Avila v. Northrup King Co.

• Decision Date: 29 March 1994
• Docket Number: No. 1,CA-CV,1
• Citation: 880 P.2d 717,179 Ariz. 497
• Parties: Jesus AVILA and Maria Avila, husband and wife, Plaintiffs-Appellants, v. NORTHRUP KING COMPANY, a Delaware corporation doing business in Arizona, Hector Villareal and Jane Doe Villareal, husband and wife, Defendants-Appellees. 91-0469.
• Court: Arizona Court of Appeals

Page 717

880 P.2d 717

179 Ariz. 497

Jesus AVILA and Maria Avila, husband and wife, Plaintiffs-Appellants, v. NORTHRUP KING COMPANY, a Delaware corporation doing business in Arizona, Hector Villareal and Jane Doe Villareal, husband and wife, Defendants-Appellees.

No. 1 CA-CV 91-0469.

Court of Appeals of Arizona Division 1, Department B.

March 29, 1994.

Review Denied Sept. 20, 1994.

[179 Ariz. 499] Mower, Koeller, Nebeker & Carlson by Constance J. Miller, Yuma, for plaintiffs-appellants.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, P.A. by Steve D. Smith and William A. Cirignani, Phoenix, for defendants-appellees.

OPINION

TOCI, Judge.

Edward Montiel owns a business ("EMCO") that provides contract labor and services to farmers and agricultural growers. EMCO assigned Jesus Avila to work for Northrup King Company ("Northrup") as a temporary employee. Avila was injured while working under Northrup's direction and control. After receiving workers' compensation benefits from EMCO, Avila sued Northrup for negligence. The trial court granted summary judgment for Northrup on the theory that Avila's status as a loaned employee renders Northrup immune from suit.

There are two issues before us. First, do the undisputed facts in the record support the trial court's summary judgment that because Northrup was Avila's special employer, it was immune from civil suit? The answer to this question depends upon whether Avila, by accepting the assignment from EMCO, and by submitting to Northrup's control, direction, and supervision, impliedly consented to Northrup as his temporary employer. Second, assuming that Northrup was Avila's special employer, is Northrup entitled to immunity from civil suit notwithstanding the fact that EMCO provided the workers' compensation coverage for EMCO employees?

In resolving the above issues, we conclude first that under the standard pronounced in Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990), the trial court properly granted summary judgment in favor of Northrup. On the basis of the evidence presented to the trial court, a reasonable juror could conclude only that Avila impliedly consented to the employment relationship with Northrup. Thus, Avila was a "lent employee." For that reason, and because Northrup provided workers' compensation coverage for its own employees that would have covered Avila had he filed a claim against it, Northrup was entitled to Ariz.Rev.Stat.Ann. ("A.R.S.") section 23-1022(A) (Supp.1993) immunity as a matter of law. Accordingly, we affirm.

I. FACTS AND PROCEDURAL HISTORY

Montiel, doing business as EMCO, is a United States Department of Labor licensed labor contractor who contracts to provide agricultural labor and services to growers and farmers in the Yuma, Arizona area. At the time of Avila's injury, EMCO had a work force of approximately 150 to 160 people who worked for one or more of five growers during the growing season. EMCO charged growers the amount of the wages it paid to each assigned worker plus a 32% mark-up to cover payroll taxes, workers' compensation premiums, and general overhead. If a grower for whom EMCO provided services was dissatisfied with a particular laborer's work, the grower did not have the right to discharge the laborer from EMCO's work force, but could discharge him from the particular job. When this happened, EMCO would not send that laborer back to that job, and would exercise its discretion about whether to assign the worker to any other jobs.

One of the agricultural companies to whom EMCO supplied labor was Northrup. EMCO owner, Montiel, testified at his deposition that Northrup typically asked EMCO for small groups of laborers without a foreman, usually for not more than three or four days at a time. Montiel also testified that such employees were under the direct supervision of Northrup:

They [Northrup] don't justify paying $65 a day for a foreman for a small group of people when they have their own foreman on staff....

So my supervisor delivers the people or sends the people, sets them up with the water and sanitation facilities, and they go to work under the leadership or the foremanship of the Northrup King supervisor.

....

... Because you see, when we give Northrup King those 4 individuals, I say 4, we are assigning them to Northrup King. Hector [Villareal] tells them come back tomorrow. Tomorrow don't come here, go to this end of the field, do this or that.

