Missouri Employers Mutual Insurance Company (MEMIC) has appealed the compensation judge’s Order dismissing MEMIC’s objection to joinder in this pending workers’ compensation case.  MEMIC contends that it is not subject to Minnesota jurisdiction, and that the compensation judge and this court lack authority to consider the question of jurisdiction.  We affirm.

Raymond C. Bense sustained personal injuries on November 26, 2003, near Salt Lake City, Utah.  Mr. Bense, an over-the-road truck driver, was adjusting straps that were holding down his load when they snapped, causing him to fall down and injure his right hand, wrist, and hip.  At the time of his injury, Mr. Bense was driving for Joe’s Trucking, a company located in Albany, Minnesota.  Mr. Bense was a resident of Burtrum, Minnesota, about 30 miles from Albany.

At some time before November 26, 2003, Joe’s Trucking apparently entered into an agreement with Alliance Savings Company, a company located in Columbia, Missouri, in which Mr. Bense was to be considered an employee of Alliance and was leased by Alliance to Joe’s Trucking.

Joe’s Trucking was uninsured for workers’ compensation liability.  Alliance may have had workers’ compensation coverage with TransPacific International Insurance Company with an administrator, TPA1/American Solutions Group.  There is some indication that TransPacific became insolvent and it appears that both Alliance Savings and American Solutions Group filed bankruptcy at some point prior to these proceedings.

The employee filed a claim petition in October 2005 against Joe’s Trucking and Alliance, identifying Joe’s Trucking as an uninsured employer and naming the Special Compensation Fund as a party.  The Fund filed a general denial in response.

In June 2006, the Fund filed a motion to join the Minnesota Insurance Guarantee Association on the basis of the insolvency of Alliance’s insurer.  After objection was made, the motion was denied.  In October 2006, the Fund filed a petition for a temporary order and subsequently made payments of workers’ compensation benefits to the employee.

In October 2006, the Fund filed a motion to join MEMIC as a party in this matter.  The Fund alleged MEMIC was a necessary party because it had been ordered to cover workers’ compensation claims against Alliance for the date of injury by a decision of the Labor and Industrial Relations Commission for the State of Missouri.  The order for joinder was issued November 6, 2006, and on November 27, 2006, MEMIC filed an objection to joinder.  The objection was dismissed by an order of January 19, 2007, and MEMIC appeals.

MEMIC argues on appeal that it is not subject to jurisdiction in Minnesota because of the lack of contacts it has with this state.  MEMIC further contends that this court lacks jurisdiction to consider this issue.  We disagree.  The heart of MEMIC’s position is that jurisdiction in this case is governed by Minn. Stat. § 543.19, the long-arm statute. But the controlling statute for determining whether workers’ compensation jurisdiction exists in Minnesota for an out-of-state injury is Minn. Stat. § 176.041.

In Schroeder v. Murphy Motor Freightlines, 372 N.W.2d 706, 38 W.C.D. 92 (Minn. 1985), a Minnesota-resident truck driver worked out of a terminal in Tennessee and was killed in a work-related accident in Georgia. The court applied Minn. Stat. § 176.041 to the facts in the case and concluded that subdivision 2 of the statute precluded asserting jurisdiction over the claim. In Vaughn v. Nelson Brothers Constr., 520 N.W.2d 395, 51 W.C.D. 159 (Minn. 1994), a contrary result was reached by the court as to whether jurisdiction for an out-of-state injury existed, but the analysis was the same as in Schroeder - the application of Minn. Stat. § 176.041 to the facts in the case.  In light of MEMIC’s arguments, it should be noted that in both cases, the question of jurisdiction under the statute was first considered by a compensation judge and reviewed by this court before the cases were appealed to the Minnesota Supreme Court.  Considering the case law, we conclude that the question of jurisdiction over the employee’s claim requires application of Minn. Stat. § 176.041.  This court has jurisdiction to consider that issue.  Minn. Stat. § 175A.01.

MEMIC contends that it is not subject to jurisdiction in Minnesota because it does not do business in this state and does not have sufficient contacts with Minnesota to establish jurisdiction.  The central defect in MEMIC’s argument is that it focuses on its contacts as an independent business entity and ignores the contacts of Alliance, its alleged insured, in determining whether workers’ compensation jurisdiction exists.

Jurisdiction under Minn. Stat. § 176.041 is based on the actions of the employee and employer, not the contacts an out-of-state insurer may have with Minnesota.  In considering whether jurisdiction exist for out-of-state injuries, the Minnesota Supreme Court has looked to the contacts of the employer with Minnesota and whether the actions of the employee and employer satisfied the requirements of Minn. Stat. § 176.041.  Follese v. Eastern Airlines, 271 N.W.2d 824, 31 W.C.D. 198 (Minn. 1978).  The obligations of the insurer are based on the liability of the insured employer.  We conclude that if jurisdiction exists in Minnesota against an employer under Minn. Stat § 176.041,  jurisdiction for its insurer exists as well. To conclude otherwise would be to provide an independent status to a workers’ compensation insurer that exists nowhere in the statute. To accept MEMIC’s argument would mean that in virtually every workers’ compensation case, not only would contacts of the employer with Minnesota have to be established, the contacts of the insurer would have to be examined as well.

The Fund asserts that Joe’s Trucking and Alliance were joint employers of Mr. Bense at the time of his work injury.  This court has held that in joint employment, if one employer is uninsured, primary liability for the payment of benefits rests with the insured joint employer.  Benner v. Essential Nursing Servs., Inc., 63 W.C.D. 58 (W.C.C.A. 2002).  The Fund makes the claim, supported by a determination of the Missouri Labor and Industrial Relations Commission, that MEMIC insured Alliance for the injuries sustained by Mr. Bense.  We are not determining that these assertions have been established in this case. Clearly, the final resolution of these questions will depend not only on the liability, if any, of Alliance but also on whether MEMIC has coverage for Alliance on this claim.  The question of coverage is one for the compensation judge to answer after a consideration of the evidence in this case.  Pederson v. Serv. Specialists of America, 52 W.C.D. 399 (W.C.C.A. 1994).  At this stage of the proceedings, a sufficient basis exists to support the order of the compensation judge and MEMIC should be joined as a party.  The Order is affirmed.