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Harris v. Rio Hotel & Casino6/21/2001
with a mutual renunciation of common law rights and defenses -- and with the legislative declaration that the Act must be interpreted and construed neutrally, so that neither employers nor employees are favored over the other. The Rio, by hiring a licensed principal contractor, effectively provided and secured compensation for Harris and all the other construction employees and can fairly be deemed a statutory employer entitled to statutory immunity, without incurring separate liability for providing industrial insurance coverage. The general contractor is statutorily responsible for ensuring that all the construction employees are covered, and may be sued by injured workers who are not covered, but can factor the costs of complying with this requirement into the construction agreement. Harris and the other workers are guaranteed compensation for any industrial injuries incurred during the construction project, and they have recourse against the general contractor if workers' compensation is not provided for them.
Finally, while application of the Meers test in this case to determine immunity would not necessarily lead to a different result, we are confident that the Legislature never intended for it to apply in circumstances like these. Meers, a non-construction case, strongly implied that the normal work test it was adopting to determine immunity would apply only outside the construction field. Meers applied the normal work test to determine whether a telephone company that sub-contracted elevator maintenance for its office building to an independent company was the sub-contractor's statutory employer. Noting that the "normal work" test had often been applied in cases involving sub-contracted maintenance activities, Meers concluded that the specialized, sub-contracted elevator maintenance work was not part of the telephone company's normal business, and thus the telephone company was not the independent maintenance company's statutory employer.
While Meers and NRS 616B.603 address the employment relationship between independent enterprises that contract with each other, like the telephone company and the elevator maintenance company, they do not address the relationship at issue in this case. The relationship of one independent enterprise with another that contracts to perform specialty work is different from the relationship of a property owner with a general contractor that contracts to construct property improvements. In contrast to the two independent enterprises conducting separate businesses, the property owner and general contractor can more accurately be described as dependent enterprises conducting a single business: real property development.
The Meers test is not well-suited for determining immunity in this kind of construction setting, and by specifying that the provisions of NRS 616B.603 do not apply to licensed principal contractors, we believe the Legislature manifested its intent that the Meers test not be used to determine immunity in circumstances like these. Instead, under the Tucker test as modified herein, if the defendant in a construction case is a property owner that has contracted with a licensed general contractor for property improvements, and where the contract requires compliance with the NIIA, the property owner is immune from suit as a matter of law for industrial injuries sustained during performance of the construction contract.
CONCLUSION
Were we to agree with Harris that the Rio is not immune from liability in this case, our decision would necessarily provide an incentive for inexperienced owners to construct their own property improvements in order to immunize themselves from common law liability, or require them to du
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