Vail v. S/L Services, Inc.

Filing 60

ORDER re Possible Questions for Certification by Magistrate Judge Charles S. Miller, Jr.(ZE)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Dawn Vail, individually and as Trustee for )
North Dakota Workforce Safety &
)
Insurance,
)
)
Plaintiff,
)
)
vs.
)
)
S/L Services, Inc.,
)
)
Defendant.
)

ORDER RE POSSIBLE
QUESTIONS FOR CERTIFICATION
TO THE NORTH DAKOTA
SUPREME COURT
Case No. 4:14-cv-008

As discussed with the parties during the most recent status conference, the court is inclined
to certify questions to the North Dakota Supreme Court in this case. The following are the questions
that are being considered for certification:
1.

Given the facts this court has stated should be assumed as true (including that S/L
Services treated Vail as an independent contractor prior to her accident and opposed
her claim for benefits on the grounds she was not an employee but later paid a
premium based on her wages for the premium period in which she was injured), can
either the treatment of Vail as an independent contractor or S/L Services’ opposition
to her claim for benefits on the grounds she was not an employee constitute a failure
to secure coverage in violation of § 65-04-33(2) if done willfully within the meaning
of that section?

2.

Given the facts that this court has stated should be assumed as true (including that
S/L Services did not include Vail’s wages in its payroll report for the August 2012 August 2013 premium period but that WSI nevertheless calculated the premium for
that period using Vail’s wages and S/L Services paid that premium), can the failure
on the part of S/L Services to include Vail’s wages in the August 2012 - 2013
premium period constitute a misrepresentation of payroll in violation of § 65-0433(2) if it was done willfully within the meaning of that section?

3.

Given the facts that this court has stated should be assumed as true (including that
S/L Services failed to include in its wage report for the August 2012 - August 2013
premium period the wages of some six or seven welder’s helpers who were similarly
situated to Vail and whose wages were not included in WSI’s calculation and billing
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for that premium period but were later included in a subsequent billing by WSI
following a 2014 audit and paid by S/L Services at that time), can the failure on the
part of S/L Services to include the wages of these other welder’s helpers in the
August 2012 - August 2013 wage report constitute a violation of § 65-04-33(2), if it
was done willfully within the meaning of that section, and can Vail rely upon that
alone to support a claim that S/L Services has lost its immunity from a common law
suit for damages for her workplace injury?
4.

In order to prove a violation of § 65-04-33(2), is Vail required to demonstrate that
S/L Services knew at the time it engaged in the conduct that Vail claims amounts to
a violation that she or any of the other workers similarly situated were employees as
a matter of law and entitled to workers’ compensation coverage?

5.

In proving a violation of § 65-04-33(2), can Vail satisfy the statute’s scienter
requirement if she proves that S/L Services acted in reckless disregard of the fact
that she and any other workers similarly situated were employees as a matter of law
and entitled to worker’s compensation coverage at the time it engaged in the
prohibited conduct?

6.

In proving a violation of § 65-04-33(2), can Vail satisfy its scienter requirement by
proving only that S/L Services intentionally, and not inadvertently, committed an act
prohibited by the statute and not prove any other state-of-mind, including that S/L
Services had knowledge of the relevant obligations imposed on an employer under
the worker’s compensation laws, that S/L Services knew that Vail was an employee
as a matter of law, that S/L Services intended to deceive WSI or otherwise violate the
law, or that S/L Services acted in reckless disregard of the law’s requirements or that
Vail was an employee as a matter of law?

7.

Can S/L Services avoid a finding of a violation of § 65-04-33(2) if it can be
demonstrated that, at the time it engaged in the conduct that is alleged to have
constituted a violation, it believed in good faith that Vail or other similarly situated
workers were not employers as a matter of law, even though that belief was
mistaken?

The court will entertain comments, objections, and suggestions for alternative or additional
questions if filed with the court on or before January 6, 2017. In proposing any revised language or
other questions, please keep in mind the requirements of N.D. R. App. P. 47(c), which, among other
things, requires that the questions be formulated in a manner allowing the question to be answered
as “yes” or “no.”
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IT IS SO ORDERED.
Dated this 29th day of December, 2016.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

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