Bowens v. Allied Warehousing Servs., Inc.

• Decision Date: 15 June 2012
• Docket Number: No. 11–0210.,11–0210.
• Citation: 229 W.Va. 523,729 S.E.2d 845
• Parties: Byron BOWENS, Plaintiff Below, Petitioner v. ALLIED WAREHOUSING SERVICES, INC., d/b/a Allied Logistics, a West Virginia Corporation, Defendant Below, Respondent.
• Court: West Virginia Supreme Court

229 W.Va. 523
729 S.E.2d 845

Byron BOWENS, Plaintiff Below, Petitioner
v.
ALLIED WAREHOUSING SERVICES, INC., d/b/a Allied Logistics, a West Virginia Corporation, Defendant Below, Respondent.

No. 11–0210.

Supreme Court of Appeals of
West Virginia.

Submitted April 17, 2012.
Filed June 15, 2012.

[729 S.E.2d 847]

Syllabus by the Court

1. “A circuit court's entry of summary judgment is reviewed de novo.” Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. “He who alleges fraud must clearly and distinctly prove it, either by circumstantial or direct evidence. It will not be presumed from doubtful evidence, or circumstances of suspicion. The presumption is always in favor of innocence and honesty.” Syllabus Point 1, Hunt v. Hunt, 91 W.Va. 685, 114 S.E. 283 (1922).

3. “ ‘In order for a plaintiff employee to prevail on the narrowly construed cause of action by the employee against an employer for fraudulent misrepresentation concerning the employee's workers' compensation claim, the employee must (1) plead his or her claim with particularity, specifically identifying the facts and circumstances that constitute the fraudulent misrepresentation, and (2) prove by clear and convincing evidence all essential elements of the claim, including the injury

[729 S.E.2d 848]

resulting from the fraudulent conduct. A plaintiff employee is not entitled to recover unless the evidence at trial is persuasive enough for both the judge and jury to find substantial, outrageous and reprehensible conduct which falls outside of the permissible boundary of protected behavior under the statute. If the pleadings or evidence adduced is insufficient to establish either of the two factors stated above, the trial court may dismiss the action pursuant to Rule 12(b), Rule 56 or Rule 50 of the West Virginia Rules of Civil Procedure.’ Syllabus Point 4, Persinger v. Peabody Coal Co., 196 W.Va. 707, 474 S.E.2d 887 (1996).” Syllabus Point 3, Cobb v. E.I. duPont deNemours & Co., 209 W.Va. 463, 549 S.E.2d 657 (1999).

4. “The essential elements in an action for fraud are: ‘(1) that the act claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false; that plaintiff relied upon it and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied upon it.’ Horton v. Tyree, 104 W.Va. 238, 242, 139 S.E. 737 (1927).” Syllabus Point 1, Lengyel v. Lint, 167 W.Va. 272, 280 S.E.2d 66 (1981).

5. “Under the so called ‘borrowed servant’ rule a general employer remains liable for the negligent act of his servant unless it affirmatively appears that he has completely relinquished control of the servant's conduct from which the alleged negligence arose to the person for whom the servant is engaged in performing a special service.” Syllabus Point 1, American Telephone & Telegraph Co. v. Ohio Valley Sand Co., 131 W.Va. 736, 50 S.E.2d 884 (1948).

6. “In determining whether a workman is an employee or an independent contractor, the controlling factor is whether the hiring party retains the right to control and supervise the work to be done.” Syllabus Point 2, Myers v. Workmen's Compensation Com'r, 150 W.Va. 563, 148 S.E.2d 664 (1966).

7. “If the right to control or supervise the work in question is retained by the person for whom the work is being done, the person doing the work is an employee and not an independent contractor, and the determining factor in connection with this matter is not the use of such right of control or supervision but the existence thereof in the person for whom the work is being done.” Syllabus Point 2, Spencer v. Travelers Insurance Company, 148 W.Va. 111, 133 S.E.2d 735 (1963).

8. In determining whether a second employer is a special employer giving rise to a special employment status for workers' compensation purposes, the following factors are dispositive: (1) whether the employee has made a contract of hire, express or implied with the second employer; (2) whether the work being done is essentially that of the second employer; and (3) whether the second employer has the right to control details of the work. When all three of the above conditions are satisfied in relation to both employers, both employers will be liable for workers' compensation and both will have the benefit of the exclusivity defense of tort claims.

