Lyle D. Larsen, appellee, v. D B Feedyards, Inc., appellant, 264 Neb. 483

Per Curiam. Lyle D. Larsen was employed by D B Feedyards, Inc., on November 13, 1999, when he was injured while roping a steer owned by a customer of D B Feedyards. Larsen filed a petition against D B Feedyards in the Workers’ Compensation Court seeking benefits for his injury. D B Feedyards answered by asserting that because it was an employer of farm or ranch laborers, it was excepted from the Nebraska Workers’ Compensation Act under Neb. Rev. Stat. § 48-106(2) (Reissue 1998). The trial judge rejected D B Feedyards’ defense and determined that Larsen was a covered employee.

The review panel of the Nebraska Workers’ Compensation Court affirmed. D B Feedyards appeals. FACTS This case was tried on stipulated facts. D B Feedyards is a Nebraska corporation with its principal place of business located slightly southeast of Craig, Nebraska. Daryl Bromm and his wife, Shirley Bromm, are the sole shareholders in the corporation. Daryl, Shirley, and their son Rodney Bromm are the only officers of the corporation. D B Feedyards was incorporated in 1973 and has remained incorporated since that time. D B Feedyards began operation as a feedlot to feed livestock owned by Daryl and Rodney.

Approximately 12 to 15 years ago, however, D B Feedyards began feeding cattle owned by other persons or entities. D B Feedyards charges a fixed amount per head, per day for the cattle it feeds owned by others. D B Feedyards averages 5,000 head of cattle on feed. At any given time, one-half to three-fourths of the cattle on the feedlot are owned by persons or entities other than D B Feedyards. Although it does not do any formal advertising, D B Feedyards provides calendars and baseball caps bearing its name to its customers. D B Feedyards occasionally solicits customers to have their cattle fed at its feedlots.

D B Feedyards receives separate income for its feeding operation and files a separate corporate income tax return each year. D B Feedyards’ gross revenue for the period July 1,1999, through July 1, 2000, was $5,122,186. D B Feedyards owns 440 acres of farm ground in its own name, which it farms. The feedlot area, including the offices, scales, and Daryl and Shirley’s residence, covers 160 acres. Crops raised on the farm are delivered to the feedlot for use as cattle feed, and manure from the feedlot is spread on the farmland.

D B Feedyards owns farm equipment consisting of a combine, two payloaders, and several tractors, as well as two trucks used in its feeding operations. At all relevant times, D B Feedyards employed three employees, including Larsen. Larsen is a professional roper who was hired to perform general labor, which included sorting and treating sick cattle. On November 13, 1999, Larsen injured his right thumb while roping a steer. The steer was owned by an entity other than D B Feedyards. On March 8, 2000, Larsen filed a petition in the Workers’ Compensation Court seeking benefits for the injury to his right thumb.

In its answer, D B Feedyards asserted that Larsen was employed as a farm or ranch laborer under § 48-106(2) and therefore was not a covered employee under the provisions of the Nebraska Workers’ Compensation Act. By joint stipulation of the parties, the case was bifurcated so that the trial judge could first determine whether D B Feedyards fit within the exception.

In an order filed January 22, 2001, the trial judge resolved this issue in favor of Larsen, concluding: The Court finds that the enterprise [D B Feedyards] was engaged in on November 13, 1999, while [Larsen] was roping a steer and was injured was a commercial business separate and distinct from farming and ranching. The sheer size of [D B Feedyards’] operation shows that it is more in the nature of a commercial enterprise rather than on [sic] old-fashioned farm and ranch operation.

Employers operating businesses performing commercial services primarily for others, even though the task performed may commonly occur on a farm or a ranch, do not employ “farm or ranch laborers” within the meaning of Nebraska Revised Statute,

Section 48-106. This decision was affirmed without an opinion by a three-judge review panel of the Workers’ Compensation Court. D B Feed-yards perfected a timely appeal to the Nebraska Court of Appeals and filed a petition to bypass, which we granted.

ASSIGNMENTS OF ERROR D B Feedyards assigns, restated, that the trial judge’s decision as affirmed by the review panel erred as a matter of law in its determination as to Larsen’s injury sustained on November 13, 1999, that D B Feedyards was not an excepted employer within the meaning of § 48-106(2) and therefore in its conclusion that Larsen was a covered employee subject to the provisions of the Nebraska Workers’ Compensation Act. STANDARD OF REVIEW An appellate court is obligated in workers’ compensation cases to make its own determinations as to questions of law. Rodriguez v.

