This opinion is subject to revision before final

publication in the Pacific Reporter

2016 UT 19

IN THE

SUPREME COURT OF THE STATE OF UTAH

RICK J. NICHOLS,

Respondent,

v.

JACOBSEN CONSTRUCTION CO., INC.,

Petitioner.

No. 20140866

Filed April 28, 2016

On Certiorari to the Utah Court of Appeals

Third District, Salt Lake Dep’t

The Honorable Elizabeth A. Hruby-Mills

No. 120904185

Attorneys:

William J. Hansen, Karra J. Porter, Sarah E. Spencer,

Salt Lake City, for respondent

Julianne P. Blanch, Alan S. Mouritsen,

Salt Lake City, for petitioner

JUSTICE DURHAM authored the opinion of the Court, in which 

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE, 

and JUDGE JOHNSON joined.

Having recused himself, JUSTICE HIMONAS does not participate 

herein; Fourth District JUDGE CHRISTINE S. JOHNSON sat.

JUSTICE JOHN A. PEARCE became a member of the Court 

on December 17, 2015, after oral argument in this 

matter, and accordingly did not participate.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 Rick J. Nichols worked for a subcontractor of Jacobsen 

Construction Company in 2011 when scaffolding came loose and fell 

on him, causing serious bodily injury. Mr. Nichols alleges that 
NICHOLS v. JACOBSEN CONSTRUCTION

Opinion of the Court

2

Jacobsen’s negligence caused these injuries and thus filed suit with 

the district court. Jacobsen moved for summary judgment, claiming 

immunity from suit under the exclusive remedy provision of the 

Utah Workers’ Compensation Act. The district court granted 

Jacobsen’s motion, determining that Jacobsen qualified for immunity 

under the “eligible employer” statute because: (1) Jacobsen 

“procure[d] work” that was “part or process of [its] trade or 

business,” (2) Jacobsen “secure[d] the payment of workers’ 

compensation benefits” for Mr. Nichols, and (3) Jacobsen created and 

maintained a “written workplace accident and injury reduction 

program that [met] the requirements” of the statute. UTAH CODE 

§ 34A-2-103(7)(f)(iii)(B). 

¶2 Mr. Nichols appealed to the Utah Court of Appeals, which 

affirmed on the “procuring work” requirement but reversed on the 

“securing the payment” requirement, concluding that the length of 

time that passed before Jacobsen began making workers’ 

compensation payments had an impact on whether Jacobsen indeed 

secured payment of those benefits as the statute required. The court 

of appeals did not address the workplace accident and injury 

reduction program requirements. 

¶3 We conclude that Jacobsen qualifies as an “eligible 

employer” under the workers’ compensation statutes and has 

fulfilled all three of the above requirements, thereby qualifying for 

immunity from suit. We therefore affirm the district court’s grant of 

summary judgment in its entirety; affirming in part and reversing in 

part the court of appeals’ decision.

BACKGROUND

¶4 Jacobsen Construction Company was a general contractor 

and construction manager for the City Creek Center commercial 

development project in Salt Lake City. Jacobsen required its 

subcontractors to participate in a “contractor-controlled insurance 

program” (CCIP). Under this plan, Jacobsen purchased a single 

insurance policy from a single insurer that covered all of Jacobsen’s 

subcontractors. This plan included a workers’ compensation policy 

that provided the first $250,000 of benefits for injured workers. 

Although subcontractors could still purchase their own workers’ 

compensation insurance, the CCIP was “intended to be the primary 

source of coverage” and would “assume primary position to 

Subcontractors’ insurance in the covered areas of risk.”

¶5 Safway was one such subcontractor included in the CCIP. 

On June 9, 2009, Safway signed a CCIP Enrollment Form and an 

Insurance Calculation Form. Safway listed under the “Work 

Description” heading that it would “erect and dismantle 
Cite as: 2016 UT 19

Opinion of the Court

3

scaffolding.” Safway received a certificate of liability insurance on 

August 27, 2010.

¶6 Safway signed the Insurance Calculation Form that twice 

references the CCIP manual, which in turn requires all participating 

subcontractors to “compl[y] with the terms and conditions of the 

Jacobsen City Creek Center CCIP Manual and the Jacobsen City 

Creek Center Safety and Health Manual.”

¶7 Rick J. Nichols was an employee of Safway. On April 11, 

2011, Mr. Nichols was severely injured while unloading scaffolding. 

On the morning of his injury, Mr. Nichols and another Safway 

employee drove to a construction site to unload scaffolding. Safway 

had reserved a forklift for the men to use to assist with the 

unloading, but when the men arrived at the site there was no forklift 

available. A Jacobsen employee demanded that the men unload the

scaffolding by hand because “the project was behind schedule.” 

