Nucor Holding Corp. v. Rinkines

NUCOR HOLDING CORPORATION and Yamato Holding
Corporation d/b/a Nucor-Yamato Steel Company,
Limited Partnership v. Rickey L. RINKINES and
Gloria Rinkines

95-1200                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered October 7, 1996


1.   Appeal & error -- denial of summary-judgment motion -- neither
     reviewable nor appealable. -- The general rule is that the
     denial of a motion for summary judgment is neither reviewable
     nor appealable.

2.   Appeal & error -- denial of summary-judgment motion --
     appealability based on qualified immunity firmly established.
     -- The appealability of a denial of summary judgment based on
     qualified immunity from suit is clearly established.

3.   Appeal & error -- appellate court will not address arguments
     where effect is tantamount to reviewing denial of summary-
     judgment motion. -- The supreme court has repeatedly refused
     to address arguments where the effect of doing so is
     tantamount to reviewing the denial of a motion for summary
     judgment; the court has also made it clear that the denial of
     a motion to dismiss an appeal is not an appealable order and
     that a disputed ruling on the subject-matter jurisdiction of
     the trial court does not automatically render the order
     appealable.

4.   Appeal & error -- appeal dismissed for lack of finality. --
     Where the supreme court had voiced a decided preference
     against accepting appeals from denials of motions for summary
     judgment and had never held that an employer's immunity
     defense obliged it to favor accepting such an appeal in
     workers' compensation cases, the supreme court dismissed the
     appeal for lack of finality.

5.   Prohibition, Writ of -- standard of review -- workers'
     compensation context. -- A writ of prohibition is an
     extraordinary writ that is appropriate only when the lower
     court is wholly without jurisdiction; in deciding whether the
     writ will lie, the supreme court confines its review to the
     pleadings; the writ will be granted where the encroachment on
     workers' compensation jurisdiction is clear; but when facts
     are in dispute, a writ of prohibition is not appropriate;
     prohibition will not lie where the remedy may be afforded by
     appeal.

6.   Contracts -- status of prime contractor presupposes work to be
     done for third party -- appellant was not prime contractor --
     petition for writ of prohibition denied. -- The status of
     prime contractor presupposes work to be done for a third
     party; here, the parties agreed that was not the case because
     there was no obligation to a third party to purchase steel
     scrap refabricated by appellee's employer at the time of
     appellee's injury; without the existence of that essential
     factor, the supreme court concluded that appellant did not
     occupy the status of prime contractor as defined by Arkansas
     case law and denied appellant's petition for writ of
     prohibition.

7.   Contracts -- subcontractor may also qualify as independent
     contractor. -- The supreme court emphasized that, by denying
     the petition for writ of prohibition, it was not endorsing the
     apparent finding by the trial court that an independent
     contractor cannot occupy the status of subcontractor; although
     the status of independent contractor differs from that of
     subcontractor, a subcontractor may also qualify as an
     independent contractor that has entered into an agreement with
     a prime contractor.


     Appeal from Mississippi Circuit Court; Samuel Turner, Jr.;
appeal dismissed; Petition for Writ of Prohibition denied.
     Reid, Burge, Prevallet & Coleman, by: Robert L. Coleman, for
appellants.
     Banks, Dobson & Spades, by: Charles A. Banks, for appellees.