Monfort, Inc., 262 Neb. 800, 635 N.W.2d 439 (2001); Thornton v. Grand Island Contract Carriers, 262 Neb. 740, 634 N.W.2d 794 (2001); Foote v. O’Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001). ANALYSIS Jurisdiction. Before reaching the legal issues presented for review, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it. Scottsdale Ins. Co. v. City of Lincoln, 260 Neb. 372, 617 N.W.2d 806 (2000); Billingsley v. BFM Liquor Mgmt., 259 Neb. 992, 613 N.W.2d 478 (2000); Airport Auth. of Village of Greeley v. Dugan, 259 Neb. 860, 612 N.W.2d 913 (2000).

For an appellate court to acquire jurisdiction of an appeal, there must be a final order entered by the court from which the appeal is taken; conversely, an appellate court is without jurisdiction to entertain appeals from nonfinal orders. Chief Indus. v. Great Northern Ins. Co., 259 Neb. 771, 612 N.W.2d 225 (2000); Thompson v. Kiewit Constr. Co., 258 Neb. 323, 603 N.W.2d 368 (1999). When an appellate court is without jurisdiction to act, the appeal must be dismissed. Thompson v. Kiewit Constr. Co., supra.

Larsen argues that because the trial judge’s order merely gave him the opportunity to proceed to the merits of his claim and did not resolve the issue of compensation, the order is not final and may not be appealed. We disagree. The three types of final orders which may be reviewed on appeal are (1) an order which affects a substantial right and which determines the action and prevents a judgment, (2) an order affecting a substantial right made during a special proceeding, and (3) an order affecting a substantial right made on

summary application in an action after judgment is rendered. See, Neb. Rev. Stat. § 25-1902 (Reissue 1995); State v. Gibbs, 253 Neb. 241, 570 N.W.2d 326 (1997); Richardson v. Griffiths, 251 Neb. 825, 560 N.W.2d 430 (1997); Tess v. Lawyers Title Ins. Corp., 251 Neb. 501, 557 N.W.2d 696 (1997). It is well settled that a workers’ compensation case is a “special proceeding” for appellate purposes. See Thompson v. Kiewit Constr. Co., supra. The order of the trial judge as affirmed by the review panel eliminated what would have been a complete defense to the claim and thus affected a substantial right of D B Feedyards.

See SID No. 1 v. Nebraska Pub. Power Dist., 253 Neb. 917, 573 N.W.2d 460 (1998). Accordingly, we have jurisdiction of this appeal. Larsen as Covered Employee. D B Feedyards appeals the decision of the trial judge as affirmed by the review panel concluding that Larsen was covered under the Nebraska Workers’ Compensation Act. D B Feedyards specifically claims that because it was engaged in the business of farming or ranching, it is an excepted employer under § 48-106(2) and that, therefore, its employee Larsen was not covered by the Nebraska Workers’ Compensation Act.

Larsen argues in response that D B Feedyards was primarily engaged in a commercial enterprise, that D B Feedyards is not an excepted employer, and that the trial judge correctly concluded that Larsen was an employee covered by the Nebraska Workers’ Compensation Act. In view of the statute, the case law, and the facts of this case, we agree with the conclusion of the trial judge as affirmed by the review panel that Larsen was a covered employee. The Nebraska Workers’ Compensation Act applies to employers described in § 48-106(1), but it does not apply to employers identified in § 48-106(2).

The statutory language at issue in this case, § 48-106(2), provides in pertinent part, “The following are . . . not within the provisions of the Nebraska Workers’ Compensation Act:... employers of farm or ranch laborers ...” We long ago observed that the agricultural exception statutes in other states generally focus on the characteristics of the laborer who is excluded from workers’ compensation coverage, whereas under Nebraska’s statutory language, the agricultural exception focuses on the employer of such laborer. In Keefover v.

Vasey, 112 Neb. 424, 427, 199 N.W. 799, 800 (1924), we specifically stated, “It is worthy of note that in these other states the emphasis seems to be placed upon the exclusion of the laborer, while in this state it rests upon the exclusion of the employer of such labor.” We have further noted that the classification of the exception as a function of the employer’s status is a legislative prerogative. Id. See, also, Leppert v. Parker, 218 Neb. 63, 352 N.W.2d 180 (1984); Otto v. Hahn, 209 Neb. 114, 306 N.W.2d 587 (1981).

In keeping with the language of § 48-106(2) excepting “employers” of farm and ranch laborers, our recent cases have emphasized that it is the nature of the employer’s business which determines the exception. In Leppert v. Parker, we said, “It is clear from both the statute and the cases that it is the nature of the employer’s business which determines the exemption, and not the work performed by the employee.” 218 Neb. at 67, 352 N.W.2d at 182. See, also, Bartunek v. Becker, 222 Neb. 126, 382 N.W.2d 300 (1986). In Leppert v.

