Chaney Enterprises Ltd. Partnership v. Windsor

• Decision Date: 16 July 2004
• Docket Number: No. 00715,00715
• Parties: CHANEY ENTERPRISES LIMITED PARTNERSHIP v. Bernard R. WINDSOR, Jr., et al.
• Court: Court of Special Appeals of Maryland

854 A.2d 233

158 Md.App. 1

CHANEY ENTERPRISES LIMITED PARTNERSHIP v. Bernard R. WINDSOR, Jr., et al.

No. 00715, Sept. Term, 2003.

Court of Special Appeals of Maryland.

July 16, 2004.

Steven T. Cain (Cain & Wyrough, PC, on the brief), Marlboro, for Appellant.

David E. Grover, Rockville, and Thomas F. McDonough (Royston, Mueller, McLean & Reid, LLP, on the brief), Towson, for Appellee.

Panel: DAVIS, HOLLANDER, and JAMES R. EYLER, JJ.

HOLLANDER, Judge.

In this worker's compensation case, we must determine whether the Workers' Compensation Commission (the "WCC" or the "Commission") erred in finding that Chaney Enterprises Limited Partnership ("Chaney"), appellant, was the employer of appellee Bernard Windsor, Jr. in May 1995, when Windsor was severely injured while on "loan" to Genstar Stone Products Company, now known as Redland Genstar, Inc. ("Genstar"), appellee. Chaney and its insurer never contested Windsor's workers' compensation claim. Nevertheless, in late 2000, Chaney filed a civil suit against Genstar, contending that Genstar was Windsor's special employer when the accident occurred, and therefore Chaney was entitled to indemnification for the workers' compensation benefits it had paid. The Circuit Court for Prince George's County stayed the suit, so that Chaney could present the issue to the WCC.

Accordingly, Chaney filed "issues" with the Commission, asking it to determine whether, at the time of the accident, Genstar was Windsor's "special employer" or, alternatively, his "joint employer." The WCC determined that, based on "estoppel," Chaney was the correct employer. Thereafter, Chaney sought judicial review in the circuit court, which affirmed. This appeal followed, in which Chaney poses the following two questions:

I. Did the circuit court err in not sending the case back to the Workers' Compensation Commission for proper factual findings?

II. Did the circuit court err in affirming the decision of the Workers' Compensation Commission finding estoppel and/or waiver without any necessary factual support?

For the reasons that follow, we shall affirm.

FACTUAL AND PROCEDURAL SUMMARY

The WCC held an evidentiary hearing on December 3, 2001. Among other things, the parties submitted numerous exhibits, including the deposition testimony of Windsor; Rick Sheetz, a Genstar supervisor; Jim Talbott, a Chaney supervisor; Kenneth Gerrity, a former risk manager for Genstar; and Mary Ann Craze Reuschling, Chaney's Safety Director.

For approximately twenty-four years, Windsor worked for Chaney as a heavy equipment operator. At the time, Windsor earned an hourly wage of $12.65. Liberty Mutual Insurance Company ("Liberty Mutual" or the "Insurer") provided worker's compensation insurance coverage to Chaney, but is not a party to this appeal.

Genstar was located adjacent to Chaney's premises. On May 22, 1995, Rick Sheetz, a Genstar supervisor, asked Jim Talbott, a Chaney supervisor, whether Chaney would make a heavy equipment operator available to Genstar "for a few days." Chaney verbally agreed to make Windsor available to Genstar. In return, Genstar agreed to pay Chaney $25 per hour. As it turned out, Genstar never made any payments to Chaney.

For three days in May 1995, Windsor punched in at Chaney's facility, then reported to work at Genstar, and later punched out at Chaney. During that period, Windsor informed Talbott that the conditions at Genstar were not safe, because the dry screen machinery with which he was working lacked certain safety equipment and was in disrepair. Sam Chase, the Genstar plant manager, was Windsor's direct supervisor with regard to the operation of the dry screen machine.¹

Windsor's fourth day of work at Genstar was an unfortunate one. On that day, May 25, 1995, a root or stick became stuck in the conveyor belt of the dry screen equipment. As Windsor climbed down from the operator's perch to clear the belt, he was "dragged" into the machine, and suffered very serious injuries. The injuries included a broken bone above the left wrist and elbow, burns on his left side, a bruised chest, and a head laceration that required 40 stitches. After a number of surgeries, Windsor was determined to have a 70% loss of function to his left arm.

