(dissenting).
Ulland Brothers contracted with the State of Minnesota to resurface a portion of Interstate 90 near Stewartville, Minnesota, during the summer of 1991. Max Johnson Tracking, a subcontractor, provided loading and hauling services for the project. There were other subcontractors who provided such services as grading, concrete, tiling, and landscaping work.
At the beginning of the project, Ulland Brothers and certain subcontractors set up barricades and signs to warn and detour traffic. A lane switch was also constructed to move traffic from the lanes to be repaired. Then the old roadway surface was removed and hauled away by subcontractors using “demolition tracks.” Next, Ulland Brothers dug a trench in the median of the highway, another subcontractor installed pipe, and Ul-land Brothers buried the pipe.
The next stage of the project involved the location, excavation, and refilling of “soft” spots or areas, called “subcuts,” where the base of the highway needed to be restored. Ulland Brothers employees removed the soil from these areas and loaded it into Max Johnson’s tracks, which, in turn, hauled the material to a nearby pit. Max Johnson tracks also hauled the fill material, usually sugar sand, in “belly-dump” tracks to the excavated parts of the road. Ulland Brothers workers would direct the location for the delivery of the material and then grade the surface after Max Johnson drivers had delivered the sand. Frequently, Max Johnson’s belly-dump tracks would become stuck in the soft sand,, and Ulland Brothers workers would use Ulland Brothers equipment to push the tracks out of the sand.
On July 2, 1991, while delivering sand to a subcut site, a Max Johnson belly-dump track, operated by Michael O’Malley, became stuck in the sand. To help free the Max Johnson track, John Lee, an employee of Ulland Brothers, decided to push the truck with his road grader. When the grader came in contact with the Max Johnson belly-dump track, O’Malley sustained an injury to his neck. O’Malley received workers’ compensation benefits from his employer, Max Johnson.
O’Malley then brought a third-party action against Ulland Brothers and John Lee, who in turn joined Max Johnson as a third-party defendant. Ulland Brothers brought a motion for summary judgment, Max Johnson joined in the motion, and the trial court granted both Ulland Brothers and Max Johnson summary judgment. On appeal the court of appeals affirmed:
Where an injured worker’s employer and a negligent worker’s employer were engaged in the same project, and the injured employee and the negligent employee were working together in such a fashion that they were subject to similar hazards, the two employers were engaged in a com*899mon enterprise. Because the injured worker elected to receive workers’ compensation benefits, he is barred from pursuing a common law negligence action against the negligent worker and the negligent worker’s employer under Minn.Stat. § 176.061 (1990).
O’Malley v. Ulland Brothers, 529 N.W.2d 735, 736 (Minn.App.1995).
On the limited record before us and in view of the construction consistently accorded section 176.061 by this court for more than 50 years, the characterization of their relationship by the two defendants and the third-party defendant as a common enterprise cannot, in my opinion, be unqualifiedly accepted as establishing, as a matter of law, the existence of a common enterprise between Ulland Brothers and Max Johnson.
The history of section 176.061 and this court’s interpretation of “common enterprise,” as that term is employed in section 176.061, is itself rather interesting. Prior to 1913 an employee had a common law action against a tortfeasor who was not his employer, but the workmen’s compensation act, as it was enacted in 1913, took that action from the employee. The 1923 amendment to the act, codified as § 4291, Mason’s Minn. St.1923, which is now Minn.Stat. § 176.601 (1994), restored that common law action to the employee, at least in part. In Tevoght v. Polson, 205 Minn. 252, 254, 285 N.W. 893, 894 (1939), this court commented on the reasons for the difficulties it encountered in interpreting and applying the third-party liability amendment:
No other state has such a provision as that incorporated in this amendment, and it was left to this court to interpret its provisions, which especially in the case of subd. (b) are rather vague and uncertain.
