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Oliver v. Barrick Goldstrike Mines11/1/1995
ound that Barrick and Mountain States were engaged in the "same trade" and concluded, therefore, that Barrick was entitled to immunity under the NIIA. The district court primarily based its finding upon NRS 616.120 which provides that a "` rade, business, profession or occupation of his employer' includes all services tending toward the preservation, maintenance or operation of the business, business premises, or business property of the employer." Because Oliver's work on the pipes furthered the maintenance and operations of Barrick's mill, the court found that Barrick and Mountain States were engaged in the "same trade."
B. Did the district court err in finding Barrick and Mountain States to be in the "same trade"?
Oliver contends, arguably for the first time on appeal, that Mountain States is not in the same trade or business as Barrick and, therefore, Barrick is not immune to Oliver's negligence claim. Barrick seeks to avoid the issue on grounds that Oliver has waived his right to have the point reviewed on appeal by not raising it in opposition to Barrick's motion for summary judgment. See Cooke v. American Sav. & Loan Ass'n, 97 Nev. 294, 296, 630 P.2d 253, 254 (1981). The purpose for the above rule is to prevent appellants from raising new
[111 Nev. 1338, Page 1345]
issues on appeal concerning which the prevailing party had no opportunity to respond and the district court had no chance to intelligently consider during proceedings below. Landmark Hotel v. Moore, 104 Nev. 297, 299, 757 P.2d 361, 362 (1988). We reject Barrick's attempt to thus avoid the issue for the following reasons. First, the district court stated that Oliver never addressed the "same trade" provision or "attempted even to establish that Mountain States is not in the `same trade, business, profession or occupation' as the contractor Barrick, other than to state that Barrick is in the gold mine business" (emphasis added). Although Oliver did not squarely address the "same trade" issue, he did factually observe that Barrick was in the gold mine business, thereby implying that Barrick and Mountain States are not in the same trade. See City of Boulder City v. State of Nevada, 106 Nev. 390, 392, 793 P.2d 845, 846 (1990) (citing Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989) (in a summary judgment motion, "the non-moving party [Oliver] is entitled to have the evidence and all reasonable inferences accepted as true")). Second, and of greatest significance, is the fact that the district court did address the "same trade" issue and specifically found, after analyzing NRS 616.120 and case law, that Barrick and Mountain States were in the "same trade." Considering that the district court did address the "same trade" issue and based its ruling on the resolution of that issue, the policy concerns underlying the rule that this court invokes to elect not to consider issues raised for the first time on appeal are essentially absent in this case. Third, because we conclude that the district court erred in holding, as a matter of law, that Barrick was the "statutory employer" of Oliver, summary judgment in this case was inappropriate. See NRCP 56(e) (summary judgment should only be entered if appropriate). There is no case law in Nevada interpreting the "same trade" provision contained in NRS 616.262. Barrick contends that the language in NRS 616.120 addressing the " rade, business and occupation of his employer" situation, is sufficiently similar to the "same trade" reference in NRS 616.262 that the former provision should control the analysis. Barrick suggests that under that broad definition, Oliver's work "related to and furthered the operation and maintenance of Barrick's gold mini
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