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
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
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
. 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),
, 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,
, 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.
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
'(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.'
(citation omitted). If the test is satisfied as to both
employers, both employers are liable for workmen's compensation.
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
, 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.
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
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
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
Judges CALABRIA and STROUD concur.
Report per Rule 30(e).
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