Hamberg v. Sandia Corp.

Citation2007 NMCA 078,162 P.3d 909
Decision Date18 April 2007
Docket NumberNo. 26,559.,26,559.
PartiesCarl HAMBERG, Plaintiff-Appellant, v. SANDIA CORPORATION, d/b/a Sandia National Laboratories, Defendant-Appellee.
CourtCourt of Appeals of New Mexico

Duane Lind Albuquerque, NM, William H. Lazar Tesuque, NM, for Appellant.

Kennedy, Moulton & Wells, P.C., Deborah D. Wells, Rodey, Dickason, Sloan, Akin & Robb, P.A. Edward Ricco, Jocelyn Drennan, Sandia Corporation, Charles Pechewlys, Albuquerque, NM for Appellee.



{1} Plaintiff appeals from the district court's award of summary judgment in favor of Defendant, Sandia Corporation, doing business as Sandia National Laboratories. On appeal, Plaintiff argues that the district court erred as a matter of law in determining that Defendant was Plaintiff's special employer and therefore immune from tort liability under the exclusivity provisions of the Workers' Compensation Act (WCA), NMSA 1978, §§ 52-1-6(D), (E), -8, -9 (1937, as amended through 1990). We affirm.


{2} Plaintiff was an employee of Orion International Technologies, Inc. (Orion). Orion is a government services contractor that provides "contract employees" to governmental agencies. Defendant contracted with Orion in 1996 for "staff augmentation personnel" to be provided by Orion as needed by Defendant. Under the contract, when Defendant identifies a need for personnel, it submits a job description and requirements for the position to Orion. Orion then provides Defendant with a list of qualified candidates and Defendant selects which candidate it wants.

{3} Pursuant to Defendant's contract with Orion, Defendant provides day-to-day technical direction to the contract employees. This includes assigning work, monitoring technical performance and compliance with safety standards, authorizing travel and training, assigning overtime, approving time records, and inspecting work in progress or completed by the contract employee. Defendant may also direct Orion to remove any contract employee from the contract with Defendant. Orion, on the other hand, is responsible for all decisions relating to hiring, firing, promotions, demotions, compensation, employee benefits, employment duration, career development, and position reclassifications and reassignments. For the purposes of the contract, all contract employees are considered employees of Orion and are not considered Defendant's employees.

{4} Plaintiff was hired by Orion in 2001. He was assigned to work as a graphics technologist for Defendant pursuant to the staff augmentation contract between Orion and Defendant. Plaintiff's employment agreement with Orion stated that Orion, and not Defendant, was Plaintiff's employer. Orion paid Plaintiff an hourly wage, offered him employment benefits, and provided him with vacation and sick leave. Plaintiff's job description as a contract employee for Defendant was to provide graphic design services in support of Defendant's marketing efforts.

{5} Plaintiff was injured in 2002 after a supervisor employed by Defendant allegedly ordered Plaintiff to disassemble and move a large metal storage unit. Plaintiff received workers' compensation benefits paid by Orion and then sued Defendant for personal injuries resulting from Defendant's alleged negligence. Defendant moved for summary judgment, arguing that Plaintiff's suit was barred by the exclusivity provisions of the WCA. The district court granted Defendant's motion for summary judgment. This appeal follows.


{6} We review the district court's grant of summary judgment in favor of Defendant de novo. Self v. United Parcel Serv., Inc., 1998-NMSC-046, ¶ 6, 126 N.M. 396, 970 P.2d 582. Summary judgment is appropriate "where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Id.; see also Rule 1-056(C) NMRA. On review, we will "view the facts in the light most favorable to the party opposing summary judgment, drawing all inferences in favor of that party." Stieber v. Journal Publ'g Co., 120 N.M. 270, 271-72, 901 P.2d 201, 202-03 (Ct.App.1995).


{7} In general, employers who comply with the requirements of the WCA enjoy immunity from tort actions brought by an injured employee. See §§ 52-1-6(D), (E), -8, -9; Vigil v. Digital Equip. Corp., 1996-NMCA-100, ¶ 7, 122 N.M. 417, 925 P.2d 883; Rivera v. Sagebrush Sales, Inc., 118 N.M. 676, 677-78, 884 P.2d 832, 833-34 (Ct. App.1994). But see Delgado v. Phelps Dodge Chino, Inc., 2001-NMSC-034, ¶ 1, 131 N.M. 272, 34 P.3d 1148 (holding "that when an employer willfully or intentionally injures a worker, that employer, like a worker who commits the same misconduct, loses the rights afforded by the Act"). "This statutory scheme ensures that injured workers are adequately compensated and that employers may avoid excessive tort liability." Vigil, 1996-NMCA-100, ¶ 7, 122 N.M. 417, 925 P.2d 883. Before an employer may seek the protection of the WCA's exclusivity provisions, however, there must exist "some form of an employer-employee relationship, either statutory or actual." Quintana v. Univ. of Cal., 111 N.M. 679, 681, 808 P.2d 964, 966 (Ct.App. 1991), overruled on other grounds by Harger v. Structural Servs., Inc., 1996-NMSC-018, 121 N.M. 657, 666 n. 3, 916 P.2d 1324, 1333 n. 3. The employer must also comply with the WCA's insurance provisions. See Harger, 121 N.M. at 666, 916 P.2d at 1333.

