                IN THE SUPREME COURT OF THE STATE OF IDAHO

                                       Docket No. 44326

PERRY KRINITT,                                      )
                                                    )
      Plaintiff-Appellant,                          )        Boise, June 2017 Term
                                                    )
v.                                                  )        2017 Opinion No. 84
                                                    )
IDAHO DEPARTMENT OF FISH AND                        )
GAME and STATE OF IDAHO,                            )        Filed: July 11, 2017
                                                    )
      Defendants-Respondents.                       )        Karel A. Lehrman, Clerk
_____________________________________
PERRY KRINITT,                                      )
                                                    )
      Plaintiff-Respondent,                         )
                                                    )
v.                                                  )
                                                    )        Docket No. 44442
IDAHO DEPARTMENT OF FISH AND                        )
GAME and STATE OF IDAHO,                            )
                                                    )
      Defendants-Appellants.                        )
                                                    )


       Appeal from the District Court of the Second Judicial District, State of Idaho,
       Lewis County. Hon. Gregory Fitzmaurice, District Judge.

       District court order granting summary judgment, affirmed.

       Carpenter Law Firm, Missoula, MT, for appellant. Charles H. Carpenter argued.

       Johnson Law Group, Spokane, WA, for respondents. Peter J. Johnson argued.

                          _________________________________

BURDICK, Chief Justice.
       Perry Krinitt, Sr. (Krinitt) appeals the Lewis County district court’s grant of summary
judgment in favor of the State of Idaho and the Department of Fish and Game (IDFG). The
district court ruled that IDFG was a statutory employer under the Idaho Worker’s Compensation



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Act and, consequently, IDFG was entitled to immunity from actions based on the work-related
death of Perry Krinitt, Jr. (Perry). We affirm.
                    I.   FACTUAL AND PROCEDURAL BACKGROUND
       Perry, a pilot for Leading Edge Aviation, died when the helicopter he was piloting
crashed on August 31, 2010, in Kamiah, Idaho. Krinitt v. Idaho Dep’t of Fish and Game, 159
Idaho 125, 126, 357 P.3d 850, 851 (2015). Perry was flying IDFG employees Larry Bennett and
Danielle Schiff to conduct a fish survey on the Selway River. Id. Bennett and Schiff died in the
crash as well. Id. at 127, 357 P.3d at 852. An investigation revealed that the accident was caused
when a clipboard struck the tail rotor. Id. Evidence was that one of the passengers became sick
and opened the helicopter door, dropping the clipboard in the process. Id.
       On August 30, 2012, Krinitt filed a wrongful death suit based in negligence seeking
damages against IDFG for Perry’s death. On October 22, 2012, IDFG filed its answer. In its
answer, IDFG did not assert statutory immunity under Idaho’s Worker’s Compensation Act as a
defense. Thereafter, the district court entered a scheduling order dated February 14, 2013, which
stated: “Dispositive motions shall be filed by January 31, 2014.” IDFG filed a motion for
summary judgment on January 31, 2014. In support of its motion, IDFG did not raise the issue of
statutory immunity; rather, IDFG moved for summary judgment on the basis that Krinitt could
not prove negligence. The district court granted the motion and Krinitt appealed.
       On appeal, this Court determined that a reasonable jury could conclude that the accident
was the result of IDFG’s negligence and reversed and remanded the case to district court. Krinitt,
159 Idaho at 127–31, 357 P.3d at 852–56. Following remand, the district court ordered the
parties to mediation. On March 21, 2016, after a failed mediation attempt, and after the date set
for the filing of dispositive motions, IDFG filed another motion for summary judgment on the
basis of statutory immunity.
       Krinitt opposed the motion, arguing: (1) IDFG was not Perry’s statutory employer and
therefore did not qualify for statutory immunity; and (2) even if IDFG was Perry’s statutory
employer, IDFG had waived its statutory immunity defense by failing to timely plead it. After a
hearing, the district court granted IDFG’s motion for summary judgment, ruling that IDFG did
not waive its right to assert statutory immunity as a defense, and, as a statutory employer, IDFG
was immune from suit under Idaho’s Worker’s Compensation Act. However, under Idaho Rule




