From JDSupra, Viriginia L. Hunt discusses a recent Nevada case that said an employee who was injured by the employee of an independent contractor was not limited by workers compensation law because the independent contractor was performing a special job that the injured worker’s company was not qualified to do. Virginia writes:
“Employers who comply with Nevada law by purchasing workers’ compensation insurance are protected from lawsuits for personal injuries brought by injured workers. The injured worker’s exclusive remedy when the accident is work-related is to seek workers’ compensation benefits by following the procedures in the Nevada Industrial Insurance Act (NRS Chapter 616). Co-workers are also protected from personal injury lawsuits unless the injured worker can show that the co-worker intentional caused the injury. In Nevada, subcontractors and independent contractors who negligently cause injury to a worker on the same job site, may legally be considered co-workers also, thereby making them also immune from personal injury liability.
In the recent decision, D & D Tire, Inc. v. Ouellette, 131 Nev. Adv. Op. 47 (7/2/15), the court had to decide whether an employee of a mining company could bring a personal injury lawsuit against the employee of independent contractor who was hired to perform specialized tire repair. The court held that the lawsuit could proceed because the independent contractor, a tire repair specialty company, was on the mining company premises to perform a specialized repair that the injured worker’s employer was not equipped to handle with its own work force. This decision is consistent with previous decision which analyses whether the independent contractor is there to perform work in the same trade, business, profession or occupation as the employer of the injured worker. This is called the “normal work test”, and was first articulated in the case Meers v. Haughton Elevator, 101 Nev. 283, 285, 701 P.2d 1006, 1007 (1985)….”
Read the full story at New Nevada Supreme Court Decision on Suing Contractors
The court said:
In Nevada, employers and coemployees of a person injured in the course of employment are immune from liability for the injury under the exclusive remedy provision of the workers’ compensation statutes. Additionally, some subcontractors and independent contractors are accorded the same status as employers or coemployees of the injured employee and are thus immune from liability. However, a subcontractor or independent contractor is not considered to be a statutory employee when it is performing a major or specialized repair that the injured worker’s employer is not equipped to handle with its own work force. This opinion addresses when an independent contractor’s actions are within the scope of a major or specialized repair so as to prevent it from claiming immunity as a statutory employer or coemployee.
We hold that when evaluating whether an independent contractor’s actions are within the scope of a major or specialized repair, a district court must consider the act giving rise to the injury within the entire context of the overall specialized repair and not in isolation. Thus, factors such as whether the presence of the contractor at the job site was for the purpose of the specialized repair or whether the activity was in furtherance of the specialized repair can help guide the court’s analysis. We further hold that where, as in this case, the jury is instructed on negligence, proximate cause, and the essentiality of a finding of the defendant’s negligence, an incomplete “mere happening” jury instruction may be duplicative and/or confusing, and thus, the district court’s failure to give such an instruction was not an abuse of discretion.
See more at Tire Inc. v. Ouellette