                                                  131 Nev., Advance Opinion ill
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                D & D TIRE, INC., A NEVADA                           No. 63810
                CORPORATION D/B/A PURCELL TIRE
                & RUBBER COMPANY, A FOREIGN
                CORPORATION; PURCELL TIRE
                COMPANY, INC., A FOREIGN                                 FILED
                CORPORATION; AND RYAN WINTLE,
                Appellants,                                              JUL 0 2 2015
                vs.                                                    TRACE K LINDEMAN
                                                                    CLEROF SUPREME COURT
                JACK R. OUELLETTE,                                  By   aD.:1141‘712sCtEllk
                Respondent.



                           Appeal from a district court judgment following a jury verdict
                and a post-judgment order denying judgment as a matter of law and a new
                trial in a personal injury action. Second Judicial District Court, Washoe
                County; Janet J. Berry, Judge.
                           Affirmed.

                Holland & Hart LLP and J. Stephen Peek and J. Robert Smith, Reno;
                Thorndal, Armstrong, Delk, Balkenbush & Eisinger and Charles L.
                Burcham and Kevin A. Pick, Reno,
                for Appellants.

                Bradley, Drendel & Jeanney and William C. Jeanney, Reno,
                for Respondent.




                BEFORE SAITTA, GIBBONS and PICKERING, JJ.




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                                                 OPINION


                By the Court, SAITTA, J.:
                            In Nevada, employers and coemployees of a person injured in
                the course of employment are immune from liability for the injury under
                the exclusive remedy provision of the workers' compensation statutes.
                Additionally, some subcontractors and independent contractors are
                accorded the same status as employers or coemployees of the injured
                employee and are thus immune from liability. However, a subcontractor
                or independent contractor is not considered to be a statutory employee
                when it is performing a major or specialized repair that the injured
                worker's employer is not equipped to handle with its own work force. This
                opinion addresses when an independent contractor's actions are within the
                scope of a major or specialized repair so as to prevent it from claiming
                immunity as a statutory employer or coemployee.
                            We hold that when evaluating whether an independent
                contractor's actions are within the scope of a major or specialized repair, a
                district court must consider the act giving rise to the injury within the
                entire context of the overall specialized repair and not in isolation. Thus,
                factors such as whether the presence of the contractor at the job site was
                for the purpose of the specialized repair or whether the activity was in
                furtherance of the specialized repair can help guide the court's analysis.
                We further hold that where, as in this case, the jury is instructed on
                negligence, proximate cause, and the essentiality of a finding of the
                defendant's negligence, an incomplete "mere happening" jury instruction
                may be duplicative and/or confusing, and thus, the district court's failure
                to give such an instruction was not an abuse of discretion.

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                                     FACTUAL AND PROCEDURAL HISTORY
                                  Respondent Jack R. Ouellette was employed by Allied Nevada
                   Gold Corporation (Allied) to perform tire service work, including the
                   installation, removal, repair, and replacement of tires on various pieces of
                   mining equipment. Appellant Purcell Tire & Rubber Company is a
                   commercial tire retailer. 1 Among other things, it provides tire changing
                   and repair services to mining companies
                                  As part of his job, Ouellette drove and operated a tire
                   changing boom truck owned by Purcell and leased to Allied. When a
                   problem developed with the boom truck's power take off unit (PTO),
                   Purcell contacted an independent repair company, Dakota Diesel, who
                   sent repairman Scott Durick to make specialized repairs to the PTO.
                   Purcell, as owner of the truck, also sent Ryan Wintle, a tire technician for
                   Purcell with responsibilities similar to those of Ouellette, to assist with
                   the repairs.
                                  After the initial repairs were completed, Wintle and Durick
                   filled the truck with hydraulic oil. Wintle then got into the truck to move
                   it to another area before testing the PTO. While backing up the truck,
                   Wintle struck and pinned Ouellette against a dumpster, causing Ouellette
                   to suffer a shoulder injury.
                                  Ouellette filed a personal injury claim against Purcell. At
                   trial, Purcell moved for a judgment as a matter of law on the grounds that
                   it was a statutory employee of Allied and was thus immune from liability
                   under the Nevada Industrial Insurance Act (NIIA). The district court



                         lAppellants D & D Tire, Inc., and Purcell Tire Company, Inc., are
                   subsidiaries of Purcell Tire & Rubber Company (collectively, Purcell).


