Anderson v. Demolition Dynamics, Inc.

• Decision Date: 15 February 2000
• Docket Number: No. COA98-1350.,COA98-1350.
• Citation: 136 NC App. 603,525 S.E.2d 471
• Parties: David A. ANDERSON, Ancillary Administrator of the Estate of Gary R. Anderson, Plaintiff, v. DEMOLITION DYNAMICS, INC., Defendant.
• Court: North Carolina Court of Appeals

525 S.E.2d 471

136 NC App. 603

David A. ANDERSON, Ancillary Administrator of the Estate of Gary R. Anderson, Plaintiff, v. DEMOLITION DYNAMICS, INC., Defendant.

No. COA98-1350.

Court of Appeals of North Carolina.

February 15, 2000.

Twiggs, Abrams, Strickland & Trehy, P.A., by Douglas B. Abrams, Raleigh, and Iraelson, Salsbury, Clements & Beckman, by Stewart M. Salsbury and Leslie Hayes Russo, Baltimore, MD, for plaintiff-appellant.

Smith, Helms, Mulliss & Moore, L.L.P., by Jon Berkelhammer, Andrew S. Chamberlin, and Manning A. Connors, III, Greensboro, 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 the time, 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 is caused 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 but related company, D.H. Griffin Wrecking Company (Griffin 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, 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.

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]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 material fact 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 subjudice, 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 by Pettigrew, 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

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