Colorado Court of Appeals, 2024

Ulrich v. Leprino Foods

Colorado Court of Appeals · Decided July 3, 2024

Opinion

23CA0769 Ulrich v Leprino Foods 07-03-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0769

City and County of Denver District Court No. 21CV30077

Honorable Andrew J. Luxen, Judge

Kathleen Marie Morales Vega, as next friend of O.M., a minor, and Nicole

Ulrich, as next friend of Bianca Ulrich and Gianna Jarvis, minors,

Plaintiffs-Appellants,

Leprino Foods Company, a Colorado corporation, and Refrigeration Concepts,

Inc., a Michigan corporation,

Defendants-Appellees.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE GROVE

Sullivan and Martinez*, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced July 3, 2024

Ridley, McGreevy & Winocur, P.C., Robert T. Fishman, Denver, Colorado, for

Plaintiffs-Appellants

Campbell, Killin, Brittan & Ray LLC, William C. Brittan, Margaret R. Pflueger,

Denver, Colorado; Fennemore Craig P.C., Cody C. Bourke, Denver, Colorado for

Defendant-Appellee Leprino Foods Company

Harris, Karstaedt, Jamison & Powers, P.C., Jamey W. Jamison, Andrew J.

Carafelli, Dino G. Moncecchi, Englewood, Colorado, for Defendant-Appellee

Refrigeration Concepts, Inc.

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

¶ 1 Plaintiffs, Kathleen Marie Morales Vega — as next friend of

O.M., a minor — and Nicole Ulrich — as next friend of minors

Bianca Ulrich and Gianna Jarvis — appeal the district court’s order

granting summary judgment in favor of defendant Refrigeration

Concepts, Inc. (RCI). We affirm.

I. Background

¶ 2 This lawsuit arises from the tragic deaths of Joseph Jarvis and

Odaniz Xavier Otiz Quiñones (decedents), both of whom died while

working on the roof of defendant Leprino Food Company’s Greeley

facility. Jarvis and Quiñones were independent contractors for

Ulrich Process Piping, LLC (UPP), which RCI (as a general

contractor for Leprino) hired as a subcontractor to perform welding

and pipefitting work on a water chiller upgrade to the Leprino

facility. As the project’s general contractor, RCI maintained

workers’ compensation insurance at all relevant times.

¶ 3 Jarvis and Quiñones were killed by the explosion of a twelve-

inch water pipe on the roof of the Leprino facility. The twelve-inch

water pipe, which was part of the chiller project and was located

next to an unpressurized four-inch steel pipe, had been pressurized

with nitrogen for pneumatic testing several days earlier. And

although testing on the twelve-inch water pipe was complete, RCI

had not emptied it and instead had used it as a makeshift storage

container for nitrogen for at least the next eight days. As we

explain further below, the undisputed admissible evidence

presented by the parties on summary judgment showed that three

UPP employees — Jarvis, Quiñones, and Gerardo Galarza (who

suffered minor injuries) — were instructed to work on the four-inch

steel pipe that was adjacent to the twelve-inch water pipe.

However, they appear to have instead attempted to perform work on

the twelve-inch water pipe, which led to the explosion.

¶ 4 Ulrich and Vega sought workers’ compensation benefits on

behalf of the decedents’ children in North Carolina, where UPP is

located. The North Carolina Industrial Commission awarded

benefits to Jarvis’s children, but the disposition of Quiñones’s

workers’ compensation case is not clear from the record. Ulrich

and Vega then filed suit against Leprino and RCI in Denver District

Court, seeking damages under theories of premises liability and

wrongful death. Consistent with their pursuit of workers’

compensation benefits in North Carolina, Ulrich and Vega alleged in

their Colorado complaint

that, “[a]t all relevant times hereto,

Decedents were acting in the course and scope of their work for the

extension project.”

¶ 5 After the close of discovery, Leprino and RCI both moved for

summary judgment. Leprino argued that it was insulated from tort

liability under section 8-41-402, C.R.S. 2023. The district court

agreed and granted summary judgment for Leprino. Plaintiffs do

not challenge that ruling on appeal.