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                 denied Purcell's motion. Purcell also requested a mere happening jury
                 instruction, which the district court declined to give.
                             The jury returned a verdict in favor of Ouellette. Purcell then
                 renewed its motion for judgment as a matter of law on the grounds that it
                 was a statutory employee of Allied. Alternatively, it moved for a new trial,
                 arguing that the district court's error in refusing to give Purcell's mere
                 happening jury instruction materially affected its substantial rights. The
                 district court denied Purcell's motion. Purcell now appeals.
                                                 DISCUSSION
                             Purcell argues that the district court erred in denying its
                 motion for judgment as a matter of law because Purcell was a statutory
                 employee of Allied at the time of Ouellette's injury and would thus be
                 immune from liability for the injury under the NIIA. Purcell also argues
                 that the district court abused its discretion by refusing to give a mere
                 happening jury instruction.
                             Ouellette argues that the district court did not err in denying
                 Purcell's motion for judgment as a matter of law because Purcell was
                 performing a specialized repair at the time of Ouellette's injury and thus
                 was not a statutory employee of Allied Ouellette also argues that the
                 district court did not err in refusing to give Purcell's proffered jury
                 instruction because it misstated Nevada law and was adequately covered
                 by other instructions given to the jury.
                 The district court did not err by denying Purcell's motion for judgment as a
                 matter of law
                             NRCP 50(a)(1) provides that a district court may grant
                 judgment as a matter of law "with respect to a claim or defense that
                 cannot under the controlling law be maintained or defeated." In deciding
                 a motion for judgment as a matter of law, "[t]he [district] court must view
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                all evidence and inferences in favor of the nonmoving party." FGA, Inc. v.
                Giglio, 128 Nev., Adv. Op. 26, 278 P.3d 490, 500 (2012). Thus, a
                nonmoving party can defeat a motion for judgment as a matter of law if it
                "present Es] sufficient evidence such that the jury could grant relief to that
                party." Bielar v. Washoe Health Sys., Inc., 129 Nev., Adv, Op. 49, 306 P.3d
                360, 368 (2013) (internal quotations omitted).
                            We review a district court's order granting or denying
                judgment as a matter of law and its interpretation of a statute de novo.
                Wyeth v. Rowatt, 126 Nev. 446, 460, 244 P.3d 765, 775 (2010) (reviewing
                judgment as a matter of law de novo); Intl Game Tech., Inc. v. Second
                Judicial Dist. Court, 124 Nev. 193, 198, 179 P.3d 556, 559 (2008)
                (reviewing statutory interpretation de novo).
                      An independent contractor is not immune from liability when
                      performing specialized repairs
                            In Nevada, employers and coemployees of a person injured in
                the course of employment are immune from liability under the NIIA. NRS
                616B.612; Lipps v. S. Nev. Paving, 116 Nev. 497, 501, 998 P.2d 1183, 1186
                (2000) (noting that coemployees are immune from liability for injuries
                incurred by other employees during the course of employment under NIBS
                6161B.612(3), NRS 616A.020(1), and NRS 616C.215(2)(a)). Additionally,
                the NIIA is "uniquely different from industrial insurance acts of some
                states in that sub-contractors and independent contractors are accorded
                the same status as employees" and are immune from liability.         Meers v.
                Haughton Elevator, 101 Nev. 283, 285, 701 P.2d 1006, 1007 (1985)
                (internal quotations omitted) (interpreting a prior version of NRS
                616C.215); see also NRS 616A.210(1) ("[S]ubcontractors, independent
                contractors and the employees of either [are] deemed to be employees of
                the principal contractor for the purposes of [the NIIA].").
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                            However, not all types of subcontractors and independent
                contractors are considered to be statutory employees under NRS
                616A.210.   Id.   A subcontractor or independent contractor is not a
                statutory employee if it "is not in the same trade, business, profession or
                occupation as the [employer of the injured worker]."              See   NRS
                616B.603(1)(b); Hays Home Delivery, Inc. v. Emp'rs Ins. Co. of Nev.,    117
                Nev. 678, 682, 31 P.3d 367, 369-70 (2001) (noting that NRS 616B.603
                codifies the Meers test, discussed below, which is used to "determine [ ]
                whether independent contractors are 'employees' under the NIIA").
                            The "normal work" test, first articulated in Meers, guides
                courts as to whether a subcontractor or independent contractor is
                considered to be in the same trade, business, profession, or occupation as
                the employer of an injured worker.       See Hays Home Delivery, Inc., 117
                Nev. at 682-83, 31 P.3d at 369-70 (2001). The Meers normal work test is
                            not one of whether the subcontractor's activity is
                            useful, necessary, or even absolutely indispensable
                            to the statutory employer's business, since, after
                            all, this could be said of practically any repair,
                            construction or transportation service. The test
                            (except in cases where the work is obviously a
                            subcontracted fraction of a main contract) is
                            whether that indispensable activity is, in that
                            business, normally carried on through employees
                            rather than independent contractors.
                101 Nev. at 286, 701 P.2d at 1007 (internal quotations omitted); see also
                Oliver v. Barrick Goldstrike Mines, 111 Nev. 1338, 1349, 905 P.2d 168, 175
                (1995) (holding that the "same trade" language in NRS 616.262, replaced
                by NRS 616B.603, refers to the Meers test). With regard to subcontracted
                maintenance activities, "[t]he general rule is that major repairs, or
                specialized repairs of the sort which the employer is not equipped to

