Phil's Fresh Foods (Phil's) employed James Humphrey as a delivery driver. He usually delivered Phil's burritos to one of Whole Foods Market Rocky Mountain/Southwest, L.P. (Whole Foods) stores every week. He performed the following tasks (taking about 25 minutes in all) each time he made a delivery:

• Checked in with the Whole Foods receiver

• Went into the store's retail area to the refrigerated display of Phil's products

• Inventoried the burritos, noting outdated products, and determining the new supply needed

• Prepared an invoice and selected the products to put in stock

• Brought the products to the receiver and had him sign the invoice

• Arranged the new products on the display shelves

• Removed outdated products, brought them to the receiver to inventory, and took them back to the delivery truck.

Twin City Fire Insurance Company (Twin City), Phil's workers compensation carrier, paid benefits to Humphrey for injuries he sustained in Whole Foods store while attempting to perform the tasks above. Humphrey then sued Whole Foods. He claimed that his injuries resulted from Whole Foods' negligence. Twin City intervened as a plaintiff and asserted its statutory right to recovery from responsible third parties. The district court granted summary judgment in favor of Whole Foods, finding that it was Humphrey's statutory employer and immune from common law negligence liability for Humphrey's injuries sustained while performing the listed services. Humphrey and Twin City appealed.

The Colorado Court of Appeals determined that the Workers' Compensation Act creates the concept of a statutory employer. It grants injured employees compensation from their employer without regard to negligence. It also grants the employer immunity from common law negligence liability. This relationship between employers and injured workers exists even if the employer is not the injured worker's employer (based on the ordinary language of common law) as long as the employer is a statutory employer within the meaning of the Workers' Compensation Act. An employer is a statutory employer subject to the act if the services the employee provides are part of the employee's regular business such that, if the subcontractor did not provide them, the employer's own employees would have to provide them.

Based on these facts, the appellate court concluded that Whole Foods was Humphrey's statutory employer. Neither Humphrey nor Twin City disputed that Phil's (Humphrey's actual employer) carried workers compensation insurance when Humphrey was injured. As a result, Whole Foods was immune from common law negligence liability in conjunction with his injuries. The facts underlying the district court's determination of status were undisputed and it properly granted summary judgment in favor of Whole Foods. The district court's judgment was affirmed.

Colorado Court of Appeals, Div. II. James Humphrey, Plaintiff-Appellant, and Twin City Fire Insurance Company, Intervenor-Appellant v. Whole Foods Market Rocky Mountain/Southwest L.P., a Texas limited partnership, Defendant-Appellee. No 09CA0234. April 1, 2010. 250 P.3d 706