 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
State Indus. Ins. System v. Ortega Concrete Pumping12/30/1997
issues of fact and the moving party is entitled to such an expedited judgment as a matter of law." Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 662 (1985); NRCP 56. Summary judgment will not lie where there is the slightest doubt as to the operative facts. Washoe Medical Center v. Churchill County, 108 Nev. 622, 625, 836 P.2d 624, 626 (1992).
In this appeal, SIIS and Ortega debate the proper means of determining whether Ortega was a statutory employee of LVP (and thereby a fellow employee of the injured workers) for purposes of invoking the exclusive remedy provision of the NIIA. We recently resolved this issue in Tucker v. Action Equipment, 113 Nev. , P.2d (Adv. Op. No. 145, December 30, 1997).
In Tucker, we held that in a construction case, where the defendant is not a licensed contractor pursuant to NRS Chapter 624, the "normal work test," articulated in Meers v. Haughton Elevator, 101 Nev. 283, 286, 701 P.2d 1006, 1007 (1985), must be applied to determine the issue of immunity. Tucker, 113 Nev. at , P.2d at . Accordingly, pursuant to NRS 616B.603(1) (b), which codified the Meers "normal work test," the relevant factual inquiry in the instant case is whether LVP was in the "same trade, business, profession or occupation" as Ortega at the time of the accident.
The parties further contest the viability of what this court has labeled the "control test." In Tucker, we concluded that "the legislature intended the use of only the Meers test" in construction cases involving an unlicensed independent contractor. Tucker, 113 Nev. at , P.2d at . We explicitly held that the five-factor control test set forth in Leslie v. J.A. Tiberti Constr., 99 Nev. 494, 497, 664 P.2d 963, 965 (1983), "is no longer the primary standard applicable to determine whether one is immune from suit under NIIA. Rather, the issue of control is only one factor to be considered in resolving 'normal work' issues under Meers." Tucker, 113 Nev. at , P.2d at.
Pursuant to our holding in Tucker, in a construction case involving an unlicensed contractor, the relevant inquiry is whether Ortega was in the "same trade, business, profession or occupation" as LVP at the time of the accident. Accordingly we remand this case to the district court to determine if genuine issues of material fact exist as to whether Ortega satisfied the "normal work test."
Conclusion
The district court must consider the motion for summary judgment in light of the "normal work test" codified at NRS 616B.603 and determine whether there are issues of fact to be resolved at trial. Therefore, we reverse the district court's order granting summary judgment and remand this case to the district court for further proceedings consistent with this opinion.
Shearing, C.J.
Springer, J.
Rose, J.
Young, J.
Maupin, J.
Page 1 2 3 Nevada Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|