¶ 6 In its summary judgment motion, RCI contended that it was a

“statutory employer” and thus could not be held liable for the

deaths of Jarvis and Quiñones under any tort theory because it

maintained workers’ compensation insurance, see § 8-41-

401(1)(a)(I), (2), C.R.S. 2023, and had contracted out work to UPP

that was part of its regular business, see Krol v. CF & I Steel, 2013

COA 32, ¶ 25.

The operative complaint at the time that Leprino and RCI filed for

summary judgment was the fifth amended complaint, but the

allegation that the explosion occurred while Jarvis and Quiñones

were acting in the “course and scope” of their work for UPP

appeared in each of the previous five complaints.

¶ 7 Plaintiffs urged the district court to reject RCI’s summary

judgment motion on several grounds. As relevant here, they argued

for the first time — and contrary to the allegation that they had

made in every version of their complaint — that Jarvis and

Quiñones were not performing work within the scope of UPP’s

contract with RCI at the time of their deaths.

To the contrary,

plaintiffs asserted that RCI instructed Jarvis and Quiñones to finish

pneumatic testing on the twelve-inch pipe by depressurizing it and

then moving it for pipefitting purposes — a task which would

indisputably be outside the scope of their contracted work. As

evidentiary support for this contention, plaintiffs attached to their

summary judgment response a police report summarizing

statements made by Galarza and Andrew Gregorich, the manager of

the Leprino facility. However, they did not submit an accompanying

affidavit, deposition, interrogatory response, or other sworn or

Plaintiffs also argued that UPP did not prove that it qualified for

statutory employer status because it had not provided sufficient

proof of its workers’ compensation policy and that, because UPP is a

North Carolina company, the protections afforded to statutory

employers under Colorado law did not apply. The district court

rejected these arguments and appellants do not pursue them on

appeal.

otherwise verified statement supporting the information contained

in the officer’s report.

¶ 8 The district court ruled that the undisputed facts established

that RCI met the definition of a statutory employer. The court first

observed that RCI’s contract with Leprino required RCI to maintain

workers’ compensation insurance, and it noted further that RCI had

produced certified documentation of its policy with an

accompanying affidavit. See § 8-44-101(1), C.R.S. 2023 (outlining

insurance requirements for “statutory employer” status). The court

then turned to whether the decedents’ work was a part of RCI’s

regular business. Although it acknowledged the disagreement over

what Jarvis and Quiñones were doing when the pipe exploded, it

did not delve into the dispute, noting only that “[p]laintiffs allege

that Quinoñes and Jarvis were conducting pneumatic testing,

rather than welding work, as they had been contracted to perform.”

The court found this allegation insignificant, however, because

“RCI’s regular business . . . involves a scope of work that includes

both welding and pipefitting.” As a result, the court concluded that

RCI was entitled to summary judgment because it was a statutory

employer immune from tort liability.

II. Analysis

¶ 9 Plaintiffs contend that the district court erred by granting RCI

summary judgment because there is a genuine dispute as to what

Jarvis and Quiñones were doing at the time of the explosion.

Although they conceded at oral argument that RCI carried its initial

burden of presenting evidence that Jarvis and Quiñones were

working within the scope of the contract, plaintiffs nonetheless

maintain that they submitted countervailing evidence showing that

there was a factual dispute on that issue that would require a jury

to resolve. Specifically, plaintiffs contend that they presented

evidence showing that RCI directed Jarvis and Quiñones to perform

work that was outside the scope of the contract by having them

depressurize the twelve-inch water pipe as part of pneumatic

testing. Plaintiffs, however, submitted no admissible evidence to

support this claim and therefore failed to create a genuine dispute

of material fact. Thus, RCI was entitled to summary judgment

because it presented undisputed evidence that it was a statutory

employer.

III. Standard of Review

¶ 10 We review an order granting summary judgment de novo.