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of Civil Procedure 16(i), 1 the district court also imposed sanctions on IDFG for filing its March
21, 2016, summary judgment motion after the January 31, 2014, deadline for filing dispositive
motions set in the scheduling order. Krinitt timely appeals the grant of summary judgment in
favor of IDFG. IDFG appeals the district court’s imposition of sanctions.
                                       II.     STANDARD OF REVIEW
         “This Court’s review of a trial court’s ruling on a motion for summary judgment is the
same standard used by the trial court in originally ruling on the motion.” Robison v. Bateman-
Hall, Inc., 139 Idaho 207, 209, 76 P.3d 951, 953 (2003) (citations omitted). The Idaho Rules of
Civil Procedure state that summary judgment shall be rendered when “the pleadings, depositions,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.”
I.R.C.P. 56(c). 2 “If the evidence reveals no disputed issues of material fact, what remains is a
question of law, over which this Court exercises free review.” Robison, 139 Idaho at 209, 76
P.3d at 953 (citations omitted).
         We review a trial court’s decision to impose sanctions under Idaho Rule of Civil
Procedure 16(i) under an abuse of discretion standard. Lepper v. E. Idaho Health Servs., Inc.,
160 Idaho 104, 109, 369 P.3d 882, 887 (2016). To determine whether the district court abused its
discretion, we examine whether the district court: (1) correctly perceived the issue as
discretionary; (2) acted within the outer boundaries of its discretion and consistently with
relevant legal standards; and (3) reached its decision by an exercise of reason. Swallow v.
Emergency Med. of Idaho, P.A., 138 Idaho 589, 592, 67 P.3d 68, 71 (2003).
                                                III.     ANALYSIS
         The parties raise three issues: (1) whether the district court erred in allowing IDFG to
assert its statutory employer immunity defense; (2) whether IDFG is a statutory employer of
Perry; and (3) whether the district court abused its discretion in imposing sanctions against
IDFG.



1
  All citations to the Idaho Rules of Civil Procedure are to the 2015 rules, as those were the rules in effect at the time
of the proceedings in district court.
2
  The district court granted summary judgment prior to the recent amendment of Idaho Rule of Civil Procedure
56(a), which, as of July 1, 2016, provides: “The court must grant summary judgment if the movant shows that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” I.R.C.P.
56(a).


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A. Whether the district court erred in allowing IDFG to assert its statutory employer
immunity defense.
       Krinitt contends IDFG waived the affirmative defense of statutory employer immunity by
failing to timely assert it as a defense. IDFG responds by asserting that the question of whether
an employer is entitled to statutory immunity is one of subject matter jurisdiction and may
therefore be raised at any time, and at the very least, at any time before trial when the opposing
party has had an opportunity to respond in briefing and oral argument.
       Statutory employer immunity is an affirmative defense. Fuhriman v. State, Dep’t of
Transp., 143 Idaho 800, 803, 153 P.3d 480, 483 (2007). Like other affirmative defenses, if not
properly raised it may be waived. Cf. id. at 803–04, 153 P.3d at 483–84 (noting that the defense
was not waived because it was properly raised). Furthermore, we have expressly stated, “[s]ince
status as a statutory employer is a defense to a common law negligence action, deciding whether
a defendant is a third party or a statutory employer, when that defense is raised, necessarily
attends the district court’s task in ruling on matters in such suits.” Kolar v. Cassia Cnty. Idaho,
142 Idaho 346, 351, 127 P.3d 962, 967 (2005). Simply put, deciding whether an employer has
properly raised the statutory employer immunity defense or whether an employer qualifies as a
statutory employer does not implicate subject matter jurisdiction. Either a court or the Industrial
Commission may determine whether an employer qualifies as a statutory employer and whether
the employer has properly raised the defense. Dominguez ex rel. Hamp v. Evergreen Res., Inc.,
142 Idaho 7, 12, 121 P.3d 938, 943 (2005) (“The Industrial Commission and the district courts of
Idaho have concurrent jurisdiction to determine whether they have jurisdiction to consider a
claim or hear a case.”). It is only after such a determination has been made that subject matter
jurisdiction comes into play. If it is found that the employer is a statutory employer, then
worker’s compensation is the only remedy and jurisdiction rests with the Industrial Commission.
If it is found that the employer does not qualify as a statutory employer or has waived the
defense, then jurisdiction rests with the courts.
       In determining whether an affirmative defense has been waived, we have held that “a
party does not waive an affirmative defense for failing to raise it in the initial answer, so long as
it is raised before trial and the opposing party has time to respond in briefing and oral argument.”
Patterson v. State, Dep’t of Health & Welfare, 151 Idaho 310, 316, 256 P.3d 718, 724 (2011);
accord Guzman v. Piercy, 155 Idaho 928, 935, 318 P.3d 918, 925 (2014); Fuhriman, 143 Idaho
at 803, 153 P.3d at 483; Bluestone v. Mathewson, 103 Idaho 453, 455, 649 P.2d 1209, 1211


