Bride v. Heckart
Decision Date | 20 November 1996 |
Docket Number | No. 95-733,95-733 |
Citation | 556 N.W.2d 449 |
Parties | Jerry BRIDE, Appellant, v. Gary HECKART and Bud Heckart & Sons Trucking & Excavating, Inc., Appellees. UNION MUTUAL INSURANCE CO., Intervenor-Appellant, v. Gary HECKART and Bud Heckart & Sons Trucking & Excavating, Inc., Appellees. |
Court | Iowa Supreme Court |
Stephen D. Lombardi, Des Moines, for appellant Bride.
Joel H. Dorman, Des Moines, for appellant Union Mutual Insurance Co.
Timothy J. McKay of McKay, Moreland & Webber, P.C., Ottumwa, for appellees.
Considered by McGIVERIN, C.J., and HARRIS, NEUMAN, ANDREASEN, and TERNUS, JJ.
In this negligence action, plaintiff Jerry Bride sued Gary Heckart and Bud Heckart & Sons Trucking & Excavating, Inc. (Heckart & Sons) for injuries sustained in a construction site accident. At trial, the court submitted an instruction on the borrowed servant doctrine. After the jury found Bride was a fellow employee of Gary Heckart, the court entered a judgment for the defendants. We reverse and remand.
In the fall of 1989, a general contractor hired Winger Contracting Co. (Winger) to relocate a storm sewer system and water main at the K-Mart store in Ottumwa, Iowa. Winger then orally contracted with Heckart & Sons, which has done most of Winger's excavation work for over thirty years, to provide the excavation work for the project. Heckart & Sons agreed to supply a track excavator (basically, a large backhoe) and an operator for an hourly rate. With this project, the excavation work consisted of digging, grading, and back-filling the trenches for the sewer pipes. As part of the agreement, the operator was also expected to use the backhoe to assist in lowering the pipes into the trench and connecting them. This customary practice between plumbers and excavators developed because it is virtually impossible to manually move the large pipes into place and connect them in the excavated trenches.
Gary Heckart, employee and also president of Heckart & Sons, was at the job site on November 6, 1989. He was joined by Steve Mesecher, Winger's foreman, and Bride, an employee of Winger. After Gary completed the excavation of one section of the trench, he began using the backhoe to assist Mesecher and Bride in placing the pipe into the trench and connecting it. Mesecher and Bride both worked from inside the trench. While operating the controls on the backhoe, Gary followed the signals and instructions of Mesecher to position the boom and the bucket. This is also a customary practice because a person in the trench has a better vantage point than the operator of the backhoe. Throughout the project, Gary was the only operator of the backhoe.
Once Gary, Mesecher, and Bride got the pipe lowered into the trench, they were ready to use the backhoe's bucket to push the new sewer pipe into place. To protect the new pipe from being damaged by the bucket, a block of wood was inserted between the bucket and the pipe as a cushion. At some point during this process, the block of wood snapped and struck Bride in the leg. As a result of the accident, Bride's leg was eventually amputated. Union Mutual Insurance Co. (Union Mutual), the workers' compensation insurance carrier for Winger, paid benefits to Bride for his injuries.
Bride filed this negligence action against Gary Heckart and Heckart & Sons. Union Mutual filed a notice of its workers' compensation lien and a petition for intervention. Both were resisted by Bride. Following a hearing, the district court held that the lien of Union Mutual was terminated because it was not timely filed, but that the petition for intervention was allowed under Iowa Rule of Civil Procedure 75.
In their answer, defendants denied liability and asserted several defenses. Among other things, they asserted that Gary Heckart was a borrowed servant of Winger at the time of Bride's injury; thus, Gary and Bride were co-employees of Winger. As a result, defendants argued, under Iowa Code section 85.20(2) (1993), Gary could not be liable for damages to Bride unless he was grossly negligent, and Heckart & Sons could not be vicariously liable under basic respondeat superior principles for the conduct of its employee.
The case proceeded to trial, and, over the objections of plaintiffs, the district court gave two instructions concerning the borrowed servant doctrine. On March 23, 1995, the jury returned a special verdict, finding that Bride was a co-employee of Gary Heckart at the time of the accident. Plaintiff's motion for new trial was denied, and judgment was entered for the defendants upon the jury's verdict. Plaintiff filed timely notice of appeal, which was consolidated with Union Mutual's appeal.