Poudre Sch. Dist. R-1 v. Stanczyk, 2021 CO 57, ¶ 12. Summary

judgment is proper if there is no genuine issue as to any material

fact, and the moving party is entitled to judgment as a matter of

law. C.R.C.P. 56(c). We give the nonmoving party “the benefit of all

favorable inferences that may reasonably be drawn from the

undisputed facts and resolve[] all doubts against the moving party.”

City of Fort Collins v. Colo. Oil & Gas Ass’n, 2016 CO 28, ¶ 8. “In

the context of a summary judgment proceeding, an issue of material

Plaintiffs also argue that the district court erroneously applied the

regular business test by focusing on whether welding or pipe fitting

was part of RCI’s regular business rather than considering what

Jarvis and Quiñones had been instructed to do. We do not reach

this issue because we conclude that the undisputed admissible

evidence demonstrates that the Jarvis and Quiñones were

performing work within the scope of the contract at the time of their

deaths. See Monell v. Cherokee River, Inc., 2015 COA 21, ¶ 13 (if

the scope of a contract is clear, regular business test is

unnecessary); see also City of Aurora v. Dep’t of Revenue, 2023 COA

17, ¶ 11 (appellate court may affirm grant of summary judgment on

any ground supported by the record).

fact is one, the resolution of which will affect the outcome of the

case.” Krane v. Saint Anthony Hosp. Sys., 738 P.2d 75, 77 (Colo.

App. 1987).

¶ 11 At the summary judgment stage, “[t]he moving party bears the

initial burden of showing no genuine issue of material fact exists.”

Westin Operator, LLC v. Groh, 2015 CO 25, ¶ 20. Once this burden

is met, the nonmoving party must “establish that there is a triable

issue of fact.” D.R. Horton, Inc.-Denver v. D & S Landscaping, LLC,

215 P.3d 1163, 1167 (Colo. App. 2008). The nonmoving party may

not rest on the allegations made in the pleadings but instead must

provide facts “by affidavit or otherwise” to show there is a triable

issue. Han Ye Lee v. Colo. Times, Inc., 222 P.3d 957, 960 (Colo.

App. 2009). Any such evidence that the nonmoving party presents

must be admissible, Hunter v. Mansell, 240 P.3d 469, 474 (Colo.

App. 2010), and “a failure to state admissible facts in the

affidavit . . . may justify the court in entering summary judgment

for the opposing party.” In re Estate of Abbott, 39 Colo. App. 536,

540, 571 P.2d 311, 314 (1977).

IV. Principles of Law

¶ 12 The Workers’ Compensation Act (the Act) provides exclusive

remedies for injured employees and bars all civil actions and

remedies against an employer for, and on account of, such injuries.

§§ 8-41-102, -104; see also Humphrey v. Whole Foods Mkt. Rocky

Mountain/Sw., L.P., 250 P.3d 706, 708 (Colo. App. 2010). However,

this immunity is only afforded if (1) the employer is a “statutory

employer” as defined by the Act, Finlay v. Storage Techn. Corp., 764

P.2d 62, 63 (Colo. 1988); (2) the employer or, as relevant here, the

subcontractor maintains workers’ compensation insurance, § 8-41-

401(2); and (3) either the contracted business and work are clear,

and the subcontractor was injured performing work that was within

the scope of the contracted work, Monell v. Cherokee River, Inc.,

2015 COA 21, ¶ 13, or the contracted “work is part of an entity’s

regular business, as defined by its total business operation,” Krol,

¶ 25. The third element is not met if the work performed is clearly

outside the contract, or, if the contract’s scope is unclear, the work

performed is outside of the contractor’s regular business. See

Cowger v. Henderson Heavy Haul Trucking Inc., 179 P.3d 116, 119-

21 (Colo. App. 2007).

¶ 13 A contractor seeking immunity from a civil action by an

injured subcontractor must satisfy all three elements. Here,

plaintiffs only contest whether the work that Jarvis and Quiñones

were performing at the time of the explosion was within the scope of

the contracted services.