9. Whether an individual is a special employee for workers' compensation purposes is generally a question of fact. However, a court may find special employment status as a matter of law where the pleadings, depositions and answers to interrogatories, together with affidavits, establish that there is no genuine issue of material fact to the contrary.

Richard W. Weston, Esq., Weston Law Office, Huntington, WV, for Petitioner.

Thomas Scarr, Esq., Jenkins Fenstermaker, Huntington, WV, for Respondent.

BENJAMIN, Justice:

This appeal was brought by Byron Bowens, Appellant, following two separate orders of the Circuit Court of Wayne County granting summary judgment to Allied Warehousing Services, Inc., d/b/a Allied Logistics [hereinafter “Allied”], the Appellee, dismissing Bowens's workers' compensation fraud and common law fraud claims and granting summary judgment to Allied finding it to be a special employer of Bowens for the purpose of workers' compensation immunity. In this appeal, Bowens contends that the circuit court erred in its order dismissing his workers'

[729 S.E.2d 849]

compensation fraud and common law fraud claims because the decision of the administrative law judge was not based solely upon the medical issues presented. Rather, he contends, the decision was influenced by the submission of allegedly fraudulent training documents by Manpower, his employer, which were allegedly originally supplied by Allied. Bowens also alleges that the circuit court erred in determining that Allied was a special employer for purposes of workers' compensation immunity, thus requiring him to sue Allied under a deliberate intent theory rather than a negligence theory of liability. After a careful review of the briefs, the record submitted on appeal, and hearing the oral arguments of the parties, we affirm the decisions of the circuit court.

I. FACTS AND PROCEDURAL HISTORY

Bowens began working for Manpower, a temporary employment agency, in the summer of 2006. The second work assignment he received was to operate a forklift for Allied Warehousing. Allied is in the business of providing a wide range of warehousing services from various warehouse facilities located in West Virginia and Virginia. Although Allied directly employs certain supervisors and workers at its various facilities, due to the variability of its needs and for other business reasons, it has historically staffed its warehouse in Kenova, West Virginia, by obtaining temporary workers from a temporary employment agency like Manpower.

Under the arrangement between Allied and Manpower, Manpower was responsible for payment of employee wages, payroll deductions and payment of unemployment and workers' compensation premiums. Each week, Manpower would submit an invoice to Allied for time and work of all Manpower employees who were assigned to work and who worked for Allied. The amount paid to Manpower by Allied included a premium over Bowens's actual wages to cover the costs of employing Bowens, including payroll deductions, federal and state unemployment compensation, and required payment of workers' compensation premiums.

Although Manpower was to provide Allied with experienced forklift operators ¹, Allied implemented additional testing and training before permitting Manpower temporary employees to operate machinery. In addition to giving each temporary employee a forklift instruction manual explaining the proper way to drive and park a forklift, Allied conducted a two part test to evaluate each temporary employee's knowledge and proficiency. Each employee was allegedly given an oral multiple choice and true/false test based on a Clark Equipment Operator Training form. Allied also observed each new forklift operator for several days, after which a supervisor would complete an evaluation form entitled “Allied Warehouse Forklift Operator Field Test.”

On October 1, 2006, J.R. Jeffrey, an Allied warehouse supervisor, performed a two part field test using the “Field Test” form, a two-page pre-printed form with spaces provided at the top for the date, the name of the individual being evaluated, and the name of the individual performing the evaluation. Jeffrey signed the form in the top right corner and printed Bowens's name in the top left corner. Bowens has made no allegation of forgery or fraud regarding this form. Jeffrey also used a pre-printed form entitled “Clark Equipment Company Operator Training” to evaluate Bowens. This form consists of various multiple choice and true/false questions regarding equipment operating procedures. The form contains a space in the top right corner for the date and a space in the top left corner for the “student's signature.” Like the “Field Test,” the Clark Equipment Company form is used by Allied in the regular course of its business to ensure that workers who use equipment in its facility are properly trained and qualified. In this case, Jeffrey allegedly orally administered the test contained on the Clark Equipment

[729 S.E.2d 850]

Company form to Bowens on October 1, 2006, the same day he completed the “Field Test.” As he did with the “Field Test,” Jeffrey also allegedly personally signed the Clark Equipment Company form in the top right corner and then printed Bowens's name in the top left corner.

On April 23, 2007, Bowens was pinned between his forklift and another forklift operated by Bowens's supervisor and fellow Manpower employee, John Church. He suffered a crushed pelvis as a result of this accident. That same day, Bowens submitted an Employees' and Physicians' Report of Injury to Brickstreet. On this form, Bowens listed Manpower as...