On or about May 26, 1995, Chaney submitted to the Commission a WCC form reporting Windsor's injury. The form was signed by Mary Ann Craze (now Reuschling), Chaney's Safety Director. Among other things, in the spaces provided for the name of the employer, appellant wrote "Chaney Enterprises, L.P." The form also asked if the injury occurred "on [the] employer's premises?" Chaney responded by placing an "X" next to the pre-printed word, "No". Immediately next to that response, in the same box, Chaney typed the following word: "SUBROGATION." In response to a question about where the accident occurred, Chaney wrote "GENSTAR STONE PRODUCTS," along with Genstar's address. In answer to a question about the equipment that the employee was using when the injury occurred, Chaney typed: "POWER SCREEN AT GENSTAR'S PLANT — TAIL PULLEY WAS NOT GUARDED." In answer to a question about the sequence of events, Chaney typed: "EMPLOYEE WAS WORKING AROUND TAIL PULLY OF POWER SCREEN, GOT ARM CAUGHT IN BELT CAUSING MULTIPLE INJURIES TO HEAD, CHEST, & L. ARM." Chaney also identified two witnesses, both of whom were noted as employees of Genstar.

Through Liberty Mutual, Chaney promptly began making worker's compensation payments to and on behalf of Windsor. Payments from Chaney or its Insurer continued for five years, without objection from Chaney or the Insurer.

On or about June 12, 1995, Windsor submitted an "Employee's Claim" with the Commission, in which he identified "Chaney Enterprises, Inc." as his employer. The form contains the following pre-printed text in a box at the bottom of the page:

ATTENTION: FOR EMPLOYER AND INSURER INFORMATION ONLY

Consideration Date: Unless the compensability of this claim is contested by the filing of issues with the Commission on or before an appropriate award will be passed.²

Between the period June 13, 1995, and July 17, 1995, Chaney did not file any issues with the Commission, nor did it contest the compensability of Windsor's claim. Moreover, Chaney never requested a hearing regarding Windsor's claim, and no hearing was held.

On July 18, 1995, the Commission issued an Award of Compensation, ordering Chaney and the Insurer to pay temporary total disability benefits to Windsor of $525 per week, as of May 29, 1995. Neither Chaney nor Liberty Mutual appealed from that order.

Almost three years after the accident, on May 8, 1998, Bernard and Ruth Windsor, together with Liberty Mutual, filed a tort suit against Genstar.³ Alleging that Genstar was negligent in regard to the condition of its equipment, the Windsors sought more than $3,000,000 in damages, while Liberty Mutual sought to recover $300,000 in compensation benefits paid to Windsor or on his behalf. The Insurer's claim was based on Maryland Code, § 9-902 of the Labor and Employment Article.

Notably, the Insurer and the Windsors averred that Windsor was "employed by Chaney Enterprises at the time of the accident as a heavy equipment operator....", but was working at Genstar's premises when the accident occurred. In addition, the Insurer asserted that it held a statutory lien for workers' compensation benefits paid to and for the benefit of Windsor, and claimed it was "entitled to recover those benefits against the negligent party, Genstar," pursuant to § 9-102 of the Labor and Employment Article.

In its Answer, Genstar did not deny liability in tort on the ground that it was Windsor's employer at the time of the accident.⁴ Rather, Genstar asserted that it was not negligent and that, in any event, Windsor was contributorily negligent.

Approximately five and a half years after Windsor's accident, on November 15, 2000, Chaney filed a two-count suit against Genstar, alleging, inter alia, that the parties had entered into an oral agreement in which Chaney assented "to lend" Windsor to Genstar and, at the time of the accident, Genstar was Windsor's "special employer," with "exclusive control" over Windsor.⁵ Further, Chaney alleged that Genstar breached its duty to Windsor "to provide a safe work environment." Count I was titled "Indemnity." Chaney claimed that Genstar was liable to Chaney "for indemnification for any and all worker's compensation claims paid for by [Chaney] to Bernard Windsor." In Count II, titled "Breach of Contract," Chaney alleged that, "under the implied terms" of the parties' oral agreement, Genstar was obligated to provide workers' compensation benefits. In its suit, Chaney did not cite § 9-902 of the Labor and Employment Article.

Genstar moved for summary judgment in Chaney's civil suit. Relying on Temporary Staffing, Inc. v. J.J. Haines & Co., Inc., 362 Md. 388, 765 A.2d 602 (2001), Genstar argued that the WCC was the appropriate forum to determine whether Genstar was Windsor's employer. Agreeing with Genstar, the circuit court stayed Chaney's case to permit Chaney to pursue the matter with the Commission. In addition, the court stayed the suit filed by Liberty Mutual and the Windsors against Genstar.

Accordingly, on May 24, 2001, a full six years after Windsor's injury, Chaney submitted WCC Form H24R, titled "Issues," in which it asked: "Is Redland Genstar, Inc., the Special Employer of Claimant and primarily responsible for payments on this claim, Chaney being the General Employer?" Chaney also filed WCC Form H25R with the Commission, entitled "Request For Action on Filed Issues," in which it sought to implead Genstar as a party.

On December 3, 2001, the Commission held a hearing, at which Chaney's counsel admitted that Chaney was Windsor's general employer. But, it claimed that Genstar was the special or dual employer. The following exchange is pertinent:

[COMMISSION]: You're raising statute of limitations?

[WINDSOR'S ATTORNEY]: That's

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