Several issues were raised on appeal. First, Bride and Union Mutual argue that the district court erred in instructing the jury on the borrowed servant doctrine. Next, Bride argues that the district court erred in allowing Union Mutual to intervene and participate at trial. Also, Bride argues that the district court judge erred in failing to disclose his prior representation by defense counsel's law firm. Our scope of review is for the correction of errors at law. Iowa R.App. P. 4.
Bride and Union Mutual's first argument on appeal is that the district court should not have instructed the jury on the borrowed servant doctrine. Their argument is not that the instructions incorrectly state the law, but that there is insufficient evidence to support submission of the instructions to the jury. We agree.
We review jury instructions to decide if they are a correct statement of the law and are supported by substantial evidence. Collister v. City of Council Bluffs, 534 N.W.2d 453, 454 (Iowa 1995). The court is required to instruct the jury as to the law applicable to all material issues in the case. Iowa R. Civ. P. 196. However:
The instructions should not marshal the evidence or give undue prominence to any particular aspect of a case. Requested instructions that are not related to the factual issues to be decided by the jury should not be submitted even though they may set out a correct statement of the law. The submission of instructions upon issues that have no support in the evidence is error.
Vachon v. Broadlawns Med. Found., 490 N.W.2d 820, 822 (Iowa 1992) (citations omitted) (emphasis added). Evidence is substantial enough to support a requested instruction when a reasonable mind would accept it as adequate to reach a conclusion. Coker v. Abell-Howe Co., 491 N.W.2d 143, 150 (Iowa 1992). In weighing the sufficiency of the evidence, we give it the most favorable construction it will bear in favor of the party seeking submission. Id.
At trial, Bride and Union Mutual objected to the submission of two instructions regarding the borrowed servant doctrine. Instruction 19, which is identical to Iowa Civil Jury Instruction 730.4 (1987), stated:
An employee of one employer who has been temporarily loaned to another for a special service does not become the employee of the borrower unless the original employer surrenders full control over the employee. Full control means that the employee is under the control and direction of the borrower in performance of the particular act involved. The control necessary must be something more than the right to point out the work to be done.
Instruction 19a stated:
Under Iowa law, a worker may have more than one employer. In that situation, the worker may be an employee of one employer for the purpose of doing certain activities, but the employee of another employer for other activities.
The borrowed servant doctrine has its origin in the Restatement (Second) of Agency, which states:
A servant directed or permitted by his [or her] master to perform services for another may become the servant of such other in performing the services. He [or she] may become the other's servant as to some acts and not as to others.
Restatement (Second) of Agency § 227 (1958). Our court has recognized this doctrine on numerous occasions. See Parson v. Procter & Gamble Mfg. Co., 514 N.W.2d 891, 895 n. 1 (Iowa 1994); Bethards v. Shivvers, Inc., 355 N.W.2d 39, 45 (Iowa 1984); Burr v. Apex Concrete Co., 242 N.W.2d 272, 275-76 (Iowa 1976). However, in the past we have been reluctant to apply the doctrine. In Parson, we held that "in cases involving the question of whether an employee of a general employer became the employee of a special employer, the presumption is that the general employer continues as the sole employer." Parson, 514 N.W.2d at 894; see also Restatement (Second) of Agency § 227 cmt. b.
The borrowed servant doctrine is significant, in part, because it operates to relieve the general employer from liability. To summarize:
The employer who temporarily borrows and exercises control over another's employee assumes liability in respondeat superior for the activities of the borrowed employee. If an employee was a borrowed servant at the time of the allegedly tortious conduct, the employee's general employer can escape liability for such conduct.
27 Am.Jur.2d Employment Relationship § 462, at 899 (1996).
In determining whether an employee becomes the "borrowed servant" of a special employer, the primary consideration focuses on control. The burden is on the general employer to establish not only that it loaned the servant, but that it surrendered control and direction over the servant to the borrower. Miller v. Woolsey, 240 Iowa 450, 457, 35 N.W.2d 584, 587-88 (1949). In other words, the focus is on which employer had control over the employee at the time of the incident causing injury. 27 Am.Jur.2d Employment Relationship § 462, at 899. Absent evidence to the contrary, the original employer is presumed to retain the right of control. Id. at 900.
Bride contends that at no time did Winger or its employees exercise complete control over Gary's work. He argues that...
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