Ghersi v. Salazar, 930243

• Court: Supreme Court of Utah
• Writing for the Court: STEWART; ZIMMERMAN
• Citation: 883 P.2d 1352
• Parties: Dante GHERSI, Plaintiff and Appellant, v. Joe SALAZAR, and Huish Detergent, Inc., formerly Huish Chemical Company, a Utah Corporation, Defendants and Appellees.
• Docket Number: No. 930243,930243
• Decision Date: 28 October 1994

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883 P.2d 1352 Dante GHERSI, Plaintiff and Appellant,
v.
Joe SALAZAR, and Huish Detergent, Inc., formerly Huish
Chemical Company, a Utah Corporation, Defendants
and Appellees. No. 930243. Supreme Court of Utah. Oct. 28, 1994.

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Edward T. Wells, Murray, for plaintiff.

Gary B. Ferguson, Kurt M. Frankenburg, Salt Lake City, for defendants.

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STEWART, Associate Chief Justice:

Dante Ghersi appeals from a summary judgment holding that his personal injury action against Huish Detergent, Inc. ("Huish"), and its employee, Joe Salazar, was barred by Utah Code Ann. § 35-1-60, the exclusive remedy provision of the Utah Workers' Compensation Act (the "Act"). We affirm.

I

The facts are undisputed. Adia Personnel Services, Inc. ("Adia"), a temporary labor service, contracted with defendant Huish to provide Huish with temporary employees. Huish paid Adia an hourly fee for each temporary employee, and Adia compensated the temporary employee directly at a lesser hourly rate. Pursuant to the agreement between Adia and Huish, Adia carried workers' compensation insurance on all temporary employees provided to Huish. The difference between the rate Huish paid Adia and the rate Adia paid the temporary employee included an allowance for workers' compensation insurance premiums. Huish was entitled to dismiss from its employment any temporary employee with whom it was dissatisfied, but it had no authority to terminate the employee's relationship with Adia.

Dante Ghersi obtained employment with Adia in April 1989. In the ensuing months, Adia placed Ghersi with several different companies. Ghersi could accept or reject any assignment given him by Adia. In late April or early May 1989, Ghersi accepted an assignment from Adia to work at Huish. Huish assigned Ghersi to work in a warehouse loading boxes of detergent from a conveyor belt onto a pallet. Huish employees supervised and controlled Ghersi in his work, telling him when, where, and how to work.

While Ghersi was working in Huish's warehouse, a forklift driven by Huish employee Joe Salazar backed over Ghersi's right foot and lower leg. Ghersi was paid workers' compensation benefits from Adia's workers' compensation insurer for the injuries he suffered working for Huish. Ghersi then filed a personal injury action against Huish and Salazar for negligence in the operation of the fork lift. The district court granted defendants' motion for summary judgment on the ground that Huish was an employer of Ghersi and, therefore, under Utah Code Ann. § 35-1-60, both Huish and Salazar were immune from a common law personal injury action and Ghersi's sole remedy was under the Act.

II

As a preliminary matter, Ghersi contends that whether an employment relationship existed between Huish and himself is a question of fact that may not be disposed of on summary judgment. However, the facts concerning the terms and manner of employment are undisputed here. The nature of the relationship, therefore, is an issue of law that may be decided by the court. Whitehead v. Safway Steel Products, Inc., 304 Md. 67, 497 A.2d 803, 806 (1985); see Bennett v. Industrial Comm'n, 726 P.2d 427, 429 (Utah 1986); Rustler Lodge v. Industrial Comm'n, 562 P.2d 227, 228 (Utah 1977).

Ghersi's principal assertion is that the Act does not provide immunity to Huish and Salazar because Huish was a "statutory employer" under § 35-1-42 who did not provide workers' compensation benefits. Ghersi contends that Huish and Salazar are not protected by the Act because a "statutory employer" is liable for a common law personal injury action under § 35-1-62 and our ruling in Pate v. Marathon Steel Co., 777 P.2d 428 (Utah 1989), at least if the statutory employer did not pay workers' compensation premiums, as in this case. The issue is a matter of first impression in this state.

Under the Act, an employer's liability to employees for work-related injuries is limited to workers' compensation under the Act. ¹ Nonemployers, however, may be sued for

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common law damages for injuries to workers caused by the negligence of the nonemployer. ² Adia paid workers' compensation benefits to Ghersi as his general employer. Consequently, Ghersi's exclusive remedy against Adia is workers' compensation. Whether Huish was also an employer of Ghersi and paid workers' compensation insurance premiums determines whether Ghersi is precluded from asserting a negligence action against Huish.

An employee may have two employers for purposes of the Act. Kinne v. Industrial Comm'n, 609 P.2d 926, 928 (Utah 1980); Blacknall v. Westwood Corp., 307 Or. 113, 764 P.2d 544, 547 (1988). Even though Adia was Ghersi's employer and paid workers' compensation benefits, that does not mean that Huish cannot also be Ghersi's employer.

Ghersi argues that Huish was his statutory employer under § 35-1-42 of the Act and that Adia was similar to a subcontractor. As a general proposition, that provision allows workers to recover workers' compensation benefits from persons who are not actual employers but are statutory employers. Section 35-1-42 provides in part:

If any person who is an employer procures any work to be done wholly or in part for him by a contractor over whose work he retains supervision or control, and this work is a part or process in the trade or business of the employer, the contractor, all persons employed by him, all subcontractors under him, and all persons employed by any of these subcontractors, are considered employees of the original employer.

Utah Code Ann. § 35-1-42(5) (1988) (current version at § 35-1-42(6)(a) (Supp.1994)). Thus, an "employer" who engages a contractor "over whose work he retains supervision or control, and such work is a part or process in the trade or business of the employer " is deemed in law to be the "employer" of the contractor, the contractor's employees, the contractor's subcontractors, and their employees. Pinter Constr. Co. v. Frisby, 678 P.2d 305, 307 (Utah 1984) (emphasis added). Ghersi's argument, however, is that he can maintain an action for damages against Huish, even though Huish is a statutory employer, because workers' compensation premiums were paid by Adia, not by Huish, ³ and therefore, under Pate v. Marathon Steel Co., 777 P.2d 428, 431 (Utah 1989), he can sue Huish for damages. Pate held that it is only the "immediate, or common law employer, who actually pays compensation, and its officers, agents, and employees [who] are shielded by the exclusive remedy immunity conferred by section 35-1-60" and that under § 35-1-62 ⁴ an injured worker can maintain an action for damages against a statutory

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employer who had not...