Kaiser v. Millard Lumber, Inc.

• Court: Nebraska Supreme Court
• Writing for the Court: CONNOLLY
• Citation: Kaiser v. Millard Lumber, Inc., 587 N.W.2d 875, 255 Neb. 943 (Neb. 1999)
• Decision Date: 15 January 1999
• Docket Number: No. S-97-857,S-97-857
• Parties: Edward KAISER, appellant, and Noll Temporary Services, appellee, v. MILLARD LUMBER, INC., a Nebraska corporation, appellee.

Page 875

587 N.W.2d 875

255 Neb. 943

Edward KAISER, appellant, and Noll Temporary Services, appellee, v. MILLARD LUMBER, INC., a Nebraska corporation, appellee.

No. S-97-857.

Supreme Court of Nebraska.

Jan. 15, 1999.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper 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. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

3. 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.

4. Employer and Employee. When a general employer, like a labor broker, loans an employee to another for the performance of some special service, that employee may become the employee of the party to whom his or her services have been loaned.

5. Workers' Compensation: Contracts: Liability. When a general employer lends an employee to a special employer, the special employer becomes liable for workers' compensation only if (1) the employee has made a contract of hire, express or implied, with the special employer; (2) the work being done is essentially that of the special employer; and (3) 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.

6. Summary Judgment: Proof. The party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that it is entitled to judgment as a matter of law.

7. Summary Judgment: Proof. A prima facie case for summary judgment is shown by producing enough evidence to demonstrate that the movant is entitled to a judgment in its favor if the evidence were uncontroverted at trial.

8. Summary Judgment: Proof. If the movant has shown a prima facie case for summary judgment, the burden of producing evidence to show a genuine issue of material fact shifts to the party opposing the motion for summary judgment.

9. Workers' Compensation: Words and Phrases. A finding that one party is an "employer" under Neb.Rev.Stat. § 48-114 (Reissue 1993) and a finding that the other relevant party is an "employee" under Neb.Rev.Stat. § 48-115 (Reissue 1988) are necessary to engage Neb.Rev.Stat. § 48-109 (Reissue 1993), which binds the parties to the compensation schedule of the Nebraska Workers' Compensation Act.

10. Employer and Employee: Contracts. Whether a contract of hire is established is ordinarily a question of fact.

11. Employer and Employee: Contracts. A court may find a contract of hire established as a matter of law only when but one inference can reasonably be drawn from the facts.

Contracts: Parties: Intent. The term "implied or inferred contract," also sometimes called an implied in fact contract, refers to that class of obligations which arises from mutual agreement and intent to promise, when the agreement and promise have simply not been expressed in words. An implied contract arises where the intention of the parties is not expressed but where the circumstances are such as to show a mutual intent to contract.

13. Contracts: Parties: Intent. The determination of the parties' intent to make a contract is normally a question of fact.

14. Employer and Employee: Contracts: Parties: Intent: Proof. Relevant evidence to prove or disprove that an implied contract of hire was created is objective manifestations that could reasonably infer either party did or did not intend to enter into a contract of hire.

15. Summary Judgment: Employer and Employee: Contracts: Intent: Proof. A movant for summary judgment, in order to be entitled to a judgment that an implied contract of hire was created, has the initial burden to produce evidence which reasonably infers that both parties intended to enter a contract of hire.

16. Employer and Employee: Contracts: Evidence. Evidence that a special employer is not the immediate provider of wages and benefits does not preclude a finding of an implied contract of hire as a matter of law.

Henry C. Rosenthal, Jr., of The Law Offices of Ronald J. Palagi, P.C., Omaha, on briefs, for appellant.

Jerry W. Katskee and Todd W. Weidemann, of Katskee, Henatsch & Suing, Omaha, for appellee Millard Lumber.

HENDRY, C.J., WRIGHT, CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.

CONNOLLY, J.

Appellant, Edward Kaiser, brought a negligence action against appellee Millard Lumber, Inc., for injuries he received on Millard Lumber's premises. The district court granted summary judgment for Millard Lumber, determining that Kaiser could not assert a negligence action against Millard Lumber because Millard Lumber was an employer of Kaiser. We affirm.