V. Evidence Regarding Work Performed

¶ 14 Because it is uncontested that RCI met its initial burden on

summary judgment, we only briefly summarize the evidence before

the district court that would support that point. Among other

things, exhibits attached to the parties’ summary judgment papers

included the following:

• a transcript of RCI supervisor John LaVigne’s

deposition (which was attached to plaintiffs’ summary

judgment response), who testified that the day before

the explosion he had instructed the UPP employees to

perform welding work on a four-inch steel pipe that

ran adjacent to the twelve-inch water pipe that

ultimately exploded; and

• a transcript of the deposition of RCI site supervisor

Larry Ezinga, who testified that no one from RCI told

the UPP employees to depressurize the pipe or

instructed them on how to do so.

¶ 15 Plaintiffs filed both a response to the summary judgment

motion and a surreply and argued at length that Jarvis and

Quiñones had performed work on the twelve-inch water pipe

because RCI had asked them to perform pneumatic testing — which

would have been outside the scope of the contract — but the only

evidence that they offered to support this claim came in the form of

a police report that summarized interviews by the investigating

officer with Galarza and Gregorich. The report stated that Galarza,

through an interpreter, had told the officer that the UPP employees

had been instructed to depressurize the pipe and were doing so

when the explosion occurred. As for Gregorich, the report said that

he described for the officer Leprino’s internal investigation and its

conclusion that the pipe had exploded when someone attempted to

remove its end cap without first depressurizing it. Neither

Gregorich nor Galarza was deposed or submitted an affidavit.

¶ 16 In its reply in support of summary judgment, RCI argued that

the information contained in the police report was inadmissible

hearsay, but the district court did not address this question

because it concluded that RCI was a statutory employer under the

“regular business” rule.

¶ 17 With this background in mind, we turn to whether the

evidence that plaintiffs contend showed that there was a genuine

dispute of material fact — i.e., the statements by Galarza and

Gregorich — was admissible. Before doing so, we acknowledge that

the district court does not appear to have explicitly considered this

issue. Nonetheless, RCI challenged the admissibility of the

statements in its summary judgment reply, and we are in the same

position as the district court to consider the admissibility of the

statements in question. See People v. Dominguez, 2019 COA 78,

¶ 13 (noting that a district court’s application of hearsay law is

reviewed de novo).

¶ 18 Hearsay is a “statement other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” CRE 801(c). Unless a hearsay

statement meets either a rule-based or statutory exception, it is not

admissible. CRE 802. The proponent bears the burden of

demonstrating an exception applies. People v. Vanderpauye, 2023

CO 42, ¶ 25. Hearsay included within hearsay is inadmissible

unless each part of the combined statements conforms with an

exception to the hearsay rule. CRE 805. Where a statement — like

the police report at issue here — contains multiple layers of

potential hearsay, “the court must analyze each layer separately to

determine whether it falls within a recognized hearsay exception or

exclusion.” People v. Phillips, 2012 COA 176, ¶ 101.

¶ 19 We begin our analysis with the police report itself. CRE

803(8)(B) allows public records and reports, including police

reports, to be admitted even though they constitute hearsay so long

as the circumstances around the report do not indicate a lack of

trustworthiness. Bernache v. Brown, 2020 COA 106, ¶ 16. Thus,

the report itself is admissible under CRE 803(8). Id.

¶ 20 However, “[s]tatements are not automatically admissible under

CRE 803(8) merely because they are contained in a public report.”

Leiting v. Mutha, 58 P.3d 1049, 1053 (Colo. App. 2002). Rather, to

be admissible, each statement contained in such a report must

meet its own hearsay exception. Id.

¶ 21 Plaintiffs contend that the police report’s summary of

Galarza’s statements was admissible because the statements were

an excited utterance. CRE 803(2). A statement qualifies as an

excited utterance if it “relat[es] to a startling event or condition,”

and the declarant made the statement while he “was under the

stress of excitement caused by the event or condition.” Id.; People

v. Abdulla, 2020 COA 109M, ¶ 64. The proponent of the hearsay

evidence must show that the event was sufficiently startling or

exciting to prevent the normal thought process of an observer; the

statement was made as a spontaneous reaction to the event; and

the declarant observed the startling event. People v. Hagos, 250

P.3d 596, 623 (Colo. App. 2009). When determining whether a

statement was spontaneous, we consider the temporal proximity to

the event, whether the statement was made in response to

questioning, and the condition of the declarant. Abdulla, ¶ 65.

