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Swichtenberg v. Brimer9/19/1991
[171 Ariz Page 78] Marvin R. Swichtenberg appeals from a judgment dismissing his negligence action against defendant Jack Brimer. The parties urge the following issues on appeal: (1) did Brimer's statements to his worker's compensation carrier and at his deposition that Swichtenberg was not his employee estop him from claiming immunity under A.R.S. § 23-1022(A) as Swichtenberg's employer; (2) do genuine issues of material fact exist which would require a trial on
the question whether Brimer was Swichtenberg's employer; (3) did Swichtenberg waive his right to deny he was Brimer's employee by naming Brimer as his employer on his worker's compensation claim; (4) assuming Brimer was Swichtenberg's employer, may Swichtenberg nevertheless pursue a negligence claim against Brimer based on actions and conditions that did not arise from or relate to Brimer's business; and (5) did Brimer lack exclusive possession and control over the skylight through which Swichtenberg fell, and if so, was Brimer thereby protected from liability for allegedly installing the skylight in violation of the Mesa building code. We hold that equitable estoppel cannot be applied to preclude Brimer from contending that the trial court lacked subject matter jurisdiction under A.R.S. § 23-1022(A). We further hold that under the circumstances of this case, the question whether Brimer was protected from tort liability by A.R.S. § 23-1022(A), including resolution of disputed fact issues, was for the trial court to determine, and that the record contains substantial evidence to support the trial court's conclusion that Brimer was protected.
FACTS AND PROCEDURAL HISTORY
Viewed in the light most favorable to sustaining the judgment, the record reveals the following facts. Beginning in June of 1985 and continuing through the date of the accident that generated this litigation, appellee Jack Brimer engaged in business as the sole proprietor of B & B Associates. As B & B Associates, Brimer provided general management for the homeowners associations connected with Villa Patrician, Country Club Heights, Woodridge Lake and The Landings, all condominium complexes in Maricopa County. As general manager of each association, Brimer was responsible for taking care of the lawns, pools, general upkeep, painting, outside repair work, trees, waterways, accounting and collecting association monthly fees.
Each homeowners association's monthly fees were deposited to its separate checking account. Checks were then written either directly to persons who provided services for the association's benefit or to B & B Associates to reimburse it for expenses incurred on the association's behalf.
Approximately a year and a half before the accident, Swichtenberg told Brimer he would like to have a job painting at the complexes Brimer managed. Brimer and Swichtenberg agreed on wages and other terms, and Swichtenberg began painting approximately fifty townhouses at The Landings. After Swichtenberg finished his painting project at The Landings, Brimer had him paint the garage roofs and trim at Villa Patrician and all 152 units at the Country Club Heights complex. There was no written employment agreement between Brimer and Swichtenberg.
Swichtenberg was paid $7.00 per hour when he painted for the various townhouse associations. Brimer purchased a heavy duty ladder for Swichtenberg's use, and The Landings Homeowners Association paid for it. Brimer also furnished Swichtenberg with painting supplies including paint brushes and paint, which were also paid for by The La
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