Anderson v. Texas Gulf, Inc., 863SC410

• Docket Nº: No. 863SC410
• Citation: 351 S.E.2d 109, 83 N.C.App. 634
• Case Date: December 30, 1986
• Court: Court of Appeal of North Carolina (US)

Page 109

351 S.E.2d 109 83 N.C.App. 634 James W. ANDERSON, Sr.
v.
TEXAS GULF, INC. No. 863SC410. Court of Appeals of North Carolina. Dec. 30, 1986.

Voerman & Ward, P.A. by J. Allen Murphy, New Bern, for plaintiff-appellant.

Sumrell, Sugg & Carmichael by James R. Sugg and Rudolph A. Ashton, III, New Bern, for defendant-appellee.

ORR, Judge.

The sole issue before the Court is whether the plaintiff's complaint should have been dismissed because it conclusively showed plaintiff to be an employee of defendant at the time he was injured and thereby limited his remedy to recovery under the Worker's Compensation Act. We conclude that the trial court erred in dismissing the case.

N.C.G.S. § 97-10.1 provides that if an employee and employer are subject to and have complied with the Worker's Compensation Act, the rights and remedies granted to the employee under the Act are his sole remedy and exclude all other rights and remedies he may have had against his employer at common law. According to defendant, plaintiff's complaint conclusively shows him to be an employee, either under the lent or joint employee doctrines such that recovery under the Worker's Compensation Act provides the sole remedy for his injuries.

Under the lent employee doctrine:

"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;

[83 N.C.App. 636] "(b) the work being done is essentially that of the special employer; and

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"(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 workmen's compensation."

Collins v. Edwards, 21 N.C.App. 455, 459, 204 S.E.2d 873, 876, cert. denied, 285 N.C. 589, 206 S.E.2d 862 (1974) (quoting 1C, Larson, The Law of Workmen's Compensation § 48.00). Joint employment, on the other hand, occurs when

a single employee, under contract with two employers, and under the simultaneous control of both, simultaneously performs services for both employers, and when the service for each employer is the same as, or is closely related to, that for the other. In such a case, both employers are liable for workmen's compensation.

1C, Larson, The Law of Workmen's Compensation § 48.40, p. 8-511 (emphasis added).

In determining whether plaintiff's complaint was sufficient to withstand a motion to dismiss, "the well-pleaded material allegations of the complaint are taken as admitted; but conclusions of law or unwarranted deductions of facts are not admitted." Lloyd v. Babb, 296 N.C. 416, 427, 251 S.E.2d 843, (1979) (quoting Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970)). The material allegations of plaintiff's complaint are as follows:

1. "That at all times alleged ... plaintiff was an employee of East Coast Machine and Iron Works, Inc.";

2. That "although an employee of East Coast Machine [,] ... [plaintiff] was on loan to Texas Gulf, Inc. and was under the direct supervision and control of Texas Gulf, Inc. and [was] working at their place of business ... in Aurora, North Carolina";

3...