Daniels v. Pamida, Inc.

• Decision Date: 07 March 1997
• Docket Number: No. S-95-360,S-95-360
• Citation: 251 Neb. 921,561 N.W.2d 568
• Parties: Marty DANIELS, Appellant, v. PAMIDA, INC., and Liberty Mutual Insurance Company, Appellees.
• Court: Nebraska Supreme Court

Page 568

561 N.W.2d 568

251 Neb. 921

Marty DANIELS, Appellant, v. PAMIDA, INC., and Liberty Mutual Insurance Company, Appellees.

No. S-95-360.

Supreme Court of Nebraska.

March 7, 1997.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Workers' Compensation. The Nebraska Workers' Compensation Act is an employee's exclusive remedy against an employer for an injury arising out of and in the course of employment.

3. Workers' Compensation: Employer and Employee: Liability. When a general employer lends an employee to a special employer, the special employer becomes liable for workers' compensation only if: (a) the employee has made a contract of hire, express or implied, with the special employer; (b) the work being done is essentially that of the special employer; and (c) the special employer has the right to control the details of the work. When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workers' compensation.

Scott M. Kirshenbaum, of Law Offices of Ronald J. Palagi, P.C., Omaha, for appellant.

Thomas D. Wulff and Douglas E. Baker, of Welch, Wulff & Childers, Omaha, for appellees.

WHITE, C.J., CAPORALE, WRIGHT, CONNOLLY, and GERRARD, JJ., and LUTHER, D.J.

GERRARD, Judge.

INTRODUCTION

Appellant, Marty Daniels, filed a petition alleging a cause of action in negligence against appellee Pamida, Inc. Both parties moved the district court for summary judgment. This appeal follows the district court order which overruled Daniels' motion and sustained Pamida's motion. Finding no error, we affirm.

FACTUAL BACKGROUND

Daniels was employed by A-Help, Inc., at the time of his injury. A-Help is a labor broker in the business of providing temporary labor services to employers such as Pamida. A-Help assigned Daniels to work in Pamida's warehouse, where on December 17, 1992, Daniels was injured when he was struck by a box that was knocked off of a shelf as a result of the alleged negligent operation of a forklift by a Pamida employee. Daniels filed a workers' compensation claim against A-Help and received a lump-sum settlement approved by the Nebraska Workers' Compensation Court on November 18, 1993. Pamida was not a party to this settlement agreement.

On April 15, 1994, Daniels filed the instant negligence action against Pamida regarding the same injury redressed by the lump-sum settlement approved by the compensation court. In this negligence petition, Daniels alleged that he was employed by A-Help and assigned as a temporary laborer to work in Pamida's warehouse. While so employed, he was injured as a result of the negligent conduct of a Pamida employee. Pamida answered by asserting that Daniels' exclusive remedy was to be found in workers' compensation and that Daniels had already been compensated pursuant to the Nebraska Workers' Compensation Act.

Both parties moved the district court for summary judgment. Evidence presented by Pamida indicated that when A-Help employees such as Daniels are assigned to work for Pamida, such employees are at all times under the exclusive control of Pamida. Therefore, as to employees such as Daniels, Pamida must be considered their employer within the meaning of the Nebraska Workers' Compensation Act. Pamida also points to its contractual arrangements with A-Help in which Pamida agreed to pay a fee and, in exchange, A-Help agreed to compensate its employees for their hours worked at Pamida as well as provide all payroll services and workers' compensation insurance coverage.

Daniels' evidence included his affidavit wherein he states that he was employed by A-Help, that he reported to A-Help, that A-Help The trial court agreed with Pamida and found, as a matter of law, that Daniels' exclusive remedy was to be found in workers' compensation. Accordingly, the trial court granted Pamida's motion for summary judgment, denied Daniels' motion for summary judgment, and dismissed Daniels' petition with prejudice.

assigned him to those companies requiring temporary labor services, and that A-Help provided payroll services to him. Daniels also averred that he had the right to refuse and terminate any assignment. Daniels affirmatively asserted that he was never an employee of Pamida and that he specifically refused to sign a lump-sum settlement agreement with A-Help that included Pamida as an additional employer.