Mr. Nichols stayed on the ground while the other Safway employee 

climbed onto the truck’s flatbed. Mr. Nichols began cutting the 

bands that held the individual scaffolding planks together in order 

to unload the planks. As Mr. Nichols was cutting through one of the 

bands, several planks came crashing down on him, with the weight 

of the impact snapping one of the bands of Mr. Nichols’ hard hat.

¶8 After the accident, a Safway supervisor came to the site to 

take Mr. Nichols to speak with one of Jacobsen’s safety supervisors.

The Jacobsen supervisor told the Safway supervisor to take 

Mr. Nichols “wherever you want” for medical assistance because 

“he’s not our employee.” Mr. Nichols then filed a workers’ 

compensation claim, but there is a dispute over who initially paid 

the benefits. Mr. Nichols alleges he initially filed the claim with 

Safway’s insurance carrier, but Jacobsen claims it has paid from “day 

one and dollar one.” It is undisputed, however, that Jacobsen has 

paid over $100,000 in benefits and continues to pay as losses accrue.

¶9 Mr. Nichols filed a negligence action against Jacobsen in the 

district court. Jacobsen argued that it was immune from tort liability 

based on the Utah Workers’ Compensation Act’s exclusive-remedy 

provision. The parties then agreed to stay discovery while Jacobsen 

moved for summary judgment on the question of whether it 

qualified for immunity under the “eligible employer” statute. See

UTAH CODE § 34A-2-103(7)(f)(iii)(B). The statute required Jacobsen to 

establish that it had (1) “procure[d] work” that was “part or process 

of [its] trade or business,” (2) “secure[d] the payment of workers’ 

compensation benefits” for Mr. Nichols, and (3) created and 

maintained a “written workplace accident and injury reduction 

program that [met] the requirements” of the statute. Id.
NICHOLS v. JACOBSEN CONSTRUCTION

Opinion of the Court

4

¶10 The district court granted Jacobsen’s motion for summary 

judgment. First, with respect to the “procuring work” requirement, 

the district court found in its order that Mr. Nichols did not provide 

the court with any “admissible factual or legal basis for th[e] 

assertion . . . [that] delivery of supplies on its face would seem not to 

qualify as procuring work that is part or process of [Jacobsen’s] trade 

or business.” Additionally, the court found that the “plain language 

of the statute seems to support the delivery of supplies [is] clearly in 

furtherance of [Jacobsen’s] work.” Second, with respect to “securing 

the payment” of workers’ compensation benefits, the court found 

that Jacobsen met this requirement when it enrolled Safway as a 

subcontractor in its insurance program. And finally, with respect to 

the “workplace accident and injury reduction program” 

requirement, the court found that Jacobsen had submitted several 

documents demonstrating its compliance with the statute, and that 

although Mr. Nichols “question[ed] many of the facts surrounding 

these documents,” he did not “produce[] any evidence of 

[Jacobsen’s] failure to comply with the statutory mandates.”

¶11 Mr. Nichols appealed to the Utah Court of Appeals, which 

affirmed on the first requirement (procuring the work), but reversed 

on the second requirement (securing the payment). Nichols v. Jacobsen 

Constr. Co., 2014 UT App 201, 334 P.3d 514. The court concluded that 

there was a genuine dispute of fact as to whether Jacobsen secured 

the payment of Mr. Nichols’ benefits, because the parties disputed 

whether Jacobsen paid the benefits from “day one and dollar one” or 

whether Safway initially secured the payment of the benefits, and 

Jacobsen stepped in at a later date. Id. ¶¶ 11–12. The court held that 

Jacobsen would not qualify for immunity “if a significant time 

passed” before Jacobsen started paying Mr. Nichols’ benefits. Id.

¶ 13. The court of appeals did not address the third requirement that 

Jacobsen create and maintain a “written workplace accident and 

injury reduction program.” See UTAH CODE § 34A-2-103(7)(f)(iii)(B)

(III).

¶12 We granted certiorari on the issue of whether the “securing 

the payment” provision includes a timing requirement for actual 

payment of benefits, and the issue of the proper interpretation of the 

word “work.” We have jurisdiction under Utah Code section 78A-3-

102(3)(a).

STANDARD OF REVIEW

¶13 On certiorari, we give the court of appeals’ decision no 

deference and review its decision under a correctness standard. 

