Cash v. Carter

• Decision Date: 08 February 1993
• Docket Number: No. 92-830,92-830
• Citation: 312 Ark. 41,847 S.W.2d 18
• Parties: Marlin CASH, Appellant, v. Isaac F. CARTER a/k/a Ike Carter, Individually and as Owner of Carter Construction Company; Carter Construction Company, Inc.; and Arkansas Valley Dredging Company, Inc., Appellees.
• Court: Arkansas Supreme Court

Page 18

847 S.W.2d 18

312 Ark. 41

Marlin CASH, Appellant, v. Isaac F. CARTER a/k/a Ike Carter, Individually and as Owner of Carter Construction Company; Carter Construction Company, Inc.; and Arkansas Valley Dredging Company, Inc., Appellees.

No. 92-830.

Supreme Court of Arkansas.

Feb. 8, 1993.

James F. Swindoll, Little Rock, for appellant.

Alfred F. Angulo, Jr., Brian Allen Brown, Little Rock, for appellees.

BROWN, Justice.

The Pulaski County Circuit Court granted summary judgment in favor of the appellees on the issue of whether the appellant, Marlin Cash, could sue them in tort. Cash appeals and contends, among other things, that he was employed by Little Rock Quarry Company, Inc. at the time of his injury and was paid benefits under the Longshoreman's and Harbor Worker's Compensation Act ("LHWCA") as a consequence of that employment. He argues that payment of the LHWCA benefits does not preclude tort actions against third-party appellees.

The appellee, Isaac F. Carter, is the owner of Carter Companies, a parent corporation for several subsidiaries, including appellee Carter Construction and non-party Little Rock Quarry. He is also the owner of appellee Arkansas Dredging Company, Inc., which is a separate parent corporation. On July 22, 1987, Cash was doing welding work on a barge owned by Carter Construction at the direction of Carter Construction employees. The barge was dry docked at a yard owned by Arkansas Valley Dredging. While welding, he inhaled toxic fumes and suffered permanent brain damage. He subsequently filed a claim under the LHWCA and is currently receiving benefits for his disability as an employee of Carter Construction.

On August 3, 1988, Cash filed a negligence action against the appellees and contended that the barge was not adequately ventilated, that safe tools and safety equipment were not provided, and that other safety precautions were not followed. The appellees answered and then moved for summary judgment, asserting that Cash was either an actual employee of Carter Construction or a loaned employee to that firm and that Carter, individually, and Arkansas Valley Dredging were in no way involved in the accident.

The circuit court granted summary judgment to the appellees. It agreed with Carter Construction that Cash was either its actual employee or a loaned employee when the accident occurred and that his exclusive remedy against that firm was under the LHWCA. The court further found that Carter, individually, owed no duty to Cash at the time of the accident and that Arkansas Valley Dredging was not involved.

Cash first argues that summary judgment was inappropriate due to unresolved factual issues in this case. He is correct that summary judgment is an extreme remedy which is only proper when it is clear that there are no issues of fact to be litigated. Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807 (1992); Wolner v. Bogaev, 290 Ark. 299, 718 S.W.2d 942 (1986). It is appropriate where the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Daniels v. Riley's Health and Fitness Centers, 310 Ark. 756, 840 S.W.2d 177 (1992). The burden of proving that there is no genuine issue of material fact is upon the summary judgment movant, and all proof submitted must be viewed in a light most favorable to the party resisting the motion. Any doubt and all inferences must be resolved against the moving party. Lively v. Libbey Memorial Physical Medical Center, 311 Ark. 41, 841 S.W.2d 609 (1992).

Once the movant makes a prima facie showing of entitlement to summary judgment, the respondent must meet proof with proof by showing a genuine issue of material fact. Sanders v. Banks, 309 Ark. 375, 830 S.W.2d 861 (1992); Pruitt v. Cargill, Inc., 284 Ark. 474, 683 S.W.2d 906 (1985). On appeal, the appellate court determines the appropriateness of a grant of summary judgment based on whether the evidentiary items presented in support of the motion left a material question of fact unanswered. Thruston v. Little River County, Ark., 310 Ark. 188, 832 S.W.2d 851 (1992).

Cash is adamant that a material fact issue exists as to which business employed him when he was injured. In determining employment, we look to various factors with the degree of control being the most universally accepted standard for establishing an employer-employee relationship. Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir.1969); see also Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814 (1990).

Here, Cash urges that his employer was Little Rock Quarry because that is the entity that issued paychecks to him. He also did some work for that business. According to his deposition, he was at the quarry three or four times, one day at a time, presumably over the course of a year. The quarry, he stated, is located at a separate site from the shipyard where the barge in question was dry docked and where the welding took place.

In that same deposition, however, Cash admitted that he worked sixty to seventy percent of the time at the yard and at times on barges owned by Carter Construction. Moreover, the record in this case evidences, contrary to Cash's affidavit, that his LHWCA benefits were paid showing Carter Construction as his employer. His W-2 Form also shows employment with Carter Construction. At the time of the injury, he was working on a Carter Construction barge at the direction of Carter Construction personnel. Little Rock Quarry, the appellees aver, was only used for payroll account purposes to issue paychecks for employees of the Carter Companies. The weight of the evidence on which firm controlled Cash at the time of the accident appears to predominate in favor of Carter Construction. Nevertheless, we cannot say that Cash's sworn statements that Little Rock Quarry employed him and the accompanying paycheck stubs do not present a fact question for the jury to resolve.

The same doubts do not afflict us, though, as to whether Cash was a loaned employee to Carter Construction, and thus a temporary employee of that firm, at the time he was injured. We recently had occasion to examine the doctrine of dual employment. See Daniels v. Riley's Health & Fitness Ctrs. ("the Club"), supra. In Daniels, the facts and issues bear some similarity to those in the present case. An employee claimed workers'...