BACKGROUND

Kaiser applied for work through appellee Noll Temporary Services (Noll) in November 1991. Noll provided businesses temporary labor for light-industry work. Noll subsequently Kaiser and first assigned him in May 1992 to Able Professional Movers. He worked approximately 3 weeks and then asked Noll's placement coordinator to reassign him, complaining that he did not enjoy the job and that the work hours he received were too inconsistent. Noll next assigned him to perform general labor tasks at Millard Lumber. Millard Lumber hired temporaries from several labor agencies in Omaha, Nebraska.

Noll provided a number of temporary workers for Millard Lumber through a longstanding arrangement. However, Noll and Millard Lumber had no written contract. The negotiated agreement provided that Millard Lumber could call Noll and request laborers, stating what type of work needed to be done, and that Noll would provide them at $6.40 per hour. The loaned employees, like Kaiser, received pay of $4.25 per hour. Noll paid workers' compensation insurance, made payroll deductions, and paid advertising expenses. In Kaiser's case, Millard Lumber called Noll's placement coordinator, JoAngela King, requesting people for "general labor," which King describes as customer service and lumber stacking. Kaiser was told he would stack lumber and help make deliveries. Kaiser had the option to reject the assignment, but he accepted it.

When Kaiser reported to work, a Millard Lumber foreman directed him to stack lumber. He continued to stack lumber on his first and second days on the job, and he also assisted with deliveries. On Kaiser's third day at Millard Lumber, the foreman assigned him to work with a particular Millard Lumber employee, Walter Root, in the company's north "saw house." Root was operating a power saw and told Kaiser to take 4-by-4 posts that had been sawed and place them in a cart.

On his fourth day, Kaiser reported to the same location at Millard Lumber as on the 3 previous days, and the Millard Lumber foreman again assigned him to help Root in the north saw house. Root told Kaiser to stand on one end of a saw, catch the cut boards as they came off the saw, and stack them. At some point, the space underneath the saw blade filled with sawdust due to a plugged vacuum system, causing the saw to spit out sawdust from the top. Root shut down the saw, removed a vacuum hose, and used a small stick to move the sawdust underneath the saw blade so that the vacuum system could pick it up. When Root turned on the saw, Kaiser had his hand underneath the saw blade, and the blade partially amputated three fingers and the thumb of Kaiser's right hand. Kaiser admits he was not asked to help clear out the sawdust.

Root stated he told Kaiser, on the days Kaiser worked with him, to keep all body parts and clothing away from the saw blade. Kaiser denies this. Kaiser received no other safety training from either Noll or Millard Lumber. The record reflects Millard Lumber conducted monthly safety meetings for its employees, with each foreman holding a separate meeting. Kaiser did not attend any of these meetings. However, the record does not indicate whether such a meeting was held when Kaiser worked at Millard Lumber. Millard Lumber's operations director, Ricard C. Baker, testified that the company has videos concerning the operation of saws and testified that it does not show them to loaned temporary employees. However, Baker also testified in a second deposition when asked a similar question that loaned employees may have seen the videos if they attended a monthly safety meeting.

Kaiser received a workers' compensation settlement from Noll. Millard Lumber was not a party to the settlement. Kaiser then filed the instant negligence action against Millard Lumber. In its answer, Millard Lumber asserted, inter alia, that Kaiser failed to state a cause of action and had exhausted his exclusive remedy of workers' compensation benefits. Millard Lumber subsequently moved for summary judgment.

In granting Millard Lumber's motion for summary judgment, the district court relied upon our recent opinion Daniels v. Pamida, Inc., 251 Neb. 921, 561 N.W.2d 568 (1997). Applying the Daniels threeprong analysis to determine if a loaned servant is an "employee" of the borrowing company, the court determined that "[b]y [voluntarily] accepting the assigned temporary work with Millard and attempting to perform it, there is no question that Kaiser entered into at least an implied contract of hire with Millard." The court additionally determined that the facts undisputedly indicated that the work Kaiser did was essentially that of the special employer and that Millard Lumber undisputedly had the...