Vargas v. Newmont Gold Company et al, No. 3:2012cv00292 - Document 42 (D. Nev. 2013)

Court Description: ORDER granting Defendant's 18 / 37 Motion for Summary Judgment. Signed by Judge Howard D. McKibben on 08/28/2013. (Copies have been distributed pursuant to the NEF - KR)
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Vargas v. Newmont Gold Company et al Doc. 42 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 14 15 16 17 18 19 CARLOS VARGAS, an individual; ) ) Plaintiff, ) ) vs. ) ) NEWMONT GOLD COMPANY, a Delaware ) Corporation; NEWMONT USA LIMITED, ) a Delaware Corporation; NEWMONT ) MINING CORPORATION, a Delaware ) Corporation; NEWMONT MIDAS ) HOLDINGS LIMITED, a Nevada ) Corporation; NEWMONT MIDAS ) OPERATIONS, INC., a Nevada ) Corporation; an DOES 1 through ) 100, inclusive. ) ) Defendants. ) _________________________________ ) 3:12-cv-00292-HDM-VPC ORDER Before this court is Newmont USA Limited’s (“defendant”) 20 motion to dismiss, or in the alternative, motion for summary 21 judgment. ECF No. 18 and 37. Plaintiff has responded to the 22 motions, ECF No. 25 and 38, and defendant has replied. ECF No. 26 23 and 41. 24 court’s order of April 4, 2013. See ECF Nos. 37, 38, 41. The parties have filed supplemental briefs pursuant to the 25 The plaintiff was an employee of Alliance Cooling Products 26 (“Alliance”), a company hired by the defendant to “complete any and 27 all repair work related to the cooling towers at Newmont’s Maggie 28 Creek Dam and Reservoir Facility.” Decl. Richard Mathews, 2:3-5, 1 1 ECF No. 26-5; see also Service Agreement, Ex. 5 at 2, ECF No. 18-5 2 On June 2, 2010, the plaintiff and a co-worker were conducting 3 inspection and repair on two cooling towers in the Maggie Creek 4 Cooling Tower Cell #1. They were using fall protection gear and 5 were working approximately twenty feet off the ground. Mine 6 Citation, Ex. A at 16, ECF No. 25-1. Alliance had a fall protection 7 program, and the plaintiff received training in the use of fall 8 protection. Fall Protection Program, Ex. 1, ECF No. 26-2; 9 Acknowledgment of Training, Ex. 3, ECF No. 26-4. Further, plaintiff 10 received Alliance’s Injury Illness Prevention Plan which provided a 11 warning to workers to “be aware of what you are anchoring to!” Ex. 12 3 at 29, ECF No. 26-4. While performing the repair work plaintiff 13 fell to the ground. Nearly half the cell “had structural failure 14 and [had] caved in about six months prior to the accident and no 15 corrective action was taken.” Ex. A at 16. An accident report 16 written by the Department of Labor’s Mine Safety and Health 17 Administration described what happened to the plaintiff: 18 The failure created an overhang of cooling media and when the miners were working near this area the filter media gave way causing the miners to fall to the ground below. The [plaintiff] and partner were wearing fall protection that was secured to a 5"x5"x 30 feet fiber glass vertical support and when the cooling media fell it created enough force to break the support and pull the miners about 20 feet to the ground below. 19 20 21 22 23 24 Id. As a result of the fall, plaintiff suffered “life threatening 25 injuries and he became a quadriplegic.” Compl. 4:17, ECF No. 1. 26 Following the accident, the plaintiff filed a workers 27 compensation claim for the “injuries he sustained in the course of 28 his employment with Alliance”. See Workers Compensation Claim Form, 2 1 Ex. 9, ECF No. 18-9. The plaintiff was paid $67,816.32 in temporary 2 disability benefits from June 3, 2010, to May 30, 2012. Ex. 10, ECF 3 No. 18-10. Beginning on May 31, 2010, he received $652.08 a week in 4 permanent disability benefits under the workers compensation 5 provided by Alliance. Ex. 11, ECF No. 18-11. 6 On May 31, 2012, the plaintiff filed this action alleging his 7 injuries were a result of the defendants’ negligence. Compl. 4:18- 8 22. The defendant filed a motion to dismiss, pursuant to Federal 9 Rule of Civil Procedure, 12(b)(6), or in the alternative a motion 10 for summary judgment pursuant to Federal Rules of Civil Procedure 11 12(d) and 56. 12 The court held a hearing on the motion and granted the parties 13 leave to conduct limited discovery and submit supplemental briefs 14 on four issues: 1) whether there was a joint venture between 15 defendant and Alliance; 2) whether the risk of injury was inherent 16 in the work performed by the plaintiff; 3) whether the defendant 17 deliberately and specifically intended to injure an employee; and 18 4) whether Alliance met the definition of a “principal contractor” 19 under Nevada Revised Statute § 616A.285. Supplemental briefs and 20 declarations have been filed. Accordingly, the court now addresses 21 the motion as a motion for summary judgment. See Fed. R. Civ. P. 22 12(d) (“If on a motion under Rule 12(b)(6). . . matters outside the 23 pleadings are presented to and not excluded by the court, the 24 motion must be treated as one for summary judgment under Rule 25 56."). 