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Employer and Employee--employment by defendant--genuine issue of material fact
Although defendant contends decedent was barred from bringing this wrongful death
action because the exclusive remedy would be under the Workers' Compensation Act since
decedent was a joint employee of defendant and Griffin Wrecking, the trial court erred by
granting defendant's motion for summary judgment because there is a genuine issue of material
fact under the “special employer” test concerning whether decedent was an employee of
defendant based on: (1) whether there existed a contract for hire between defendant and
decedent; and (2) the nature of defendant's right to control the detail of decedent's work.
Twiggs, Abrams, Strickland & Trehy, P.A., by Douglas B. Abrams, and Iraelson, Salsbury, Clements & Beckman, by Stewart M. Salsbury and Leslie Hayes Russo, for plaintiff-appellant.
Smith, Helms, Mulliss & Moore, L.L.P., by Jon Berkelhammer, Andrew S. Chamberlin, and Manning A. Connors, III, for defendant-appellee.
JOHN, Judge.
Plaintiff David A. Anderson, ancillary administrator of the
estate of Gary R. Anderson (decedent), appeals the trial court's
grant of defendant Demolition Dynamics, Inc.'s motion for summary
judgment. For the reasons stated below, we reverse and remand to
the trial court for further proceedings.
Pertinent facts and procedural history include the following:
Plaintiff initiated the instant wrongful death suit 22 August 1996.
Decedent died 19 August 1995 as a result of injuries suffered when
he fell from an abandoned conveyor structure in a quarry. At thetime, decedent and several employees of defendant were preparing
the structure for demolition by means of explosives.
In his complaint, plaintiff alleged, inter alia, that
defendant, through its agents and employees,
[n]egligently and wantonly undermined the
structural integrity of the conveyor system
while Plaintiff's decedent Gary R. Anderson
was working on the bridge conveyor frame,
and that such negligence was the proximate cause of decedent's
death. Included in defendant's answer was the defense that
[a]t the time of the incident that forms the
subject matter of Plaintiff's complaint,
[decedent] was in the employ of [defendant]
and was covered by the provisions of the North
Carolina Workers' Compensation Act, which
provides the sole and exclusive remedy to
Plaintiff.
On the basis of the foregoing, defendant subsequently moved to
dismiss for lack of subject matter jurisdiction, or alternatively
for summary judgment. Following a hearing, the trial court entered
summary judgment in favor of defendant 2 July 1998. Plaintiff
timely appealed.
The Workers' Compensation Act (the Act), N.C.G.S. § 97-10.1
(1991), provides:
If the employee and the employer are subject
to and have complied with the provisions of
this Article, then the rights and remedies
herein granted to the employee, his
dependents, next of kin, or personal
representative shall exclude all other rights
and remedies of the employee, his dependents,
next of kin, or representative as against the
employer at common law or otherwise on account
of such injury or death.
In addition, this Court has stated that
an employee's remedies are exclusive as
against the employer where the injury iscaused by an accident arising out of and in
the course of employment. Thus, the
exclusivity provision of the Act precludes a
claim for ordinary negligence, even when the
employer's conduct constitutes willful or
wanton negligence.
Wake County Hosp. Sys. v. Safety Nat. Casualty Corp., 127 N.C. App.
33, 40, 487 S.E.2d 789, 793, disc. review denied, 347 N.C. 410, 494
S.E.2d 600 (1997) (citation omitted).
Summary judgment is appropriately granted when
the pleadings, depositions, answers to
interrogatories, and admissions on file,
together with the affidavits, if any, show
that there is no genuine issue as to any
material fact and that any party is entitled
to a judgment as a matter of law.
N.C.G.S. § 1A-1, Rule 56(c) (1990). A summary judgment movant
bears the burden of showing either that (1) an essential element of
the non-movant's claim is nonexistent; (2) the non-movant is unable
to produce evidence which supports an essential element of its
claim; or, (3) the non-movant cannot overcome affirmative defenses
raised in contravention of its claims. Lyles v. City of Charlotte,
120 N.C. App. 96, 99, 461 S.E.2d 347, 350 (1995), rev'd on other
grounds, 344 N.C. 676, 477 S.E.2d 150 (1996). In ruling on such
motion, the trial court must view all evidence in the light most
favorable to the non-movant, accepting the latter's asserted facts
as true, and drawing all reasonable inferences in its favor.
Kennedy v. Guilford Tech. Community College, 115 N.C. App. 581,
583, 448 S.E.2d 280, 281 (1994).
Plaintiff contends the record reflects a genuine factual issue
as to whether decedent was an employee of defendant. We agree.
It is undisputed that decedent was employed by a separate butrelated company, D.H. Griffin Wrecking Company (Griffi
n Wrecking). D.H. Griffin, Sr., (Mr. Griffin), his son, and Steve Pettigrew
(Pettigrew), a former co-worker of decedent, formed defendant
company to provide Griffin Wrecking with explosive demolition
capabilities. The two companies often worked together on
demolition projects , and decedent likewise was regularly involved
with such projects.
