This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-1190

James L. Riley,

Appellant,

vs.

Danner, Inc.,

Respondent,

Crawler Welding, Inc., et al.,

Defendants.

Filed November 19, 1996

Affirmed

Davies, Judge

Dakota County District Court

File No. CX9510175

Thomas J. Germscheid, Robert L. Richert, Collins, Buckley, Sauntry & Haugh, P.L.L.P., W-1100 First National Bank Bldg., 332 Minnesota St., St. Paul, MN 55101 (for Appellant)

Brian A. Park, James T. Martin, Gislason, Martin & Varpness, P.A., 7600 Parklawn Ave. S., Suite 444, Edina, MN 55435 (for Respondent)

Considered and decided by Randall, Presiding Judge, Short, Judge, and Davies, Judge.

U N P U B L I S H E D O P I N I O N

DAVIES, Judge

An injured employee who received workers' compensation benefits from his employer challenges a summary judgment ruling that his action against a third party is barred because the workers' compensation "election of remedies" rule applicable is to employers engaged in common enterprises. We affirm.

FACTS

Appellant James L. Riley, an employee of Ell-Z Trucking, Inc. (Ell-Z), was clearing debris from a rock-crushing machine when an employee of another company, respondent Danner, Inc. (Danner), started the machine, seriously injuring appellant's arm.

Following his injury, appellant received workers' compensation benefits from Ell-Z. He then tried to pursue a common-law claim against Danner. The district court granted summary judgment against him, holding that under the common enterprise doctrine, appellant was precluded from pursing the common-law claim because he had elected workers' compensation as his remedy.

D E C I S I O N

On appeals from summary judgments, our review is limited to two questions:

(1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.

State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We "must view the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). Summary judgment is not appropriate when the nonmoving party relies upon "mere general statements of fact," without demonstrating "that specific facts are in existence which create a genuine issue for trial." Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986).

An employee who receives workers' compensation benefits from an employer is barred by the "election of remedies" rule from recovering damages from a third-party defendant who, at the time of the injury, was engaged in a common enterprise with the employer. Minn. Stat. § 176.061, subds. 1, 4 (1994). A common enterprise exists if the following three factors are met:

(1) The employers must be engaged on the same project;

(2) The employees must be working together (common activity); and

(3) In such fashion that they are subject to the same or similar hazards.

McCourtie v. United States Steel Corp., 253 Minn. 501, 506, 93 N.W.2d 552, 556 (1958).

By not addressing it in his brief, appellant essentially concedes that the first McCourtie element is met here. Thus, we need only address the other two elements.

I. Working Together (Common Activity)

The second factor of the McCourtie test is that the employees must be "working together" or engaged in a "common activity." This test "emphasizes the common activities of the employees as opposed to the common activities of the employers." Id.

Working together requires that the employees' activities overlap more than minimally; they must be interdependent. Schleicher v. Lunda Constr. Co., 406 N.W.2d 311, 313-14 (Minn. 1987). For example, in Schleicher, a company supplied concrete to a highway construction site and a subcontractor at the site operated a conveyer system to transfer the concrete to the crew. Id. at 312. The plaintiff, a driver for the concrete company, was injured while delivering and unloading concrete at the site. Id. After collecting workers' compensation benefits, he sued the subcontractor. Id. at 311. The court concluded that there was little overlap between the subcontractor's work and that of the concrete company employees, and thus that no common enterprise existed. Id. at 314.

By contrast, in O'Malley v. Ulland Bros., 549 N.W.2d 889, 896 (Minn. 1996), our supreme court concluded that the second McCourtie factor was satisfied where employees of both a general contractor and subcontractor on a highway repair project worked in the same space and coordination of their efforts was "an integral part of the construction. It was not only contemplated that they would work together, it was essential."

Appellant claims that there are issues of fact as to whether Danner and Ell-Z employees were engaged in a common activity. We disagree. It is undisputed that Todd Tiffany, Marrell Helgeson (both employees of respondent Danner), and appellant (an Ell-Z employee) were working together as a "crusher crew" immediately before the accident. The rock-crushing operation was dependent upon each member of the crew performing his job--Tiffany as foreman, Helgeson as operator of the front-end loader, and appellant as "picker" (picking foreign debris out of rocks as they passed along the conveyor system). In addition, and most importantly, the deposition testimony of Tiffany and Helgeson underscores that on those occasions when a jam-up occurred all members of the crew worked to clear it. In other words, they worked together because it was essential to the process that they do so.

II. Subject to Same or Similar Hazard

The third McCourtie factor requires that employees be subject to the same or similar hazard. Appellant asserts that the risks for the two groups of employees were different. He claims that while Ell-Z employees were subject to being physically caught in the crusher machine, Danner employees were not. The facts, even viewed in the light most favorable to appellant, show otherwise.

Tiffany, a Danner employee, testified in his deposition that just before the accident he saw both Ell-Z and Danner employees with their arms in the precise location where plaintiff's arms were when he was injured. He also stated that on many occasions he had placed his arms in that precise location to perform the same activity that injured appellant. Helgeson, also a Danner employee, testified that right before the accident he "slid over next to [appellant] and started with my hands right where [appellant] was digging."

Appellant tries unsuccessfully to raise a fact issue here. He does this by first claiming that Helgeson had not cleaned out the conveyor in the several weeks leading up to the injury. This fact is irrelevant, for on the injury date Helgeson was subject to the same risk as appellant.

Appellant next claims that Troy Chouanard, an Ell-Z employee, saw Helgeson digging with a shovel, rather than by hand. But Helgeson testified that he had been digging with both a shovel and his hands.

Finally, appellant claims that on the day of the accident, Tiffany did not participate in cleaning out the debris. Though this may be true, it is inconsequential. On other days before the accident, Tiffany had cleaned out the conveyor with his hands; in other words, in the past he had regularly been subjected to the "same or similar" threat as appellant. And, regardless, Helgeson and appellant were subjected to the "same or similar" threat on the day of the accident.

Appellant has failed to present any relevant, admissible evidence suggesting a material fact issue. We therefore affirm the district court's grant of summary judgment.

Affirmed.