Shupe v. Wasatch Electric Company, Inc.

546 P.2d 896, 1976 Utah LEXIS 763

• Court: Utah Supreme Court
• Decided: February 20, 1976
• Docket: 14117
• Status: Published

Opinions

TUCKETT, Justice:

This is a wrongful death action brought by the plaintiffs who are the wife and daughter of a deceased workman who was in the employ of Christiansen Brothers Construction Company. The district court granted a motion for summary judgment by the defendants, and the plaintiffs appeal.

Christiansen Brothers Construction Company was a general contractor engaged in the construction of condominiums in Salt Lake City, Utah. The defendant Wasatch Electric Company was a subcontractor who agreed to design, furnish and install all the necessary electrical wiring and equipment at the construction site. Prior to July 19, 1974, Wasatch had installed electrical cables for the purpose of supplying power to a crane owned and operated by Esco Corporation. On July 19, 1974, Tom Shupe, a carpenter, was employed by the general contractor and was performing carpentry work on the construction site. The electrical cable had been draped over certain metal forms and reinforcing steel. Due to defective or insufficient insulation of the cables, electrical energy escaped from the cables and energized certain metal cement forms that Shupe was working with, resulting in his electrocution.

Plaintiffs filed their complaint pursuant to the provisions of Section 35-1-62, U.C.A.1953, the pertinent part of which reads as follows:

When any injury or death for which compensation is payable under this title shall have been caused by the wrongful act or neglect of another person not in the same employment, the injured employee, or in case of death his depen-dants, may claim compensation and the injured employee or his heirs or personal representatives may also have an action for damages against such third person. ...

The term “same employment” used in the statute has been defined by this court in a number of prior decisions. The case of Adamson v. Okland Construction Co.1 was a wrongful death case wherein the plaintiff’s decedent who was an employee of a subcontractor sought to recover from the general contractor. Likewise in Smith v. Alfred Brown Co.2 the plaintiff, an employee of the subcontractor, sued the general contractor to recover for injury sustained on the job. In both of those cases the general contractor, by the terms of the contracts, retained supervision and control over the subcontractors. The provisions of Section 35-1-42, U.C.A.1953, which defines employers who are subject to the provision's of the Workmen’s Compensation Act, provides coverage for the employees of subcontractors where supervision or control is retained by the employer who employed the subcontractor, and all such persons employed by such subcontractors shall be deemed to be employees of the original employer. In Smith and Adamson above referred to the contract provisions providing for control and supervision of subcontractors for the general contractor are quite similar to contract provisions in this case. We do not believe that in this case the plaintiffs’ decedent was an employee of the general contractor rather than being an employee of the subcontractor as was the case in Smith and Adamson, is a sufficient distinction to take the case out of the rule enunciated in those cases.

The legislature, undoubtedly being aware of the decisions of this court construing the terms “same employment” in 1975 amended Section 35-1-62, U.C.A.1953, by adding the following provision:

For the purposes of this section and notwithstanding the provisions of Section 35-1-42, the injured employee or his heirs or personal representative may also maintain an action for damages against subcontractors, general contractors, independent contractors, property owners or their lessees or assigns, not occupying an employee-employer relationship with the injured or deceased employee at the time of his injury or death.

The amendment if applicable would leave the plaintiffs in court.

The defendants contend that the amendment can have only retrospective effect and that the amendment was adopted and became effective after the plaintiffs’ cause of action arose. The early case of Mercur Gold M. & M. Co. v. Spry ³ dealt with the problem in the following language:

Constitutions, as well as statutes, should operate prospectively only, unless the words employed show a clear intention that they should have a retrospective effect. This rule of construction as to statutes should always be adhered to, unless there be something on the face of the statute putting it beyond doubt that the legislature meant it to operate retrospectively.

The rule in that case has been codified in Section 68-3-3, U.C.A.1953, which reads as follows:

No part of these revised statutes is retroactive, unless expressly so declared.

The amendment above referred to provides a cause of action on behalf of an injured workman against individuals not covered by the statute • prior to its amendment. To apply the statute retroactively would compel a new class of individuals to assume risks which did not exist prior to the amendment, and we are of the opinion that retroactive application would deny equal protection to a new class brought within the terms of the statute as amended so as to deprive them of equal protection of the laws.

The other contentions of the plaintiffs as grounds for a reversal we deem to be without merit.

The judgment of the court below is affirmed. No costs awarded.

HENRIOD, C. J.,. and CROCKETT, J., concur.

1 . 29 Utah 2d 286, 508 P.2d 805.

2 . 27 Utah 2d 155, 493 P.2d 994.

3 .16 Utah 222, 52 P. 382; In re Ingrahams Estate, 106 Utah 337, 148 P.2d 340; Petty v. Clark, 113 Utah 205, 192 P.2d 589.