Defendant maintains decedent, at the time of his death, was an
employee of both Griffin Wrecking and defendant and that
plaintiff's claim alleging negligence by defendant is barred by the
exclusivity provisions of the Act. However, plaintiff contends
decedent was solely an employee of Griffin Wrecking and that
plaintiff's wrongful death action against defendant may therefore
proceed.
[S]ituations may exist under which an employee
may properly be considered to be in the joint
employment of two employers so that both
become jointly responsible to pay compensation
if the employee is injured by accident arising
out of and in the course of such employment.
Collins v. Edwards, 21 N.C. App. 455, 458, 204 S.E.2d 873, 876,
cert. denied, 285 N.C. 589, 206 S.E.2d 862 (1974). Our courts
utilize the following three-prong “special employer” test to
determine whether an employee may be deemed to have joint employers
for purposes of the Act. See id. at 459, 204 S.E.2d at 876.
When a general employer lends an employee to a
special employer, the special employer becomes
liable for workmen's compensation only if:
(a) the employee has made a contract of hire,express or implied, wit
h the special employer;
(b) the work being done is essentially that
of the special employer; and
(c) the special employer has the right to
control the details of the work.
When all three of the above conditions are
satisfied in relation to both employers, both
employers are liable for worker's
compensation.
3 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law
§ 67 (1999) [hereinafter Larson]
(See footnote 1)
, cited with approval in Collins,
21 N.C. App. at 459, 204 S.E.2d at 876. Continuance of the
“general” employment is presumed, and the party asserting otherwise
must make a “clear demonstration that a new . . . employer [was]
substituted for the old.” Larson § 67.02, quoted in Collins, 21
N.C. App. at 460, 204 S.E.2d at 877.
Accordingly, in order to prevail on its summary judgment
motion, defendant was required to show, see Lyles, 120 N.C. App. at
99, 461 S.E.2d at 350, that it was an employer of decedent, i.e.,
that: (1) decedent made a contract for hire with defendant; (2)
the work being done at the time of the accident was the work of
defendant; and, (3) defendant had the right to control the detail
of decedent's work, see Collins, 21 N.C. App. at 459, 204 S.E.2d at
876. For purposes of our ruling herein, we assume arguendo that
the second prong of the special employer test has been met.
However, we conclude the record reveals genuine issues of materialfact as to the remaining prongs.
Employee is defined in the Act as
every person engaged in an employment under
any appointment or contract of hire or
apprenticeship, express or implied, oral or
written . . . .
N.C.G.S. § 97-2(2) (Supp. 1998). As this Court has previously
noted,
[b]ecause of this statutory requirement that
the employment be under an “appointment or
contract of hire,” . . . the first question
which must be answered in determining whether
a lent employee has entered into an employment
relationship with a special employer for
[purposes of the Act] is: Did he make a
contract of hire with the special employer?
If this question cannot be answered “yes,” the
investigation is closed . . . .
Collins, 21 N.C. App. at 459, 204 S.E.2d at 876-77. The contract
requirement is crucial because
the employee loses certain rights along with
those gained when striking up a new employment
relation. Most important of all, he or she
loses the right to sue the special employer at
common law for negligence; and . . . the
courts have usually been vigilant in insisting
upon a showing of a deliberate and informed
consent by the employee before employment
relation will be held a bar to common-law
suit.
Larson § 67.01[2].
In the case sub judice, defendant makes no argument nor does
the record reflect that decedent entered into a written employment
contract with defendant. Nonetheless, defendant asserts decedent
“expressly accepted . . . employment” by defendant for the quarry
demolition job which resulted in decedent's death. Defendant
points to evidence that decedent, after being contacted byPettigrew, sought permission from Mr. Griffin to work at the site
and maintains that by coming to the site, decedent “accepted that
assignment.” These actions standing alone do not conclusively
satisfy the contract for employment prong of the special employer
test.
Moreover, additional evidence was presented through the
deposition testimony of Mr. Griffin, Pettigrew, and decedent's
widow tending to show the following:
(1) Decedent was paid by and insured through
Griffin Wrecking, although defendant
reimbursed Griffin Wrecking for forty percent
of decedent's salary;
(2) Defendant neither paid payroll taxes on
behalf of decedent nor claimed him as an
employee for insurance purposes;
(3) Decedent represented to third parties that
he was an employee of Griffin Wrecking;
(4) Decedent drove a Griffin Wrecking truck
and used tools and safety equipment provided
by Griffin Wrecking; however, at the
demolition site the explosives were provided
by defendant;
(5) Mr. Griffin gave decedent his assignments
and decedent sought Mr. Griffin's permission
to work on jobs with defendant; and,
(6) Griffin Wrecking was the general
contractor at the demolition site and
defendant a subcontractor, indicating decedent
might have been present as a representative of
either Griffin Wrecking or defendant.