Energy Claims Ltd. v. Catalyst Inv. Grp. Ltd., 2014 UT 13, ¶ 17, 325 P.3d 

70; Turner v. Univ. of Utah Hosps. & Clinics, 2013 UT 52, ¶ 13, 310 P.3d 
Cite as: 2016 UT 19

Opinion of the Court

5

1212. We also review questions of statutory interpretation and the 

grant of summary judgment for correctness. Monarrez v. UDOT, 2016 

UT 10, __P.3d__. “To the extent an issue involves a factual question, 

we ‘view the facts and all reasonable inferences drawn therefrom in 

the light most favorable to the nonmoving party’”—in this case—

Mr. Nichols. Id. ¶ 7 (citation omitted).

ANALYSIS

¶14 As set forth in Utah Code section 34A-2-105(1), recovery 

under Utah’s Workers’ Compensation Act is an injured employee’s 

“exclusive remedy against the employer[,] . . . in place of any and all 

other civil liability whatsoever, at common law or otherwise.” This 

exclusive remedy provision has been extended to general contractors 

who qualify as “eligible employers” and meet certain requirements 

of the statute. Utah Code section 34A-2-103(7)(f)(i) defines an 

“eligible employer” as an employer who “procures work to be done 

wholly or in part for the employer by a contractor, including . . . all 

subcontractors under the contractor . . . [and] all persons employed 

by any of these subcontractors.” Then, in order for an “eligible 

employer” to be considered an “employer” and be eligible for the 

exclusive remedy provision, a contractor must satisfy certain 

conditions. The contractor must (1) “procure[] work to be done that 

is part or process of [the contractor’s] trade or business,” 

(2) “secure[] the payment of workers’ compensation benefits for the 

contractor or subcontractor,” and (3) meet specific statutory 

requirements with regard to a “written workplace accident and 

injury reduction program.” UTAH CODE

§§ 34A-2-103(7)(f)(i), -103(7)(f)(iii)(B).

¶15 We conclude that Jacobsen qualifies as an eligible employer 

and has met the specific requirements of the statute. First, Jacobsen 

procured the work of Mr. Nichols’ subcontractor Safway by entering 

into an agreement to erect and dismantle scaffolding for the City 

Creek project. Second, Jacobsen satisfied the statutory requirements 

for securing the payment of workers’ compensation benefits by 

enrolling Safway in the CCIP. Third, Jacobsen fulfilled the statutory 

requirements regarding the workplace accident and injury reduction 

program.

I. UNDER THE PLAIN MEANING OF THE STATUTE, JACOBSEN 

PROCURED THE “WORK” OF SAFWAY AND ITS EMPLOYEES 

AS PART OF JACOBSEN’S “TRADE OR BUSINESS”

¶16 Before a contractor may qualify for immunity under this 

particular statute, it must satisfy a threshold condition that it 

qualifies as an “eligible employer.” This requires the contractor to 
NICHOLS v. JACOBSEN CONSTRUCTION

Opinion of the Court

6

prove that it “procures work to be done wholly or in part for the 

employer.” UTAH CODE § 34A-2-103(7)(f)(i)(B). The contractor must 

additionally show that it procures this work as “part or process” of 

its “trade or business.” Id. § 103(7)(f)(iii)(B)(II). The parties agree that 

Jacobsen “procured” something from Safway, but disagree as to the 

proper interpretation of the word “work.” 

¶17 When we interpret a word within a statute, we first consider 

its plain meaning. J.M.W. v. T.I.Z. (In re Adoption of Baby E.Z.), 2011 

UT 38, ¶ 15, 266 P.3d 702. In looking to determine “the ordinary 

meaning of nontechnical terms of a statute, our ‘starting point’ is the 

dictionary.” Rent-A-Center W., Inc. v. Utah State Tax Comm’n, 2016 UT 

1, ¶ 15, 367 P.3d 989 (citation omitted). If not “‘plain’ when read in 

isolation, [a word] may become so in light of its linguistic, structural, 

and statutory context.” Olsen v. Eagle Mountain City, 2011 UT 10, ¶ 9, 

248 P.3d 465. 

¶18 The word “work” is defined as “[p]hysical and mental 

exertion to attain an end, esp[ecially] as controlled by and for the 

benefit of an employer; labor.” Work, BLACK’S LAW DICTIONARY (9th 

ed. 2009). At the time of his injury, Mr. Nichols was unloading 

scaffolding. Mr. Nichols therefore argues that Safway was a mere 

supplier and argues that Jacobsen procured only materials from 

Safway, urging us to adopt a definition of “work” that would limit it 

to labor and would not include the mere supplying of materials. 

