This opinion will be unpublished and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

C7-96-1046

Frank Judnick,

Appellant,

vs.

Hibbing Taconite Company,

defendant and third-party plaintiff,

Respondent,

vs.

Premier Aggregates, Inc.,

third-party defendant,

Respondent.

Filed December 10, 1996

Affirmed

Kalitowski, Judge

St. Louis County District Court

File No. CX95300514

Richard P. Mahoney, Victor E. Lund, Mahoney, Dougherty and Mahoney, P.A., 801 Park Avenue, Minneapolis, MN 55414 (for Appellant)

James P. Paciotti, Crassweller, Magie, Andresen, Haag & Paciotti, 1000 Alworth Building, P.O. Box 745, Duluth, MN 55801 (for Respondent Hibbing Taconite)

Janet Stellpflug, Stephen Mark Curwin, Gilmore, Aafedt, Forde, Anderson & Gray, P.A., 150 South Fifth Street, Suite 3100, Minneapolis, MN 55402 (for Respondent Premier Aggregates)

Considered and decided by Crippen, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

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

KALITOWSKI, Judge

Appellant Frank Judnick challenges the district court's grant of summary judgment dismissing his negligence action against Hibbing Taconite Company (Hibbing). Judnick argues his employer, Premier Aggregates, Inc. (Premier), was not engaged in a common enterprise with Hibbing when he received his injuries, and therefore the district court erred in determining his negligence claim against Hibbing was barred because he received workers' compensation benefits from Premier. We affirm.

D E C I S I O N

On an appeal from summary judgment, the reviewing court must determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. Betlach v. Wayzata Condo., 281 N.W.2d 328, 330 (Minn. 1979). Summary judgment is proper when no material issues of fact exist and one party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. Judnick argues the district court erred in its application of the law. Application of the law to a set of undisputed facts is a question of law, not binding on this court. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn. 1989).

Under the Workers' Compensation Act (Act), an injured employee is barred from bringing a third-party action after receiving workers' compensation benefits, when the injured employee's employer and the third-party were engaged in a "common enterprise." Minn. Stat. § 176.061, subds. 1, 4 (1994). In construing the Act, the court shall apply an even-handed standard not favoring the interests of either the employee or the employer. Minn. Stat. § 176.021, subd. 1a (1994); O'Malley v. Ulland Bros., 549 N.W.2d 889, 894 (Minn. 1996).

The Minnesota Supreme Court, in McCourtie v. U.S. Steel Corp., 253 Minn. 501, 93 N.W.2d 552 (1958), formulated the following test to determine whether a common enterprise exists:

(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.

Id. at 506, 93 N.W.2d at 556. The focus of the McCourtie test is the common activities of the employees, not the common activities of the employers. Id. The district court determined that under McCourtie Hibbing and Premier were engaged in a common enterprise. We agree.

a. The same project

The first McCourtie factor requires that the employers be engaged on the same project. Employers are engaged on the same project when a substantial relationship exists between the employers. Urbanski v. Merchants Motor Freight, 239 Minn. 63, 71, 57 N.W.2d 686, 690-91 (1953). However, where

two employers perform different types of work, such as steel construction work and plumbing, and where the performance of these jobs is not related except in a vague, general way looking toward the completion of a structure, and where the activities of the two sets of employees have nothing in common and do not share or join in any of the work between themselves, it cannot be said that the employees are within the 'common activities of the employees test.'

McCourtie, 253 Minn. at 510, 93 N.W.2d at 559.

In O'Malley, a recent supreme court decision, the court determined the general contractor and subcontractor on a highway repair project were engaged on the same project. O'Malley, 549 N.W.2d at 895. In so holding, the court noted the fact that the employers shared functions and had a long-term business relationship. Id. It observed:

On this construction project, the employers shared equipment, assisted in hauling for each other, coordinated the work flow by sending messages through each other, prepared road surfaces for each other by blading or watering, and assisted each other in extricating vehicles stuck in the fill material.

Id.

Here, the district court found Hibbing and Premier were engaged on the same project of "crushing rock for the purpose of creating road grade gravel." Judnick argues the district court erred because Hibbing was engaged in mining and Premier was engaged in crushing rocks. We disagree. In addition to mining, Hibbing contributed its employees and equipment to the rock-crushing project. Hibbing employees delivered rocks to the crushing site and hauled away crushed rocks. During the operation, Hibbing provided equipment and personnel to assist Premier in its rock-crushing operation. As in O'Malley, Hibbing and Premier shared functions and had a history of working together. Under these facts, we conclude Hibbing and Premier were engaged on the same project.

b. Common activity

The second McCourtie factor requires the employees be "working together" or engaged in a "common activity." Working together requires the activities of the employees be more than overlapping minimally; they must be "interdependent." Schleicher v. Lunda Constr. Co., 406 N.W.2d 311, 313-14 (Minn. 1987). "Merely working toward a common goal is not sufficient to constitute working together." O'Malley, 549 N.W.2d at 895.

In O'Malley, the court held the employees of the general contractor and subcontractor were engaged in the same highway repair activities. Id. at 896. In so holding, the court noted the two groups of employees coordinated their activities and assisted each other throughout the operation. Id. They exchanged equipment and sought advice from the supervisors of both employers. Id. The subcontractor was required to maintain the hauling road, and the general contractor sometimes "bladed" the road for the subcontractor. Id. Based on these facts, the court concluded the subcontractor did more than merely deliver material to the site; the duties of the two groups of employees "overlapped substantially and were interdependent beyond the general way that construction work depends on delivery." Id.

Here, the district court found Hibbing employees assisted Premier employees in their rock-crushing operation and that Judnick was a "middle man" in the operation. Based on these findings, the district court concluded Hibbing and Premier employees essentially worked together.

Judnick contends Premier and Hibbing employees did not work together because they had separate duties and functions and did not even share a common goal. We disagree. As in O'Malley, Hibbing and Premier employees coordinated their activities. For safety reasons, their work schedules were coordinated so Hibbing employees would not dump rocks in the area where Premier employees were working. In addition, Hibbing's general foreman would warn Premier employees when a blast was scheduled in the mine.

Also, as in O'Malley, Hibbing employees provided Premier with equipment and personnel and assisted Premier throughout the operations. Hibbing provided Premier with its crane and bulldozer, and assigned its mechanics and crane operator to help Premier employees. To facilitate Premier's operation, Hibbing employees dumped rocks close to the crusher and hauled away piles of crushed rocks. These facts demonstrate a common activity because the duties of Hibbing and Premier employees overlapped substantially and were interdependent.

c. Same or similar hazards

The third McCourtie factor requires that employees be subject to the same or similar hazards. To satisfy this factor, the employees do not have to face identical work hazards as long as many of the hazards facing them were similar. Id. at 897; Higgins v. Northwestern Bell Telephone Co., 400 N.W.2d 192, 195 (Minn. App. 1987), review denied (Minn. Mar. 25, 1987). Judnick argues Hibbing and Premier employees were not subject to the same or similar hazards because each group faced unique hazards associated with their different functions. We disagree.

Like Premier employees, Hibbing employees were subject to the hazards of driving over large rocks and getting hit by moving rocks or vehicles. The record indicates Hibbing employees suffered injuries similar to those sustained by Judnick after driving over large rocks. Although each group of employees may have faced some unique hazards, they shared substantially similar hazards associated with operating heavy equipment and moving large rocks. Based on these facts, we conclude Hibbing and Premier employees were subject to the same or similar hazards.

Because all three factors of the McCourtie test are met, we conclude the district court properly determined that Hibbing and Premier were engaged in a common enterprise.

Affirmed.