     Robert L. Brown, Justice. 
     This matter combines an appeal from a denial of a motion for
summary judgment and a petition for a writ of prohibition. 
Appellee Rickey L. Rinkines worked for Alexander Mills Services
(AMS), which had a contract to recycle scrap steel for Nucor-Yamato
Steel (Nucor).  Nucor is in the business of manufacturing
structural steel beams from scrap metal.  Part of Rinkines's duties
required him to cut rejected beam blanks into suitable sizes so
that they could be remelted and remolded.
     On August 5, 1993, Rinkines suffered an injury on the job.  At
the time of the injury, AMS employees performed their duties on the
Nucor premises.   According to Rinkines's complaint, he had cut
about six inches into a beam with a torch when the beam "exploded." 
The 24-ton beam moved approximately four feet, pinning Rinkines
against another beam and crushing his legs.  This resulted in the
amputation of both legs.  Rinkines sought and received workers'
compensation benefits from AMS.  He then sued Nucor under theories
of negligence and products liability and specifically alleged that
the beam blank that exploded was defective and unreasonably
dangerous due to residual stress in the beam.  He also asserted
that Nucor had been negligent in permitting the beam to acquire
residual stress and in failing to inspect the beam properly, to
warn employees of potential dangers, and to instruct employees on
the beam's safe use.
     On August 8, 1994, Nucor answered and moved to dismiss.  It
denied that the beam blank was distributed to AMS as a product
because it was not finished material but only scrap that needed to
be remelted.  Nucor further contended as an affirmative defense
that the circuit court had no subject matter jurisdiction because
Rinkines's exclusive remedy was under the Workers' Compensation
Act.  More specifically, Nucor asserted that as a prime contractor,
it was the statutory employer of Rinkines and, thus, was immune
from tort liability under Act 796 of 1993, now codified at Ark.
Code Ann.  11-9-105(a) (Repl. 1996).  The affidavit of John
Alexander, the president of AMS, was attached to Nucor's answer and
motion to dismiss.  In it, Alexander stated that his company was a
subcontractor of Nucor and that he considered Nucor to be a prime
contractor.  In his response to the motion to dismiss, Rinkines
asserted that he was not a "statutory employee" of Nucor and
further claimed that the Workers' Compensation Act did not act as
a bar to claims against third parties.  
     On April 17, 1995, Nucor filed a motion for summary judgment. 
It maintained in that motion that there was no genuine issue of
material fact and further asserted (1) that Rinkines's complaint
was barred because AMS was an independent contractor with exclusive
control over the workplace, and (2) that it was immune from suit
under the Workers' Compensation Act because Nucor was the "prime
contractor of the employer" of Rinkines.  Nucor also advanced the
theory that there was no proximate causation under the obvious-
danger rule.  On April 27, 1995, Rinkines responded that his suit
lay outside the jurisdiction of the Workers' Compensation Act
because it was not a suit about standard negligence against a
subcontractor's employee.  Rather, the suit concerned Nucor's
"defective product either in negligence or strict liability." 
Rinkines further stated that "[t]he purpose of the exclusive remedy
of workers' compensation is not to protect manufacturers of
unreasonably dangerous products."
     On July 25, 1995, the trial court denied the motion for
summary judgment and stated in part in its letter opinion:
     Defendant furthermore contends that it is entitled to
     summary judgment because "NYS is immuned (sic) from suit
     and plaintiff's tort claim against it is barred based on
     the exclusive remedy provisions codified at A.C.A.
     section 11-9-105(a) because NYS was the prime contractor
     of the employer of Mr. Rinkines at the time of the
     accident.
          The defendant is trying to have it's [sic] cake and
     eat it too.  In its second contention, it stated that the
     plaintiff was employed by an independent contractor.  Now
     it wants to say that plaintiff was not employed by an
     independent contractor but by a sub-contractor.
          The employer of an independent contractor is simply
     a third party to the relationship between the independent
     contractor and his employees.  The worker compensation
     Act (sic) was not intended to extend to an employer for
     an injury to an employee's cause of action against a
     third party. . . .