Most notable among the foregoing is evidence concerning how
decedent himself viewed his employment status, because an
employment “relationship could not [have] arise[n] without his
express or implied consent.” Collins, 21 N.C. App. at 460, 204S.E.2d at 877. Although defendant presented evidence indicating
decedent had obtained licenses and permits pertaining to explosives
using defendant's name, such evidence is at least counterbalanced
by the following exchange during the deposition of decedent's
widow:
Q: At all times that you talked to
[decedent], did he tell you and others that he
was employed by [Griffin Wrecking]?
. . . .
A: Yes.
Q: Did you talk to [decedent] about who he
believed he was employed by?
A: Yes, sir.
Q: What did he tell you?
A: D.H. Griffin Wrecking Company.
. . . .
Q: Did [decedent] in your presence ever tell
other people by whom he was employed?
A: Yes, sir.
Q: And what did he say?
A: D.H. Griffin Wrecking Company.
. . . .
Q: Had he ever told you that he was employed
by [defendant]?
A: No, sir.
Consideration of all the above evidence in the light most
favorable to plaintiff, Kennedy, 115 N.C. App. at 583, 448 S.E.2d
at 281, raises at a minimum a genuine factual issue as to the first
prong of the special employer test, i.e., whether there was anemployment contract between defendant and decedent.
The third prong, control of the detail of the work, may be the
most significant. See Hayes v. Elon College, 224 N.C. 11, 15, 29
S.E.2d 137, 140 (1944) (“[t]he vital test is to be found in the
fact that the employer has or has not retained the right of control
or superintendence over the contractor or employee as to details”).
We therefore examine the record regarding whether decedent accepted
control and direction from defendant.
Taking the evidence presented in the light most favorable to
plaintiff, Kennedy, 115 N.C. App. at 583, 448 S.E.2d at 281, we
note that although Pettigrew, supervisor of the demolition project,
directed decedent regarding what needed to be done, no evidence was
presented that the latter was told how to do the specific tasks
assigned, see Collins, 21 N.C. App. at 461, 204 S.E.2d at 877-78
(merely telling plaintiff truck driver where to make delivery and
furnishing directions did not rise to level of supervision and
control necessary to establish employment relationship); cf. Brown
v. Friday Services, Inc., 119 N.C. App. 753, 760, 460 S.E.2d 356,
360-61 (decedent accepted assignment from general employer to work
with special employer and “performed the work at the direction and
under the supervision of” special employer who “controlled the
details of decedent's work”; decedent therefore qualified as
employee of special employer), disc. review denied, 342 N.C. 191,
463 S.E.2d 234 (1995).
In his deposition, Pettigrew stated decedent was an explosive
demolition expert who was “instructed to complete the final wiringand placement of charges at the quarry floor” and who “was
in
charge of the bottom charges” while Pettigrew was “in charge of the
horizontals.” Deposition testimony of Mr. Griffin also tended to
show decedent was in charge of part of the demolition:
Q: Who does the analysis of where to do the
cuts [on the structure to be demolished]?
A: On that particular job, I would imagine
it would have been [decedent]. It'd either
have been [decedent] or [Pettigrew], I really
don't know, one of the two would have been in
charge.
Mr. Griffin continued by noting that he “thought [decedent] was
gonna do it on this one” and that decedent “did, when he was on
jobs for [Pettigrew], do it all.” Finally, Chris Jones (Jones), a
co-worker present at the scene, was asked in his deposition, “did
you understand that [Pettigrew] was in charge of bringing the
structure down?” Jones responded, “yes, I was -- I listened to
both, I mean [decedent] -- him and -- him and [decedent] are more
or less equals, I would say.”
Testimony of Pettigrew, Mr. Griffin and Jones therefore
reflects that decedent, an expert, was “in charge” of at least part
of the demolition and not subject to Pettigrew's control over how
the bottom charges were to be wired or other details of his work.
Taken in the light most favorable to plaintiff, Kennedy, 115 N.C.
App. at 583, 448 S.E.2d at 281, such evidence
hardly amounts to such supervision and control
over [decedent's] activities as to justify
implying therefrom that [decedent] . . . was
thereby consenting to enter into some type of
special employment relationship,
Collins, 21 N.C. App. at 461, 204 S.E.2d at 878, with defendant. In short, defendant at best has shown a genuine issue of material
fact as to the third prong of the special employer test,
defendant's control over the details of decedent's work.
To summarize, given the evidence presented to the trial court
by both parties as to whether there existed a contract for hire
between defendant and decedent and as to the nature of defendant's
right to control the detail of decedent's work, see id. at 459, 201
S.E.2d at 876, we conclude defendant failed to meet its summary
judgment burden, see Lyles, 120 N.C. App. at 99, 461 S.E.2d at 350,
of showing decedent was a joint employee of defendant and Griffin
Wrecking, and thereby failed to establish that plaintiff's claim
was barred by the affirmative defense, see id., of the exclusivity
provisions of the Act. Accordingly, the trial court's grant of
defendant's motion for summary judgment must be reversed.
Reversed.
Judges LEWIS and EDMUNDS concur.
Footnote: 1
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