¶19 Jacobsen disagrees with the characterization of Safway as a 

mere supplier, and points to Safway’s CCIP enrollment agreement in 

which Safway wrote in the “Work Description” section that it would 

“erect and dismantle” scaffolding.1 The court of appeals resolved 

this disagreement in favor of Jacobsen and determined that 

“unloading equipment for a construction project, even without any 

additional responsibilities, readily falls under the plain meaning of 

1 Mr. Nichols argues that language in Jacobsen’s CCIP Manual 

specifically excludes from “work” the supplying of materials. 

Indeed, the CCIP Manual does state that “[n]o insurance coverage 

provided by [Jacobsen] under the CCIP shall extend to the activities 

or products of suppliers . . . .” However, the CCIP Manual qualifies 

“suppliers” by including the words “whose employee(s) perform no 

on-site work or are engaged solely in the loading, unloading, stocking, 

testing or hauling of equipment, supplies or materials.” (emphasis 

added.) Given that Safway’s work was to entail not only supplying 

but also erecting and dismantling scaffolding, Safway employees 

were clearly anticipated to be on-site and engage in more than solely 

unloading scaffolding supplies. 
Cite as: 2016 UT 19

Opinion of the Court

7

the word ‘work.’” Nichols v. Jacobsen Const. Co., 2014 UT App 201, 

¶ 9, 334 P.3d 514. 

¶20 We agree that the appropriate interpretation of “work” 

favors Jacobsen. Applying the plain meaning of “work” here, 

supplying, erecting, and dismantling of scaffolding would 

necessarily require the physical and mental exertion of Safway 

employees, which exertion would be controlled by and for the 

benefit of Jacobsen. Additionally, the fact that at the time of his 

injury Mr. Nichols was unloading scaffolding materials is irrelevant. 

This is because the question here is not about what particular task an

individual employee of a subcontractor is doing at any given 

moment while on the job. Rather, the proper question is about the 

work that was procured by a contractor from a subcontractor, and 

that work here included not only supplying, but also erecting and 

dismantling scaffolding.

¶21 Surrounding statutory language provides further support 

for this interpretation: the work procured is to be done “wholly or in 

part” as “part or process” of the employer’s “trade or business.” 

UTAH CODE § 34A-2-103(7)(f)(i)(B), -103(7)(f)(iii)(B)(II). Here, 

Jacobsen’s “trade or business” was construction of the City Creek 

project. Bennett v. Indus. Comm’n, 726 P.2d 427, 431 (Utah 1986) (“The 

trade or business of a general contractor in the construction business 

is construction . . . .”). Safway’s work was “part” of the construction 

“process” because it was “part of the operations which directly

relate[d] to the successful performance of” Jacobsen’s City Creek 

construction project. Id.; accord Pinter Const. Co. v. Frisby, 678 P.2d 

305, 309 (Utah 1984) (the phrase “a ‘part or process in [the 

employer’s] trade or business’ . . . includes ‘those operations which 

enter[] directly into the successful performance of the commercial 

function of the principal employer’” (citation omitted)); see also

Rogers v. Hansen, 317 N.W.2d 905, 908 (Neb. 1982) (“Obviously, the 

work of a subcontractor is ordinarily within the usual course of 

business of the principal contractor . . . .”).

¶22 Because Safway’s supplying, erecting, and dismantling of 

scaffolding was “work” procured by Jacobsen to be done “wholly or 

in part” as “part or process” of Jacobsen’s “trade or business,” 

Jacobsen is an “eligible employer” for purposes of the exclusive 

remedy provision, and the court of appeals properly concluded that 

Jacobsen “procures work” as required by Utah Code

section 34A-2-103(7)(f)(iii)(B)(II).
NICHOLS v. JACOBSEN CONSTRUCTION

Opinion of the Court

8

II. THE COURT OF APPEALS INCORRECTLY CONCLUDED 

THAT THERE WAS A QUESTION OF FACT AS TO WHETHER 

JACOBSEN “SECURED” THE PAYMENT OF WORKERS’ 

COMPENSATION BENEFITS FOR MR. NICHOLS

¶23 The second condition a contractor must satisfy in order to be 

eligible for the exclusive remedy provision is that the contractor 

must “secure[] the payment of workers’ compensation benefits for 

the contractor or subcontractor.” UTAH CODE

§ 34A-2-103(7)(f)(iii)(B)(I). The parties disagree about two things: 

first, what satisfies this condition—whether a contractor must 

provide workers’ compensation insurance or must make actual 

payment of the benefits; and second, whether Jacobsen properly 

insured Safway and its employees.

