The full case caption appears at the
end of this opinion. Amzel Michael Lipps, Sr., appeals a district court order granting summary judgment based uponrespondents’ claims of immunity under the Nevada Industrial Insurance Act (“NIIA”). As we concludethat the fatally injured worker was a statutory co-employee of respondent Southern Nevada Paving,we affirm the order of the district court. STATEMENT OF THE FACTS This case arises from a tragic accident in which Amzel Michael Lipps, Jr., was killed whileservicing a construction truck owned by respondent, Southern Nevada Paving. At the time of theaccident, Southern Nevada Paving, a contractor licensed per NRS chapter 624, was performing roadconstruction pursuant to a subcontract with Gilbert Western Construction Company, a licensedgeneral contractor. Gilbert Western Construction Company was retained by the Fort Mohave IndianTribe to build roads leading to its new casino project near Laughlin, Nevada. Amzel Lipps, Jr.,was an employee of C & J Trucking, an independent contractor hired directly by the Tribe toservice heavy equipment owned and operated by Southern Nevada Paving. Southern Nevada Pavingemployees supervised Amzel Lipps, Jr., and his fellow C & J Trucking employees.
[FOOTNOTE 1] Amzel Lipps, Sr., filed suit for his son’s wrongful death. Thereafter, Southern Nevada Pavingmoved for summary judgment, claiming immunity from suit under the Nevada Industrial Insurance Act.The district court granted this motion based upon our decision in Tucker v. Action Equipment andScaffold Co., 113 Nev. 1349, 951 P.2d 1027 (1997). Amzel Lipps, Sr., appeals. DISCUSSION Standard of review Summary judgment is only appropriate when, after a review of the record viewed in a light mostfavorable to the nonmoving party, there remain no issues of material fact and the moving party isentitled to a judgment as a matter of law. See Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d662, 663 (1985). On appeal, this court is “to determine whether the trial court erred inconcluding that an absence of genuine issues of material fact justified its granting of summaryjudgment.” Bird v. Casa Royale West, 97 Nev. 67, 68, 624 P.2d 17, 18 (1981). Immunity under the Nevada Industrial Insurance Act The Nevada workers’ compensation system provides the exclusive remedy of an employee against hisemployer for workplace injuries. See Frith v. Harrah South Shore Corp., 92 Nev. 447, 452, 552 P.2d337, 340 (1976).
[FOOTNOTE 2] A corollary to the immunity rule is that claims for tort damages in connectionwith workplace injuries are only sustainable against persons or entities other than a statutoryemployer or persons in the same employ. See NRS 616.560(1) (recodified as NRS 616C.215(2)(a)).
[FOOTNOTE 3] NRS 616A.210(1) states in part that all “subcontractors, independent contractors and the employeesof either shall be deemed to be employees of the principal contractor for the purposes of [theNIIA].” “Therefore, NIIA provides the exclusive remedy of any employee of a subcontractor injuredas a result of the negligence of another subcontractor’s employee working for the same principalcontractor because they are considered to be working in ‘the same employ’; hence, they arestatutory co-employees.” Tucker, 113 Nev. at 1354, 951 P.2d at 1030 (citing Aragonez v. TaylorSteel Co., 85 Nev. 718, 719-20, 462 P.2d 754, 755 (1969)). In Meers v. Haughton Elevator, 101 Nev. 283, 701 P.2d 1006 (1985), we adopted the so-called”normal work” test to determine whether the type of work a “subcontractor” does entitles it toNIIA immunity:
The test (except in cases where the work is obviously a subcontracted fraction of a main contract) is whether that indispensable activity is, in that business, normally carried on through employees rather than independent contractors.
Id. at 286, 701 P.2d at 1007 (quoting Bassett Furniture Industries, Inc. v. McReynolds, 224 S.E.2d323 (Va. 1976)). As we noted in Tucker, the 1991 Nevada State Legislature enacted NRS 616.262(recodified as NRS 616B.603), which provides in part:
1. A person is not an employer for the purposes of [this chapter] if:
(a) He enters into a contract with another person or business which is an independent enterprise; and
(b) He is not in the same trade, business, profession or occupation as the independent enterprise.
. . . .
3. The provisions of this section do not apply to:
(a) a principal contractor who is licensed pursuant to chapter 624 of NRS.