“While there is no ‘bright-line time limitation’ for an excited

utterance, the statement must be a spontaneous reaction rather

than the operation of ‘normal reflective thought processes.’” Id.

(quoting People v. Stephenson, 56 P.3d 1112, 1115-16 (Colo. App.

2001)).

¶ 22 Nothing in the police report suggests that Galarza’s statements

were spontaneous. The report states that the officer attempted to

speak with Galarza at the hospital shortly after the explosion but

that Galarza “was not psychologically capable due to shock[,] . . .

and he would need time to process the incident.” When the officer

returned to the hospital to follow up several hours later, Galarza

was speaking with a counselor and a Leprino human resources

manager. It was only then that the officer conducted the interview.

¶ 23 Under these circumstances, plaintiffs did not carry their

burden of showing that Galarza’s statements qualified as an excited

utterance. First, several hours passed between the explosion and

the interview. The officer specifically noted that he waited to allow

Galarza to gather his thoughts and calm down — in other words,

the officer gave Galarza enough time to regain his “normal reflective

thought processes,” Stephenson, 56 P.3d at 1115-16, before

conducting the interview. Second, Galarza’s statements were made

in response to questioning and thus were not spontaneous. Third,

Galarza had received medical attention. Fourth, Galarza spoke with

human resources and a counselor before participating in the

officer’s interview, and, according to the report, had already “made

contact with Jarvis’[s] spouse and advised her of what had

occurred.”

¶ 24 Plaintiffs assert that the circumstances here were similar to

those in People v. King, 121 P.3d 234 (Colo. App. 2005), because the

excited utterance exception applied in that case even though the

statements were made several hours after the event. Here, however,

the officer noted that Galarza was “in a better condition for an

interview” when he returned to the hospital. That contrasts sharply

with King, where the statements were made hours after the event,

yet the declarant was still visibly shaking and bleeding. Id. at 237-

38.

¶ 25 Accordingly, the police report’s summary of the Galarza

interview was hearsay, and plaintiffs have not established that any

exception applies. It was therefore inadmissible and could not be

considered at the summary judgment stage.

¶ 26 As for Gregorich’s statements, we once again disagree with

plaintiffs’ argument that they were admissible. The police report

reflects that, during his interview with the officer, Gregorich

explained that his internal investigation led him to believe that the

three UPP employees were working on the pressurized twelve-inch

water pipe when it exploded. Plaintiffs summarily assert that

nothing in the record suggests that Leprino’s internal investigation

constitutes inadmissible hearsay, but this flips the evidentiary

burden on its head. As already noted, plaintiffs themselves bear

the burden of establishing that an exception applies to their

hearsay evidence. Yet plaintiffs fail to identify a hearsay exception

that could apply to the summary of Gregorich’s statements — much

less make an argument for its admissibility. Thus, Gregorich’s

statements were also inadmissible.

¶ 27 In short, the nonmoving party cannot rely on mere allegations

to create a dispute of material fact when the movant supports its

argument with admissible evidence. C.R.C.P. 56(e). Plaintiffs failed

to present evidence to rebut RCI’s claim that Jarvis and Quiñones

were doing work within the scope of the contract at the time of the

explosion. And because they did not demonstrate via the

submission of admissible evidence that there was a genuine dispute

of material fact as to the work that Jarvis and Quiñones were doing

or had been instructed to do, RCI proved as a matter of law that it

was a statutory employer and was therefore entitled to summary

judgment.

VI. Disposition

¶ 28 We affirm the district court’s entry of summary judgment.

JUDGE SULLIVAN and JUSTICE MARTINEZ concur.

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