A. An Employer “Secures the Payment” of Workers’ Compensation 

Benefits When it Provides its Subcontractors and Their Employees

with a Qualifying Insurance Policy

¶24 We first turn to the question of whether an employer 

“secures the payment of worker’s compensation benefits” by 

providing workers’ compensation insurance coverage or whether it 

must make actual payment of workers’ compensation benefits. 

Mr. Nichols argues that the statute requires a contractor to actually 

pay the workers’ compensation benefits itself. However, there is no 

language to support such a requirement. Rather, the language of the 

statute plainly states that the provision of workers’ compensation 

insurance is what is required in order to “secure the payment of” 

workers’ compensation benefits.

¶25 Section 34A-2-103(7)(f)(iii)(B)(I) states that the required 

“payment of workers’ compensation benefits” is to be secured 

“pursuant to Section 34A-2-201.” In turn, section 34A-2-201 provides 

three alternative methods of securing the payment, one of which 

states that “[a]n employer shall secure the payment of workers’ 

compensation benefits for its employees by . . . insuring, and keeping 

insured, the payment of this compensation” either through the 

Workers’ Compensation Fund or through another authorized 

workers’ compensation insurance provider in Utah. This provision 

thus “imposes an unconditional obligation on employers to be 

properly insured.” Thomas A. Paulsen Co. v. Indus. Comm’n, 770 P.2d 

125, 127 n.4 (Utah 1989) (emphasis added). “The duty, therefore, 

imposed on the employer by this section is merely to provide a 

qualifying insurance policy.” Smith v. Am. Express Travel-Related 

Servs., 765 F. Supp. 1061, 1064 (D. Utah 1991) (holding that securing 

the payment does not require an employer to be the guarantor of an 

employee’s actual receipt of benefit payments). The employer 
Cite as: 2016 UT 19

Opinion of the Court

9

therefore is required to “insure” the securing of the payment, not 

“ensure” that the actual payment is made.

¶26 The structure of the statute further supports the conclusion 

that the provision of workers’ compensation insurance, and not 

actual payment of the benefits themselves, is the requirement. 

Section 34A-2-103(7)(f)(iii) provides for three alternative ways in 

which a contractor, as an eligible employer, can qualify for the 

exclusive remedy provision. First, under subsection (A), an eligible 

employer will qualify if it “is liable for and pays workers’ 

compensation benefits as an original employer . . . because the 

contractor or subcontractor fails to comply with” the statutory 

requirement to maintain those benefits. UTAH CODE

§ 34A-2-103(7)(f)(iii)(A) (emphasis added). The second alternative, 

under subsection (B), is the only one that Jacobsen relies upon in this 

case, and requires simply “securing” the payment of benefits. The 

third alternative, under subsection (C), also lists as one of its 

requirements that the contractor is liable for “payment of workers’ 

compensation benefits if the contractor or subcontractor fails to 

comply with” the statutory requirement to maintain those benefits. 

Id. § 34A-2-103(7)(f)(iii)(C)(II) (emphasis added). In only one of these 

subsections did the legislature choose to state that an eligible 

employer must secure the payment of benefits—Section 

34A-2-103(7)(f)(iii)(B). The United States Supreme Court has stated 

that a legislative body “generally acts intentionally when it uses 

particular language in one section of a statute but omits it in 

another,” which canon applies with “particular force” when such 

statutory language is “in close proximity.” Dep’t of Homeland Sec. v. 

MacLean, 135 S. Ct. 913, 919 (2015). The interpretation of “securing 

the payment” most consistent with that canon and with our goal of 

supporting the legislature’s purpose and intent is that a contractor 

must simply maintain a valid insurance policy meeting the statutory 

requirements, not that the contractor must guarantee that a 

subcontractor applies for and receives insurance benefits.

¶27 Based on all of the foregoing, we hold that in order to 

“secure[] the payment of workers’ compensation benefits” under 

Section 34A-2-103(7)(f)(iii)(B)(I), an eligible employer must obtain 

and maintain workers’ compensation insurance as provided in 

Section 34A-2-201, and that evidence of actual payment of benefits is 

not required.
NICHOLS v. JACOBSEN CONSTRUCTION

Opinion of the Court

10

B. Jacobsen Secured the Payment of Workers’ Compensation Benefits when 

It Enrolled Safway in Its CCIP Insurance Program and Maintained the 

Coverage Throughout Safway’s Contract

¶28 In this matter, the court of appeals reversed the grant of 

summary judgment to Jacobsen. We must therefore determine 

whether there is a genuine dispute of any material fact that would 

preclude summary judgment. The record shows that Safway 

enrolled in Jacobsen’s CCIP program starting in June 2009.