In Tucker, we reiterated our conclusion in Oliver v. Barrick Goldstrike Mines, 111 Nev. 1338,1349, 905 P.2d 168, 174-75 (1995), that NRS 616B.603 is a codification of the test set forth inMeers. However, based upon this provision, we concluded in Tucker that workplace immunity issuesmust be resolved by first determining whether the workplace injury took place in a constructionsetting. If not, the statutory/Meers test applies. In the construction context, we held that:
[R]emaining consistent with Oliver, further examination is required in construction cases. Initially, if the defendant in a construction case is not a principal contractor licensed pursuant to NRS chapter 624, or is not working pursuant to a construction agreement with such a licensed principal contractor, the Meers test must be applied to determine immunity. On the other hand, if the defendant in a construction case is a principal contractor licensed pursuant to NRS chapter 624, or is a licensed contractor working pursuant to a construction agreement with a licensed principal contractor, and the defendant is performing part of the construction work for which it is licensed when the injury occurs, that contractor is immune from further suit as a matter of law. No further factual analysis is necessary.
Tucker, 113 Nev. at 1357, 951 P.2d at 1032 (footnotes omitted). It is uncontroverted that Amzel Lipps, Jr., was the direct employee of C & J Trucking, notSouthern Nevada Paving. It is also uncontroverted that C & J Trucking was not a contractorlicensed under NRS chapter 624 and that C & J Trucking was retained separately by the Tribe, anon-NIIA participant. In Tucker, the defendant and the injured workers’ direct employer were bothlicensed contractors. The question is whether Southern Nevada Paving’s status as a principalcontractor under NRS chapter 624, given the fact that this matter arises in the constructioncontext and given the fact that Amzel Lipps, Jr., was working with Southern Nevada Paving on thisconstruction project, compels the district court’s decision under Tucker. We conclude that the immunity provisions of the NIIA obtain as a matter of law. First, the matterat hand is a construction case in which Southern Nevada Paving, a licensed contractor under NRSchapter 624, was working pursuant to a construction agreement with a licensed principal contractorat the time of the accident. See NRS 616B.603(3); Tucker, 113 Nev. at 1357, 951 P.2d at 1032.Second, C & J Trucking was an “independent contractor” working through its employees at thejobsite and is deemed a statutory co-employee of Southern Nevada Paving. See NRS 616A.210(1). Accordingly, Amzel Lipps, Jr., an employee of C & J Trucking was a statutory co-employee ofSouthern Nevada Paving for the purposes of the NIIA, and appellant’s tort action againstrespondents is precluded under workers’ compensation laws. See NRS 616B.612(3); NRS 616A.020(1);NRS 616C.215(2)(a). Thus, we hold that the district court properly granted summary judgment inthis matter. We have considered appellant’s remaining assignments of error and find them to be without merit.[FOOTNOTE 4] Therefore, we affirm the district court’s order. :::FOOTNOTES::: FN1 Respondent Ron Wade Bell, a defendant below, was an employee of Southern Nevada Paving and wasoperating the construction truck at the time of the accident. Jeannine and Chris Rogers, owners of C & J Trucking, were also named as respondents, however,appellant makes no claim that they are subject to common law liability in connection with thisaction. FN2See also 616.270(3) (recodified as NRS 616B.612(4)) (“the employer is relieved from otherliability for recovery of damages or other compensation for such personal injuries”); and NRS616.370(1) (recodified as NRS 616A.020(1)) (“[t]he rights and remedies provided in [thischapter] . . . for an employee on account of an injury by accident sustained arising out of and inthe course of the employment shall be exclusive”). FN3 NRS 616.560(1) (recodified as NRS 616C.215(2)(a)): 2. When an employee receives an injury for which compensation is payable pursuant to the provisions of chapters 616A to 616D, inclusive, or chapter 617 of NRS and which was caused under circumstances creating a legal liability in some person, other than the employer or a person in the same employ, to pay damages in respect thereof: (a) The injured employee . . . may take proceedings against that person to recover damages . . . . (Emphasis added.) FN4 The Mojave Tribe is not an NIIA participant. We conclude that this has no bearing on the immunityissues litigated in this appeal. The issue is whether Amzel Lipps, Jr., was a statutoryco-employee of Southern Nevada Paving pursuant to NRS chapter 616B.
Lipps v. Southern Nevada Paving Supreme Court of the State of Nevada No. 32404 AMZEL MICHAEL LIPPS, SR., Appellant, vs. SOUTHERN NEVADA PAVING; JEANNINE ROGERS; CHRIS ROGERS; AND RON WADE BELL, Respondents. Filed: May 4, 2000 Appeal From: Eighth Judicial District Court Counsel for Appellant: Potter Law Offices Counsel for Appellee: Kevin R Diamond, Donna M. Osborn, and Jean M. Siska Before: Maupin, Shearing, and Becker
