Opinion
No. 70-556
Decided June 2, 1971. Rehearing denied June 29, 1971. Certiorari denied August 23, 1971.
A corporate member of joint venture and its compensation insurance carrier moved to make joint venture and its insurance carrier solely responsible for workmen's compensation benefits arising from death of corporate employee working on joint venture project at the time he suffered the fatal injures. From denial of its motion by Industrial Commission, appeal was taken.
Order Affirmed
1. WORKERS' COMPENSATION — Joint Venture — Participants — Liable — Jointly and Severally — Employee's Claims. A joint venture and each of its participants are liable, jointly and severally, for workmen's compensation claims asserted by or on behalf of an employee engaged in work being prosecuted by the joint venture.
2. Injured Employee — Assert Claims — Joint Venture — Any Member — All Liable. An employee, injured while engaged in work being prosecuted by a joint venture, may assert a workmen's compensation claim against any member of the joint venture, against the joint venture itself, or against all of those so liable and their respective insurer or insurers must discharge the claim.
Review of Order from the Industrial Commission of the State of Colorado
Alious Rockett, Francis L. Bury, Feay Burton Smith, Jr., William J. Baum, for petitioner.
Holley, Boatright Villano, George Alan Holley, for statutory heirs of David Edward Jones, deceased.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Peter L. Dye, Assistant, for respondent Industrial Commission of Colorado.
This case arises under the Workers' Compensation Act and was initiated by a claim for benefits filed on behalf of the heirs of D. E. Jones, deceased.
Tower Construction Company and D. E. Jones Construction Company are corporations, each of which has insurance coverage with respect to possible obligations arising under the provisions of the Colorado Workers' Compensation Act. The insurance carrier for D. E. Jones Construction Company is the State Compensation Insurance Fund, one of the petitioners in this appeal.
D. E. Jones Construction Company and the Tower Construction Company, as a joint venture, entered into a contract with the Highway Department for the State of Colorado relating to highway construction. The joint venture of these two companies secured insurance coverage for liabilities under the Workers' Compensation Act from Travelers Insurance Company.
At the time he suffered the injuries which caused his death, D. E. Jones was employed by the corporation D. E. Jones Construction Company. It is uncontested that at the time of such injuries D. E. Jones was also working on the highway construction project awarded to the joint venture of D. E. Jones Construction Company and Tower Construction Company. In the initial proceedings seeking death benefits for the heirs of D. E. Jones, only his principal employer, D. E. Jones Construction Company, and its insurance carrier, the State Compensation Insurance Fund, were made respondent parties. Following the entry of an award to the claimants in the initial proceedings, D. E. Jones Construction Company and the State Compensation Insurance Fund, by motion, requested that the proceedings be redocketed and that the joint venture and its insurance carrier be made the sole respondents in the proceedings. It was contended in such motion that the State Compensation Insurance Fund had no knowledge prior to the time of the motion that the joint venture carried insurance under the Workers' Compensation Act. This motion was denied, and the initial award which had been entered against the D. E. Jones Construction Company and the State Compensation Insurance Fund was affirmed. As a consequence, neither the joint venture nor its insurance carrier are parties to this appeal.
The petitioners, D. E. Jones Construction Company and the State Compensation Insurance Fund, are before us now challenging the jurisdiction of the Commission as to them and asking that they be dismissed as respondents. They further ask that this Court order that these proceedings be reinstated on a basis in which the joint venture and its insurance carrier, Travelers Insurance Company, would be the sole respondents to the claim filed on behalf of D. E. Jones' heirs.
The petitioners are contending that where an employee is employed by a company which becomes a member of a joint venture and where that joint venture carries insurance under the Workers' Compensation Act, then the employee or those claiming under him can assert a claim for benefits under the Act only against the joint venture and its insurance carrier.
This is not the law in this jurisdiction. The case of Industrial Commission v. Lopez, 150 Colo. 87, 371 P.2d 269, does hold that where two or more companies form a joint venture, the joint venture itself is an "association of persons" and an "employer" within the meaning of the Workers' Compensation Act. Being of that status, a joint venture and its insurance carrier could be made to respond to claims asserted under the Act.
However, Lopez also holds that each of the participants in the joint venture is jointly and severally responsible under the Workers' Compensation Act and that the employees of each joint venture participant are not only employees of their primary employer, but also employees of the other joint venture participants.
[1,2] The full impact of Lopez is to make the joint venture and each of its participants liable, jointly and severally, for claims asserted by or on behalf of an employee engaged in work being prosecuted by the joint venture. As to a claimant for benefits under the Workers' Compensation Act, there is nothing in that decision which makes the liability of any one of such parties primary to, or exclusive of, the liabilities of the others. Additionally, Lopez holds that the insurance coverage of one liable as a participant in the joint venture extends to and follows that participant within the joint venture operations. Consequently, an employee, such as D. E. Jones, may assert his claim against any one or against all of those so liable and their respective insurer or insurers must discharge the claim.
The order is affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE ENOCH concur.