Maynard v. FLANAGIN BROS., INC.

HOFFMAN, Judge,

dissenting.

I dissent. In cases where the prime contractor has not assumed liability by way of contract, I believe the better rule of law has been followed by the First District and restricts application of statutorily imposed liability. To the extent the prime contractor contracts for liability for compliance with construction regulations, I agree with the interpretation of the contract provisions in accordance with Jones v. City of Logansport (1982), Ind.App., 486 N.E.2d 1138, reh. denied.

The construction industry regulations, 610 LA.C. § 5-1 (1984) were, as the majority indicates, promulgated by the Commissioner of Labor pursuant to IND.CODE § 22-1-1, section 22-1-1-11 being the authorizing section. The First District has held that IND.CODE § 22-1-1-11 authorizes the adoption of regulations applicable only to employers or employees, or both. Hale v. Peabody Coal Co. et al. (1976), 168 Ind.App. 336, 348 N.E.2d 316, 328. This reasoning is in line with that of the Second District as stated in Jones, Admx. v. IPALCO et al. (1978), 158 Ind.App. 676, 304 N.E.2d 837, 345, reh. denied (1974). A regulation enacted pursuant to this enabling statute, could not extend the limited scope of the statute or regulation beyond that area of employers or employees and places of such employment. See, Jones, Admx. v. IPALCO et al., supra.

There is no discrepancy of opinion as to the fact that the construction regulations, 610 LA.C. § 5-1 (1984), apply to "prime contractors." The regulations specifically refer to the "prime contractor." 610 L.A.C. § 5-1-1(B)(6), (7) and (8) (1984). Therefore the recognition by the First District in Smith v. P. & B. Corp. (1979), 179 Ind.App. 693, 386 N.E.2d 1232, reh. denied, trans. denied, that the regulations apply only to prime contractors is of no significance as an indication of a change of opinion as to the permissible application of the regulations. In Smith, P. & B. was found not to be a prime contractor and was outside the scope of the regulation.

The divisive issue is whether or not the regulations apply to situations other than those involving employees, employers and places of such employment. This issue was not addressed in Smith. However, subsequent to Smith, the First District reaffirmed its position as to the limited application of regulations enacted pursuant to IND.CODE § 22-1-I-11. In Martin v. Simplimatic Engineering (1979), 181 Ind.App. 10, 890 N.E.2d 285, 238, reh. denied, the Court stated that Simplimatic was not the employer of Martin, and any regulation adopted pursuant to IND.CODE § 22-1-1-11 would therefore not be applicable to hold Simplimatic liable to Martin.

I find this limited seope of IND.CODE § 22-1-1-11, with the necessarily restricted application of the regulations to be better rule of law. I would therefore affirm the summary judgment in favor of Flanagin albeit on grounds other than those enunciated by the trial court.