") applied, creating a fact issue as to whether the scaffolding was a "normal" part of Malco's contract with Marnell or a highly specialized function.
On April 19, 1995, a hearing on the motion was conducted. The parties' arguments centered mostly on how the Meets test applied in this case. The district court decided that the issue was one of fact: whether the scaffolding was a "highly specialized form of scaffolding" that Malco employees could not do themselves or whether prov
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