Jessica Kelly, as Trustee for the heirs and next-of-kin of Richard Roy Washburn, Deceased, Appellant,
Kraemer Construction, Inc., Respondent.
of Appeals Office of Appellate Courts
W. Fluegel, Fluegel Law Office, Minneapolis, Minnesota, for
Timothy R. Murphy, Cara C. Passaro, Murphy & Passaro, PA,
North Oaks, Minnesota, for respondent.
Because respondent's crane crew was working
interdependently with the general contractor's crew, they
were engaged in a common activity, establishing the second
requirement of a common-enterprise defense to third-party
liability under the Minnesota Workers' Compensation Act.
Minn. Stat. § 176.061, subds. 1, 4 (2016).
Respondent's crane crew was subject to the same or
similar hazards as the general contractor's crew,
establishing the third requirement of a common-enterprise
defense to third-party liability under the Minnesota
Workers' Compensation Act. Minn. Stat. § 176.061,
subds. 1, 4.
Jessica Kelly, as trustee for the next-of-kin of Richard
Washburn, sued respondent Kraemer Construction, Inc.
(Kraemer), alleging that Kraemer's negligence caused
Washburn's death by electrocution at a construction site.
Kraemer moved for summary judgment, arguing that it was
engaged in a common enterprise with Washburn's employer,
Ulland Brothers, Inc. (Ulland), and that the
election-of-remedies provision of the Minnesota Workers'
Compensation Act requires dismissal of Kelly's suit.
See Minn. Stat. § 176.061 (2016). The district
court denied summary judgment. A divided panel of the court
of appeals reversed the district court's decision and
remanded for entry of summary judgment in favor of Kraemer.
Kelly v. Kraemer Constr., Inc., No. A15-1751, 2016
WL 3961817, at *5 (Minn.App. July 25, 2016). Kelly appeals,
arguing that a genuine issue of material fact precludes
summary judgment. Because we hold that Kraemer was in a
common enterprise with Ulland as a matter of law and that the
election of remedies provision requires dismissal of
Kelly's suit, we affirm.
summary judgment standard mandates that we view the facts in
the light most favorable to the nonmoving party, Kelly.
State Farm Fire & Cas. v. Aquila Inc., 718
N.W.2d 879, 883 (Minn. 2006). Ulland, a general contractor,
won a bid to repair two bridges in Carlton County. Ulland
subcontracted for Kraemer to provide the crane work needed to
lift and place heavy sections of concrete box culvert. Ulland
did not own any equipment capable of lifting the 22,
000-pound steel-reinforced culvert sections. The culverts,
once placed, create a channel for water to pass underneath
case centers on the placement of two concrete culverts on
October 4, 2012, at a bridge on Highway 23, near the city of
Wright. Ulland had a crew of four at the site: Terry Rassier,
Richard Washburn, Jeremy Wright, and Matthew Kisley. Ulland
also provided the culvert sections, specialized rigging
equipment to connect the culvert sections to the crane cable,
tie bars to connect the culvert sections, and a bulldozer.
Kraemer provided the crane and a crew of two, Michael
Bergstrom (the crane operator) and Roger Poukka (the
signalman and oiler).
bridge on Highway 23 runs north to south over a stream
running west to east. Before the Kraemer crew arrived with
the crane, Ulland had made preparations by diverting the
stream through a temporary bypass culvert, draining the
streambed, and removing the old culverts. To the east of the
worksite, a powerline ran parallel to the road. Ulland marked
off a 10-foot buffer zone around the powerline to avoid
contact between the crane and the powerline. The parties do
not dispute that it was necessary for the crane cable to
remain at least 10 feet from the powerline to prevent
general procedure for laying the culverts was as follows:
Rassier (Ulland), in the bulldozer, pushed each culvert
section into the rigging area, where Wright (Ulland) and
Poukka (Kraemer) attached it to the crane. Bergstrom
(Kraemer) operated the crane, lifting the culvert section
over to the excavated bridge area and then lowering it.
Washburn (Ulland), Kisley (Ulland), and Poukka manually
guided the culvert section as it was lowered. Rassier brought
the bulldozer into the streambed to push the culvert section
into position after the crane set it down. Some combination
of the four workers in the streambed then attached the
lowered section to its neighbor and removed the crane
rigging. As the spotter and signalman, Poukka was responsible
for giving signals to Bergstrom to raise and lower the crane
load and for preventing the crane from getting too close to
crane lowered the last culvert section, Washburn grabbed it
and was electrocuted. Poukka testified that, when he touched
the culvert section, he felt a jolt. The crane operator,
Bergstrom, testified that the crane cab was not insulated
from electric shock, but that he did not feel any shock when
Washburn and Poukka did. Workers at the site administered CPR
and called for an ambulance, but Washburn was declared dead
shortly after the ambulance arrived.
survivors have received workers' compensation benefits
through Ulland. Kelly is the mother of Washburn's two
children and was appointed trustee for Washburn's next of
kin to sue Kraemer for its alleged negligence in causing
Washburn's death. Kraemer moved for summary judgment.
Kraemer argued that it was engaged in a common enterprise
with Ulland when Washburn was killed and that the
election-of-remedies provision of the Minnesota Workers'
Compensation Act prevents Kelly from bringing a civil action
against Kraemer when her children have already recovered
workers' compensation benefits from Ulland. See
Minn. Stat. § 176.061, subds. 1, 4.
summary judgment motion, Kraemer relied on the depositions of
the workers at the site, as well as an affidavit and report
from a construction-risk expert. The expert identified a
number of hazards at the construction site to which both
Ulland and Kraemer employees were exposed. Kelly produced a
report from a forensic engineering consultant. He opined that
Washburn's death was caused by physical contact between
the crane and the powerline, and that it was
"mathematically implausible" that electricity
"arced" or "jumped" from the powerline.
