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State Indus. Ins. System v. Ortega Concrete Pumping12/30/1997
Ronald Garamendi and John Garcia worked for Las Vegas Paving (LVP) and were electrocuted while they were pouring a concrete floor for a new flood channel in Las Vegas. Due to the depth of the excavated channel, LVP needed a pump truck to transport the concrete from Nevada Ready Mix's trucks to the
floor of the channel. LVP hired Ortega Concrete Pumping, Inc. (Ortega) to provide the pump truck. On the day of the concrete pour, the boom of Ortega's concrete truck, operated by an Ortega employee, struck an overhead power line, sending a high voltage current down into the channel where Garamendi and Garcia were working; both sustained serious injuries.
Garamendi (and his wife) and Garcia filed an action against Ortega and Nevada Power Company for personal injuries, and the State Industrial Insurance System (SIIS) filed a complaint against Ortega seeking subrogation of benefits paid to the injured men. Ortega claimed that it was a subcontractor or independent contractor of LVP and was, therefore, a statutory co-employee of the injured men immune from liability under the exclusive remedy provisions of the Nevada Industrial Insurance Act (NIIA) . The lower court agreed and granted summary judgment in favor of Ortega on both complaints. We conclude that this case was not ripe for summary judgment and, therefore, reverse and remand this case to the district court for further proceedings.
FACTS
Garamendi and Garcia were employees of LVP. Clark County contracted with LVP to build a flood channel at the Las Vegas intersection of Nellis Boulevard and Flamingo Road. Garamendi testified in a deposition that all of LVP's projects related to constructing storm drains or bridges. On August 2, 1991, Garamendi and Garcia were sent to the job site to pour the concrete floor and walls of the excavated flood channel. Power lines, owned and maintained by Nevada Power Company, were located above one end of the excavated channel.
The day before the concrete pour was to take place, LVP called Ortega to deliver a concrete pump truck to the site, to be used for two hours. LVP needed a pump truck because safety codes prohibited dropping wet concrete from a height greater than five feet. As the floor of the channel excavated by LVP was more than five feet below the road, the concrete could not be dropped from the chutes of Nevada Ready Mix's trucks, from whom LVP had purchased the concrete. Ortega billed LVP at an hourly rate for the entire time that the truck was at the job site, regardless of whether it was in use, for a total of four hours. There was no contract between LVP and Ortega, and Ortega did not have, and was not required to have, a contractor's license.
Ortega had a pump truck with a tall boom through which concrete was pumped via a hose extending from the boom. Nevada Ready Mix loaded the concrete into Ortega's pump truck, and the concrete was then pumped up the hose attached to the boom. Mr. Ortega controlled the hydraulic boom's movements with two joysticks, and Garamendi and Garcia were at the end of the hose pouring and finishing the concrete as it came into the flood channel.
Towards the end of the pouring project, some water leaked through the channel and damaged one corner of the pour, the corner closest to the power lines. Garamendi and Garcia went back to re-pour a section of that corner. At this point, Mr. Ortega turned control of the pump truck over to his employee, Eddie Williams, who had recently arrived at the project. Garamendi and Garcia then finished repairing the corner. After they had stopped working, Williams allegedly hit the power lines with the boom of the pump truck; a current raced down the boom seeking ground and
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