26 Summary judgment shall be granted “if the movant shows that 27 there is no genuine issue as to any material fact and the movant is 28 entitled to judgment as a matter of law.” 3 Fed. R. Civ. P. 56(a). 1 The burden of demonstrating the absence of a genuine issue of 2 material fact lies with the moving party, and for this purpose, the 3 material lodged by the moving party must be viewed in the light 4 most favorable to the nonmoving party. 5 Co., 398 U.S. 144, 157 (1970); Martinez v. City of Los Angeles, 141 6 F.3d 1373, 1378 (9th Cir. 1998). 7 that affects the outcome of the litigation and requires a trial to 8 resolve the differing versions of the truth. 9 Workers Int’l Ass’n, 804 F.2d 1472, 1483 (9th Cir. 1986); S.E.C. v. 10 Adickes v. S.H. Kress & A material issue of fact is one Lynn v. Sheet Metal Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982). 11 Once the moving party presents evidence that would call for 12 judgment as a matter of law at trial if left uncontroverted, the 13 respondent must show by specific facts the existence of a genuine 14 issue for trial. 15 250 (1986). 16 sufficient evidence favoring the nonmoving party for a jury to 17 return a verdict for that party. 18 colorable, or is not significantly probative, summary judgment may 19 be granted.” 20 allegations that are unsupported by factual data cannot defeat a 21 motion for summary judgment. Taylor v. List, 880 F.2d 1040, 1045 22 (9th Cir. 1989). Anderson v. Liberty Lobby, Inc., 477 U.S. 242, “[T]here is no issue for trial unless there is If the evidence is merely Id. at 249-50 (citations omitted). Conclusory 23 In this case, as a defense to plaintiff’s claim of negligence, 24 the defendant asserts that the plaintiff’s claims are barred by the 25 exclusive remedy provision of the Nevada Industrial Insurance Act 26 (“NIIA”) pursuant to Nevada Revised Statutes § 616A.020(1) and § 27 616(B).612(4). 28 Employers who have “in service any person under contract for 4 1 hire” are considered “statutory employers.” Richards v. Republic 2 Silver State Disposal, Inc., 122 Nev. 1213, 1218 (Nev. 2006). 3 Statutory employers are required to provide workers compensation 4 “for any personal injuries by accident sustained by an employee 5 arising out of and in the course of the employment.” 6 Stat. § 616B.612(1). 7 rights and remedies provided” in the Nevada Industrial Insurance 8 Act for employees injured in the course of their employment “shall 9 be exclusive.” Nev. Rev. Stat. § 616A.020(1). Further, employers 10 who provide such coverage are “relieved from other liability for 11 recovery of damages or other compensation for those personal 12 injuries” sustained by their employees. Nev. Rev. Stat. § 13 616B.612(4). Nev. Rev. In exchange for providing such coverage, “the 14 Principal contractors are normally considered statutory 15 employers under the NIIA, which defines principal contractors as: 16 “a person who 1) Coordinates all the work on an entire project; 2) 17 Contracts to complete an entire project; 3) Contracts for the 18 services of any subcontractor or independent contractor; or 4) Is 19 responsible for payment to any contracted subcontractors or 20 independent contractors.” Nev. Rev. Stat. § 616A.285. 21 A contractor licensed under NRS Chapter 624 is required to 22 provide workers compensation. If a contractor meets the definition 23 of a principal contractor and carries an NRS Chapter 624 license, 24 it is a licensed principal contractor that is “always deemed a 25 statutory employer” and, thus, is eligible for immunity. Richards, 26 122 Nev. at 1218. 27 28 If a property owner hires a licensed principal contractor to complete a job on its property, both the property owner and the 5 1 licensed principal contractor may be immune from liability under 2 the NIIA. See Harris v. Rio Hotel & Casino Inc., 117 Nev. 482 (Nev. 3 2001) (holding that a property owner that hires a licensed 4 principal contractor “stands in the shoes” of its contractor for 5 purposes of NIIA liability). 