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(1982). However, the ability to raise an affirmative defense by motion is not unfettered. Parties
must still comply with the court’s scheduling orders, and failure to comply with such orders may
result in the denial of the defendant’s motion. I.R.C.P. 16(i); I.R.C.P. 37(b)(2)(B) (allowing the
court to refuse to allow “the disobedient party to support or oppose designated claims or
defenses” when a party fails to comply with a scheduling order).
       Here, the district court entered a scheduling order that required all dispositive motions to
be filed by January 31, 2014. IDFG filed its motion for summary judgment asserting the
statutory employer affirmative defense on March 21, 2016. A motion asserting an affirmative
defense is a dispositive motion by its very nature. See Fuhriman, 143 Idaho at 803, 153 P.3d at
483 (“An affirmative defense is ‘[a] defendant’s assertion raising new facts and arguments that,
if true, will defeat the plaintiff’s or prosecution’s claim, even if all allegations in the complaint
are true.’ ” (quoting Black’s Law Dictionary 186 (2d Pocket ed. 2001))). Thus, although IDFG’s
motion was before trial, it was after the date set by the district court’s scheduling order for the
filing of dispositive motions. Had the district court been so inclined, it could have denied the
motion for failure to comply with its scheduling order. I.R.C.P. 16(i); I.R.C.P. 37(b)(2)(B); cf.
Cummings v. Stephens, 157 Idaho 348, 361, 336 P.3d 281, 294 (2014) (denying a motion to
reconsider the exclusion of a witness because the party did not comply with the court’s
scheduling order); Harris, Inc. v. Foxhollow Constr. & Trucking, Inc., 151 Idaho 761, 771, 264
P.3d 400, 410 (2011) (denying the admission of an exhibit because the party failed to comply
with the court’s scheduling order). It did not. Instead the district court heard the motion on its
merits and imposed a lesser sanction. It was within the district court’s discretion to do so.
       The decision of whether to impose sanctions for violating a scheduling order “is within
the district court’s discretion . . . and we will not overturn such a decision absent a manifest
abuse of that discretion.” Lepper, 160 Idaho at 109, 369 P.3d at 887. Here, the district court
noted that the decision to impose sanctions for violating its scheduling order was within its
discretion. The court also noted that under the applicable legal principles an affirmative defense
may be raised for the first time in a motion for summary judgment as long as it is raised before
trial and with time for the opposing party to present argument in opposition. Fuhriman, 143
Idaho at 803, 153 P.3d at 483. The district court also observed that under Idaho Rule of Civil
Procedure 16(i) it could have denied IDFG’s motion “on the basis that it was untimely filed.”
The district court, however, noted that Krinitt did not argue for this remedy under Rule 16(i).



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Additionally, the court noted: (1) IDFG’s failure to bring the motion earlier was “not part of a
pattern of delay or gamesmanship”; (2) the oversight was “immediately brought before the court
with IDFG acknowledging its error”; and (3) “there is no argument that Krinitt was prejudiced
by such action.” Given the these factors, the district court reasoned that under the applicable
legal principles, dismissal of IDFG’s motion, although violating the court’s scheduling order,
was unwarranted. Such a decision was squarely within the district court’s discretion, and we will
not overturn it. Lepper, 160 Idaho at 109, 369 P.3d at 887; Edmunds v. Kraner, 142 Idaho 867,
872–73, 136 P.3d 338, 343–44 (2006).
B. Whether IDFG was a statutory employer of Perry.
        Krinitt argues that IDFG was not the statutory employer of Perry. This argument has two
main points. First, Krinitt argues that Leading Edge was not a contractor of IDFG and therefore
there was no privity of contract between Perry and IDFG, and, thus, IDFG could not be Perry’s
statutory employer. Second, Krinitt argues that because the U.S. Department of Interior (DOI)
was involved in contracting Leading Edge, and because the DOI—as a federal agency—is
outside the reach of Idaho’s Worker’s Compensation Act, the DOI cannot be a contractor
“under” IDFG.
        To the extent Krinitt argues that the DOI is not subject to Idaho’s Worker’s
Compensation Act, this argument fails. See Struhs v. Protection Tech. Inc., 133 Idaho 715, 720,
992 P.2d 164, 169 (1999) (holding the U.S. Department of Energy was the plaintiff’s statutory
employer); Liberty N.W. Ins. Corp. v. United States, No. 1:10-CV-102-REB, 2011 WL 6002468,
at *3 (D. Idaho Nov. 30, 2011) (“[S]tatutory employer immunity under Idaho’s Worker’s
Compensation Act can apply to the United States.”). Krinitt’s argument that statutory employer
immunity in this case would violate the United States and Idaho Constitutions is also premised
on the argument that the DOI is outside the reach of Idaho’s Worker’s Compensation Act and
similarly fails.
        This leaves us with only the second issue: whether statutory employer immunity applies
to IDFG. There are two categories of statutory employers. Venters v. Sorrento Del., Inc., 141
Idaho 245, 249, 108 P.3d 392, 396 (2005). At issue here is the first category. Statutory employers
under the first category are employers “described in section 72-216, Idaho Code, having under
them contractors or subcontractors who have in fact complied with the provisions of section 72-
301, Idaho Code.” I.C. § 72-223(1). To identify a statutory employer under the first category, we



