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Newsom v. Frank M. Hall & Co.2/26/2004
April 8, 2004 - Opinion Modified, and As Modified, Petition for Rehearing DENIED
JUDGMENT AFFIRMED
In this personal injury action, defendant, Frank M. Hall & Company (Hall), appeals the judgment entered on a jury verdict in favor of plaintiff, Rick W. Newsom. Hall's primary contention is that it was plaintiff's statutory employer under the Workers' Compensation Act, ยง 8-40-101, et seq., C.R.S. 2003 (Act), and thus was immune from common law liability. We disagree and therefore affirm.
Hall, a general contractor, subcontracted with an excavating company (subcontractor) to perform earthwork and site utilities work on a construction project. Plaintiff was employed by the subcontractor as a pipeline foreman. While working on the project, he fell and was impaled on uncapped rebar. His medical bills in the amount of $2548 were paid by the subcontractor's workers' compensation carrier.
Plaintiff sued Hall and others for damages arising out of their negligence. Alleging immunity as plaintiff's statutory employer under the Act, Hall moved for summary judgment. The trial court summarily denied the motion.
Hall renewed its immunity argument in its trial brief and again after the close of plaintiff's evidence, but the trial court declined to revisit the issue. After the jury returned a verdict in favor of plaintiff, the trial court denied Hall's motion for post-trial relief, which reasserted the immunity issue and, in the alternative, sought reduction of the jury's damages award.
I.
As a threshold matter, we do not agree with plaintiff that Hall failed to preserve the immunity issue.
In Feiger, Collison & Killmer v. Jones, 926 P.2d 1244 (Colo. 1996), the supreme court held that the propriety of a summary judgment denial is not appealable after a trial on the merits if the moving party did not preserve the issue by moving for a directed verdict or for judgment notwithstanding the verdict or by reasserting its argument as a defense at trial. In such circumstances, the moving party is deemed to have abandoned the issue and waived the right to have it reviewed on appeal. To hold otherwise, the court reasoned, would work an injustice on the opposing party, which was prevented by the movant's inaction from developing a record on the issue.
Here, by contrast, Hall reasserted its immunity argument in its trial brief, again at the conclusion of plaintiff's case, and again in its post-trial motion. We perceive no basis for concluding that Hall abandoned the argument or otherwise prevented plaintiff from developing a record on the issue. Contrary to plaintiff's contention, Hall was not required to present additional evidence to preserve the issue where, in its view, evidence already before the court was sufficient to warrant judgment in its favor.
II.
Hall contends the trial court erred in rejecting its contention that it was plaintiff's statutory employer under the Act and thus immune from suit. We disagree.
Workers' compensation is an employee's exclusive remedy against his or her employer for work-related injuries. Thus, an employer who has complied with the insurance provisions of the Act is immune from any common law liability for such injuries. Kelly v. Mile Hi Single Ply, Inc., 890 P.2d 1161 (Colo. 1995). That immunity extends to actual employers and to "statutory" employers of the injured worker. See Finlay v. Storage Technology Corp., 764 P.2d 62 (Colo. 1988).
Whether a person or entity is a statutory employer is generally a question of fact. Thornbury v. Allen, 991 P.2d 335 (Colo. App. 1999). However, where the facts are undisputed, the tri
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