Borneman v. Corwyn Transport, Ltd.

• Decision Date: 25 June 1998
• Docket Number: No. 96-2511,96-2511
• Citation: 580 N.W.2d 253,219 Wis.2d 346
• Parties: Terrence A. BORNEMAN, as surviving spouse of Jason S. Borneman, deceased, Plaintiff-Appellant, v. CORWYN TRANSPORT, LTD. and Great West Casualty Company Defendants-Respondents-Petitioners, Employers Insurance of Wausau, a mutual company, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 253

580 N.W.2d 253

219 Wis.2d 346

Terrence A. BORNEMAN, as surviving spouse of Jason S Borneman, deceased, Plaintiff-Appellant, v. CORWYN TRANSPORT, LTD. and Great West Casualty Company Defendants-Respondents-Petitioners Employers Insurance of Wausau, a mutual company, Defendant-Respondent.

No. 96-2511.

Supreme Court of Wisconsin.

Argued March 3, 1998.

Decided June 25, 1998.

For the defendants-respondents-petitioners there were briefs by Jeffrey J. Strande and Terwilliger, Wakeen, Piehler & Conway, S.C., Wausau and oral argument by Jeffrey J. Strande.

For the plaintiff-appellant there was a brief by Randy L. Frokjer and Ament, Wulf & Frokjer, S.C., Merrill and oral argument by Randy L. Frokjer.

¶1 SHIRLEY S. ABRAHAMSON, Chief Justice

This is a review of a published decision of the court of appeals, Borneman v. Corwyn Transp., Ltd., 212 Wis.2d 25, 567 N.W.2d 887 (Ct.App.1997). The court of appeals reversed a judgment of the Circuit Court for Marathon County, Raymond F. Thums, Judge. The circuit court granted the motion of Corwyn Transport, Ltd., for summary judgment and dismissed the complaint of Terrence A. Borneman, the plaintiff, for wrongful death as the surviving spouse of Jason S. Borneman. The circuit court concluded that at the time and place of the accident resulting in Jason Borneman's death, Monty Szydel was an employee loaned by Corwyn Transport to Major Industries, Inc., making Szydel a co-employee of Jason Borneman, an employee of Major Industries. Therefore, the circuit court ruled that Wis. Stat. § 102.03 (1993-94), the exclusive remedy provision of the Worker's Compensation Act, ¹ precluded the plaintiff from recovering damages from Szydel and Szydel's general employer, Corwyn Transport.

¶2 The court of appeals reversed the judgment of the circuit court, concluding as a matter of law that no genuine issue of material fact exists to support Corwyn Transport's loaned employee defense. The court of appeals directed the circuit court to enter summary judgment precluding Corwyn Transport from asserting the loaned employee defense and remanded the cause to the circuit court for trial on the issue of Szydel's negligence.

¶3 The only issue before this court is whether Szydel, an employee of Corwyn Transport, became a loaned employee of Major Industries when he assisted employees of Major Industries in loading a flatbed trailer. If Szydel was a loaned employee of Major Industries at the time and place of the accident, then Jason Borneman and Szydel were co-employees of Major Industries and the plaintiff is precluded under Wis. Stat. § 102.03(2) from suing Szydel and Szydel's general employer, Corwyn Transport, for negligence. Alternatively, if Szydel was not a loaned employee of Major Industries at the time and place of the accident, then the plaintiff can pursue a wrongful death action against Corwyn Transport, Szydel's employer.

¶4 For the reasons set forth, we hold that Szydel was not a loaned employee of Major Industries at the time and place of the accident. Accordingly, we affirm the decision of the court of appeals.

I

¶5 The relevant facts including those that are in dispute are set forth below. The material facts and the reasonable inferences therefrom necessary to a resolution of the loaned employee defense in this case are undisputed.

¶6 Corwyn Transport contracted with Major Industries to furnish a trailer truck to haul two loads for Major Industries from Marathon County, Wisconsin, to Georgia. Monty Szydel, a truck driver for Corwyn Transport, dropped off the trailer truck at Major Industries on Friday, September 24, 1994. The trailer was to be loaded by employees of Major Industries, and Szydel was to pick up the loaded trailer truck the following Monday morning.

¶7 Because of inclement weather, the trailer was not loaded and ready for pickup on Monday morning. Szydel was told to pick up the trailer mid-morning on Monday. When Szydel arrived at Major Industries sometime between 9:00 a.m. and 10:00 a.m. that morning, Major Industries had not yet loaded the trailer.

¶8 After Szydel's arrival, four Major Industries employees began to load the trailer in heavy mist conditions. Major Industries' standard loading procedure required four employees. Although four Major Industries employees were available, Szydel participated in the loading.

