This opinion will be unpublished and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

C3-94-2576

Robert L. Hermel,

Respondent,

vs.

Mark Vanderlinde, d/b/a Vanderlinde Trucking,

Appellant,

Jody Nelson,

Respondent,

and

Jody Nelson,

Respondent,

vs.

Robert Hermel,

Respondent,

Neisen Paving,

Appellant.

Filed December 10, 1996

Affirmed

Schumacher, Judge

Scott County District Court

File No. 9404165

Michael T. Keogh, Christian, Spartz, Keogh & Christian, 65 South Park Avenue, Post Office Box 156, Le Center, MN 56057 (for Respondent Hermel)

Sharon L. Van Dyck, Schwebel, Goetz, Sieben & Moskal, P.A., 5120 IDS Center, Minneapolis, MN 55402-2246 (for Respondent Hermel)

Thomas H. Crouch, John C. Hughes, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Appellant Vanderlinde)

Michele M. Danielson, Donald G. Clapp, Clapp & Erickson, 1100 Capital Centre, 386 North Wabasha Street, St. Paul, MN 55102 (for Respondent Nelson)

Louise Dovre Bjorkman, David A. Schooler, Rider, Bennett, Egan & Arundel, L.L.P., 2000 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Appellant Neisen Paving)

Considered and decided by Peterson, Presiding Judge, Lansing, Judge, and Schumacher, Judge.

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

SCHUMACHER, Judge

This case arose from an accident involving two dump trucks at a construction site. The truck drivers, respondents Jody Nelson and Robert L. Hermel, sued each other and each other's employer. The employers, appellants Neisen Paving and Mark Vanderlinde, d/b/a Vanderlinde Trucking, moved for summary judgment, arguing that they were engaged in a common enterprise. The district court denied the employers' motions, they appealed, and this court affirmed the district court. Hermel v. Vanderlinde, No. C3-94-2576 (Minn. App. Aug. 1, 1995), review granted (Minn. Sept. 20, 1995). The employers sought further review, and the supreme court granted review and stayed proceedings pending its decision in O'Malley v. Ulland Bros., 549 N.W.2d 889 (Minn. 1996). After the supreme court issued its decision in O'Malley, it remanded this case to our court for consideration in light of O'Malley. We affirm.

FACTS

Chard Tile and Excavating was the general contractor for a retirement home being built in Belle Plaine. Chard hired six or seven independent trucking operators, including Neisen and Vanderlinde, to haul sand and gravel between the construction site and a nearby gravel pit. The trucking companies did not do any work besides the hauling. Hermel and Nelson were both belly dump truck drivers. Hermel worked for Neisen, and Nelson worked for Vanderlinde.

According to an affidavit of LeRoy Chard, on the first day of the project, Chard explained to the truck drivers their job duties on the project. The truckers lined up on a first-come, first-served basis at the gravel pit, and then followed the same route to the construction site. LeRoy Chard also stated that Chard employees would direct the drivers where to unload the gravel. Nelson stated in an affidavit, however, that the hauling of the sand was made "by the truck operator without any involvement or direct contacts by the Chard personnel." When asked during his deposition whether a Chard employee directed the drivers where to dump the gravel, Hermel testified that "[t]here was only one place you could dump." Vanderlinde and Neisen claim the drivers were in frequent CB radio contact with one another about their activities, but Nelson stated in an affidavit that the radio was used only for "idle chat."

On June 25, 1993, Hermel and Nelson had a head-on collision on a highway running between the construction site and the gravel pit. They were injured and collected workers' compensation benefits. Both drivers then filed tort actions against each other and each other's employer.

D E C I S I O N

Summary judgment is proper only 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; Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). A fact is material if its resolution affects the outcome of a case. Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60 (1976). When facts are undisputed, "[a] determination of whether a common enterprise existed is a legal determination" subject to de novo review. O'Malley v. Ulland Bros., 549 N.W.2d 889, 897-98 (Minn. 1996).

If an injured employee elects to receive workers' compensation benefits, he or she may not bring a third-party action if a common enterprise exists between the injured party's employer and the third party. Minn. Stat. § 176.061, subds. 1-4 (1994). Thus, the drivers cannot maintain their third-party actions if Neisen and Vanderlinde were engaged in a common enterprise.

