This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Jeffrey P. Bilben,





Action Construction, Inc.,





Minnesota Petroleum Service, Inc.,

Third-Party Defendant.


Filed December 4, 2001

Reversed; Motion Denied

Kalitowski, Judge


Washington County District Court

File No. C3006505


Michael C. Snyder, Debra A. Filteau, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for respondent)


Thomas E. Peterson, Peterson & Hektner, Ltd., 145 Paramount Plaza III, 7831 Glenroy Road, Minneapolis, MN 55439 (for appellant)


Thomas S. McEachron, Votel, Anderson & McEachron, 444 Cedar Street, Suite 1250, St. Paul, MN 55101 (for third-party defendant)


            Considered and decided by Halbrooks, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            Respondent Jeffrey Bilben was injured while on the job and elected to receive workers’ compensation from his employer, Minnesota Petroleum Service, Inc. (MPS).  Bilben then sued appellant Action Construction Inc. (Action), claiming it was also negligent in the accident.  Action contends the district court erred in denying its motion to dismiss Bilben’s lawsuit because it was engaged in a common enterprise with MPS, and therefore under the election of remedies doctrine the court lacked subject-matter jurisdiction.  We agree and reverse.



The Workers’ Compensation Act (WCA) bars Bilben’s claim against Action if the facts establish a common enterprise between Action and MPS, Bilben’s employer.  Minn. Stat. § 176.061, subds. 1, 4 (2000).  An injured employee must elect to recover damages or workers’ compensation benefits, but cannot pursue both, where the employers are engaged in such an enterprise.  Id. at subd. (1). 

In moving for summary judgment, both parties agree that the facts material to the issue of common enterprise are not disputed.  In such a case, a district court may decide the issue as a matter of law, subject to this court’s de novo review.  See O’Malley v. Ulland Bros., 549 N.W.2d 889, 897-98 (Minn. 1996) (determination of whether common enterprise exists is a legal determination).  This court must review the record to determine if any genuine issues of material fact exist and whether the district court erred in its application of the law.  Id. at 892.  In its review, this court must take the facts in the light most favorable to the party against whom judgment was entered.  Schleicher v. Lunda Constr. Co., 406 N.W.2d 311, 312 (Minn. 1987). 

In O’Malley, the Minnesota Supreme Court confirmed a shift in legislative intent under the WCA, noting that the former rule of liberal construction in favor of the injured employee had been replaced by the nondiscriminatory “even-handed” standard.  549 N.W.2d at 892-94; see also Minn. Stat. § 176.001 (2000) (setting out specific legislative intent of Act).  The O’Malley court then applied the common enterprise test established in McCourtie v. U. S. Steel Corp., 253 Minn. 501, 93 N.W.2d 552 (1958).  Id.  at 894-97.  The McCourtie court set out the following three requisites for a common enterprise:

1)  [t]he employers must be engaged on the same project; 2)  [t]he employees must be working together (common activity); and 3)  [i]n such fashion that they are subject to the same or similar hazards.


Id. at 894.  This test emphasizes the common activities of the workers rather than the common activities of the employers.  Id.

1.         Engaged in a common project

            The first prong of the McCourtie test is whether the employers were engaged in a common project.  O’Malley, 549 N.W.2d at 894.  Here, the parties agree that MPS and Action were involved in the common project of placing a fuel tank in the ground.

2.         Employees must be working together

            The second prong of the McCourtie test examines whether the employees are working together or share a common activity.  Id.  Action contends that because its employees were working at the direction of Dehn, an MPS employee, the two groups were working together.  Action further contends that the undisputed fact that Hogan, an Action employee, was actually in the hole working with Bilben and another MPS employee when Bilben was injured is further evidence that the employees were working together. 

In O’Malley, the supreme court noted that “[m]erely working toward a common goal is not sufficient to constitute working together.”  Id. at 895.  Working together requires employee activities to be “more than ‘overlapping minimally’; they must be ‘interdependent.’”  Id.  (quotation omitted).   

In Sorenson v. Visser, 558 N.W.2d 773 (Minn. App. 1997), this court addressed a fact situation involving a backhoe operator digging a trench and an electrical worker from a different company working in the trench uncovering a water line and directing the backhoe operator’s digging.  Id. at 774.  We concluded that while the two men had distinctly different functions, “their duties were interdependent” and therefore they were working together.  Id. at 776.  The court reached this conclusion because without the efforts of the other, neither person would be able to proceed with their job—following the water line until they located a well.  Id.   

We conclude that the Sorenson reasoning applies here, where Action’s excavation was necessary so that the MPS employees could install the fuel tank and the fuel tank needed to be strapped down by MPS’s employees before Action’s employees could backfill over the tank and finish their job.  Neither job could be done before the other companies’ employees did their own job; therefore, the employees’ work was interdependent. 

We reject Bilben’s reliance on this court’s decision in Carstens v. Mayers, Inc., 574 N.W.2d 733 (Minn. App. 1998).  Carstens is distinguishable because unlike the facts here, the employees were engaged in substantially independent activities.  We conclude that the level of cooperation and interdependence between the employees here satisfies the second prong of the McCourtie test.

3.         Same or similar hazards

            The third prong of the McCourtie test is whether the employees were subject to the same or similar hazards.  O’Malley, 549 N.W.2d at 894.  Action contends that because Action’s employee, Hogan, was in the hole working side by side with MPS employees Bilben and Dehn, the employees were subject to the same risks and hazards.  We agree.  Hogan, who was in the hole when Bilben was hit in the head by a chunk of clay, faced the same risks as Bilben and Dehn.

            We reject Bilben’s argument that the employees were not subject to similar hazards because Action’s employee who was operating the backhoe faced different risks.  As in O’Malley we look at the risks faced by employees as a group and not just the risks of one particular employee.  Id. at 896.  Because the employees of both companies faced the same or similar hazards, the third prong of the McCourtie test is satisfied. 

            Having determined that all three prongs of the McCourtie test have been met, we conclude that MPS and Action were engaged in a common enterprise.  Therefore, under Minn. Stat. § 176.061, subds. 1, 4, Bilben’s receipt of workers’ compensation benefits bars his claim against Action and the district court erred in denying Action’s motion to dismiss.


            Bilben made a motion to strike parts of Action’s brief dealing with Dehn’s statements regarding fault arguing that the issue of negligence is not related to the common enterprise test and therefore is not properly before this court.  But Dehn’s role in the accident is a matter of fact relevant to the determination of whether Action was engaged in a common enterprise with MSP.  Thus, we conclude that the objected to materials are relevant and properly before this court. 

Reversed, motion denied.