¶9 It is unclear why Szydel helped load the trailer. Szydel stated that he was unsure whether he was asked to participate in the loading process or simply offered his services. Szydel was not compensated by Major Industries or Corwyn Transport for helping to load the trailer. No arrangement existed between Major Industries and Corwyn Transport for Szydel to help load the trailer. Szydel's only obligation was to secure the load once it was placed on the trailer and to drive the truck delivering the load to its intended destination.

¶10 The parties dispute Szydel's role in the loading process. One employee of Major Industries claimed that Szydel was on top of the load immediately before it fell and that Szydel was in the best position to determine the stability of the load. According to another employee of Major Industries, Szydel had directed the Major Industries' foreman in the loading process, had made suggestions about how to position the aluminum boxes and had helped the foreman position the boxes on the trailer. Both Szydel and the foreman claim that Szydel did not direct the sequence, method, manner or any other detail of the loading process.

¶11 The accident occurred around 1:00 p.m., when Jason Borneman was placing the last box or two onto the load. Part of the load weighing more than one ton fell on him, tragically causing his death.

¶12 On April 3, 1995, Jason Borneman's surviving spouse, Terrence Borneman, filed a wrongful death action against Corwyn Transport, alleging that Szydel negligently caused the death of Jason Borneman.

¶13 The circuit court granted Corwyn Transport's motion for summary judgment, concluding on the basis of the facts and reasonable inferences therefrom that as a matter of law Szydel was a loaned employee of Major Industries at the time and place of the accident.

¶14 The court of appeals reversed the judgment of the circuit court and remanded the cause to the circuit court with directions that the circuit court enter summary judgment precluding the loaned employee defense and set the matter for trial on the issue of Szydel's negligence.

II

¶15 In reviewing a summary judgment, this court applies the same methodology as used by the circuit court, which is set forth in Wis. Stat. § 802.08(2). See Jeske v. Mount Sinai Med. Ctr., 183 Wis.2d 667, 672, 515 N.W.2d 705 (1994). Under § 802.08(2), summary judgment must be entered "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 the moving party is entitled to a judgment as a matter of law."

¶16 Although there are numerous facts in dispute in this case, all the material facts necessary to a resolution of the loaned employee defense are undisputed. When the material facts are undisputed, the determination of whether an employee is a loaned employee is a question of law which this court determines independent of the circuit court and the court of appeals, benefiting from their analyses. See Bauernfeind v. Zell, 190 Wis.2d 701, 714, 528 N.W.2d 1 (1995) (citing Gansch v. Nekoosa Papers, Inc., 158 Wis.2d 743, 753, 463 N.W.2d 682 (1990)).

III

¶17 We begin with a brief summary of Wisconsin law regarding loaned employees. It is well settled that an employee of one employer (sometimes referred to as the general employer) may under certain circumstances become the employee of another employer (sometimes referred to as the borrowing employer or special employer).

¶18 The rationale of the loaned employee doctrine as it relates to worker's compensation is that an employee who is on loan to a borrowing employer becomes a loaned employee of the borrowing employer and should, for worker's compensation purposes, be treated as an employee of the borrowing employer. The loaned employee doctrine is one way of promoting the compromises and policies underlying the Worker's Compensation Act. See Bauernfeind, 190 Wis.2d at 713-14, 528 N.W.2d 1.

¶19 Over the years the court has decided many cases involving the application of the loaned employee doctrine. The test to determine whether an employee remains in the employ of the general employer or becomes the loaned employee of the borrowing employer was first set forth 67 years ago in Seaman Body Corp. v. Industrial Comm'n, 204 Wis. 157, 163, 235 N.W. 433 (1931). The Seaman loaned employee test has two aspects: three elements and four vital questions as follows:

The relation of employer and employee exists as between a special employer to whom an employee is loaned whenever the following facts concur: (a) Consent on the part of the employee to work for a special employer; (b) Actual entry by the employee upon the work of and for the special employer pursuant to an express or implied contract so to do; (c) Power of the special employer to control the details of the work to be performed and to determine how the work shall be done and whether it shall stop or continue.

The vital questions in controversies of this kind are: (1) Did the employee actually or impliedly consent to work for a special employer? (2) Whose was the work he was performing at the time of injury? (3) Whose was the right to control the details of the work being performed? (4) For whose benefit primarily was the work being done?

Seaman, 204 Wis. at 163, 235 N.W. 433.

¶20 Although the two aspects of the Seaman test are, as the court of appeals decision recognized, closely related, most of the cases interpreting and applying the Seaman test have emphasized the four vital questions rather than the three elements.

¶21...