Fox v. Contract Beverage Packers, Inc.

Decision Date08 January 1980
Docket NumberNo. 2-678A210,2-678A210
Citation398 N.E.2d 709
PartiesThomas FOX, Appellant (Plaintiff Below), v. CONTRACT BEVERAGE PACKERS, INC., Appellee (Defendant Below).
CourtIndiana Appellate Court

Robert D. Epstein, Connor, Epstein & Frisch, Indianapolis, for appellant.

Sonia J. Leerkamp, C. V. Malan, Noblesville, for appellee.

BUCHANAN, Chief Judge.


Plaintiff-Appellant Thomas Fox (Fox) appeals a summary judgment entered against him arising from his independent action for negligence against the defendant-appellee Contract Beverage Packers, Inc. (Contract), claiming there is a factual issue as to whether he was an employee of Contract.

We affirm.


The facts as contained in the pleadings, various affidavits, and answers to interrogatories indicate that on February 17, 1975, Fox reported to the offices of Manpower, Inc. and was assigned to work at Contract's plant. Manpower, a temporary help agency, had entered into an agreement with Contract whereby Manpower selected and provided, as needed, temporary employees to work at Contract's plant. The agreement provided that Contract would pay Manpower $3.55 an hour for each employee supplied and that Manpower would be responsible for all records and bookkeeping for supplied employees including withholding taxes, and paying workmen's compensation insurance. In addition, Contract had the option of refusing any one employee or dismissing an employee whose work was inadequate.

Manpower's agreement with Fox provided that Fox would receive wages of $2.55 an hour from Manpower and would not be paid by Contract. It was implied in the agreement that Fox would not have to accept employment at any one particular location.

Contract had control of Fox while he was working at Contract's plant. Contract assigned Fox to the particular job he was to do at the plant and told him how to carry out the assignment. The equipment and tools which Fox was to use were supplied by Contract. Contract determined the number of days it would need Fox's services and established the hours Fox would work each day.

While employed at Contract's plant, Fox slipped and caught his left arm in a conveyor belt causing injury to this arm. Fox received workmen's compensation benefits from the insurance carrier for Manpower.

Subsequently, on July 26, 1976, Fox filed a complaint in the Hamilton Superior Court alleging that Contract's negligence was the proximate cause of his injury. The trial court initially denied Contract's motion for summary judgment. Later, however, the Court on its own motion vacated its order denying the motion and entered summary judgment for Contract.


Fox presents two issues on appeal:

1. Whether Manpower was the sole employer of Fox thereby allowing Fox to recover from Contract on a claim of negligence rather than be limited to a claim under the Workmen's Compensation Act.

2. Whether the trial court erred in entering summary judgment on its own

motion and without any additional evidence after having initially denied the motion.


ISSUE ONE Whether Manpower was the sole employer of Fox thereby allowing Fox to recover from Contract on a claim of negligence rather than be limited to a claim under the Workmen's Compensation Act.

PARTIES' CONTENTIONS Fox argues that he was not an employee of Contract, or, in the alternative, that the question of whether he was an employee of Contract involves a mixed issue of fact and law to be decided by the trier of fact and cannot be the subject of summary judgment.

Contract replies that the facts are not in dispute; the undisputed evidence was that Fox was an employee of Contract and therefore summary judgment was properly entered in its favor.

CONCLUSION The trial court properly entered summary judgment for Contract; Fox was an employee of Contract as a matter of law and his remedy is confined to benefits under the Workmen's Compensation Act.

All are aware that a summary judgment can be granted only if there is no material issue of fact to be determined at trial. Tekulve v. Turner (1979), Ind.App., 391 N.E.2d 673. And in considering whether summary judgment was properly entered, we look to the evidence most favorable to the party opposing the summary judgment, i. e., Fox. Papp v. City of Hammond (1967), 248 Ind. 637, 230 N.E.2d 326.

Here the parties agree that the basic facts are not in dispute. But Fox argues that the reasonable inferences arising from the facts are conflicting and if this is true there could be a factual issue as to the purported employer-employee relationship. Clayton v. Penn Central Transportation Co. (1978), Ind.App., 376 N.E.2d 524; Randolph v. Wolff (1978), Ind.App., 374 N.E.2d 533. The importance of the factual issue of the existence of an employer-employee relationship being, of course, that if Contract is Fox's employer, Fox cannot bring this action for negligence against Contract as Fox would be limited to workmen's compensation benefits. The purpose of workmen's compensation is to provide to an employee monetary compensation by holding The employer strictly liable for any injuries incurred by his employee within the course of his employment. Ross v. Schubert (1979), Ind.App., 388 N.E.2d 623.

However, there may be more than one employer of an employee at any given time. Indiana courts have recognized duality of employment and have considered the liability of the parties when one employer has "loaned" his employee to another employer. See, e. g., Loehrlein v. Floyd Staub, Inc. (1971), 150 Ind.App. 598, 276 N.E.2d 865; New York Central Railroad Co. v. Northern Indiana Public Service Co. (1966), 140 Ind.App. 79, 221 N.E.2d 442; Wabash Smelting, Inc. v. Murphy (1962), 134 Ind.App. 198, 186 N.E.2d 586 (overruled on other grounds, McKinley v. Review Board of Indiana Employment Security Division (1972), 152 Ind.App. 269, 283 N.E.2d 395); Long v. Sims Motor Transport Lines (1954), 124 Ind.App. 504, 117 N.E.2d 276; Jackson Trucking Co. v. Interstate Motor Freight System (1952), 122 Ind.App. 546, 104 N.E.2d 575; Sargent Paint Co. v. Petrovitzky (1919), 71 Ind.App. 353, 124 N.E. 881.

An individual can be the employee of two employers if both employers possess a substantial, but not necessarily exclusive, right or power of control over the employee and the means, manner, and method of his performance.

The parties do not dispute that when the accident occurred Fox was an employee of Manpower, but they do dispute whether there is a material issue of fact as to Contract's "employment" of Fox.

The factors used to determine if an employer-employee relationship exists are several: (1) the right to discharge; (2) the mode of payment; (3) supplying tools or equipment; (4) belief of the parties in the existence of an employer-employee...

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