Hicks v. Alabama Power Co.

• Decision Date: 28 May 1993
• Parties: Wallace Wayne HICKS and Cathy H. Hicks v. ALABAMA POWER COMPANY, et al. 1911903.
• Court: Alabama Supreme Court

Page 1050

623 So.2d 1050

Wallace Wayne HICKS and Cathy H. Hicks v. ALABAMA POWER COMPANY, et al.

1911903.

Supreme Court of Alabama.

May 28, 1993.

As Modified on Denial of Rehearing

Sept. 10, 1993.

Joe L. Tucker, Jr. and James V. Green, Jr. of Hardin & Tucker, Birmingham, for appellants.

S. Allen Baker, Jr. and James A. Bradford of Balch & Bingham, Birmingham, for appellees.

HORNSBY, Chief Justice.

Wallace Wayne Hicks sued Alabama Power Company ("APCo"), alleging that APCo negligently maintained the premises where Hicks was working and that its negligence caused him to be injured. His wife, Cathy H. Hicks, joined his complaint, claiming damages for loss of consortium. APCo asserted that it was Hicks's "special employer" under Ala.Code 1975, § 25-5-53 (the exclusivity provision of Alabama's Workers' Compensation Act). The trial court entered a summary judgment for APCo on that basis; the plaintiffs appeal.

The evidence is undisputed that in 1974 Hicks was a member of Structural Iron Workers Local Union No. 92, which assigned him to work at Sullivan, Long & Haggerty ("SLH"), a construction company. SLH and APCo had entered into a contract (the "SLH contract"), wherein SLH agreed to provide APCo with generation plant construction work, including craft labor and supervision, for its Miller Steam Plant project in Jefferson County, Alabama. The plaintiff worked at Miller Steam Plant pursuant to this contract. With the exception of certain occasions when his employment with SLH was terminated and he did work for other employers arranged by his local union, Hicks worked continuously at Miller Steam Plant between 1974 and March 1988, the date of the accident. At all times while working at Miller Steam Plant, Hicks worked as an ironworker.

In March 1988, Hicks was injured at Miller Steam Plant while climbing upon a continuously moving elevator-type device known as a "man-lift" that allowed workers to move between different floors of a building under construction. He received worker's compensation benefits from SLH for this injury. ¹ After settling his workers' compensation claim, Hicks sued APCo. On appeal, Hicks and his wife argue that he presented substantial evidence that APCo was not his special employer.

"In reviewing the disposition of a motion for summary judgment, we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact" and whether the movant was "entitled to a judgment as a matter of law." Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988) (citing Chiniche v. Smith, 374 So.2d 872 (Ala.1979)); Rule 56(c), A.R.Civ.P. The movant has the burden of "showing material facts, which, if uncontested, entitle the movant to judgment as a matter of law." Berner v. Caldwell, 543 So.2d 686, 688 (Ala.1989); Woodham v. Nationwide Life Ins. Co., 349 So.2d 1110, 1111 (Ala.1977). Once the movant has made this showing, the opposing party then has the burden of presenting evidence creating a genuine issue of material fact. Danford v. Arnold, 582 So.2d 545, 546 (Ala.1991); Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989).

This action was filed after June 11, 1987; therefore, the nonmovant must meet the burden of establishing the existence of a genuine issue of material fact by substantial evidence. Ala.Code 1975, § 12-21-12; Bass v. SouthTrust Bank of Baldwin County, supra. "Substantial evidence" is "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990); Harrell v. Reynolds Metals Co., 495 So.2d 1381, 1383 (Ala.1986); Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986).

When a defendant in a common law action for damages asserts that the action will not lie because the injured person or decedent was a "special employee" of the defendant, the defense is an affirmative one, and the burden rests on the defendant to plead and prove it. Bechtel v. Crown Central Petroleum Corp., 451 So.2d 793, 795 (Ala.1984); Rule 56(c), A.R.Civ.P. If APCo was a "special employer" of Hicks, as it argues, the exclusive remedy for Hicks's injury would be under the Workers' Compensation Act.

