Kelly ex rel. Washburn v. Kraemer Construction, Inc.

*515DISSENT

MCKEIG, Justice

(dissenting).

In 2012, Ulland Brothers, Inc., won a bid to repair two bridges in Carlton County. To perform the work, Ulland needed to install concrete culverts under the bridges. The culverts could not be installed without a crane. Lacking a crane or the expertise to operate one, Ulland hired a subcontractor (Kraemer Construction, Inc.) to do the crane work.

Ulland had a four-person crew for the project: Terry Rassier, Richard Washburn, Jeremy Wright, and Matthew Kisley. That crew worked for several days to prepare the worksite for the installation of the culverts, including diverting the stream, draining the streambed, and removing old culverts. Ulland provided all of the equipment and materials for the project, aside from the crane. Rraemer’s crew worked on the project for only one day: October 4, 2012. On that day, Kraemer provided the crane and two employees: Michael Berg-strom and Roger Poukka. Bergstrom was the crane’s sole operator. Poukka oiled the crane and signaled to Bergstrom when and how to move the crane load. Poukka also volunteered to help rig the culvert sections to the crane and guide the sections down as the crane lowered them. Three members of Ulland’s crew rigged, de-rigged, and installed the culvert sections, while the other member operated a bulldozer.

The accident occurred during the installation of the final culvert section. A member of Ulland’s crew rigged the culvert section to the crane, with Poukka’s assistance. The Kraemer crane crew then maneuvered the culvert section into place:

Bergstrom operated the crane, while Poukka used hand signals to direct Berg-strom’s lowering of the culvert section. As the section,-was lowered, Ulland’s crew of four,prepared to attach it to an already-installed portion of the culvert. Wright climbed inside the already-installed portion of the culvert to help connect the final section. Rassier waited nearby in the bulldozer, ready to push the section into place. And Washburn and Kisley prepared to guide the section down and de-rig it from the crane. Having completed his signaling, Poukka stood nearby to help guide the section down. When the culvert section was reachable, Washburn gripped it and was electrocuted. Poukka also felt a jolt after grabbing the culvert section with less force.

Today, the majority holds that the Kraemer crew’s crane work was “interdependent” with the Ulland crew’s rigging, de-rigging, and installation of the culvert section.1 Because the majority misreads our common-enterprise jurisprudence and thereby forecloses a remedy for victims of work-related accidents, I respectfully dissent.

Under Minn. Stat. § 176.061, subdivisions 1 and 4, an injured employee must choose between receiving workers’ compensation benefits from an employer and a common-law negligence action against a third party if the employer and the third party are engaged in furtherance of a common enterprise. To make out a common-enterprise defense, a third party must prove each prong of a three-part test:

1) The employers must be engaged on the same project;
*5162) The employees must be working together (common activity); and
3) In such fashion that they are subject to the same or similar hazards.

McCourtie v. U.S. Steel Corp., 253 Minn. 501, 93 N.W.2d 552, 556 (1958). The parties here agree that Ulland and Kraemer were engaged on the same project. And I accept the court’s conclusion that the two crews were exposed to similar hazards. But the court misapplies our precedent on McCourtie’s second prong: whether the workers were engaged in a common activity.2

In determining whether workers were engaged in a common activity, we have distinguished between work that is merely oriented toward a common goal and work that is truly a common activity. We have repeatedly stated that McCourtie’s common-activity prong is not satisfied simply because two sets of workers shared a common goal. O’Malley v. Ulland Bros., 549 N.W.2d 889, 895 (Minn. 1996) (“Merely working toward a common goal is not sufficient to constitute working together.”); see also Schleicher v. Lunda Const. Co., 406 N.W.2d 311, 313 (Minn. 1987) (stating that two sets of employees were not engaged in a common activity even though “the goals of [the employees] were related”); Kaiser v. N. States Power Co., 353 N.W.2d 899, 906 (Minn. 1984) (stating that two sets of employees were not engaged in a common activity despite having “a common goal”).

Rather, workers engage in a common activity when their work is “interdependent.” See Schleicher, 406 N.W.2d at 313. Only when “‘the masters have joined forces and in effect have put the servants into a common pool’ ” is this standard met. O’Malley, 549 N.W.2d at 893 (quoting Gleason v. Geary, 214 Minn. 499, 8 N.W.2d 808, 814 (1943)). When two sets of workers have “distinct functions to perform,” their work is not interdependent. Kaiser, 353 N.W.2d at 906.

