Loden v. Getty Oil Co.

• Decision Date: 08 February 1974
• Citation: 316 A.2d 214
• Court: Delaware Superior Court
• Parties: Shirley E. LODEN, Administratrix of the Estate of Carlton L. Loden, Jr., Deceased, et al., Plaintiff, v. GETTY OIL COMPANY et al., Defendants.

Page 214

316 A.2d 214

Shirley E. LODEN, Administratrix of the Estate of Carlton L Loden, Jr., Deceased, et al., Plaintiff, v. GETTY OIL COMPANY et al., Defendants.

Superior Court of Delaware, New Castle County.

Feb. 8, 1974.

Opinion on motion of defendants for summary judgment.

F. Alton Tybout, of Tybout, Redfearn & Schnee, Wilmington, for plaintiff.

Alfred M. Issacs, of Flanzer & Isaacs, Wilmington, for defendant.

TAYLOR, Judge.

Plaintiff, administratrix of the estate of Carlton L. Loden, Jr. (deceased) seeks to recover against Getty Oil Company (Getty) for serious injuries which deceased suffered while working at the site of the Getty refinery near Delaware City on April 10, 1972 when the cutting torch which deceased was using to cut a pipe fitting ignited oil which was in the pipe. Deceased was hired and paid by Catalytic Construction Company (Catalytic). Getty has moved for summary judgment on the ground that deceased was an employee of Getty at the time of the accident, and therefore, this action is barred by 19 Delaware Code § 2304 of the Delaware Workmen's Compensation Law. Plaintiff seeks summary judgment on the converse of that issue.

It is necessary to review the relationship between Catalytic and Getty, deceased and Getty, and deceased and Catalytic in considering the merits of Getty's motion.

For many years, a contractual relationship has existed between Catalytic and Getty whereby Catalytic has undertaken to perform various work, mostly in maintenance and construction, at the Getty refinery. There is no significant common ownership in the corporations of Catalytic and Getty. There are no common members of the Board of Directors or officers of Catalytic and Getty. The contract pursuant to which Catalytic has performed services for Getty at the Delaware City refinery was negotiated as an arm's length transaction.

The number of workmen provided by Catalytic for work at the Getty refinery has varied between two hundred and in excess of one thousand, mostly skilled, such as iron workers, pipe fitters, craft foremen, area supervisors, and engineers.

The following facts descriptive of deceased's working relationship are undisputed:

1. Catalytic hired the deceased at the time of his employment preceding his accident.

2. Deceased was paid by Catalytic checks.

3. Getty did not exercise control over the selection of persons employed by Catalytic, but Getty has recommended discharge by Catalytic of any employees not measuring up to standards.

4. Getty kept no records of and exercised no control over the presence or absence on any specific work day of individual members of the various crafts working on the Catalytic payroll at the Getty plant.

5. Getty did not report to its workmen's compensation carrier as such the accident involving the deceased as involving a Getty employee.

6. The workmen's compensation carrier for Catalytic paid all medical expenses of the deceased, all workmen's compensation payments and entered into all agreements with the deceased or his survivor.

7. Getty's compensation carrier made no payments to the deceased under the Wokmen's Compensation Law.

8. Getty did not report the deceased's accident to the Industrial Accident Board as an industrial accident involving its employee.

9. Getty's accident reports, investigations concerning the accident, designated the deceased as an employee of Catalytic.

10. No one in the Getty organization gave the deceased any instructions as to what to do in the course of his work or how to do it.

11. The deceased received his instructions as to the work to be performed from his foreman, Jesse Wooleyhan, who was an employee of Catalytic. Jesse Wolleyhan in turn received his instructions from another Catalytic employee, Mr. Lindamood.

Getty contends that deceased was its employee and, therefore, deceased is barred by virtue of 19 Del.C. § 2304 from bringing this action against Getty. § 2304 precludes recovery by an employee against his employer except workmen's compensation. The issue, therefore, is whether, notwithstanding deceased's relationship to Catalytic, deceased was an employee of Getty within the meaning of the Workmen's Compensation Law.

19 Delaware Code § 2311 provides:

'No contractor or sub-contractor shall receive compensation under this chapter, but shall be deemed to be an employer, and all rights of compensation of the employees of any such contractor or subcontractor, shall be against their employer and not against any other employer.'

Although the above-quoted language indicates a legislative purpose to avoid or at least minimize multi-employer situations under the Workmen's Compensation Law, it does not totally exclude their possibility.

Under Delaware law there may be the situation of the workman who is the employee of successive or intermittent employers, as in Gooden v. Mitchell, Del.Super., 2 Terry 301, 21 A.2d 197 (1941). There may also be the situation of the borrowed employee, as in Berg v. Happy Hill Farm, Del.Super., No. 5227 C.A. 1972, Opinion January 9, 1973, Tease, J., aff'd Del.Supr., No. 19, 1973, Order April 30, 1973; Cf. Faircloth v. Rash, Del.Supr., --- A.2d ---, Opinion January 21, 1974.

Whether and to what extent there may be a joint employment or a dual employment which might result in multiple or shared workmen's compensation liability with corresponding immunity from tort claim by virtue of the Delaware Workmen's Compensation Law has not been the subject of decision in this State. 1A Larson, Workmen's Compensation Law 839, § 48.40, recognizes the general validity of both types of employment under proper fact situations, but notes the existence of special statutory provisions in certain states including the State of Delaware.

Plaintiff does not contend that under Delaware law there cannot be joint employment. However, plaintiff asserts that the facts of this case do not establish joint employment.

The Delaware Supreme Court has held that the question of whether an employee-employer relationship exists for purposes of the Workmen's Compensation Law is governed by the same tests applied by the general law. Lester C. Newton Trucking Company v. Neal, Del.Supr., 204 A.2d 393 (1964). Ordinarily, there are four elements which are considered in determining whether such relationship exists, namely, (1) who hired the employee, (2) who may discharge the employee, (3) who pays the employee's wages, and (4) who has the power to control the conduct of the employee when he is performing the particular job in question. Ibid. Of these factors, the one which has been given greatest weight is the power to control and direct the activities of the employee in the performance of the act which caused the injury. Ibid; Richardson v. John T. Hardy and Sons, Inc., Del.Supr., 4 Storey 567, 182 A.2d 901 (1962); Brittingham v. American Dredging Company, Del.Supr., 262 A.2d 255 (1970).

In order to constitute an employer-employee relationship, the control must be more than merely pointing out the area where the operator is to work and the results which he is to accomplish. Brittingham v. American Dredging Company, supra.

In determining the true relationship between Getty and the deceased, it is significant to examine the contractual relationship existing between Getty and Catalytic. Weiss v....