Initially, this court construed the “common enterprise” provision of the 1923 statute in such an expansive way that a mining company and an independent contractor with whom it contracted to construct a ditch and water line were held to be engaged in the accomplishment of related purposes within the meaning of the act. Uotila v. Oliver Iron Mining Co., 165 Minn. 475, 478, 206 N.W. 937, 939 (1926). Similarly, in Rasmussen v. George Benz & Sons, 168 Minn. 319, 210 N.W. 75 (1926), an iceman injured while delivering ice to a hotel was denied a common law action against the owner of the building, whose negligent maintenance of the elevator and stairway caused his injury:
Business is related when the parties are mutually or reciprocally interested in a commercial way; or where the business of one has a necessary relation toward or in conjunction with the other.
Id. at 324, 210 N.W. at 77. See also McGrath v. Northwestern Trust Co., 178 Minn. 47, 225 N.W. 901 (1929).
Although other cases, such as Horgen v. Franklin Co-Op. Creamery Ass’n, 195 Minn. 159, 262 N.W. 149 (1935), and Gentle v. Northern States Power Co., 213 Minn. 231, 6 N.W.2d 361 (1942), signalled a retreat from the court’s early view of the 1923 amendment, Gleason v. Geary, 214 Minn. 499, 8 N.W.2d 808 (1943), marked an about-face with respect to the meaning of “common enterprise.”
Justice Julius J. Olson, writing for the court in Gleason, had this to say about the third-party liability section of the compensation act:
Unquestionably the legislative purpose was to enlarge the rights and remedies of the injured workman. His employer, under the original act, was well taken care of, and these rights under the second subdivision of the amended act were retained for him. He has lost nothing by the change. Since it was the injured workman the legislature sought to help, we should now say without equivocation that * * * the legislature “intended that his common-law right of action should only be eliminated in situations like those where” several employers “are engaged on the same project and their employees exposed to the [same or similar] hazards created by such mutual engagements.” [Quoting Tevoght v. Polson, 205 Minn. 252, 254, 285 N.W. 893, 894 (1939).]
214 Minn. at 508, 8 N.W.2d at 812.
Subsequently, Swanson v. J.L. Shiely Co., 234 Minn. 548, 560, 48 N.W.2d 848, 852 (1951), explicitly overruled the holding that a *900buyer and seller were engaged in a common enterprise when the seller delivered the merchandise but, as Arthur Larson puts it, in Shiely the court “launched a new rule just as restrictive as the former was expansive.”1 In Shiely the employers of the injured man and both tortfeasors were all engaged in the construction of an addition to a warehouse. The injured worker’s employer was engaged to remove overhead doors at one end of the existing warehouse. Shiely had an order from the general contractor, who was laying a concrete floor in the addition, to deliver ready-mixed concrete to be emptied onto any spot where the general contractor wanted to use it. When the Shiely driver arrived at the warehouse with his fourth load of concrete on the day in question, he discovered that the general contractor’s foreman had changed the routing of the ready-mixed trucks. The driver drove to the spot designated by the foreman, who then walked near the left rear wheel and directed the driver in backing up his truck to the place where he was to drop the load of concrete. The right rear portion of the truck struck the plaintiffs ladder, causing him to fall about 14 feet. There was ample evidence to support the jury’s findings of negligence and proximate cause, but the defendants contended that all the parties were engaged in furtherance of a common enterprise. Affirming the order denying the defendants’ post trial motions, this court held that Shiely was not engaged in a common enterprise or related purpose with either the general contractor or the company that removed the overhead doors. Therefore, both Shiely and the general contractor were subject to third-party liability to the injured workman. Id. at 560, 48 N.W.2d at 855.
Two years later, in Crawford v. Woodrich Construction Co., 239 Minn. 12, 57 N.W.2d 648 (1953), this court said that the common enterprise provision “should be interpreted and actually applied as if it in fact read as follows:
‘The provisions of subdivision 1 of this section shall apply only where the employer liable for compensation and the other party or parties legally hable for damages were both either insured or self-insured and were engaged in the due course of business,’ on the same project, and their employees were working together in the performance of such project in a manner which exposed them to the same or similar hazards on the premises where the injury was received and at the time thereof, and not otherwise.”