Parker, we observed that although the emphasis is on the employer’s operation in a § 48-106(2) analysis, the cases arising under § 48-106(2) nevertheless show that a case-by-case factual examination is required. In this regard, although the task the employee is performing at the time of the injury is relevant to the inquiry, see Leppert v. Parker, supra, and Campos v. Tomoi, 175 Neb. 555, 122 N.W.2d 473 (1963), the fact that the injury occurred on the farm or ranch and the fact that the work itself could be characterized as farm or ranch labor does not control whether the employee is covered. Campos v.

Tomoi, supra. The farming exception under discussion was enacted in 1913, and the exception for ranching was added in 1945. 1913 Neb. Laws, ch. 198, § 6(2), p. 580; 1945 Neb. Laws, ch. Ill, § 1, p. 356. More than 30 years ago, we acknowledged that old-fashioned farming and ranching contemplated by the Legislature at the time of the adoption of the [Nebraska Workers’] Compensation Act has been extensively affected by mechanization, specialization, and scientific advancement.

The growth in the size of farms and the constantly accelerating changes in methods and machines, together with spiraling costs, have spawned a multitude of commercial businesses which provide equipment and specialized services for farmers and ranchers. These developments have, in some cases, created a type and kind of regular commercial business, separate and distinct from farming and ranching. Hawthorne v. Hawthorne, 184 Neb. 372, 378, 167 N.W.2d 564, 567 (1969).

It has been stated that “[s]ometimes intensive specialization, if carried too far, is enough to transform agriculture to commerce.” 4 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 75.03[5] at 75-13 (2002). Given the realities of modem farming and ranching, we have observed that under the Nebraska Workers’ Compensation Act, an employer may be engaged in several businesses. Bartunek v. Becker, supra. In Brown v.

Leavitt Lane Farm, 215 Neb. 522, 527, 340 N.W.2d 4, 8 (1983), we held that “one employer may engage in two separate businesses, one subject to the workmen’s compensation law and one exempt from that law.” We also stated: “[T]he fact that an employer is engaged in farming does not remove from the coverage of the statute another business or occupation carried on by the employer which is otherwise within the coverage of the [workers’ compensation] statute, nor does it subject the farming business to the statute.” Id. at 527, 340 N.W.2d at 8 (quoting 99 C.J.S. Workmen’s Compensation § 33 (1958)).

D B Feedyards emphasizes on appeal that its operations are in the nature of farming and ranching and that the trial judge’s determination that D B Feedyards was not excepted from the Nebraska Workers’ Compensation Act for purposes of this case is in error. We do not agree. In the instant case, the parties stipulated to the facts, and the determinations made by the trial judge derived from the stipulation are supported by the record and the law. The trial judge focused on the activities of the employer, as he should under § 48-106(2). See, Bartunek v. Becker, 222 Neb. 126, 382 N.W.2d 300 (1986); Leppert v.

Parker, 218 Neb. 63, 352 N.W.2d 180 (1984). The record shows that D B Feedyards offers a specialized service to its customers, the feeding of cattle. See Hawthorne v. Hawthorne, supra. The trial judge found that in connection with Larsen’s claim, D B Feedyards was set up as a commercial business on November 13, 1999, when and where Larsen was injured.

The facts that D B Feedyards averages 5,000 head of cattle on feed, one-half to three-fourths of which are owned by customers of D B Feedyards, and that Larsen was injured while roping a steer which was owned by a customer of D B Feedyards support the trial judge’s decision that Larsen was performing tasks for a commercial employer and thus not a farm or ranch laborer within the meaning of the workers’ compensation law. D B Feedyards appears to urge on appeal that because D B Feedyards is engaged in farming and ranching for its own account, it cannot also be a commercial enterprise for purposes of § 48-106(2).

Contrary to D B Feedyards’ assertion on appeal, the trial judge’s determinations do not preclude the existence of two businesses being operated by D B Feedyards such that one is commercial and subject to the workers’ compensation laws and the other is excepted from the workers’ compensation laws under § 48-106(2). See, Bartunek v. Becker, supra; Brown v. Leavitt Lane Farm, supra.

The tasks Larsen was performing when and where he was injured in this case were for the benefit of a separate commercial business conducted by D B Feedyards, which enterprise consists of feeding the cattle of the customers of D B Feedyards. The trial judge’s conclusion, as affirmed by the review panel, that D B Feedyards was not an employer excepted from the compensation laws under § 48-106(2) in this case was correct. The judgment is affirmed.

CONCLUSION For the reasons discussed above, we conclude that the trial judge as affirmed by the review panel did not err in determining that D B Feedyards was not excepted from the Nebraska Workers’ Compensation Act as an employer of farm or ranch laborers in this case. The judgment is affirmed. Affirmed. Hendry, C.J., not participating.