This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1341
A04-1351

 

General Casualty Insurance Company

in the name of John Alsaker,

plaintiff (A04-1341),

Appellant (A04-1351),

 

vs.

 

Shaw Trucking, Inc., et al.,

Respondents,

 

and

 

John Alsaker, et al.,

Appellants (A04-1341),

Respondents (A04-1351).

 

Filed May 3, 2005

Reversed and remanded
Klaphake, Judge

 

Anoka County District Court

File No. C5-02-10639

 

Michael D. Carr, Emmer Law Firm, 1800 Pioneer Creek Center, P.O. Box 39, Maple Plain, MN  55359 (for appellant General Casualty Insurance Company)

 

David Rochlin, Rochlin Law Firm, Ltd., 5200 Willson Road, Suite 412, Edina, MN  55424 (for John Alsaker, et al.)

 

Timothy K. Masterson, Scott H. Rauser, Spence, Ricke, Sweeney & Gernes, P.A., 600 Degree of Honor Building, 325 Cedar Street, St. Paul, MN  55101 (for respondents Shaw Trucking, et al.)

 

            Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            In these consolidated appeals, appellant John Alsaker and his wife, Amy Alsaker (hereinafter Alsaker), and appellant General Casualty Insurance Company challenge the district court’s grants of summary judgment and dismissal of their claims.  Alsaker was injured at a construction site during the course of his employment with Forest Lake Contracting (Forest Lake), when the belly-dump truck that he was driving was allegedly rammed from behind by a bulldozer driven by Earl Denney, who was employed by Shaw Trucking, Inc.  General Casualty issued a worker’s compensation policy to Forest Lake and provided benefits to Alsaker for his injuries.

            General Casualty thereafter sued Shaw Trucking and Enebak Construction Company (Enebak), the general contractor, to recover workers’ compensation benefits it has paid to Alsaker.  Alsaker intervened and brought a third-party negligence action against Denney, Shaw Trucking, and Enebak.[1]

            In his appeal, Alsaker argues that he presented a genuine issue of material fact regarding whether Denney was grossly negligent when he pushed Alsaker’s belly-dump truck out of the sand.  In its appeal, General Casualty argues that because Shaw Trucking is not one of its insureds with respect to this loss, Minn. Stat. § 60A.41 (2000), the anti-subrogation statute, does not bar this common law subrogation claim against Shaw Trucking.

            Because genuine issues of material fact were presented as to whether Denney was grossly negligent and because Shaw Trucking was not an insured under General Casualty’s business auto policy with respect to this loss, we reverse the grants of summary judgment and remand for further proceedings.[2]

FACTS

            On August 20, 2001, Alsaker was delivering sand to a construction site in Anoka County.  Shaw Trucking was the subcontractor responsible for delivering sand to the site.  In addition to using its own drivers and equipment, Shaw Trucking had hired Forest Lake to provide drivers and trucks to help deliver sand.

            Alsaker, a Forest Lake employee, was driving a belly-dump truck; Denney, a Shaw Trucking employee, was driving the bulldozer.  Belly-dump trucks frequently get stuck and pushing them out is a significant part of a bulldozer operator’s job.  The trucks are even equipped on the back with a “stinger,” or a metal protrusion, that the bulldozer operator uses as a dedicated point to push against.

            Denney acknowledged that the proper way to push out a belly-dump truck is to slowly ease behind it, make contact with the stinger, and then apply power to begin pushing.  Denney further acknowledged that under no circumstances should a bulldozer operator get a running start and bang into the back of the belly-dump truck, because to do so would be extremely dangerous for both the bulldozer operator and the belly-dump truck driver.

            At about 1:00 p.m., Alsaker’s belly-dump truck became stuck.  For approximately the twelfth time that day, Denney’s bulldozer made contact with the stinger on Alsaker’s truck and pushed the truck free.  Alsaker traveled approximately 15 to 25 feet before becoming stuck again in the soft ground.

            Alsaker looked in his left-hand mirror and saw Denney backing up.  Alsaker assumed that Denney was going to level the sand prior to pushing his truck out.  Approximately 10 seconds later, Alsaker leaned forward to look for the bulldozer in his passenger side mirror.  As Alsaker leaned forward, Denney made contact with the stinger on Alsaker’s truck.  Alsaker claimed that the force of the collision caused items on his dashboard to fall to the floor and caused him to be thrown against the seat and hit his head on the back of the cab.

