No. 63810 

FILED 

JUL 0 2 2015 

TRACE K LINDEMAN 

CLEROF SUPREME COURT 

By a 

D.:1141‘712sCtEllk 

131 Nev., Advance Opinion ill 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

D & D TIRE, INC., A NEVADA 

CORPORATION D/B/A PURCELL TIRE 

& RUBBER COMPANY, A FOREIGN 

CORPORATION; PURCELL TIRE 

COMPANY, INC., A FOREIGN 

CORPORATION; AND RYAN WINTLE, 

Appellants, 

vs. 

JACK R. OUELLETTE, 

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. 1Among 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. 2Even 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 

2VVhen 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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We con 

Gibboffs 

14 

and/or confusing. 

J. 

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J. 

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 

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