Kelly's expert did not comment on any other potential
hazards at the site.
district court denied Kraemer's summary judgment motion.
The court considered the three requirements of a
common-enterprise defense: (1) the employers must be engaged
on the same project, (2) the employees must be working
together in a common activity, and (3) the employees must be
working in such a fashion that they are subject to the same
or similar hazards. McCourtie v. U.S. Steel Corp.,
93 N.W.2d 552, 556 (Minn. 1958). Kelly conceded that the
first requirement was met.
district court found that genuine issues of material fact
existed concerning the two remaining requirements: whether
the Kraemer and Ulland employees were engaged in a common
activity and whether they were subject to the same or similar
hazards. The court found that "the Kraemer
employees' duties were very different and arguably
separate from those of the Ulland employees" and that
there was "a question of fact as to whether or not the
Ulland employees were even necessary for the Kraemer
employees to perform the crane work and vice versa."
Further, the district court concluded that "the risks
associated with the Kraemer employees' jobs and Ulland
employees' jobs were for the most part distinct, "
finding that the crane operator Bergstrom was not in danger
of electrocution and that the signalman Poukka was exposed to
that danger only when he acted outside the scope of his
duties at the job site.
divided panel of the court of appeals reversed. The court
reviewed the denial of summary judgment to determine whether
the election-of-remedies provision prevented the district
court from exercising subject-matter jurisdiction over
Kelly's negligence action. Kelly v. Kraemer Constr.,
Inc., No. A15-1751, 2016 WL 3961817, at *2 (Minn.App.
July 25, 2016); see McGowan v. Our Savior's Lutheran
Church, 527 N.W.2d 830, 833 (Minn. 1995) ("Where
the [Workers' Compensation] Act provides the
employee's exclusive remedy, the district courts have no
jurisdiction."). The court of appeals determined that
the common-activity requirement was met because "the two
crews could not have accomplished the project by working
separately." Kelly, 2016 WL 3961817, at *4. The
court further held that "Kraemer offered the only expert
evidence on summary judgment regarding general risks, "
which established that the two crews were subject to
"similar, if not identical, hazards at the
worksite." Id. at *5. The court accordingly
concluded that Kraemer was entitled to summary judgment
because it had established the three requirements of the
common-enterprise test as a matter of law, and therefore the
Minnesota Workers' Compensation Act provided Kelly's
exclusive remedy. Id. A dissenting judge disagreed
with the majority's evaluation of the similar-hazards
requirement. Id. at *6 (Bratvold, J., dissenting).
district court may grant summary judgment when "there is
no genuine issue as to any material fact" and one party
"is entitled to a judgment as a matter of law."
Minn. R. Civ. P. 56.03. We review the district court's
summary judgment decision de novo. Stringer v. Minn.
Vikings Football Club, LLC, 705 N.W.2d 746, 754 (Minn.
2005). We consider two questions: "whether a genuine
issue of material fact exists, and whether an error in the
application of law occurred." Fairview Hosp. &
Health Care Servs. v. St. Paul Fire & Marine Ins.
Co., 535 N.W.2d 337, 341 (Minn. 1995). A genuine issue
of material fact arises when there is sufficient evidence
regarding "an essential element . . . to permit
reasonable persons to draw different conclusions."
DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).
The evidence must be viewed in the light most favorable to
the nonmoving party, Kelly. See id. at 72.
worker is injured "under circumstances which create a
legal liability for damages on the part of a party other than
the employer . . . at the time of the injury, " and the
third party carries proper workers' compensation
insurance and was engaged in a "common enterprise"
with the employer, the Minnesota Workers' Compensation
Act mandates an election of remedies. Minn. Stat. §
176.061, subds. 1, 4. The party seeking recovery "may
proceed either at law against [the third] party to recover
damages or against the employer for benefits, but not against
both." Id., subd. 1. Washburn's survivors
have received workers' compensation benefits through
Ulland, and Kraemer carries workers' compensation
insurance. Consequently, Kelly's suit may not proceed if
Kraemer and Ulland were engaged in a common enterprise when
Washburn was killed.
McCourtie v. United States Steel Corp., we set out a
three-part test for the common-enterprise defense:
1) The employers must be engaged on the same project;
2) The employees must be working together (common
3) In such fashion that they are subject to the same or
93 N.W.2d at 556. By placing emphasis on "the common
activities of the workers rather than the common goals of the
employers, " Schleicher v. Lunda Constr. Co.,
406 N.W.2d 311, 313 (Minn. 1987), the test determines whether
the employers have, "in effect . . . put the
[employees] into a common pool, " Gleason v.
Geary, 8 N.W.2d 808, 814 (Minn. 1943) (emphasis added).
Kelly concedes that Kraemer and Ulland were engaged on the
same project. The issue on appeal is this: Does a genuine
issue of material fact exist regarding whether the employees
were engaged in a common activity and subject to the same or
first consider whether the Ulland and Kraemer crews were
working together in a common activity. Kelly argues that the
Kraemer and Ulland crews were not engaged in a common
activity because they had distinct functions that were not
interdependent. Kelly further contends that we should
disregard favors or accommodations between crews when
determining whether they were working together in a common
activity, and that Poukka was acting as a volunteer when he
manually guided the culvert sections and assisted with
asserts, in contrast, that the key consideration is
interdependence. It argues that the crews' work was
interdependent because they could not have moved the culvert