      I. Appeal From Denial of Motion for Summary Judgment
     The general rule is that the denial of a motion for summary
judgment is neither reviewable nor appealable.  Amalgamated
Clothing v. Earle Indus., Inc., 318 Ark. 524, 886 S.W.2d 594
(1994).  Nevertheless, Nucor asserts that this court must review
the summary judgment denial in this case because to do otherwise
will deny Nucor its immunity defense under the exclusive-remedy
language of the Workers' Compensation Act.  Nucor bases this
argument on Robinson v. Beaumont, 291 Ark. 477, 725 S.W.2d 839
(1987), and Virden v. Roper, 302 Ark. 125, 788 S.W.2d 470 (1990).
     In Robinson v. Beaumont, the defendants/appellants were a
sheriff and deputy who appealed the denial of a motion for summary
judgment based on the immunity issue.  This court held:
     The refusal to grant the motion amounted to a denial of
     appellants' claimed defense which would have, if allowed,
     discontinued the action.  The qualified immunity claim is
     a claim of right which is separable from, and collateral
     to, rights asserted in the complaint. . . . The refusal
     to grant this summary judgment motion had the effect of
     determining that the appellants were not entitled to
     immunity from suit.  The right of qualified immunity from
     suit is effectively lost if a case is permitted to go to
     trial.
Robinson v. Beaumont, 291 Ark. at 482-83, 725 S.W.2d  at 842.  In
Virden v. Roper, supra, the defendants/appellants were members of
the Pine Bluff Civil Service Commission and the Chief of the Pine
Bluff Police Department who were sued in their individual
capacities.  They appealed from the denial of a motion for summary
judgment on the premise that forcing them to trial would eviscerate
their immunity defense and, thus, was an appropriate subject for
appellate review.  In addressing our jurisdiction on appeal, we
cited Robinson v. Beaumont, supra, and stated: "The appealability
of a denial of summary judgment based on qualified immunity from
suit is clearly established."  Virden v. Roper, 302 Ark. at 128,
788 S.W.2d  at 472.
     This court has never squarely addressed whether an appeal is
appropriate from a denial of a summary judgment motion when the
issue raised is the exclusivity of the remedy under the Workers'
Compensation Act.  In Fore v. Circuit Court of Izard County, 292
Ark. 13, 727 S.W.2d 840 (1987), we cited Robinson v. Beaumont,
supra, and indicated in dictum that the immunity analysis in that
case was valid when considering a petition for writ of prohibition. 
We held in Fore that prohibition would lie to prevent a trial where
the exclusive remedy for the injured employee was under the
Workers' Compensation Act.
     Fore, however, was a prohibition case and not an appeal from
a denial of summary judgment.  This court has repeatedly refused to
address arguments where the effect of doing so is tantamount to
reviewing the denial of a motion for summary judgment.  See, e.g.,
Nucor-Yamato Steel Co. v. Circuit Court, 317 Ark. 493, 878 S.W.2d 745 (1994); Wise Co. v. Clay Circuit, 315 Ark. 333, 869 S.W.2d 6
(1993), reh'g denied, 315 Ark. 336A, 869 S.W.2d 8 (1994).  We have
also made it clear that the denial of a motion to dismiss an appeal
is not an appealable order and that a disputed ruling on the
subject matter jurisdiction of the trial court does not
automatically render the order appealable.  See West Memphis Sch.
Dist. No. 4 v. Circuit Court, 316 Ark. 290, 871 S.W.2d 368 (1994);
Cigna Ins. Co. v. Brisson, 294 Ark. 504, 744 S.W.2d 716 (1988),
reh'g granted, 294 Ark. 506A, 746 S.W.2d 558 (1988).  In Wise Co.
v. Clay Circuit, supra, we emphasized once more that we will not
treat a petition for prohibition as an appeal from a summary
judgment denial and consider matters outside of the pleadings.  In
our supplemental opinion in Wise Co., we specifically overruled
Fore v. Circuit Court of Izard County, supra, to the extent that it
sanctioned writs of prohibition based on information outside of the
pleadings.
     In short, this court has voiced a decided preference against
accepting appeals from denials of motions for summary judgment and
has never held that an employer's immunity defense obliged this
court to favor accepting such an appeal in workers' compensation
cases.  We, therefore, dismiss the appeal for lack of finality. 
See Rick's Pro Dive 'N Ski Shop, Inc. v. Jennings-Lemon, 304 Ark.
671, 803 S.W.2d 934 (1991).  We note in this regard that Nucor's
immunity argument is grounded on the exclusive-remedy provision of
