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Monell v. Cherokee River, Inc.

Court of Appeals of Colorado, Fifth Division

February 26, 2015

Ryan Monell, Plaintiff-Appellant,
v.
Cherokee River, Inc., Defendant-Appellee

Page 1180

Adams County District Court No. 12CV1105. Honorable Edward C. Moss, Judge.

Benson & Case, LLP, John Case, Kari Jones, Denver, Colorado, for Plaintiff-Appellant.

Stuart D. Morse & Associates, LLC, Stuart D. Morse, Matthew J. Bayma, Greenwood Village, Colorado, for Defendant-Appellee.

Román and Terry, JJ., concur.

OPINION

Page 1181

ASHBY, JUDGE.

[¶1] Plaintiff, Ryan Monell, appeals from the district court's orders (1) dismissing his negligence claims against defendant, Cherokee River, Inc. (CRI), for failure to state a claim pursuant to C.R.C.P. 12(b)(5); and (2) awarding CRI attorney fees for litigating the merits and its motion for fees and costs. We conclude that when the scope of an entity's contracted business and work is clear, specifically applying the " regular business" test is unnecessary, and we therefore affirm the court's dismissal of the negligence claims. We also conclude that the court's fee award for litigating the merits was proper, but the court should not have awarded fees for litigating the fees and costs motion. Accordingly, we affirm in part, reverse in part, and remand with directions.

I. Background

[¶2] As alleged in Monell's first amended complaint, the operative pleading, CRI was hired to construct a steel building on a landowner's property. CRI subcontracted part of the construction of the building to N.J. Liming, which employed Monell. While Monell was working on constructing the building in close proximity to high voltage overhead electrical lines, electricity arced from the lines and electrocuted him, causing severe burns, shock, and temporary stoppage of his heart.

[¶3] Monell sought and received workers' compensation benefits for his injury from N.J. Liming. He then filed suit against the landowner, the companies that furnished the electricity and maintained the electrical lines, and CRI. Monell asserted two negligence claims against CRI and various other torts against the other defendants.

Page 1182

[¶4] CRI moved to dismiss the claims against it for failure to state a claim, arguing that it was immune from any tort liability because it was Monell's statutory employer under section 8-41-401, C.R.S. 2014 (statutory employer immune from tort liability for workplace injury if the injured worker collected workers' compensation benefits for the injury). The district court agreed and dismissed the negligence claims against CRI. The claims against the other defendants were also dismissed.

[¶5] CRI then moved for attorney fees and costs, requesting fees under section 13-17-201, C.R.S. 2014 (mandating attorney fee award when a defendant obtains dismissal under C.R.C.P. 12(b)). The court awarded CRI fees and costs related to defending the ...


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