Id. at 20, 57 N.W.2d at 653 (italics in the original). The court went on to say “that the statutory phrases ‘common enterprise’ and the ‘accomplishment of the same or related purposes’ no longer have an independent significance and that, in recognition of the legislative intent, they have been wholly superseded by, and have been merged in, a new rule bom of statutory construction.” Id. In Crawford, an inspector employed by the state was run over by a cement truck while inspecting the forms into which the concrete was to be poured. It was held that the inspector was not barred from prosecuting a common law action against the construction company.
In Urbanski v. Merchants Motor Freight, 239 Minn. 63, 57 N.W.2d 686 (1953), the court held, in rebanee on Crawford, that a member of a manufacturer’s loading dock crew who was injured while helping a third party who debvered merchandise to the employer-manufacturer was not limited to recovery under the act: “Not every contact between an employer and a third party in the course of conducting their separate businesses constitutes engagement by them on the same project. * * * It is sufficient for the purposes of this decision to state that one who debvers merchandise to a manufacturer is not engaged with the manufacturer on the same project even though they join, through their employees, in unloading the merchandise from the dehvery truck.” 239 Minn. at 71, 57 N.W.2d at 690-91.
A few years later, in McCourtie v. United States Steel Corp., 253 Minn. 501, 506, 93 N.W.2d 552, 556 (1958), the court set out the following requirements for appbeation of the common enterprise rule:
(1) The employers must be engaged on the same project;
*901(2) The employees must be working together (common activity); and
(3) In such fashion that they are subject to the same or similar hazards.
This interpretation of the statute emphasizes the common activities of the employees as opposed to the common activities of the employers and has been consistently followed by this court since' Gentle v. Northern States Power Co., 213 Minn. 231, 6 N.W.2d 361 [emphasis in original].
The court went on to say this about the common activities of the employees:
In light of the history of the statute, its purpose and policy are served only when the employees of different employers are engaged in a common activity. Before such common activity can be said to exist there must be work in which both sets of employees participate, such as in the Gleason case where the employees of the hatchery owner and the contractor worked together in the pouring of cement and laying of a concrete floor or in the Voiding 2 ease where employees of both employers were working together in preparation of the opening of a store. Where however two employers perform different types of work, such as steel construction work and plumbing, and where the performance of these jobs is not related except in a vague, general way looking toward the completion of a structure, and where the activities of the two sets of employees have nothing in common and do not share or join in any of the work between themselves, it cannot be said that the employees are within the “common activities of the employees test” of the Gentle and Gleason eases.
Id. at 510, 93 N.W.2d at 559.
In McCourtie, this court held that the evidence supported the findings of a jury that a plumbing subcontractor and an employee of a steel construction subcontractor, both of whom were working on the same project, were not engaged in a common enterprise. Although the differences in the kind of work that a plumber and a steel construction worker do may be more obvious than the differences between the work of a truck driver and a highway construction worker, there are differences of such significance that it cannot be said that as a matter of law the employers were engaged in a common enterprise. That the McCourtie court viewed the common enterprise provision as limiting recovery from a negligent third party in only those rare cases in which “ ‘the masters have joined forces and in effect have put the servants into a common pool’”3 is apparent when one reviews the circumstances in which McCourtie was injured.
At the time of the accident McCourtie was installing plumbing on the ground level of a taconite plant under construction. About 60 percent of the steelwork had been completed and at the time of the accident a group of steelworkers was installing girts on the outside walls of part of the building. A crane was used to lift the girts to the spot where they were needed so that they could be bolted in place. When the existing superstructure prevented the crane from placing the girts where they were needed, the girts were raised by the crane in bundles, pushed as far as possible toward the place where they were to be used and landed on steel beams. While a bundle of 12 pieces of steel was being raised, it struck a part of the structure, causing 8 of the 12 pieces to slide out of the bundle and ricochet down through the steel skeleton of the building. When the pieces started to fall, a steelworker yelled “headache,” an expression used in the industry to warn those below that something was falling. Apparently McCourtie understood the warning because he attempted to get away but was struck by a piece of steel that weighed *902more than 175 pounds and severely injured. Several steelworkers sought shelter under or near beams or any place they could find protection from the falling steel, and it appears that McCourtie was the only person injured.