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                 handle with his own force, are held to be outside his regular business."
                 Meers, 101 Nev. at 286, 701 P.2d at 1007-08 (internal quotations omitted).
                             Purcell's interpretation of the Meers normal work test is
                             incorrect
                             Purcell concedes that the job of repairing the truck's PTO
                 would be considered a specialized repair under Meers. However, it argues
                 that Dakota Diesel performed the specialized repair, while Wintle was
                 merely there to "monitor the repair process." Purcell further argues that
                 even if Wintle was performing a specialized repair on the day of
                 Ouellette's injury, Wintle was not performing a specialized repair at the
                 time Ouellette was actually injured.
                             In making its argument, Purcell contends that the focus of the
                 normal work test is on the work being performed at the time the injury
                 occurred. Therefore, because Wintle was moving the tire changing boom
                 truck at the time of Ouellette's injury, which was work normally
                 performed by employees of Allied, Purcell argues that Wintle was not
                 performing a specialized repair at the time of Ouellette's injury. In
                 support of its argument, Purcell relies on State Industrial Insurance
                 System v. Ortega Concrete Pumping, Inc., which held that under the
                 normal work test, "the relevant factual inquiry. . . is whether [the
                 contractor who caused the accident] was in the 'same trade, business,
                 profession or occupation' as [the injured employee]     at the time of the
                 accident." 113 Nev. 1359, 1363-64, 951 P.2d 1033, 1036 (1997) (emphasis
                 added). Purcell also relies on Employers Insurance Company of Nevada v.
                 United States, which held that a principal contractor was immune under
                 the NIIA as the statutory employee of the subcontractor because the work
                 that the subcontractor "was performing at the time of his injury" was