6 The licensed principal contractor, and the property owner, are 7 immune from liability under the NIIA if the injury at issue 8 “ar[ose] out of and in the course of the employment.” Nev. Rev. 9 Stat. § 616B.612(1); see also Richards, 122 Nev. at 1217; Wood, 121 10 Nev. at 724. If the injury occurred at the place of employment 11 during the hours of employment it is considered to have occurred 12 within the course of employment. See Wood, 121 Nev. at 734. An 13 injury is considered to have arisen out of the employment if there 14 is a “causal connection between the employee’s injury and the 15 nature of the work or workplace.” Id. 16 inherent to the environment or conditions under which that licensed 17 work was being performed.” Richards, 122 Nev. at 1224. 18 That is, the “risk [was] In Richards v. Republic Silver State Disposal, the Nevada 19 Supreme Court held that the property owner, Republic Silver State 20 Disposal, was immune from liability when an employee of Commercial 21 Consulting, a licensed principal contractor, slipped off a ladder 22 during the installation of a swamp cooler. 122 Nev. at 1225. The 23 court found that falling off a ladder that was used to access the 24 roof on which the swamp cooler was located was a risk inherent in 25 the work the plaintiff was hired to do. See id. The property owner 26 hired a licensed principal contractor, and the injury occurred in 27 the course of – and arose from – the work the plaintiff was hired 28 to do by the principal contractor. Therefore, the court found that 6 1 “the property owner’s immunity, which stems from the fact that it 2 hired a licensed principal contractor to complete work, applies to 3 bar claims arising out of risks associated with that licensed 4 work.” Id. at 1225. Thus, the property owner was immune from 5 liability under the NIIA. 6 Here, it is undisputed that Alliance held a license under NRS 7 624 and provided the plaintiff and its other employees with workers 8 compensation benefits. License, Ex. 6, ECF No. 18-6; 9 No. 18-11. The undisputed evidence establishes that Alliance was a Ex. 11, ECF 10 principal contractor. Alliance was hired by the defendant to 11 “complete any and all repair work related to the cooling towers at 12 Newmont’s Maggie Creek Dam and Reservoir Facility.” Decl. Richard 13 Mathews, 2:3-5, ECF No. 26-5; see also Service Agreement, Ex 5 at 14 2, ECF No. 18-5. Therefore Newmont “stands in the shoes” of 15 Alliance for purposes of NIIA liability. See Harris, 117 Nev. at 16 484. 17 In addition, the plaintiff’s injuries “arose out of” and were 18 “in the course of the employment.” 19 The undisputed evidence is that the injury occurred within the 20 course of the plaintiff’s employment. When he fell, the plaintiff 21 was conducting the repairs he was hired to do during work hours. Nev. Rev. Stat. § 616B.612(1). 22 The injury also arose out of his employment. The risk of 23 falling, even when the fall protection devices were anchored to a 24 support, is an inherent risk in the industry. This is evidenced by 25 the undisputed facts that the plaintiff was thoroughly trained in 26 fall protection, Alliance had fall protection policies in place, 27 and the plaintiff had fall protection gear on at the time of the 28 accident. See Fall Protection Program, Ex. 1; Acknowledgment of 7 1 Training, Ex. 3. Importantly, in the safety manual Alliance 2 provided to its employees, there was a warning to workers to “be 3 aware of what you are anchoring to!” Ex. 3 at 29. 4 that falling and anchoring fall protection to an unstable support 5 was a risk that Alliance was aware of and warned its employees 6 about and, therefore, was a risk inherent in the work Alliance and 7 its employees performed. 8 9 10 11 This establishes Finally there are no facts that support a finding of a joint venture between defendant and Alliance or that the defendant deliberately and specifically intended to injure the plaintiff. Even when viewed in a light most favorable to the plaintiff, 12 the material undisputed facts establish that the defendant hired a 13 licensed principal contractor, Alliance, that plaintiff was injured 14 during work hours performing work he was hired to perform, and that 15 the plaintiff’s injuries and claims arose out of a risk directly 16 associated with the licensed work Alliance was hired to perform. 17 Defendant is therefore entitled to immunity under the NIIA, and 18 plaintiff’s claims are barred. 19 judgment (#18 & #37) is therefore granted. The defendant’s motion for summary 20 IT IS SO ORDERED. 21 DATED: This 28th day of August, 2013. 22 23 ____________________________ UNITED STATES DISTRICT JUDGE 24 25 26 27 28 8