Some 15 years later, in reliance on McCourtie, this court in Kaiser v. Northern States Power Co., 353 N.W.2d 899, 906 (Minn.1984), affirmed the trial court’s determination that city firefighters and employees of a natural gas company were not engaged in a common enterprise even though both had a common goal of containing a fire that followed a gas explosion at the Commodore Hotel. Each had “distinct functions to perform” and the firefighters encountered greater risks than the gas company personnel. Finally, in Schleicher v. Lunda Constr. Co., 406 N.W.2d 311 (Minn.1987), this court affirmed the court of appeals’ conclusion that the delivery driver of the subcontractor who supplied concrete to a bridge construction project and the employee of another subcontractor who ran a hopper-conveyor system that received the concrete and transported it along the bridge deck to the placing and finishing crew were not engaged in a common enterprise. In so holding, this court rejected the following common activity claim:
Advance argues that it was all one coordinated activity. The Cemstone concrete and drivers, the Advance hopper-conveyor system, and the Lunda placing and finishing crew all had to be available at the same time. Concrete was delivered to the site and spread directly into place. If it was delivered too slowly, an Advance employee would pitch in and help expedite the unloading. All this, Advance argues, points to a common activity. However, the duties of the delivery crew and of the conveyor and finishing crews overlapped minimally and were not interdependent except in the general way that construction work depends on delivery.
Id. at 313-14.
In the present case the majority looks to Minn.Stat. § 176.001 to justify its reliance on McCourtie to support its interpretation of the facts presented in connection with the motion for summary judgment. In so doing, the majority trudges in the footsteps of the court of appeals, which relied on section 176.001 when it rather cavalierly distinguished Schleicher in these words:
It is clear that Max Johnson’s primary job was to deliver materials between the job sites. In practice, however, Max Johnson employees had more than just incidental contacts with Ulland Brothers employees, as when Ulland Brothers grader operators assisted Max Johnson trucks stuck in the sand. The completion of the construction project was facilitated by interrelated and coordinated steps involving both Ulland Brothers and Max Johnson employees. Thus, to an extent the work of Ulland Brothers and Max Johnson employees was interdependent in more than just the general way that construction work depends on delivery. See Schleicher, 406 N.W.2d at 313-14.
O’Malley, 529 N.W.2d at 739. Here the plaintiff and his employer were engaged to pick up and haul away the material excavated from the subcuts and to deliver sand so that Ulland Brothers could refill and pave them. A fair reading of the record reflects that the work done by Ulland Brothers employees and Max Johnson employees was no more and no less interdependent than the “coordinated” paving work done in Schleicher. While it is also fair to say that O’Malley is not the “pure” delivery situation, it also is not a case in which — at least as a matter of law — it can be said that “ ‘the masters have joined forces and in effect have put the servants into a common pool.’ ” McCourtie, 253 Minn. at 509, 93 N.W.2d at 558, quoting Gleason, 214 Minn. at 511, 8 N.W.2d at 814. It must be conceded that McCourtie, who tried but could not get out from under the falling beam, and the steelworkers who found protection under beams were also exposed to some of the same hazards. Nevertheless, in McCourtie, this court paid respect to the rule of statutory construction that a person is not to be deprived of his common law rights unless the intention to do so is clearly expressed in the act and concluded that the evidence supported the finding by the jury that the plaintiff and the defendant’s employ*903ees were not exposed to the same or similar risks at the time and place of the injury.
What both the court of appeals and the majority have blithely snubbed is that, at best, the question whether the employers were engaged in a common enterprise within the meaning of section 176.061, subdivisions 1 and 4 is a mixed question of law and fact. In response to the defendants’ and third-party defendant’s motions for summary judgment the plaintiff has provided enough evidence that the workers of the two employers were not subject to the same or similar hazards that a finder of fact, taking into consideration the credibility of the various affiants and the inferences fairly to be drawn from the affidavits, could conclude that the two employers were not engaged in a common enterprise within the purview of section 176.061, subdivisions 1 and 4. On the record before us, it seems to me that one simply cannot say that the facts are undisputed. It is, of course, in the defendants’ interest to infer from the facts they present that the employers were joined in a coordinated activity and that their employees were subject to the same hazards, but the inferences to be drawn from the facts and the credibility of the affiants are matters in the exclusive province of the finder of fact. Conroy v. Kleimnan Realty Co., 288 Minn. 61, 65-66, 179 N.W.2d 162, 165-66 (1970).
