CONSIDERED ON BRIEFS ON AUGUST 31, 2015
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT KINGSBURY COUNTY, SOUTH DAKOTA THE HONORABLE TIM D. TUCKER Retired Judge
DAVID J. KING of Alvine & King, LLP Attorneys for plaintiff and appellant.
MICHAEL J. SCHAFFER PAUL H. LINDE of Schaffer Law Office, Prof., LLC Attorneys for defendant and appellee.
GILBERTSON, CHIEF JUSTICE
[¶1.] Donny Hofer (Hofer) filed a workers' compensation action against Redstone Feeders, L.L.C. (Redstone). The parties exchanged discovery and Redstone filed a motion for summary judgment. Finding no disputes of material fact, the circuit court granted the motion. The circuit court held that Hofer was a farm or agricultural laborer under SDCL 62-3-15(2), and thus exempt from workers' compensation. Hofer appeals the grant of the motion for summary judgment. We affirm.
[¶2.] Appellant Donny Hofer was born January 17, 1956. He was raised 12 miles north of Howard, South Dakota, and his formal education ended after eighth grade. Hofer worked as a truck driver for many years, and obtained his commercial driver's license (CDL) in 2002.
[¶3.] Redstone is a family owned farming business that raises, fattens, and sells its own cattle. It is a member-managed L.L.C. whose members are brothers Bill Wilkinson, Todd Wilkinson, and Ed Wilkinson. Their mother Bette Wilkinson is also a member, but does not take part in any significant management of the company. Redstone did not carry workers' compensation insurance, which it did not deem necessary due to its private ownership and the agricultural nature of its company.
[¶4.] In March of 2007, Hofer began working for Redstone, after he answered an advertisement in the paper seeking a truck driver. While he was employed at Redstone, Hofer spent about 90% of his time driving a truck. He would mostly haul cattle from the feedlot to various places for sale, but would also pick up cattle feed and haul it back to Redstone's feedlot. Hofer spent a great deal of time hauling cattle, as he regularly drove to Montana, North Dakota, Minnesota, Iowa, Wyoming, and Nebraska. While he was driving a truck, Hofer kept daily logs in compliance with Federal Department of Transportation requirements for interstate truckers.
[¶5.] On December 17, 2012, Redstone instructed Hofer to pick up feed and haul it back to Redstone. After he had deposited the feed, Hofer was instructed to take silage to another of Redstone's yards. First, however, he had to weigh his truck to determine the volume of the silage he was hauling. When he got out of his truck and stepped onto the scale, he slipped on a patch of ice. Hofer attempted to use his right arm to brace his fall, and injured his right shoulder in the fall. Hofer immediately informed Redstone's Feedlot Manager, Scott Dejong, of the accident. As a result of the injury, the Social Security Administration has determined that Hofer is permanently and totally disabled for the purposes of Social Security disability insurance benefits.
[¶6.] Due to his injuries and Redstone's lack of workers' compensation coverage, Hofer sued to recover for his disability. After exchanging discovery and after each party took depositions, Redstone made a motion for summary judgment. Hofer argued that Redstone was in violation of South Dakota workers' compensation law by failing to provide workers' compensation insurance for its employees. Redstone argued that it was exempt from the requirement to purchase workers' compensation insurance under SDCL 62-3-15, which exempts "farm or agricultural laborers" from coverage under the Title.
[¶7.] Hofer argued that our case, Keil v. Nelson, 355 N.W.2d 525 (S.D. 1984) controlled. In Keil, an employee that spent most of his time driving a truck for a sheep farming enterprise was held not to be a farm laborer and thus not exempt from workmen's compensation coverage. Keil, 355 N.W.2d at 528. The sheep farming enterprise also operated a small, trucking company that was legally separate from the farm. Id. We held that because the truck driver spent most of his time working for the trucking company and because most of his work was not agricultural in nature, he was not an exempt employee under SDCL 62-3-15.
[¶8.] Redstone argued that Keil was inapplicable, as its case involves only one entity (Redstone) that employs the employee, and Redstone performs exclusively agricultural functions. The circuit court agreed with Redstone, holding that Hofer was an exempt farm or agricultural laborer. Due to this determination, the circuit court found no ...