Everyday he directs them because that's our arrangement. He acts as the foreman. The work quality and the performance of the job, they have to answer to him. My supervisor might call Hector and say, "Hector, is everything going okay? Any problem with Jesus or Juan or Jose?" And he may say, "No, they are working good. No problems."

It's our duty to check back with him. Not necessary that we talk to people....

Under the agreement between EMCO and Northrup, Northrup controls the details of the work done by the EMCO workers. When the EMCO employees arrive at the field, Northrup's field supervisor, Hector Villareal, relays the Northrup management's instructions to them. Villareal tells the workers what Northrup wants to do that day and how it is to be done. If tools and training are necessary to complete the assignment, Northrup provides both. When EMCO's employees are working in Northrup's field, Villareal is present at all times supervising and giving directions about where to work and what to do.

Avila became a direct employee of EMCO in approximately March of 1987. Avila performed pre-harvesting and harvesting field work consisting of hoeing, weeding, cutting, picking, packing, and driving a tractor. During the year preceding the accident, EMCO had assigned Avila to work for Northrup on a number of separate occasions. On each prior occasion, Avila was overseen by Northrup's supervisor, Villareal.

On March 22, 1988, Villareal called Tranquilino Vecerra, Avila's supervisor at EMCO, and told him that Northrup needed two people to hoe weeds. Villareal did not ask for particular people or specify how long they would be working. On March 23, 1988, at 6:00 a.m., Avila and another person arrived at Northrup's field in their own cars. Villareal provided them with hoes. Villareal testified at his deposition as follows:

Q. What instructions did you give them that morning, do you recall?

A. I told them we were going to hoe some weeds on squash and melons and I showed them how to get the weeds from underneath plants and look under plants and most of the weeds be thrown down in the furrow.

Q. And once those general instructions were given to them did they need any further instructions after that?

A. No, just to keep going on all the things that I showed them where to hoe. I stayed there with them for a little while and then I had to do some other things and I came back after awhile [sic].

Q. Did you periodically just come and go to check on them?

A. Yes.

That same day, EMCO's supervisor, Vecerra, dropped by on one occasion to talk with Villareal and the workers.

The following day, while hoeing an experimental squash crop, Avila was stung by a bee. Because Avila is highly allergic to bee stings, he asked Villareal to take him back to Northrup's shop so he could go home for the rest of the day. While Villareal was driving Avila back to the shop on a tractor, Avila fell from the tractor and was injured.

After obtaining workers' compensation benefits from EMCO's compensation carrier, Avila brought this negligence action against Northrup and Villareal. The trial court granted summary judgment in favor of both. It concluded that on the evidence presented, reasonable minds could not disagree that Avila was a lent employee of Northrup entitled to the immunity provided by A.R.S. section 23-1022(A). The trial court stated:

Avila's acceptance of EMCO's assignment to be supplied as an employee to N-K and his acceptance of the direction, control and supervision by Hector Villareal, foreman and supervisor of N-K was sufficient to imply the consent required for the establishment of an employment relationship between Avila and N-K for the hoeing task being performed. When he arrived at the work site and N-K directed and controlled his work and he accepted such direction and control, the legal relationship was established as a matter of law.

Avila filed a timely appeal. We have jurisdiction pursuant to A.R.S. section 12-2101(B) (Supp.1993).

II. DISCUSSION

A. Was Avila a "Lent Employee?"

Any inquiry concerning the "lent employee" doctrine in the workers' compensation setting begins with Word v. Motorola, Inc., 135 Ariz. 517, 662 P.2d 1024 (1983). There, our supreme court stated:

The factors to be considered in determining when a lent employee has become the employee of the special employer are set out in Larson. We quote them with approval:

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 workmen's compensation.

When these factors are met, the "special employer" becomes an "employer" and, like other employers liable for workmen's compensation, may be entitled to the benefit of the statutory immunity given complying employers.

Id. at 520, 662 P.2d at 1027 (quoting 1C Arthur Larson, Larson's Workmen's Compensation Law, § 48.00 (1982)) (current version at 1B Arthur Larson, Larson's Workmen's Compensation Law, § 48.00 (1993) (citation omitted)); see also Lindsey v. Bucyrus-Erie, 161 Ariz. 457, 459, 778 P.2d 1353, 1355 (App.1989); Nation v. Weiner, 145 Ariz. 414, 417, 701 P.2d 1222, 1225 (App.1985).

Avila...