            Neither the truck nor the bulldozer sustained damage.  Alsaker did not complain to anyone at the job site, other than to remark to a co-worker that he thought Denney had pushed his truck too hard; nor did he seek medical attention until approximately one week later.  Denney does not remember pushing Alsaker too hard and denies that he did so that day. 

            As a result of the collision, Alsaker claims that he suffered neck and back injuries that have prevented him from returning to work as a belly-dump truck driver.  Alsaker has received worker’s compensation benefits from General Casualty.

D E C I S I O N

            Summary judgment is properly granted when there are no genuine issues of material fact and either party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  On review, we must view the evidence in a light most favorable to the nonmoving party, and resolve all doubts and factual inferences against the moving party.  Linder v. Lund, 352 N.W.2d 68, 70 (Minn. App. 1984).  No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997) (quotation omitted).  To resist summary judgment, the nonmoving party “must do more than rest on mere averments.”  Id. at 71.  A genuine issue of material fact “must be established by substantial evidence.”  Id. at 70 (quotation omitted).

I.

            On appeal, Alsaker concedes that his employer and Denney’s employer, Shaw Trucking, were engaged in a common enterprise and that he cannot pursue a claim unless he proves that Denney acted with gross negligence.  See Minn. Stat. § 176.061, subd. 4 (providing that injured employee cannot pursue claim against negligent third-party if third-party and employee’s employers were engaged in common enterprise), subd. 5(c) (2000) (providing that co-employees are not liable for personal injuries inflicted upon one another unless those injuries resulted from gross negligence or intentional conduct).  The district court granted summary judgment after determining that no genuine issues of fact existed on this record regarding whether Denney acted with gross negligence.

            Gross negligence is “[n]egligence of the highest degree.”  High v. Supreme Lodge of the World, 214 Minn. 164, 170, 7 N.W.2d 675, 679 (1943).  Minnesota courts often rely upon the following more detailed definition:

Gross negligence is substantially and appreciably higher in magnitude than ordinary negligence.  It is materially more want of care than constitutes simple inadvertence.  It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care.

 

Ackerman v. Am. Family Mut. Ins. Co., 435 N.W.2d 835, 840 (Minn. App. 1989) (quotation omitted).  According to the jury instruction guides, gross negligence “occurs when a person does not pay the slightest attention to the consequences, or uses no care at all.”  4 Minnesota Practice, CIVJIG 25.35 (1999).

            Alsaker cites the following deposition testimony evidence to show that Denney acted with gross negligence:  (1) Denney is a man who is known to “fly off the handle”; (2) Denney was particularly upset at the job site that day because several belly-dump truck drivers were dumping their loads of sand in the wrong places; (3) Denney was frustrated because the belly-dump truck drivers kept getting stuck; (4) Denney admitted that he thought belly-dump truck drivers were as bright as a “two-watt bulb”; (5) later in the day, Denney argued with his supervisor and threatened to run him over with his bulldozer; (6) Denney admitted that he understood the extreme risk of a hard impact between these vehicles and that someone could get hurt; (7) Denney claimed that he would never get a running start in order to push a truck out of the sand because it would be dangerous to both drivers; and (8) in Alsaker’s 15 years of experience driving a belly-dump truck and being pushed by bulldozers, he had never experienced such an impact and had never heard of anyone else experiencing this type of impact.  From this, particularly from Alsaker’s testimony regarding the force of the collision and from his testimony that he was struck from behind just a few seconds after he observed Denney backing up, a jury could infer that Denney, who easily “fl[ies] off the handle” and, on that particular day, was frustrated with his working conditions and upset with his co-workers, was using no care at all when he got a “running start” before he came into contact with the back end of Alsaker’s belly-dump truck.  We therefore conclude that the district court erred in granting summary judgment and in dismissing Alsaker’s claims against Shaw Trucking and Denney.

            The few cases that have dealt with gross negligence tend to support our decision.  In Ackerman, 435 N.W.2d at 841, this court affirmed a grant of summary judgment, concluding that a triable issue of fact did not exist as to whether a driver was grossly negligent when he hit and killed a co-employee while driving to work before daylight on a rainy October morning.  While the evidence in Ackerman suggested that the driver could have driven more slowly or been more attentive, the accident occurred just after the driver pulled around a barricade, saw the co-employee in the beam of his headlights, and was unable to avoid hitting him.  Id. at 840-41.  Here, unlike Ackerman, where the driver failed to see the co-worker and encountered something unexpected, Denney knew that unless he proceeded slowly and gradually pushed Alsaker’s truck out of the sand, the chances were great that Alsaker would be injured.