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first consider the statutory definition of “employer” found in I.C. § 72-102(13)(a). Fuhriman,
143 Idaho at 804, 153 P.3d at 484. There, “employer” is defined as “any person who has
expressly or impliedly hired or contracted the services of another.” I.C. § 72-102(13)(a). This
definition “includes contractors and subcontractors.” Kolar v. Cassia Cnty., 142 Idaho 346, 352,
127 P.3d 962, 968 (2005). Essentially, “an employer who makes use of a contractor’s or
subcontractor’s employees qualifies as a category one statutory employer and is immune from
suits in tort.” Ewing v. State, Dep’t of Transp., 147 Idaho 305, 307, 208 P.3d 287, 289 (2009).
        Here, IDFG qualifies as a category one statutory employer of Perry. The “Service Level
Agreement” between IDFG and the DOI clearly shows IDFG contracted with the DOI to secure
aviation services. That agreement states the DOI “agrees to provide services and/or product
support as outlined below to the State of Idaho – Idaho Fish and Game . . . . The State of Idaho –
Idaho Fish and Game and the Department of Interior . . . have entered into this agreement for the
purpose of establishing aviation services . . . .” It is undisputed that Leading Edge had a contract
with the DOI to provide such services. Based on these facts, Perry’s employer, Leading Edge,
was a subcontractor of the DOI, and the DOI contracted with IDFG to provide aviation services.
Accordingly, Perry was a statutory employee of IDFG. Id. (finding that an employee of a
company that was a subcontractor of a company who had contracted with the Idaho
Transportation Department was a statutory employee of the Idaho Transportation Department).
C. Whether the district court abused its discretion in sanctioning IDFG for failing to
comply with its scheduling order.
       The district court entered a scheduling order on February 14, 2013. In that order, the
court imposed a deadline of January 31, 2014, for the filing of any dispositive motions. IDFG did
not bring its summary judgment motion asserting statutory employer immunity until March 21,
2016. Because IDFG did not comply with its scheduling order, the district court entered
sanctions against IDFG under Idaho Rule of Civil Procedure 16(i).
       “Upon motion or on its own initiative, the district court may impose sanctions for failure
to obey a scheduling or pre-trial order.” McKim v. Horner, 143 Idaho 568, 571, 149 P.3d 843,
846 (2006) (citing I.R.C.P. 16(i)). Such sanctions “shall require the party or the attorney
representing him or both to pay the reasonable expenses incurred because of any noncompliance
with this rule, including attorney’s fees . . . .” I.R.C.P. 16(i). “It is within the district court’s
discretion whether to impose such sanctions, and we will not overturn such a decision absent a
manifest abuse of that discretion.” Lepper, 160 Idaho at 109, 369 P.3d at 887.


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       Here, the facts are pretty straightforward. IDFG was required by the scheduling order to
bring any dispositive motions by January 31, 2014. As noted above, a motion asserting an
affirmative defense is a dispositive motion by its very nature. See Fuhriman, 143 Idaho at 803,
153 P.3d at 483. IDFG did not bring its motion asserting its affirmative statutory employer
defense until March 21, 2016. This clearly violated the court’s scheduling order. As mentioned
above, because the filing of the motion violated the court’s scheduling order, the district court
could have denied the motion entirely. However, noting its discretion in the matter, the district
court cited the applicable legal principles and imposed a lesser sanction requiring IDFG to pay
Krinitt’s “reasonable expenses and attorney fees” incurred after the January 31, 2014, deadline
for filing dispositive motions. The decision to set January 31, 2014, as the start date for sanctions
was reasonable as it was the last day available for IDFG to assert its affirmative defense and still
comply with the scheduling order. As the district court observed, IDFG should have known and
discovered their affirmative defense earlier and IDFG “took a risk in retaining an out-of-state
attorney.” There was no excuse for failing to bring the affirmative defense by the January 31,
2014, deadline, and the district court was within the bounds of its discretion in imposing
sanctions for failure to comply with its scheduling order. We affirm its decision to do so.
                                      IV.    CONCLUSION
       The district court is affirmed. Because neither party prevailed on their appeals—Krinitt
did not prevail on the appeal of summary judgment and IDFG did not prevail on the appeal of the
imposition of sanctions—each side will bear its own costs on appeal.
       Justices EISMANN, JONES, HORTON and KIDWELL, J., Pro Tem, CONCUR.




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