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Harris v. Rio Hotel & Casino6/21/2001
plicate workers' compensation coverage at additional and unreasonable expense. Double coverage would not benefit construction employees, who are precluded by the NIIA from double recovery. We believe that the Legislature did not intend such a result, and that the NIIA does not mandate it.
Because the Rio stands in the shoes of its licensed general contractor for purposes of NIIA immunity, we hereby affirm the judgment of the district court.
YOUNG, SHEARING, AGOSTI and LEAVITT, JJ., concur.
ROSE, J., concurring:
I concur in the majority opinion and believe it provides a clear and needed analysis of the law regarding immunity under the Nevada Industrial Insurance Act. However, I do want to note that, in my opinion, this court erred a long time ago in rejecting the dual capacity doctrine, and I would be willing to recognize it in the appropriate case.
As we explained in Noland v. Westinghouse,
"This theory, known as the "dual capacity doctrine", has been defined in the following terms:
n employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.fn1"
In Noland, an employee for a subcontractor was injured when an elevator installed on the construction site by Westinghouse, another subcontractor, free-fell a number of floors. Noland claimed that his suit against Westinghouse was not barred by immunity because Westinghouse was not only acting as a subcontractor, but also as the manufacturer, seller, installer, and maintainer of the elevator in question. I believe this Court erred in approving the dismissal of Noland's strict liability claims against Westinghouse and should have recognized the dual capacity in which Westinghouse was serving.
Needless to say, instances such as the one presented in the Noland case would constitute rare exceptions to the general immunity granted contractors and property owners under our industrial insurance law. In the case at issue, for instance, Harris's claims asserting an independent duty on the Rio Hotel are inextricably connected to the construction project and have no separate factual basis to support an independent duty. Accordingly, the dual capacity doctrine would not be of any benefit to Harris even if we did recognize it.
fn1 Noland v. Westinghouse Elec. Corp., 97 Nev. 268, 269 n.1, 628 P.2d 1123, 1125 n.1 (1981) (citations omitted).
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