Ark. Code Ann.  11-9-105(a) (Repl. 1996).  We view this as an
issue of subject matter jurisdiction, which Nucor has raised in its
petition for writ of prohibition and which we will consider next.
II. Writ of Prohibition
     This court has routinely considered the propriety of a writ of
prohibition when a trial court has been reluctant to dismiss a case
under the exclusive-remedy provision of the Workers' Compensation
Act.  See, e.g., Nucor-Yamato Steel Co. v. Circuit Court, supra;
Wise Co. v. Clay Circuit, supra; Fore v. Circuit Court of Izard
County, supra.  See also West Memphis Sch. Dist. No. 4 v. Circuit
Court, supra.
     Our standards for review have been often repeated.  A writ of
prohibition is an extraordinary writ that is appropriate only when
the lower court is wholly without jurisdiction.  West Memphis Sch.
Dist. No. 4 v. Circuit Court, supra.  In deciding whether the writ
will lie, we confine our review to the pleadings.  Wise Co. v. Clay
Circuit, supra.  The writ will be granted where the encroachment on
workers' compensation jurisdiction is clear.  Hill v. Patterson,
313 Ark. 322, 855 S.W.2d 297 (1993); Fore v. Circuit Court of Izard
County, supra.  But when facts are in dispute, a writ of
prohibition is not appropriate.  Nucor-Yamato Steel Co. v. Circuit
Court, supra.  Prohibition will not lie where the remedy may be
afforded by appeal.  Nucor-Yamato Steel Co. v. Circuit Court,
supra; Village Creek Improvement Dist. of Lawrence County v. Story,
287 Ark. 200, 697 S.W.2d 886 (1985).
     The essence of Nucor's argument in favor of prohibition is
that it is a prime contractor and the General Assembly, through 
Act 796 of 1993, established that the "prime contractor of the
employer" of the injured employee is protected from suit by the
exclusive-remedy provision of the Workers' Compensation Act.  Ark.
Code Ann.  11-9-105(a) (Repl. 1996).  Nucor calls on this court to
find that it is the "prime contractor of the employer" in this
case.  The parties agree that AMS is an independent contractor. 
They also concede that no specific third party had contracted with
Nucor for the steel product that would result from AMS's recycling
work at the time of the injury.
     In Bailey v. Simmons, 6 Ark. App. 193, 639 S.W.2d 526 (1982),
the Court of Appeals observed that there is a considerable
distinction between a subcontractor and an independent contractor. 
The Bailey court observed that in order for there to be a
subcontractor relationship, the person sought to be charged as
prime contractor must have been contractually obligated to a third
party for the work being done at the time of the injury.  Cf.
Little Rock Wastewater Utility v. Larry Moyer Trucking, Inc., 321
Ark. 303, 902 S.W.2d 760 (1995); Brothers v. Dierks Lumber & Coal
Co., 217 Ark. 632, 232 S.W.2d 646 (1950).  The Bailey court defined
a subcontractor as a person who agrees to perform part of a
contract for a person who has already agreed to perform the
contract for a third party.  The Court of Appeals concluded that
there cannot be a prime contractor without a contract to do the
work for a third party.  See also Lofton v. Bryan, 237 Ark. 376,
373 S.W.2d 145 (1963).
     Whether the General Assembly intended to define the term
"prime contractor" in  11-9-105(a) narrowly or broadly cannot be
determined from the language of Act 796 of 1993.  Because we have
no guidance from the General Assembly in this regard, we look to
our cases for a definition.  Following the rationale of Bailey v.
Simmons, supra, it is clear to us that the status of prime
contractor presupposes work to be done for a third party.  Here,
the parties agree that was not the case because there was no
obligation to a third party to purchase the steel scrap
refabricated by AMS at the time of the injury.  Without the
existence of that essential factor, we must conclude that Nucor did
not occupy the status of prime contractor as defined by our
caselaw.
     By denying the petition for writ of prohibition, we are not
endorsing the apparent finding by the trial court that an
independent contractor cannot occupy the status of subcontractor. 
The status of independent contractor does differ from that of
subcontractor.  See Hollingsworth & Rockwood Ins. Co. v. Evans, 255
Ark. 387, 500 S.W.2d 382 (1973).  At the same time, a subcontractor
may also qualify as an independent contractor that has entered into
an agreement with a prime contractor.  See, e.g., Hale v. Mansfield
Lumber Co., 237 Ark. 854, 376 S.W.2d 670 (1964).
     Appeal dismissed.  Petition denied.