A common enterprise exists if the following test is met:

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

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

(3) In such a 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). Courts should examine the common activities of the workers, not the employers' common goals. Schleicher v. Lunda Constr. Co., 406 N.W.2d 311, 313 (Minn. 1987).

O'Malley involved a highway construction project. Ulland Brothers was the general contractor and subcontracted with Max Johnson Trucking to load, haul, and stockpile sand and gravel. 549 N.W.2d at 890. Ulland Brothers and other subcontractors excavated the material, and Max Johnson hauled it to a pit, where it was leveled by a Ulland Brothers employee operating a bulldozer. Id. at 890-91. The Ulland Brothers supervisor directed the Max Johnson trucks by pointing where they should dump their sand, and Ulland Brothers' road graders and bulldozers would push Max Johnson trucks that were stuck in soft sand. Id. at 891. A Max Johnson employee was injured when one of Ulland Brothers' road graders was too forceful in pushing his dump truck out of the sand. Id. at 892.

In deciding O'Malley, the supreme court first clarified that the Workers Compensation Act should be interpreted and applied on an "even-handed" basis. Id. at 894. The court then decided that because all three McCourtie factors were met, a common enterprise existed. Id. at 895-97. In addressing the second factor--the one that is the focus of this case--the court noted that "[w]orking together requires that the activities of the employees be more than 'overlapping minimally'; they must be 'interdependent.'" Id. at 895 (quoting Schleicher, 406 N.W.2d at 313-14). The court concluded that the duties of the Max Johnson and Ulland Brothers employees "overlapped substantially" and were interdependent because "it was not only contemplated that they would work together, it was essential to avoid chaos at the site." Id. at 896. The court also stated that both employers' supervisors coordinated work among all the employees. Id.

In our initial decision, we determined that there were fact issues precluding summary judgment on the issue of whether a common enterprise existed. Hermel v. Vanderlinde, No. C3-94-2576, unpub. op. at 4 (Minn. App. Aug. 1, 1995), review granted (Minn. Sept. 20, 1995). Neisen and Vanderlinde contend that, given the O'Malley decision, even if it is assumed for purposes of this appeal that (1) the CB radio was used only for idle chat, and (2) Hermel and Nelson were under different supervision, the remaining undisputed facts establish that a common enterprise existed as a matter of law. See id. at 897 ("Ulland Brothers agrees, for the purposes of this appeal and for the summary judgment motion, that all facts as stated by O'Malley are assumed to be true.") We disagree.

Here, although the employees were performing the same duties and their activities overlapped, the undisputed evidence fails to establish that their activities were "interdependent." In O'Malley, Ulland Brothers excavated the material, Max Johnson hauled it and dumped it at the direction of a Ulland Brothers employee, and Ulland Brothers then leveled it. Id. at 890-91. Ulland Brothers also pushed Max Johnson trucks that were stuck in sand. Id. at 891. The employees of Max Johnson and Ulland Brothers could not have accomplished their common goal without the assistance of each other. See id. at 891, 896 (noting that employees of both entities worked "in close harmony" and that project could not have been completed "without leveling by Ulland Brothers" or "without dumping by Max Johnson"). In contrast, the drivers here were not dependent on, or affected by, each other's work. They could independently accomplish their hauling; the absence of one of the drivers would not have prevented the others from performing their work and completing the project.

Neisen and Vanderlinde contend that a showing of job interrelation is only required where the employees are not performing the same tasks, but they cite no authority for this proposition. The O'Malley court explicitly stated that in order to be working together, employees' activities must be interdependent. Id. at 895.

We also reject Hermel's contention that this is a "delivery case." See Urbanski v. Merchants Motor Freight, 239 Minn. 63, 70, 57 N.W.2d 686, 690 (1953) (one who merely supplies product to employer is not engaged in common enterprise with employer). This is not a typical situation in which one employer is making a delivery to another. Instead, both employers involved in this action were hauling material for a third party.

Affirmed.