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Harris v. Rio Hotel & Casino6/21/2001
s the owner and that the claimant was the direct employee of a separate general contractor hired to construct a new hotel facility on the property. Thus, Karadanis and Frith cannot be distinguished as suggested in the Karadanis decision.
The Karadanis decision also characterizes Frith simply as a rejection of the "dual capacity doctrine," which this court discussed in a series of cases starting in 1981 with Noland v. Westinghouse Electric Corp. In those cases, injured workers sought to avoid the NIIA exclusive remedy provision and the immunity afforded to statutory co-employees on the theory that the alleged tortfeasors acted not only as co-employees, but also in other capacities, such as a product supplier or a landlord of a statutory employer. This court in Noland and subsequent cases directly reaching the issue rejected the doctrine, citing the broad-based immunity provided under the NIIA. While Frith can be read consistently with Noland and its progeny, Frith was not decided under the dual capacity doctrine, and the doctrine is not at issue in this case.
On the other hand, Frith cannot be read consistently with Karadanis. Both cases involved claims of immunity by a landowner that had retained a general contractor to construct property improvements, but the decisions reached diametrically opposite results. Because we now re-affirm Frith, we conclude that Karadanis is no longer valid and we expressly overrule it.
Having decided that Antonini, Karadanis and the "control test" no longer govern our analysis, we must now determine whether a landowner that retains a licensed general contractor to construct property improvements is immune, under Frith and the NIIA, from common law liability for industrial injuries incurred during performance of the construction contract.
As noted, in Tucker we re-visited the scope of NIIA immunity in light of 1991 amendments to the Act. We observed that the enactment of NRS 616.262 (re-codified as NRS 616B.603) manifested the Legislature's intent to codify the test enunciated in Meers v. Haughton Elevator for non-construction cases, thus abrogating use of the control test for determining employer immunity in non-construction cases.
The Legislature's codification of Meers in NRS 616B.603, which is located in the section of the NIIA governing liability for provision of coverage, addresses the relationship between independent enterprises that contract with each other. NRS 616B.603(1) provides that a person is not an employer for NIIA purposes 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."
NRS 616B.603(2) defines "independent enterprise," as used in the section, as a person who holds himself out as being engaged in a separate business and:
"(a) Holds a business or occupational license in his own name; or
(b) Owns, rents or leases property used in furtherance of his business."
Thus, under NRS 616B.603 and Meers, upon which the statute is based, a person who enters into a contract with an independent enterprise in a different line of work, to perform work not normally carried out by the person's own employees, is not considered a statutory employer. This makes sense, given the overall purpose of workers' compensation, because it places responsibility on independent enterprises, which are separate business entities, for their own employees and not the employees of other independent enterprises with which they interact. Such contracting independent enterprises do not enjoy employer immunity
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