ASSIGNMENTS OF ERROR

Daniels assigns that the district court erred in (1) granting Pamida's motion for summary judgment, finding Daniels to be an employee of Pamida at the time of the injury, and (2) overruling his motion for summary judgment, finding Daniels' exclusive remedy to be in workers' compensation.

SCOPE OF REVIEW

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Bohl v. Buffalo Cty., 251 Neb. 492, 557 N.W.2d 668 (1997); First Place Computers v. Security Nat. Bank, 251 Neb. 485, 558 N.W.2d 57 (1997).

ANALYSIS

The Nebraska Workers' Compensation Act is an employee's exclusive remedy against an employer for an injury arising out of and in the course of employment. Tompkins v. Raines, 247 Neb. 764, 530 N.W.2d 244 (1995). Therefore, if Pamida is an employer vis-a-vis Daniels within the meaning of the Nebraska Workers' Compensation Act, then Daniels' exclusive remedy is in workers' compensation. An employer is broadly defined as "every person, firm, or corporation, including any public service corporation, who is engaged in any trade, occupation, business, or profession ... and who has any person in service under any contract of hire, express or implied, oral or written." Neb.Rev.Stat. § 48-114 (Reissue 1993).

Daniels asserts that this matter is controlled by our decision in Horvath v. M.S.P. Resources, Inc., 246 Neb. 67, 517 N.W.2d 89 (1994), which Daniels contends stands for the proposition that his cause of action is not barred by the exclusive remedy requirement of workers' compensation. Daniels' reliance on Horvath v. M.S.P. Resources, Inc., is misplaced.

In Horvath v. M.S.P. Resources, Inc., the plaintiff was employed by an independent maintenance and repair contractor (MSP) and worked in a building owned by ConAgra used for meatpacking and processing. The plaintiff was injured when a rail carrying carcasses of beef collapsed on top of him. The plaintiff sued ConAgra in tort and made MSP a party to the action due to its workers' compensation subrogation interest. The district court granted ConAgra's motion for summary judgment, citing Plock v. Crossroads Joint Venture, 239 Neb. 211, 475 N.W.2d 105 (1991), and concluding that the plaintiff's cause of action was barred by the exclusivity of the Nebraska Workers' Compensation Act.

On review in Horvath v. M.S.P. Resources, Inc., supra, we noted that an assertion of workers' compensation exclusivity is a defense to be pled in the defendant's answer and that in this case, the defendant had failed to so plead. We then wrote, "Since the case is to be reversed for the reasons hereinafter set out, it might be well that the case be properly pled and properly submitted." Id. at 70, 517 N.W.2d at 91. Ultimately, we held that summary judgment was improperly granted as there was a genuine issue of material fact in regard to the defendant's alleged defective condition.

The issue of whether Pamida is an employer within the meaning of the Nebraska Workers' Compensation Act is controlled by our holding in Schwartz v. Riekes & Sons While engaged in the labors assigned by the defendant, Schwartz was injured due to the alleged negligent conduct of the defendant's employee. Schwartz agreed to a lump-sum workers' compensation settlement with Manpower in regard to his injury. This settlement did not include the defendant. Schwartz then filed a negligence cause of action against the defendant.

195 Neb. 737, 240 N.W.2d 581 (1976). In Schwartz v. Riekes & Sons, the plaintiff was employed by Manpower, Inc., a provider of temporary labor services to the defendant. As part of its agreement with the defendant, Manpower would provide payroll services and workers' compensation coverage for the workers assigned for which Riekes would pay Manpower a fee. While working for Riekes, Schwartz was under the exclusive direction of the foreman for Riekes and was to perform the tasks or labors assigned to him by such foreman.

The defendant moved the district court for summary judgment; the motion was sustained. We affirmed. Quoting extensively from St. Claire v. Minnesota Harbor Service, Inc., 211 F.Supp. 521 (1962), we concluded that the relevant test was one of control.

"It is therefore the opinion of this Court that where the primary employer (Manpower here) does no more than provide personnel for the use of the ultimate employer (the defendant here), where the fees received by the primary employer from the ultimate employer include provision for Workmen's Compensation coverage for the employees supplied, where this Workman's Compensation was in force at the time of the accident, and where the injury occurred (1) while the employee was under the control of the...