Kral v. Patrico's Transit Mixing Co.

• Decision Date: 21 November 1989
• Docket Number: Docket No. 105889
• Citation: 448 N.W.2d 790,181 Mich.App. 226
• Parties: Joseph KRAL and Freda Kral, Plaintiffs-Appellants, v. PATRICO'S TRANSIT MIXING COMPANY and Wayne Engineering, Defendants-Appellees, and Edward C. Levy Company, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 790

448 N.W.2d 790

181 Mich.App. 226

Joseph KRAL and Freda Kral, Plaintiffs-Appellants, v. PATRICO'S TRANSIT MIXING COMPANY and Wayne Engineering Defendants-Appellees and Edward C. Levy Company, Defendant.

Docket No. 105889.

Court of Appeals of Michigan.

Submitted March 8, 1989.

Decided Nov. 20, 1989.

Released for Publication Nov. 21, 1989.

Buckfire & Buckfire, P.C. by David Buckfire, Southfield, for plaintiffs-appellants.

Wendt, Wendt & Van Eman by John C. Candela, Mount Clemens, for Patrico's Transit Mixing Co.

Before McDONALD, P.J., and SULLIVAN and NEFF, JJ.

NEFF, Judge.

This is a personal injury action in which plaintiffs seek to hold defendant Patrico's Transit Mixing Company vicariously liable for the alleged negligence of a third party, Sebastian Bommarito. Plaintiffs appeal as of right from an order granting summary disposition to Patrico's pursuant to MCR 2.116(C)(10). We reverse.

Plaintiff Joseph Kral, an employee of Clawson Concrete Company, was injured while in the course of his employment. The injury occurred at a concrete mixing plant which Clawson leased from Patrico's. Plaintiffs claim that the injury was caused when the equipment on which Kral was working was activated by its operator, Sebastian Bommarito. Plaintiffs allege that Bommarito was an employee of Patrico's, and they seek to hold Patrico's vicariously liable for Bommarito's alleged negligence. Patrico's, however, contends that Bommarito was employed by Clawson and that Kral was a fellow employee of Bommarito. Therefore, Patrico's argues, workers' compensation is Kral's exclusive remedy. The key issue in the lower court was the status of Bommarito.

I

Patrico's owned the P & L Mixing Plant where Kral was injured. Patrico's and Clawson entered into a lease agreement under which Clawson would operate the mixing plant for several months for its own use, but would also load Patrico's trucks as needed. As part of the agreement, Bommarito, who had previously operated the plant for Patrico's and who was familiar with it, would operate the plant as batchman for Clawson. No Clawson employee was familiar with the operation of that plant. Patrico's also wanted Bommarito to remain at the P & L plant so that Patrico's, which was still using the plant, would have an operator familiar with its mixes.

Patrico's continued to pay Bommarito's wages, benefits, and unemployment insurance, but was reimbursed in full for those expenses by Clawson. Clawson set Bommarito's work hours and supervised his daily activities at the plant.

Patrico's is a subsidiary of Sterling Concrete Products. John Patrico, the president of Sterling Concrete Products, hired Bommarito.

John Patrico's deposition testimony reveals that Bommarito was placed at the P & L plant at least in part because of his familiarity with Patrico's specific mixes. According to Patrico, Patrico's set Bommarito's wages, and Bommarito chose to be an employee of Patrico's. Patrico also testified that, even while Bommarito was working for Clawson, he maintained control over Bommarito, and he "absolutely" considered Bommarito to be his employee. At the time of Kral's injury, Patrico's was using the P & L plant as much as Clawson was using it.

Patrico described Bommarito as "our key man" when the plant was leased to Clawson. He made it clear that the lease was on a temporary basis and described the arrangement as "my plant went to them [Clawson] with the employee [Bommarito] to run it."

Sebastian Bommarito testified that he punched two time cards, one for Patrico's and one for Clawson. When asked at deposition how he happened to be working at the P & L plant, Bommarito answered: "Well, Mr. Patrico sent me over there to load trucks.... He just said go over there, you're going to load trucks for Clawson and you're going to load our trucks also when they come over."

The deposition testimony of Donald Kinderman, the vice-president of operations for Clawson, revealed that Clawson used Bommarito's time card to check against the billing they received from Patrico's. Kinderman also testified that Clawson determined Bommarito's hours, vacations, and sick days and that Bommarito could be disciplined by Clawson's plant manager. Kinderman, however, did not consider Bommarito to be an employee of Clawson, but of Patrico's, because Bommarito was not on Clawson's seniority list and because if they had a labor problem with Bommarito they would contact Patrico's. Only Patrico's could fire Bommarito.

Kinderman also testified that Clawson is a union shop. If Bommarito had been hired by Clawson and placed on its seniority list as required, he could not have operated the P & L plant as batchman. According to Kinderman, Clawson's seniority list would have required that its regular batchman operate the P & L plant if Bommarito had been hired by Clawson.

Kinderman also testified that Bommarito was not covered by any health plan maintained by Clawson, and that Clawson does not have any employment records concerning Bommarito. The record shows that Patrico's maintains Bommarito's employment records and would be responsible for unemployment compensation if Bommarito were to be laid off.

II

One of two tests may be used in determining whether a worker is an employee of a particular employer. Which test is applicable is determined by the underlying legal basis of the claim being advanced.

Where workers' compensation benefits are an issue, the economic reality test is applied. Wodogaza v. H & R Terminals, Inc., 161 Mich.App. 746, 752, 411 N.W.2d 848 (1987), lv. den. 429 Mich. 873 (1987). That test includes four factors, one of which is control. That is the test applied by the trial court in this case.

The second test applicable in the employer-employee situation is the control test. In cases involving vicarious liability, this is the proper test to be applied.

The control theory was the traditional test used at common law to delineate the master-servant relationship. The purpose of the control test is to define and limit the scope of the master's liability under the doctrine of respondeat superior. Nichol v. Billot, 406 Mich. 284, 293-294, 279 N.W.2d 761 (1979). In Nichol, supra, p. 297, 279 N.W.2d 761, our Supreme Court stated:

The adoption of the control test at common law in order to determine the applicability of the servant concept was limited to those situations where the question was whether it was appropriate to apply the theory of respondeat superior.

In The Hartford Ins. Group v. Mile High Drilling Co., 96 Mich.App. 455, 460, 292 N.W.2d 232 (1980), a panel of this Court concluded, on the basis of Nichol, that application of the control test was appropriate in that case because it involved a question of respondeat superior liability. See also Noble v. Roadway Express, Inc., 153 Mich.App. 12, 18-19, 394 N.W.2d 128 (1986), lv. den. 428 Mich. 885 (1987); Parham v. Preferred Risk Mutual Ins. Co., 124 Mich.App. 618, 623-624, 335 N.W.2d 106 (1983).

The control test was articulated by our Supreme Court in Janik v. Ford Motor Co., 180 Mich. 557, 562, 147 N.W. 510 (1914), as follows:

The test is whether in the particular service which he is engaged or requested to perform he continues liable to the direction and control of his original master or becomes subject to that of the person to whom he is lent or hired, or who requests his services. It is not so much the actual exercise of control which is regarded, as the right to exercise such control. To escape liability the original master must resign full control of the servant for the time being, it not being sufficient that the servant is partially under control of a third person. Subject to these rules the original master is not liable for injuries resulting from acts of the servant while under the control of a third person.

In...