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                normally carried out by the principal contractor. 322 F. Supp. 2d 1116,
                1118 (D. Nev. 2004) (emphasis added).
                            We reject Purcell's narrow interpretation of the Meers normal
                work test. Purcell effectively argues that the relevant inquiry under
                Meers is whether, at the exact moment of an employee's injury, the activity
                being performed by the subcontractor or independent contractor was
                normally performed by the injured worker's employer. Purcell misstates
                the holdings of Ortega and Employers Insurance Company. In Ortega, this
                court foundS the district court's failure to apply the Meers test was error,
                and we reversed and remanded so that it could apply the proper analysis.
                113 Nev. at 1364, 951 P.2d at 1036. Because the Ortega court did not
                actually apply the Meers normal work test, its holding is inapposite to the
                current case. Id. And in Employers Insurance Company, the district court
                examined whether the defendant was the statutory employer "at the time
                of the accident" by examining the circumstances surrounding the
                employment, not the acts at the exact moment of the injury. 322 F. Supp.
                2d at 1118. Thus, nothing in the reasoning of either case supports
                Purcell's contention.
                            Furthermore, Purcell's narrow interpretation could readily
                create absurd results. Under Purcell's reasoning, the status of a worker
                performing specialized repairs would change from moment-to-moment
                depending on whether that particular task is normally performed by
                employees of the primary contractor. For instance, repairing an engine
                valve on a vehicle might be considered a specialized repair, but checking
                the oil level afterwards would not be if the primary contractor's employees
                normally check the oil level of the vehicles they are driving. Thus, the
                status of the work that an independent contractor is performing could

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                    repeatedly alternate between a specialized repair and something else
                    during the same overall repair.
                          Winne was performing a specialized repair at the time of Ouellette's
                          injury
                                In rejecting Purcell's narrow interpretation of Meers, we hold
                    that in order to determine whether a subcontractor or independent
                    contractor was engaged in a specialized repair under the Meers test, and
                    therefore whether that subcontractor or independent contractor is liable
                    for any injuries caused to workers during the course of that specialized
                    repair, the court must consider the subcontractor or independent
                    contractor's activity leading to a worker's injury within the context of their
                    other actions, both before and after the injury, and not in isolation. In this
                    case, we hold that Wintle's presence at the mine for the purpose of a
                    specialized repair was sufficient to establish that he was not acting as an
                    employee of Allied at the time of the injury.
                                Wintle was at the mine on the day of Ouellette's injury
                    because the truck's PTO required specialized repair. Purcell sent Wintle
                    to the site specifically to accompany Durick, who was hired to make those
                    specialized repairs. 2 Even if Wintle's only purpose at the mine that day
                    was to "monitor the repair process" of the truck, as Purcell claims, Wintle
                    was nonetheless there for the sole purpose of the specialized repair. To
                    put it another way, Wintle would not have been at the mine that day but
                    for the specialized repair. Because Wintle was at the mine on the day of
                    Ouellette's injury for the purpose of a specialized repair, we hold that


                          2 VVhen   asked why he was at the mine on the day of the accident,
                    Wintle testified that he went there "to assist and facilitate Mr. Durick in
                    repairs to the 508 boom truck."