According to the CCIP, the workers’ compensation policy covering 

Safway and its employees would be issued upon review by the CCIP 

administrator of Safway’s enrollment forms and completion of the 

procedures specified in the CCIP. Safway received a certificate of 

insurance coverage on August 27, 2010, several months before 

Mr. Nichols’ accident.

¶29 Mr. Nichols alleges that he first received workers’ 

compensation payments through Safway’s separate workers’ 

compensation policy, and that only later did Jacobsen voluntarily 

elect to take over the payment of his claims. But Mr. Nichols’ 

argument is immaterial. There is no indication anywhere in the 

statute that an employer must exercise control over how quickly—or 

even whether—its insurer recognizes the existence of a claim and 

begins making payments. Indeed, there is no statutory language 

addressing this issue in any way. Whether an employee of a 

subcontractor files a claim with that subcontractor’s separate 

workers’ compensation insurance provider or with the general 

contractor’s workers’ compensation insurance provider, and 

whether and when either provider then makes payment of benefits 

to the employee, are entirely separate issues from the question of

whether the general contractor had a workers’ compensation 

insurance policy in place that covered the subcontractor and its 

employees.2

¶30 We conclude the undisputed facts show that Jacobsen 

properly insured Safway and its employees under the CCIP, 

2 If Mr. Nichols had applied for workers’ compensation benefits 

through Jacobson, presumably he would have been covered. The 

circumstances wherein a Jacobsen employee purportedly 

misinformed Mr. Nichols may have complicated the situation in 

terms of Mr. Nichols’ expectations, but it is irrelevant as to whether 

Safway and its employees were covered under the CCIP policy. The 

purported misinformation does not negate everything Jacobsen did 

to comply with the statute, and does not mean that Jacobsen did not 

properly “secure the payment” of benefits for Safway and its 

employees.
Cite as: 2016 UT 19

Opinion of the Court

11

therefore fulfilling the “securing the payment” requirement 

necessary to satisfy the second condition of the exclusive remedy 

provision, and we therefore reverse the court of appeals’ decision on 

this point.

III. JACOBSEN MEETS THE WORKPLACE ACCIDENT AND 

INJURY REDUCTION PROGRAM’S STATUTORY

REQUIREMENTS

¶31 The third major requirement for an eligible employer to be 

able to rely on the exclusive remedy provision is that the employer 

must meet several requirements with respect to a “written 

workplace accident and injury reduction program.” UTAH CODE 

§ 34A-2-103(7)(f)(iii)(B)(III). The district court found for Jacobsen on 

this issue; noting that Jacobsen had submitted documents 

demonstrating its compliance with the statute, and although 

Mr. Nichols questioned “many of the facts surrounding these 

documents,” he did not “produce[] any evidence of [Jacobsen’s] 

failure to comply with the statutory mandates.”

¶32 The court of appeals did not address this statutory 

requirement, presumably because it found a material dispute of fact 

as to whether Jacobsen’s alleged untimely payments were consistent 

with “securing” the payment of benefits for Mr. Nichols, and this 

was enough to remand the case for trial. Although the parties did 

not ask this court to review this issue in their petition and crosspetition for certiorari, Mr. Nichols addressed it in his reply brief, 

arguing that this court could alternatively affirm the court of 

appeals’ remand on this ground. At oral argument, Jacobsen agreed 

that we have the power to decide this issue and asked this court to 

reach the issue here rather than remand to the court of appeals. At 

this court’s request, Mr. Nichols then submitted a supplemental brief 

on the workplace accident and injury reduction program issue.

A. We May Decide Whether Jacobsen Has Met the Safety Program 

Requirements, Despite the Court of Appeals Not Addressing This Question 

¶33 While it is true that “[r]eview on certiorari is limited to 

examining the court of appeals’ decision and is further 

circumscribed by the issues raised in the petitions,” Coulter & Smith, 

Ltd. v. Russell, 966 P.2d 852, 856 (Utah 1998), this does not limit our 

power to review questions decided by the district court and not 

reached by the court of appeals, where those questions are fully 

briefed and fairly included within the issues being decided upon by 

this court. See UTAH R. APP. P. 49(a)(4) (“Only the questions set forth 

in the petition or fairly included therein will be considered by the 

Supreme Court. . . . The statement of a question presented will be 
NICHOLS v. JACOBSEN CONSTRUCTION

Opinion of the Court

12

deemed to comprise every subsidiary question fairly included 

therein.” (emphasis added)); cf. State v. James, 819 P.2d 781, 795 (Utah 

1991) (“Issues that are fully briefed on appeal and are likely to be 

presented on remand should be addressed by this court.” (citation 

omitted)).