{8} At issue in the present case is whether an employer-employee relationship exists between Plaintiff and Defendant such that Plaintiff's negligence claim against Defendant is barred by the exclusivity provisions of the WCA. Below, the district court concluded that Defendant was Plaintiff's special employer and therefore entitled to seek refuge under the exclusivity provisions of the WCA. On appeal, Plaintiff argues that the district court erred in determining that Defendant was a special employer entitled to immunity under the WCA. Plaintiff asserts that the special employer test, as described in Rivera, 118 N.M. at 678-79, 884 P.2d at 834-35, is not applicable to the facts of this case and that the district court should have applied the statutory employer test described in Harger, 121 N.M. at 664-66, 916 P.2d at 1331-33. Plaintiff contends that under that test, Defendant would not be protected by the exclusivity provisions of the WCA, and Plaintiff's suit would therefore not be barred.

{9} We take the opportunity to once again attempt to describe the differences between statutory employers and special employers. See Rivera, 118 N.M. at 678, 884 P.2d at 834 (observing that the difference between the two tests "is a matter of some confusion within the practicing bar, with some people taking the position that there is no distinction and that borrowed employees are just one sort of statutory employee"). As part of that discussion, we examine Plaintiff's contention that the totality of the circumstances test described in Harger, 121 N.M. at 664, 916 P.2d at 1331, should be applied to the facts of this case. Finally, after determining that the special employer test is the correct test under the facts of this case, we will then decide whether summary judgment was properly granted in favor of Defendant.

A. Special Employer & Statutory Employer Tests

{10} The special employer test is a "creature of the common law." Bendure v. Great Lakes Pipe Line Co., 199 Kan. 696, 433 P.2d 558, 563 (1967). The test arises out of the borrowed or lent employee doctrine and applies to situations "where an employee of one employer, the general employer, works temporarily for another employer, the special employer." Rodriguez v. Martin Landscape, 882 S.W.2d 602, 604 (Tex.Ct.App.1994); see Rivera, 118 N.M. at 678-79, 884 P.2d at 834-35. The typical factual scenario in which this test arises is in cases where a labor contractor or a labor service provides temporary workers to other employers. See Vigil, 1996-NMCA-100, ¶¶ 16-18, 122 N.M. 417, 925 P.2d 883; Rivera, 118 N.M. at 681, 884 P.2d at 837; Word v. Motorola, Inc., 135 Ariz. 517, 662 P.2d 1024, 1027 n. 5 (1983) (en banc); Ghersi v. Salazar, 883 P.2d 1352, 1356-57 (Utah 1994). "Once the relationship of lent employee or special employee and employer is established, the special employee becomes the servant of the special employer and assumes the position under the Workmen's Compensation Act as a regular employee . . . ." Bendure, 433 P.2d at 564; see also Ghersi, 883 P.2d at 1356 ("Almost without exception, courts have relied on the loaned employee doctrine to hold that the special employer of a temporary employee is an employer for workers' compensation purposes."). Special employers who comply with the WCA's insurance provisions are entitled to immunity from tort suits. See Rivera, 118 N.M. at 677-78, 884 P.2d at 833-34.

{11} Although the statutory employer test serves a similar purpose to that served by the special employer test, it is applied under different factual circumstances. Id. at 680, 884 P.2d at 836; see also Lindsey v. Bucyrus-Erie, 161 Ariz. 457, 778 P.2d 1353, 1355 (Ct.App.1989) ("The statutorily created employer-employee relationship is a legislative scheme by which conceded non-employees are deliberately brought within coverage of the Workers' Compensation Act and is inapplicable to the classic lent employee relationship involved here."); Bendure, 433 P.2d at 563 ("Where the appropriate facts are present the employment may bring the employee under the Workmen's Compensation Act as a statutory employee or the facts may eliminate the relationship of statutory employer and employee and bring the workman under the [A]ct as a special employee."); McGinnis v. Waste Mgmt. of La., L.L.C., 914 So.2d 612, 616 (La.Ct.App.2005) ("Special employer status is distinguished from that of a statutory employer."); Ghersi, 883 P.2d at 1356 ("The relationships between a labor service, a `loaned' or temporary...

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