Candor compels the admission that even though Gleason v. Geary, supra, seemed to me a well-considered withdrawal from an extremely inclusive interpretation of the “common enterprise” provision, from the day the opinion issued in the McCourtie case to the present I have regarded it as an ill-advised leap to the opposite extreme of narrowness. Nevertheless, any practitioner in the field of workers’ compensation understood full well that for all practical purposes “common enterprise” was no longer a viable defense against third-party liability. And if there was a» practitioner who clung to the hope that coordination of the work of various prime and subcontractors, their employees and their equipment on a construction project could be parlayed into a “common enterprise,” he was surely disabused of that notion by the 1987 decision in Schleicher.
In short, it has been nearly 50 years since this court has held that an employee was precluded by the “common enterprise” provision from maintaining a common law action against any third-party tortfeasor.4 When, in McCourtie, the court announced that it is only when the employees are engaged in common activities that expose them to the same or similar hazards that the statutory “common enterprise” provision may be invoked and when the court stated “we must respect the rule of statutory construction that a person is not to be deprived of his common-law rights unless the intention to do so is clearly expressed in the act,”5 the court was serving notice that any change in the construction or application of the statutory provision with respect to third-party liability awaited legislative intervention. Since then the legislature has indeed intervened; in 1969 the legislature adopted a provision which encourages employee actions to impose third party liability by awarding to the employee the first one-third of the proceeds remaining after deducting the costs of collection. [Act of April 25,1969, ch. 199, § 2,169 Minn. Laws 307,309.]
It may be that public policy would be better served by according immunity to corn-*904mon-law liability to any contractor or subcontractor who is subject to liability for the payment of all compensation due the employee of an uninsured subcontractor pursuant to Minn.Stat. § 176.215 (1994), but it is for the legislature to change the purely statutory structure of the workers’ compensation, and it seems to me presumptuous for this court to alter a statutory construction of which the legislature has tacitly approved for more than 50 years.
I would reverse the decision of the court of appeals and remand the matter to the district court for further proceedings.
. 2A Larson, Workmen’s Compensation § 72.34, 14-290.10(1995).
. In Volding v. Harnish, 236 Minn. 71, 80-81, 51 N.W.2d 658, 663-64 (1952), a finding of fact that a franchiser and franchisee whose employees worked together to select and arrange merchandise in preparation for the grand opening of a franchised store was affirmed, limiting the employee's recovery to the amount provided by the workmen's compensation act.
. McCourtie v. United States Steel Corp., 253 Minn. 501, 509, 93 N.W.2d 552, 558 (1958), quoting Gleason, 214 Minn. at 511, 8 N.W.2d at 814.
. In Peterson v. Little-Giant, 366 N.W.2d 111, 116 (Minn.1985), the parties to the appeal both conceded that the plaintiff’s employer and the defendant-appellant were engaged in a “common enterprise” and that defendant-appellant was, therefore, immune from suit in tort. But see Peterson v. Kludt, 317 N.W.2d 43, 48 (Minn.1982), in which the court said that an employee could not sue a co-employee for injuries sustained when they were engaged in a "common enterprise.” The result was clearly right, but for the wrong reason. See Minn.Stat. § 176.061, subd. 5 (1978), amended to clarify that workers’ compensation act was never intended to shift tort liability from employer to fellow employee. See also Minnesota Workers’ Compensation Study Commission, A Report to the Minnesota legislature and Governor 41 (1979); Act of June 7, 1979, ch. 3 § 31, 1979 Minn. Laws Ex.Sess. 1256, 1272.
. McCourtie, 253 Minn. at 510, 93 N.W.2d at 558. Professor Arthur Larson characterizes “forgetting the pervading rule that valuable common-law rights shall not be deemed destroyed by a statute except by clear language” as a “cardinal sin.” 2A Larson, Workmen’s Compensation § 72.34, 14-290.7 (1995).