Our precedent reflects this distinction. In Schleicher, two sets of workers had the common goal of laying concrete on a bridge. 406 N.W.2d at 312. One crew drove trucks that unloaded concrete, while the other crew ran a hopper and conveyor system that transported concrete from the trucks to the road. Id. “[T]here was some overlap” in the two crews’ activities. Id. at 313. For example, the second crew sometimes lowered or raised chutes for the drivers in the first crew. Id. Additionally, if the drivers were delivering concrete too slowly, an employee from the other crew “would pitch in and help expedite the unloading.” Id. Yet we concluded that “the employees were involved in basically different activities,” so McCourtie’s common-activity prong was not satisfied. Id.

Likewise, in Kaiser, two sets of employees had the common goal of containing a hotel fire. 353 N.W.2d at 906. Workers from a power company cut off the gas supply to the building, after which firefighters evacuated tenants and extinguished the fire. Id. The two crews needed to coordinate their work to put out the fire, but they performed distinct tasks. We held that the workers were not engaged in a common activity. Id.

The same is true here. Ulland hired Kraemer as a subcontractor because Ul-land did not own a crane and did not employ workers capable of operating one. Indeed, Ulland’s subcontract is specifically for a “Crane Rental.” As in Schleicher and *517Kaiser, two distinct teams coordinated to accomplish a goal. The task of moving the culvert section from the road to the streambed was handled exclusively by Kraemer employees: one operating the crane and the other signaling. Separately, the Ulland employees performed their assigned tasks: preparing the worksite and installing the culvert section. Schleicher and Kaiser show that this coordination of distinct tasks does not add up to the interdependent work necessary to satisfy McCourtie ⅛ common-activity prong. Clearly, the companies did not put their employees into a common pool.

The majority’s focus on the fact that both sets of workers were necessary to install the culverts is misguided. The majority states that the two crews’ work was interdependent because “[njeither crew could have accomplished the day’s goal of setting the culverts without the contemporaneous assistance of the other crew.” And the majority describes as “illustrative” the following testimony of a Ulland foreperson:

Q: In setting the pipe on the north side and the south side and accomplishing that goal for the day, you needed the Kraemer guys and you needed your guys and you needed the two crews working together to get the goal accomplished, correct?
A: Yes, always.

But “[mjerely working toward a common goal is not sufficient to constitute working together.” O’Malley, 549 N.W.2d at 895. Even if two sets of employees “all had to be available at the same time,” they were not engaged in a common activity if “the duties of [the two work crews] overlapped minimally.” Schleicher, 406 N.W.2d at 313.

Our opinion in O’Malley does not require a different conclusion. In O’Malley, a trucking crew drove dump trucks that hauled sand to fill in excavated areas, while a crew from the general contractor operated a road grader to level the new sand. 549 N.W.2d at 890-91. The dump trucks operated by the trucking crew repeatedly became stuck in the sand. Id. at 891. When the trucks became stuck, an employee of the general contractor used a road grader to push the trucks out of the sand. Id. The general contractor’s employee “pushed out about 20 trucks an hour.” Id. This vital and frequent assistance was typical of the crews’ work arrangement.3 Here, the Kraemer crew executed its duties independent of the Ulland crew. Unlike the trucking crew in O’Malley, the Kraemer crew neither required nor requested the assistance of any Ulland employee to complete its function at the site. Ulland and Kraemer employees coordinated their work, but they did not collaborate like the crews in O’Malley.

The majority recognizes that “interpreting] the requirements of the common enterprise test too broadly would permit the exception to swallow the rule.” But the majority’s conclusion that the separate work of the Ulland and Kraemer crews was interdependent improperly weakens McCourtie’s common-activity prong.

Accordingly, I respectfully dissent.

. In concluding that the two crews were engaged in a common activity, the majority properly declines to rely on Poukka’s voluntary assistance in rigging and lowering the culvert section. Rather, the majority states, "Kraemer relied upon Ulland to push the culverts into the rigging area, attach them to the crane, and guide them into position. Ul-land relied upon Kraemer to lift, swing, and lower the 22,000-pound sections, which Ul-land did not have the proper equipment to lift.”

. Here, we review the court of appeals' grant of summaiy judgment to Kraemer, so Kraemer bears "[t]he burden of showing an absence of factual issues” and Kelly "has the benefit of that view of the evidence most favorable to [her].” Lowry Hill Props., Inc. v. Ashbach Constr. Co., 291 Minn. 429, 194 N.W.2d 767, 774(1971).

. Describing the crews’ interaction, an employee of the general contractor explained: [W]e’d send messages through each other, their boss or our boss would say, you know, we've got to get this done, or we need a different kind of material, or I'm going to have enough material. So we'd tell the Max Johnson people, they’d go tell their loader operator, or we’d borrow equipment back and forth once in a while. * * * [I]f they wanted something watered, Johnson did, because their trucks were hauling, we’d go water it for them. If we needed a truck to haul something, they’d give us a truck. If they wanted the road bladed, it was getting too rough for their trucks, I’d go blade it for them.

Id.