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                 there was sufficient evidence for the jury to find that Wintle and Purcell
                 were performing a specialized repair under Meers at the time of
                 Ouellette's injury, and were therefore not statutory employees of Allied
                 under NRS 616B.603 and NRS 616A.210.
                             Even under Purcell's narrow interpretation of Meers, we hold
                 that, when looked at in context, Wintle would still have been acting in
                 furtherance of the specialized repair at the time of Ouellette's injury and
                 thus be considered to be performing a specialized repair under Meers.
                 Wintle arrived at the mine with Durick, the Dakota Diesel repairman
                 Purcell had engaged to perform the specialized repair work. Both Durick
                 and Wintle testified that Wintle actively assisted Durick in the specialized
                 repair. Wintle testified that "[he] was going out to assist and
                 facilitate. . . Durick in repairs to the 508 boom truck." Durick testified
                 that Wintle assisted him in his work on the truck, stating that
                             [Wintle and I] had to drain all of the hydraulic oil.
                             We drained the transmission fluid out, removed
                             the hydraulic pump, and the power takeoff unit,
                             mounted the new one on, had to do some setup
                             procedure on it, got that all mounted, filled the
                             tranny back full of oil, and remounted the
                             hydraulic pump
                 After Durick and Wintle performed the initial repairs, they "got to a point
                 where [they] needed hydraulic oil" and drove the truck from the tire pad to
                 the shop where the hydraulic oil was kept. After filling the truck with
                 hydraulic oil, Durick testified that he and Wintle were next going to "take
                 pressure checks and. . . were going to operate the crane to make sure it
                 was operating and functioning properly." Ouellette testified that this was
                 to see if the repairs were successful. Wintle then asked Durick if he
                 "wanted to do the pressure checks and the function checks right there,"
                 but Durick wanted to first move the truck to the tire pad because the shop
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                      area was congested. Wintle then got into the truck to move it to the tire
                      pad, a move that led to Ouellette's injury.
                                  Thus, while employees of Allied may usually drive the truck
                      and fill it with hydraulic oil, in the context of Wintle's other actions, it is
                      clear that in this case he was acting in furtherance of the overall
                      specialized repair at the time of Ouellette's injury. Therefore, even had
                      evidence not been presented that Wintle was at the mine solely for the
                      purpose of the specialized repair, there was sufficient evidence
                      demonstrating that Wintle was still in the process of performing a
                      specialized repair at the time of Ouellette's accident. Accordingly, Purcell
                      was not a statutory employee of Allied under NRS 616B.603 and NRS
                      616A.210, and we hold that the district court did not err in denying
                      Purcell's motion for judgment as a matter of law regarding NRS
                      616B.612's application.
                      The district court did not improperly reject Purcell's jury instruction
                                  We review a decision to admit or refuse jury instructions for
                      an abuse of discretion or judicial error. Ins. Co. of the W. v. Gibson Tile
                      Co., 122 Nev. 455, 463, 134 P.3d 698, 702-03 (2006). We review de novo
                      whether a jury instruction accurately states Nevada law. Cook v. Sunrise
                      Hosp. & Med. Ctr., LLC, 124 Nev. 997, 1003, 194 P.3d 1214, 1217 (2008).
                      Although "a party is entitled to jury instructions on every theory of fits]
                      case that is supported by the evidence," Johnson v. Egtedar, 112 Nev. 428,
                      432, 915 P.2d 271, 273 (1996), the offering party must demonstrate that
                      the proffered jury instruction is warranted by Nevada law. NRCP
                      51(a)(1).
                                  At trial, the district court rejected the following jury
                      instruction offered by Purcell:

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                                        The mere fact that there was an accident or
                                  other event where someone was injured is not in
                                  and of itself a sufficient basis for negligence.
                      The instruction was based on Gunlock v. New Frontier Hotel Corporation,
                      which held, in relevant part, that "Whe mere fact that there was an
                      accident or other event and someone was injured is not of itself sufficient
                      to predicate liability. Negligence is never presumed but must be
                      established by substantial evidence." 78 Nev. 182, 185, 370 P.2d 682, 684
                      (1962), abrogated on other grounds by Foster v. Costco Wholesale Corp.,
                      128 Nev., Adv. Op. 71, 291 P.3d 150, 156 (2012).
                            The omitted portions of Purcell's jury instruction were adequately
                            covered by other instructions
                                  While Purcell's proffered jury instruction accurately reflects
                      the first part of the Gunlock mere happening instruction, it omits the
                      second part, stating that "[n]egligence is never presumed but must be
                      established by substantial evidence." 78 Nev. at 185, 370 P.2d at 684.
                      Therefore, Purcell's proffered jury instruction, by itself, is an inaccurate
                      statement of Nevada law. However, in civil cases, "if an instruction is not
                      technically correct, the instruction should be examined in the context of all
                      instructions given to the jury" in deciding whether "the jury was•
                      sufficiently and fairly instructed."   Gordon v. Hurtado, 96 Nev. 375, 380,
                      609 P.2d 327, 330 (1980).
                                  Here, the statement that "[n]egligence is never presumed" is
                      merely a restatement of the first part of the Gunlock reasoning presented
                      above, 78 Nev. at 185, 370 P.2d at 684 ("The mere fact that there was an
                      accident . .. is not of itself sufficient to predicate liability."), and the
                      concept that negligence "must be established by substantial evidence" was
                      adequately covered by other jury instructions stating the burden of proof
                      for a claim of negligence; see, e.g., Jury Instruction No. 20 (stating the
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                 elements that Ouellette must prove to prevail on a negligence theory and
                 that those elements must be proven by a preponderance of the evidence).
                 Thus, when taken as a whole with the other jury instructions given by the
                 court, we find that Purcell's proposed jury instruction would have
                 sufficiently and fairly instructed the jury on Gunlock's holding.          See
                 Gordon, 96 Nev. at 380, 609 P.2d at 330.
                       Purcell's proposed jury instruction was adequately covered by other
                       instructions
                             "[T]he number of instructions to be given is discretionary with
                 the court." Duran v. Mueller, 79 Nev. 453, 460, 386 P.2d 733, 737 (1963).
                 "If one instruction adequately covers a given theory of liability or defense,
                 it is preferable that the court refuse additional instructions relating to the
                 same theory, though couched in different language." Id.
                             Where other jury instructions "adequately cover[ ] negligence,
                 proximate cause, and the essentiality of a finding of defendants'
                 negligence to permit a verdict for [the] plaintiff," a mere happening
                 instruction is duplicative or confusing. Gagosian v. Burdick's Television &
                 Appliances, 62 Cal. Rptr. 70, 73 (Ct. App. 1967); see also Kennelly v.
                 Burgess, 654 A.2d 1335, 1341 (Md. 1995) ("Even the use of a proper 'mere
                 happening' instruction can lead to confusion in the minds of jurors .
                 Simmons v. Monarch Mach. Tool Co., 596 N.E.2d 318, 324 (Mass. 1992)
                 (holding that a mere happening instruction was redundant to an
                 instruction which stated that "if the defendant acted with reasonable care
                 under the circumstances, then it is not negligent and not liable to the
                 plaintiff even though the plaintiff might have been injured"), abrogated on
                 other grounds by Vassallo v. Baxter Healthcare Corp., 696 N.E.2d 909, 910
                 (Mass. 1998).


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                                   Here, the district court's jury instructions covered the issues of
                     negligence, proximate cause, and the essentiality of a finding of Purcell's
                     negligence.    See Jury Instruction No. 18 (stating that Ouellette had the
                     burden to prove that his injury was caused by Purcell's negligence); Jury
                     Instruction No. 20 (stating the elements that Ouellette must prove to
                     prevail on a negligence theory and that those elements must be proven by
                     a preponderance of the evidence); Jury Instructions Nos. 21-26 (defining
                     negligence, contributory negligence, proximate cause, and duty of care).
                     Therefore, the district court did not abuse its discretion by refusing to give
                     Purcell's incomplete mere happening jury instruction.        See Gagosian, 62
                     Cal. Rptr. at 73.
                                                     CONCLUSION
                                   Because there was sufficient evidence demonstrating that
                     Wintle was present at the mine for the purpose of a specialized repair and
                     acting in furtherance of the specialized repair when he caused Ouellette's
                     injury, Purcell was not immune from liability for Ouellette's injury under
                     NRS 616B.612. Thus, the district court did not err in denying Purcell's
                     motion for judgment as a matter of law. Furthermore, the district court
                     did not abuse its discretion in refusing to give an incomplete mere
                     happening jury instruction because to do so would have been duplicative
                     and/or confusing.
                                                                                           J.


                     We con


                     Gibboffs

                                                       J.

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