¶34 In this case, the court of appeals was asked to determine 

whether the district court correctly found that Jacobsen met the three 

requirements to qualify for the exclusive remedy provision under 

Utah Code section 34A-2-103(7)(f)(iii)(B). In answering this 

overarching question, the court of appeals did not reach the

requirement included within this section. As both parties fully 

briefed this requirement to the court of appeals and to this court, and 

we conclude this is a subsidiary question fairly included within the 

larger question of Jacobsen’s eligibility for the exclusive remedy 

provision, we will decide this issue on the merits.

B. The Record Is Sufficient to Determine That Jacobsen Met the 

Requirements of the Statute

¶35 A contractor’s written workplace accident and injury 

reduction program (Safety Program) must meet several statutory 

requirements. First, the contractor must adopt, post, and enforce a 

Safety Program that complies with Utah Code section 

34A-2-111(3)(d). Id. § 34A-2-103(7)(f)(iii)(B)(III). Section 111(3)(d), in 

turn, may be broken down into twelve requirements for a qualifying 

Safety Program.3 The Safety Program must: 

(1) be “based on clearly stated goals and objectives for 

meeting those goals”; 

(2) “promote[] safe and healthful working conditions”; 

(3) include a “documented review” at least semiannually 

describing how goals are met;

(4) describe “how managers, supervisors, and employees are 

responsible for implementing” the Safety Program; 

(5) describe “how continued participation of management will 

be established, measured, and maintained”; 

(6) describe “the methods used to identify, analyze, and 

control new or existing hazards, conditions, and operations”; 

3 Although the statute expresses some of these requirements 

permissively, subsection (3)(d) is clear that if an employer is relying 

on the “eligible employer” provision—section 34A-2-103(7)(f)—the 

Safety Program must include all twelve requirements as outlined in 

this opinion. See UTAH CODE § 34A-2-111(3)(d).
Cite as: 2016 UT 19

Opinion of the Court

13

(7) describe how it will be “communicated to all employees so 

that the employees are informed of work-related hazards and 

controls”; 

(8) describe “how workplace accidents will be investigated 

and corrective action implemented;

(9) describe “how safe work practices and rules will be 

enforced”;

(10) include a “written agreement” that gives the eligible 

employer the “right to control the manner or method by 

which the work is executed”; 

(11) include a “written agreement” that gives the contractor 

the right to “remove the subcontractor from the work site,” or 

prohibit an employee from working on the project, based on 

noncompliance with the Safety Program; and 

(12) include a “written agreement” that gives the employer 

the right to “inspect on a regular basis the equipment of a 

contractor or subcontractor,” and to “require that the 

contractor or subcontractor repair, replace, or remove” unsafe 

equipment.

Id.

¶36 Once again, we are tasked with determining whether the 

district court correctly granted Jacobsen’s motion for summary 

judgment. Before we can reinstate summary judgment, we must be 

able to conclude that the undisputed facts show that summary 

judgment was proper. We have carefully reviewed the statute, the 

record, and each party’s arguments and counter-arguments, and 

conclude that the undisputed facts show that Jacobsen has complied 

with all statutory requirements.4 Although Mr. Nichols asserts that 

4 We note there is a lacuna in the record as to whether Jacobsen 

“posted” the safety program on site, as evidence of this requirement 

was not submitted in discovery and Jacobsen’s safety supervisor 

Mark Chavez failed to address this requirement in his affidavit. 

However, given that the parties agreed to limited discovery and 

Jacobsen’s otherwise overwhelming demonstration of conformity 

with the statute, we conclude it would defeat the legislature’s 

purpose of “reduc[ing] litigation and improv[ing] the coverage for 

otherwise uninsured contractors” to reverse summary judgment on 

this singular and minor uncertainty. See supra Part I.
NICHOLS v. JACOBSEN CONSTRUCTION

Opinion of the Court

14

Jacobsen did not comply with several requirements, most of 

Mr. Nichols’ arguments stem from three mistaken assumptions.5

¶37 First, Mr. Nichols asserts that although Safway signed the 

CCIP Enrollment Form and Insurance Calculation Form, Safway 

never signed the CCIP manual or the Safety and Health Manual 

directly, and therefore presumably did not have notice of the 

documents’ terms. Mr. Nichols argues that as a consequence, all the 

provisions in those documents are not binding on Safway. We 

disagree. Although it would be administratively preferable for a 

contractor to have its subcontractors sign one incorporated 

document containing all of the statutory requirements, it is enough 

that the subcontractor signs a document that incorporates by 

reference the other necessary documents. Safway signed the 

Insurance Calculation Form that references two different provisions 

of the CCIP Manual, and the CCIP Manual in turn explicitly binds 

subcontractors to the terms of both the CCIP Manual and the Safety 

and Health Manual. Therefore, we reject Mr. Nichols’ arguments 

that there was no “written agreement.”

