Flamingo Lv Operating Co. v. Stabile Prod.'s ( 2015 )

 Entertainment Agreement. Stabile opposed the motion to amend and
moved for summary judgment, and Flamingo filed a countermotion for
summary judgment. The district court granted summary judgment in
favor of Stabile, finding that Flamingo was the statutory employer of
Stabile and Shipley• and therefore, under the workers' compensation
statutes, FlamingoS had no right to recover from Stabile the workers'
compensation benefits paid to Stoian. The district court's order also
denied Flamingo's motion for leave to amend the complaint, concluding
that the indemnity provision did not apply in the workers' compensation
context, and denied Flamingo's countermotion for summary judgment.
This appeal followed.
Having considered the parties' briefs and appendices, we
conclude that the district court erred in granting summary judgment in
Stabile's favor. See Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d
1026, 1029 (2005) (explaining that this court reviews de novo a district
court summary judgment). Under the Nevada Industrial Insurance Act
(NITA), which governs the workers' compensation scheme, independent
contractors may be deemed statutory employees immune from suit. To
determine whether an independent contractor is a statutory employee of
another business, the court must analyze whether the independent
contractor is an independent enterprise not in the same trade, business,
profession or occupation under NRS 616B.603—that is, under the Meers
normal work test, whether the contracted services are normally carried
out through employees. See Tucker v. Action Equip. & Scaffold Co., 113
Nev. 1349, 1357, 951 P.2d 1027, 1032 (1997), overruled on other grounds
by Richards v. Republic Silver State Disposal, Inc., 122 Nev. 1213, 148
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P.3d 684 (2006); see also Meers v. Haughton Elevator, 101 Nev. 283, 286,
701 P.2d 1006, 1007 (1985).
Here, the district court based its conclusion that Flamingo was
Stabile and Shipley's statutory employer on its findings that Flamingo had
"absolute control over the Party Pit," that "Moth the card dealer and Go-
Go dancer were an integral part of the gaming entertainment presentation
at the Party Pit," and that Flamingo's business model expanded beyond
gaming. This court has clarified, however, that the "control test" is not
dispositive in determining immunity under the NIIA. Tucker, 113 Nev. at
1357, 951 P.2d at 1032. Although the district court appears to also have
concluded that Flamingo and Stabile were in the same trade or business,
see NRS 616B.603, the appellate record does not contain any evidence to
show that Flamingo's casino business included dancing so as to constitute
the same business as Stabile, which provides Go-Go dancing
entertainment. See NRCP 56(c) (setting forth the movant's burden in a
summary judgment motion); NOLM, LLC v. Cnty. of Clark, 120 Nev. 736,
739, 100 P.3d 658, 660-61 (2004) (noting that this court will set aside
factual findings that are not supported by substantial evidence). Contrary
to Stabile's argument, we do not agree that this fact is subject to judicial
notice. See NRS 47.130; United States v. Jones, 29 F.3d 1549, 1553 (11th
Cir. 1994) ("Since the effect of taking judicial notice under [Federal Rule of
Evidence 201] is to preclude a party from introducing contrary evidence
and in effect, directing a verdict against him as to the fact noticed, the fact
must be one that only an unreasonable person would insist on disputing.").
Moreover, the district court did not analyze whether the Go-Go dancing
services Stabile provided fall within the "normal work" test set forth in
Meers. See Tucker, 113 Nev. at 1357, 951 P.2d at 1032 (holding that the
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court should analyze an independent contractor's work under NRS
616B.603 and the Meers test to determine whether it is a statutory
employee for workers' compensation purposes); Meers, 101 Nev. at 286,
701 P.2d at 1007 (explaining that the test for finding statutory
employment is not whether the independent contractor's activity. "is
useful, necessary, or even absolutely indispensable to the statutory
employer's business" but rather whether the contracted services are, in
the purported statutory employer's business, "normally carried on through
employees rather than independent contractors" (quotation marks
omitted)). Therefore, we conclude that the district court erred in granting
summary judgment, and we reverse and remand for further proceedings
on this issue.'
Flamingo also challenges the portion of the district court's
order that denied its motion for leave to amend the complaint. Flamingo,
however, failed to provide any authority to support its assertion that it
could bring an indemnity action to recover for workers' compensation
benefits paid, which are typically, recovered through a subrogation action.
See NRS 616C.215(2). And nothing in the indemnity provision expressly
allows Flamingo to recover for workers' compensation benefits. See MGM
Grand Hotel-Reno, Inc. u. Insley, 102 Nev. 513, 518, 728 P.2d 821, 824
(1986) ("The obligation to pay compensation benefits and the right to
receive them exists as a matter of statute independent of any rights
established by contract"); Hortman u. Otis Erecting Co., 322 N.W.2d 482,
486 (Wis. Ct. App. 1982) (narrowly construing an indemnity provision
1 Whilewe reverse the district court's order and remand for further
proceedings, we express no opinion regarding the merits of Flamingo's
countermotion for summary judgment.
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against the argument that - it covered the indemnitee's obligations under
the workers' compensation statutes despite lacking such express
language); see also Parman v. Petricciani, 70 Nev. 427, 430-32, 272 P.2d
492, 493-94 (1954) (disregarding a party's construction of the contract
where it was unreasonable under the facts and circumstances of the case),
abrogated on other grounds by Wood, 121 Nev. at 729-32, 121 P.3d at
1029-31. Therefore, the district court did not abuse its discretion in
denying Flamingo's motion to amend. See Halcrow, Inc. v. Eighth Judicial
Dist. Court, 129 Nev. , 302 P.3d 1148, 1152 (2013) (recognizing
that leave to amend a complaint will not be granted if the plaintiff seeks to
plead an impermissible claim); Holcomb Condo. Homeowners' Ass'n, Inc. v.
Stewart Venture, LLC, 129 Nev. „ 300 P.3d 124, 130-31 (2013)
(setting forth the standard of review). Accordingly, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.
J.
Gibbons Pickering
cc: Hon. Valerie Adair, District Judge
Persi J. Mishel, Settlement Judge
Alverson Taylor Mortensen & Sanders
Floyd, Skeren & Kelly
Pyatt Silvestri & Hanlon
Eighth District Court Clerk
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