            In State v. Bolsinger, 221 Minn. 154, 21 N.W.2d 480 (1946), the supreme court upheld a finding of gross negligence in the criminal context based on evidence that (1) the driver was intoxicated and in an ugly mood, which he manifested by quarrels with his wife and threats toward her; (2) the driver knew his wife was walking on the highway and he drove his automobile at an excessive speed to overtake her; (3) although his wife was in plain sight ahead of him on the highway, the driver continued to drive too fast, failed to observe his wife, and hit her with such force that she flew over the ditch and was killed; and (4) the driver failed to stop and continued on after the collision.  Id. at 176-77, 21 N.W.2d at 493.  While the facts here are not as egregious as those in Bolsinger, when the evidence is viewed in the light most favorable to Alsaker, a jury could infer that Denney chose to exercise no care at all when he backed up, got a running start, and rammed into the back of Alsaker’s belly-dump truck.  We therefore reverse the grant of summary judgment and remand for further proceedings.

II.

            In granting summary judgment and dismissing General Casualty’s subrogation claim, the district court determined that because Shaw Trucking was insured under General Casualty’s business auto policy, Minn. Stat. § 60A.41 (2000), the anti-subrogation statute, applied to bar General Casualty from subrogating against its own insured, Shaw Trucking.

            General Casualty’s business auto policy covered the belly-dump truck driven by Alsaker and named Shaw Trucking as an additional insured.  In particular, the policy afforded coverage to Shaw Trucking for “liability arising out of the ownership, maintenance or use of covered ‘autos’ by you or your employees.”  The business auto policy defined “auto” as excluding “mobile equipment,” such as a bulldozer, unless that mobile equipment was being carried or towed by a covered auto.  Because the bulldozer was not being carried or towed by Alsaker’s belly-dump truck, it was not covered under General Casualty’s business auto policy and was insured under a separate policy issued to Shaw Trucking by another insurance company.

            Nevertheless, the district court agreed with Shaw Trucking’s argument that this loss was covered by General Casualty’s business auto policy because Shaw Trucking was “using” the belly-dump truck at the time of the incident.  Shaw Trucking reasoned that it contracted with Forest Lake to “use” its belly-dump trucks to fulfill its obligation to provide sand fill at the construction site, and that in order to “use” the belly-dump trucks once they arrived at the site, its bulldozer had to push the trucks through the soft sand while they were unloading.

            This reasoning is a strained extension of cases holding that when a subcontractor’s vehicle enters a construction site, its “use” may not be limited to physical use but may include control and direction exercised over the vehicle by the general contractor.  See, e.g., Woodrich Const. Co. v. Indemnity Ins. Co., 252 Minn. 86, 93-94, 89 N.W.2d 412, 418 (1958); Ed Kraemer & Sons, Inc. v. Transit Cas. Co., 402 N.W.2d 216, 218-19 (Minn. App. 1987), review denied (Minn. May 18, 1987).  These cases extended vehicle coverage to general contractors who negligently directed subcontractor’s vehicles that were involved in accidents; here, there is no allegation that Shaw Trucking or Denney, its bulldozer driver, negligently directed the belly-dump trucks, which in turn were involved in accidents.  We therefore conclude that the district court erred in determining that this loss is covered under the business auto policy issued by General Casualty.

            General Casualty further argues that Shaw Trucking is not an insured under the exclusion for worker’s compensation benefits.  We agree.  In Minn. Brewing Co. v. Egan & Sons Co., 574 N.W.2d 54, 60 (Minn. 1998), the supreme court held that subrogation for worker’s compensation benefits paid to an employee are rights conferred under common law and do not arise under the worker’s compensation act.  Once an injured employee receives worker’s compensation benefits, his employer has subrogation rights to proceed against the third-party in a common law tort action.  Id.  Thus, General Casualty’s claim against Shaw Trucking can be construed as a common law subrogation claim based on negligence, not a claim arising under the worker’s compensation act.

            Finally, General Casualty challenges the district court’s determination that the anti-subrogation statute, Minn. Stat. § 60A.41, bars General Casualty’s claim against Shaw Trucking, its own insured.  Because we conclude that Shaw Trucking is not an insured under General Casualty’s business auto policy, the anti-subrogation statute does not apply to bar this claim against Shaw Trucking.

            We therefore reverse the grants of summary judgment and remand for further proceedings consistent with this opinion.

            Reversed and remanded.