Novenson v. Spokane Culvert & Fabricating Co.

• Decision Date: 05 January 1979
• Docket Number: No. 45114,45114
• Citation: 91 Wn.2d 550,588 P.2d 1174
• Court: Washington Supreme Court
• Parties: Joseph V. NOVENSON and Barbara Novenson, his wife, Appellants, v. SPOKANE CULVERT & FABRICATING COMPANY, a Washington Corporation, Respondent.

Page 550

91 Wn.2d 550

588 P.2d 1174

Joseph V. NOVENSON and Barbara Novenson, his wife, Appellants, v. SPOKANE CULVERT & FABRICATING COMPANY, a Washington

Corporation, Respondent.

No. 45114.

Supreme Court of Washington, En Banc.

Jan. 5, 1979.

Richter, Wimberley & Ericson, Gary N. Bloom, William P. Wimberley, Spokane, for appellants.

Winston, Cashatt, Repsold, McNichols, Connelly & Driscoll, Stanley D. Moore, Spokane, for respondent.

HICKS, Justice.

This appeal certified to this court from the Court of Appeals, Division Three, involves a claim arising from an industrial accident. The trial court granted defendant's motion for summary judgment. We reverse.

In July 1975, plaintiff/appellant Joseph Novenson moved to the Spokane area from Pennsylvania. He was to begin working as the assistant chaplain at the Whitworth Campus Ministry in September.

On July 24, 1975, Novenson went to the offices of Kelly Labor of Northwest, Inc. in response to a newspaper advertisement for temporary laborers. He sought part-time employment for the 4- to 6-week period prior to assuming his position at Whitworth. Novenson signed the requisite forms at Kelly and was dispatched to a customer of Kelly, defendant/respondent Spokane Culvert and Fabricating Company. He was assigned to work on the "culvert rolling" machine.

The following day, Novenson returned to Kelly and was reassigned to Spokane Culvert at his request. Kelly would issue Novenson a paycheck for each day's work at Spokane Culvert at the hourly rate of $2.10. During his third day of work at Spokane Culvert, both of appellant's hands were drawn into the rollers of the culvert rolling machine and were severely crushed.

As a Kelly employee, Novenson received benefits under the Washington industrial insurance act, RCW Title 51. He brought this action against Spokane Culvert alleging negligence in failing to: provide a safe workplace; provide safety devices on the culvert rolling machine; properly train and supervise Kelly laborers in the operation of machines; and provide other adequate safety precautions. The trial court granted Spokane Culvert's motion for summary judgment, concluding as a matter of law that appellant was an employee of Spokane Culvert, thus limited in recovery to benefits under the industrial insurance act.

The industrial insurance act declares that all civil actions and causes of action for personal injuries of workmen against their employers are abolished, Except as otherwise provided in the title. RCW 51.04.010. RCW 51.24.010 provides such an exception, permitting those workmen injured by the negligence of one "not in the same employ" to elect to seek a remedy against the tort-feasor. We note at the outset that in Lunday v. Department of Labor & Indus., 200 Wash. 620, 94 P.2d 744 (1939), the act was so construed as to permit a worker to be concurrently the employee of a general employer and at the same time the employee of a special employer. Without that construction the workman would have been unable to receive benefits under the industrial insurance act. The issue in the present case is whether an employee-employer relationship existed between Novenson and Spokane Culvert. The trial court concluded, as a matter of law, that such a relationship existed. We disagree.

In ruling on a motion for summary judgment, the court must consider the material evidence and all reasonable inferences therefrom most favorably to the nonmoving party, Joe Novenson. If reasonable persons "might reach different conclusions the motion should be denied." Balise v. Underwood, 62 Wash.2d 195, 199, 381 P.2d 966, 969 (1963).

Kelly is in the business of providing casual labor to customers who need temporary workers. Kelly, as an employer, must of course, do all those things every employer is required to do, such as employee reporting, payment of industrial insurance premiums, internal revenue withholding, and general bookkeeping and accounting concerning these daily laborers. Kelly has an employer number with the Department of Labor and Industries and is a single employer entity for workmen's compensation purposes. Kelly charges its customers, such as Spokane Culvert, for the services of its employees. The fact that such charges include the industrial insurance premiums paid to the Department of Labor and Industries is, we find, of no moment in the present inquiry. The fees charged by any contractor normally cover its costs of doing business and would include such an expense.

Employment with Kelly is on a day-to-day basis. The actual period for which a Kelly employee is paid begins at the time of reporting to the assigned jobsite of the Kelly customer. Since employment is for a day at a time, if the worker wishes a further assignment on the following day, he returns to Kelly to be dispatched, though he is under no obligation to return.

For purposes of workmen's compensation, an employment relationship exists only when: (1) the employer has the right to control the servant's physical conduct in the performance of his duties, and (2) there is consent by the employee to this relationship. Marsland v. Bullitt Co., 71 Wash.2d 343, 428 P.2d 586 (1967); Fisher v. Seattle, 62 Wash.2d 800, 384 P.2d 852 (1963). The right of control is not the single determinative factor in Washington. A mutual agreement must exist between the employee and employer to establish an employee-employer relationship. Unlike the rules of vicarious liability at common law which focused on whether the "master" accepted and controlled the activities of the "servant" under the workmen's compensation law, the focus is upon the employee or "servant". The necessity of a mutual agreement was emphasized in Fisher v. Seattle, supra at 804-05, 384 P.2d at 854:

Under workmen's compensation law, however, the spotlight focuses on the employee, I. e., the servant, rather than on the employer, I. e., the master. The important question, here, is: Did the workman consent with the "employer" to the status of "employee"? Unlike the common law, compensation law demands that, in order to find an employer-employee relation, a Mutual agreement must exist between the employer and employee.

Regarding the necessity of such an agreement in cases involving workmen's compensation issues as compared to cases involving issues of vicarious liability, 1 Larson, Workmen's Compensation Law § 47.10 (1952) states:

". . .

"The reason for the difference between the two concepts is readily explained by the difference between the nature of the two liabilities involved. The end product of a vicarious liability case is not an adjustment of rights between employer and employee on the strength of their mutual arrangement, but a unilateral liability of the master to a stranger. The sole concern of the vicarious liability rule, then, is with the master: did he accept and control the service that led to the stranger's injury? If he did, it is of no particular importance between him and the stranger whether the servant enjoyed any reciprocal or contractual rights Vis-a-vis the master. Accordingly, the Restatement of Agency says plainly that the master must consent to the service, but nowhere requires that the servant consent to serve the master or even know who he is.

"Compensation law, however, is a mutual arrangement between the employer and employee under which both give up and gain certain things. Since the rights to be adjusted are reciprocal rights between employer and employee, it is not only logical but mandatory to resort to the agreement between them to discover their relationship. To thrust upon a worker an employee status to which he has never consented would not ordinarily harm him in a vicarious liability suit by a stranger against his employer, but it might well deprive him of valuable rights under the compensation act, notably the right to sue his own employer for common-law damages." . . .

When the party asserting the existence of an implied employment relation is not an employee seeking statutory compensation, but an employer seeking a defense to a common law suit, different social values are at stake. In the former situation, if an employment agreement is established, moderate statutory benefits are available to the injured worker; however, reaching such a conclusion in the second situation results in the destruction of valuable common law...