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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA06-1163


Filed: 1 May 2007


     v .                                 Buncombe County
                                        No. 05 CVS 2985
CAROLINA, LLC, d/b/a GDS, and

    Appeal by plaintiff from order entered 24 May 2006 by Judge Ronald K. Payne in Buncombe County Superior Court. Heard in the Court of Appeals 28 March 2007.

    Leicht & Olinger, by Gene Thomas Leicht, for plaintiff appellant.

    Dean & Gibson, PLLC, by Michael G. Gibson, for defendant appellees.

    McCULLOUGH, Judge.

    Plaintiff appeals from the trial court order granting defendants' motion for summary judgment. We affirm.

    Plaintiff Brandon Lunsford (“plaintiff”) worked for Labor Ready, Inc. (“Labor Ready”), a provider of day labor services. Defendant GDS, a trash removal company, is a customer of Labor Ready.
    On the morning of 4 August 2003, plaintiff reported to Labor Ready and accepted a job offer from Labor Ready for a day laborassignment with GDS. Plaintiff was asked to provide assistance on a garbage removal route driven by defendant Edward Williams (“Williams”), an employee of GDS. While plaintiff was riding as a passenger in a truck driven by Williams, the truck was involved in an accident.
    On 12 July 2005, plaintiff filed a complaint against defendants in Buncombe County Superior Court for personal injuries and damages arising from the accident. Plaintiff's complaint alleges causes of action based on negligence, willful and wanton misconduct, and vicarious or derivative liability. Defendants filed an answer denying allegations of liability and asserting the exclusivity provisions of the North Carolina Workers' Compensation Act (“the Act”) as an affirmative defense.
    Defendants filed a motion for summary judgment, which the trial court granted on 24 May 2006. Plaintiff appeals.
    Plaintiff contends the trial court erred in granting summary judgment for defendants. We disagree.
    Summary judgment is appropriate only “if 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. Gen. Stat. § 1A-1, Rule 56(c) (2005). “There is no genuine issue of material fact where a party demonstrates that the claimant cannot prove the existence of an essential element of his claim or cannot surmount an affirmativedefense which would bar the claim.” Harrison v. City of Sanford, 177 N.C. App. 116, 118, 627 S.E.2d 672, 675, disc. review denied, 361 N.C. 166, 639 S.E.2d 649 (2006). On appeal from a grant of summary judgment, this Court reviews the trial court's decision de novo. Falk Integrated Tech., Inc. v. Stack, 132 N.C. App. 807, 809, 513 S.E.2d 572, 573-74 (1999).
    Traditionally, the Act has provided the sole remedy for an employee injured on the job as a result of an accident. Regan v. Amerimark Building Products, 118 N.C. App. 328, 330, 454 S.E.2d 849, 851, disc. review denied, 340 N.C. 359, 458 S.E.2d 189 (1995), cert. denied, 342 N.C. 659, 467 S.E.2d 723 (1996). Situations “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). This Court applies a three-prong test to determine whether an employee may be deemed to have joint employers for purposes of the Act. Id. at 459, 204 S.E.2d at 876. The test is articulated as follows:
            “'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, with 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.'”

Id. (citation omitted). If the test is satisfied as to both employers, both employers are liable for workmen's compensation. Id. “Under this test and its typical application, . . . 'joint employer status does not provide an injured plaintiff-employee with two recoveries; rather, it merely provides two potential sources of recovery.'” Brown v. Friday Services, Inc., 119 N.C. App. 753, 759, 460 S.E.2d 356, 360 (citation omitted), disc. review denied, 342 N.C. 191, 463 S.E.2d 234 (1995). “Therefore, once recovery is obtained under the statutory mechanism of workers' compensation, the plaintiff is barred from proceeding against either of his employers at common law.” Id.
    Here, the trial court's award of summary judgment in favor of defendants was proper. First, the record indicates that, although plaintiff's workers' compensation case was pending at the time of his deposition, he had been paid some workers' compensation as a result of the accident from Labor Services. See id. (stating that once recovery is obtained under the statutory mechanism of workers' compensation, the plaintiff is barred from proceeding against either of his employers at common law”). Second, all three conditions of the “special employment” test, as outlined in Collins, have been met. See id. (determining that all three conditions of the “special employment” test were met under similar circumstances involving a temporary employment situation). An implied contract existed between plaintiff and GDS since plaintiffaccepted the assignment from Labor Services and performed the work at the direction and under the supervision of GDS. Id. at 759-60, 460 S.E.2d at 360 (determining that an implied contract existed where a temporary employee accepted an assignment from a temporary employment agency and performed the work at the direction and under the supervision of the temporary employer). In addition, the work done was essentially that of GDS because GDS was using plaintiff to aid in a garbage removal route. Finally, GDS controlled the details of the work. Therefore, plaintiff was a “special employee” of GDS.
    Plaintiff also asserts that assuming, arguendo, there are no genuine issues of material fact regarding plaintiff's status as a special employee of GDS, the trial court erred because GDS waived the exclusivity of the Act through its contract with Labor Ready. However, after reviewing the contractual language at issue, we determine GDS did not waive the applicability of the Act as between itself and plaintiff. Through the language GDS agrees to defend and indemnify Labor Ready. GDS does not waive exclusivity of the Act.
    Plaintiff also contends that his common law claims against GDS are not precluded by the exclusivity provisions of the Act. In support of this argument, plaintiff cites Pleasant v. Johnson, 312 N.C. 710, 325 S.E.2d 244 (1985). Pleasant held that the “Act does not shield a co-employee from common law liability for willful, wanton and reckless negligence.” Id. at 716, 325 S.E.2d at 249. However, the evidence in the instant case does not illustrate that Williams acted as plaintiff asserts. For example, plaintiff statedin his deposition that Williams “lost control” of the vehicle and “tried to correct it.”
    For the reasons stated above, we conclude the trial court did not err by granting defendants' motion for summary judgment. GDS was a special employer of plaintiff. GDS has not waived protection of the Act by contract. Williams' actions did not amount to willful, wanton and reckless negligence. Accordingly, we affirm the trial court order granting summary judgment in favor of defendants.
    Judges CALABRIA and STROUD concur.
    Report per Rule 30(e).

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