¶38 Second, Mr. Nichols asserts that even if Safway agreed to 

the terms of the CCIP Manual and the Safety and Health Manual, the 

manuals’ provisions are inapplicable to a “mere supplier” who 

performs no on-site work. As we have already concluded that

Safway was not a mere supplier, but rather was hired to “erect and 

dismantle” scaffolding, this argument fails. Additionally, the statute 

is not directed to the manner in which a subcontractor participates in 

the Safety Program, but rather to the establishment of the 

contractor’s Safety Program overall.

¶39 Third, Mr. Nichols asserts that Jacobsen did not have the 

“right to control the manner or method by which the work is 

executed.” UTAH CODE § 34A-2-111(3)(d)(ii)(A). Mr. Nichols opines 

that Jacobsen did not include this right so as to not open itself up to 

“retained control” claims. See Thompson v. Jess, 1999 UT 22, ¶ 15, 979 

P.2d 322 (defining “retained control” as the “unique circumstance 

where an employer of an independent contractor exercises enough 

control over the contracted work to give rise to a limited duty of 

care, but not enough to become an employer or a master of those 

over whom the control is asserted”).

5 Although Mr. Nichols disputes the evidence with respect to 

each of the individual requirements, many of these arguments may 

be combined into the three main arguments which we will address 

and clarify here. For any remaining arguments, we conclude there is 

no a genuine dispute of material fact and therefore decline to 

address them.
Cite as: 2016 UT 19

Opinion of the Court

15

¶40 Jacobsen has pointed to several ways in which it had the 

right to control the method or manner of its subcontractors’ work. 

For example, inter alia, the Safety and Health Manual required all 

enrolled subcontractors to have an on-site safety supervisor present 

at all times while work was being performed for Jacobsen. Jacobsen 

maintained discretion to remove any person from the City Creek 

project not in compliance with the Safety and Health Manual. 

Jacobsen required all visitors to check-in with a Jacobsen receptionist 

before entering the site. And finally, Jacobsen reserved the right to 

require its subcontractors to increase general liability control 

measures if Jacobsen determined that existing measures were 

inadequate.

¶41 We conclude as a matter of law that Jacobsen satisfied the 

“right to control” test. As the foregoing evidence in the record makes 

clear, Jacobsen went above and beyond the “right to control” that 

the statute requires. We note that the traditional “right to control” 

test is not appropriate in the context of whether Jacobsen qualifies 

for immunity under the eligible employer statute. See Pinnacle Homes, 

Inc. v. Labor Comm’n, 2007 UT App 368, ¶ 20, 173 P.3d 208. In the 

workers’ compensation context, right to control “requires only that 

the general contractor retain ultimate control over the project.” 

Bennett v. Indus. Comm’n, 726 P.2d 427, 432 (Utah 1986). If the 

contractor has shown that its “subcontractor’s work is a part or 

process of the general contractor’s business, an inference arises that 

the general contractor has retained supervision or control over the 

subcontractor.” Id. We have already determined that Safway’s work 

erecting and dismantling scaffolding was “part or process” of 

Jacobsen’s business, see supra Part I, and Jacobsen has additionally 

demonstrated its ability to control its subcontractors according to the 

terms of its Safety and Health Manual. Therefore, Jacobsen has met 

its burden to show it maintained the right to control Safway and, 

accordingly, Mr. Nichols. We conclude Jacobsen has met all of the 

statutory requirements.

CONCLUSION

¶42 Jacobsen qualifies for the exclusive remedy provision of the 

Workers’ Compensation Act and is thus immune from Mr. Nichols’

negligence action. Jacobsen satisfied the threshold condition of being 

an “eligible employer” by procuring work from Safway to be done as 

part of its construction business. As an eligible employer, Jacobsen 

has successfully shown that it qualifies as an “employer” for 

purposes of the exclusive remedy provision and thus is immune 

from suit by (1) “securing the payment” of workers’ compensation 

benefits through enrolling Safway in its insurance program and 
NICHOLS v. JACOBSEN CONSTRUCTION

Opinion of the Court

16

maintaining that insurance, and (2) showing that it created and 

maintained a workplace safety and accident program that meets all 

of the statutory requirements. We therefore affirm in part and 

reverse in part the court of appeals’ opinion, thereby affirming in 

whole the decision of the district court.