In Terry v. Read Steel Products, 430 So.2d 862, 865 (Ala.1983), this Court first held that a defendant could be a "special employer" under Alabama's Workers' Compensation Act, and be held responsible for worker's compensation but immune from tort liability for injuries sustained by an employee. We adopted the following three-pronged test to determine who is a "special employer":

"When a general employer lends an employee to a special employer, the special employer becomes liable for workmen's 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 workmen's compensation...."

Terry, 430 So.2d at 865, quoting 1C A. Larson, The Law of Workmen's Compensation, § 48 (1980).

Hicks argues that he presented evidence creating a genuine issue of material fact regarding each of the three prongs of the "special employer" doctrine. He argues that under the facts of this case one could find that he was employed solely by SLH and not by APCo.

APCo, however, argues that the underlying facts of this case are identical to those presented in Rhodes v. Alabama Power Co., 599 So.2d 27 (Ala.1992), wherein we affirmed a summary judgment in favor of APCo based on the "special employer" defense asserted by APCo for an accident that occurred at APCo's Miller Steam Plant and injured an employee of SLH, which had a contract with APCo that, it argues, is substantially similar to the one involved in this case.

In Rhodes, this Court addressed only the issue of "control." The plaintiffs in Rhodes did not raise the additional issues of "contract of hire" and "work of the special employer." 599 So.2d at 29. Because Hicks has raised these issues, the result in this case, as to those issues, is not controlled by the holding in Rhodes.

This Court has held that in determining whether a special employment relationship exists "the most important criterion to be scrutinized is the requirement of a contract of hire, express or implied." Terry v. Read Steel Products, 430 So.2d at 866. Indeed, "the courts have usually been vigilant in insisting upon a showing of deliberate and informed consent by the employee before employment relation will be held a bar to common-law suit." 1C, A. Larson, Workmen's Compensation Law, § 48.12, p. 8-440--8-445. A mutual agreement between the employee and the person alleged or claiming to be the special employer, i.e., a contract of hire, express or implied, is essential because an employee loses the right to sue the special employer at common law, while gaining other rights, when he or she enters into the special employment relationship. Id.

APCo admits that it had entered into no express contract with Hicks, but it argues that an implied contract existed by virtue of Hicks's understanding of, and his submission and consent to, APCo's exercise of control over his work. APCo argues that Hicks's consent may be inferred under the circumstances because he was hired pursuant to a labor broker contract. APCo argues that in labor broker contracts the general employer exists merely to place the employee with a special employer; it contends that the employee's consent and submission to the control of the special employer permits an implication of the employee's consent to that relationship. APCo argues that Hicks's acknowledgment that SLH was a "manpower supplier" indicates Hicks's awareness and understanding of the true working relationship between APCo and SLH and indicates his submission and acquiescence to APCo's supervisory role. APCo argues that this evidence, combined with evidence that APCo controlled the details of Hicks's work, conclusively establishes that an implied contract of hire existed between Hicks and APCo.

In contrast, Hicks argues that no implied contract between him and APCo existed. He argues that an employment relationship cannot be thrust upon him without his knowledge or consent and that he must understand that he is submitting himself to the control of a new master. Hicks argues that he did not understand this and that the SLH contract expressly contradicts APCo's contentions that he was an employee of APCo. He argues that the SLH contract does not permit an inference of consent. The contract itself, he argues, unequivocally expresses APCo's intent to consider SLH and its employees as independent contractors rather than as employees of APCo.

Hicks presented article 12 of the SLH contract as evidence that APCo did not intend to treat SLH and its employees as employees of APCo. That article provides as follows:

"[SLH], in accordance with its status as an independent contractor shall not act as an agent or employee of [APCo], but shall be and act as an independent contractor, and hereby covenants and agrees that it will neither hold itself out as nor claim to be an officer or employee of [APCo] ... and that it will not ... make any claim, demand, or application to or for any right or privilege applicable to an officer or employee of [APCo], including but not limited to, workmen's compensation coverage...."

(Emphasis supplied.) Hicks argues that the unequivocal language of the SLH...