Nichols v. Jacobsen Construction Co.

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

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

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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.

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¶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

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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

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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.

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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).

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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

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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.

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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.

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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 cross-

petition 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

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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).

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(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

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

4

“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.

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NICHOLS v. JACOBSEN CONSTRUCTION

Opinion of the Court

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.

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Cite as: 2016 UT 19

Opinion of the Court

¶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

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NICHOLS v. JACOBSEN CONSTRUCTION

Opinion of the Court

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.

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