Riley v. Southwest Marine, Inc.

• Decision Date: 28 July 1988
• Docket Number: No. D006578,D006578
• Citation: 203 Cal.App.3d 1242,250 Cal.Rptr. 718
• Court: California Court of Appeals Court of Appeals
• Parties: Sherue RILEY, Plaintiff and Appellant, v. SOUTHWEST MARINE INC., Defendant and Respondent.

Page 718

250 Cal.Rptr. 718

203 Cal.App.3d 1242

Sherue RILEY, Plaintiff and Appellant, v. SOUTHWEST MARINE INC., Defendant and Respondent.

No. D006578.

Court of Appeal, Fourth District, Division 1, California.

July 28, 1988.

Bacalski, Holdway & Prindle and Patrick L. Prindle, San Diego, for plaintiff and appellant.

Littler, Mendelson, Fastiff & Tichy, James J. McMullen, Jr. and Roy D. Axelrod, San Diego, for defendant and respondent.

KREMER, Presiding Justice.

Sherue Riley appeals the granting of a summary judgment to Southwest Marine, Inc. on his tort claims for personal injuries received while he was working at Southwest

Marine. On appeal, Riley contends the trial court erred in determining Southwest Marine was his employer as a matter of law and in ruling he was statutorily barred from bringing a tort action against Southwest Marine. We find no errors and therefore affirm.

FACTS

In August or September 1982, Riley signed up with Manpower, Inc., a labor broker. Manpower sent Riley to Southwest Marine for work as a general laborer. Manpower paid Riley $4 per hour. ¹ Manpower did not provide Riley with any training, safety equipment, work tools or supervision for his work at Southwest Marine. Manpower dealt only with payroll matters, issuing Riley a check on submission of time cards and taking care of withholding social security, federal and state taxes, and paying premiums for unemployment insurance, workers' compensation and Longshore and Harbor Workers' Compensation Act (LHWCA) (33 U.S.C. § 901 et seq.) ² insurance. When Riley went to Southwest Marine, Southwest Marine gave him a pre-employment physical examination. Southwest Marine trained him, provided all safety equipment and work tools, gave daily job instructions and supervised his work.

On March 7, 1983, Riley was injured while working on the repair and refurbishing of an ocean-going tug at Southwest Marine. In August 1983, Riley filed an employee's claim for compensation, citing the LHWCA and listing Southwest Marine as his employer. He amended his claim in February 1984 to add Manpower as an employer. Riley apparently received workers compensation benefits.

Also in February 1984, Riley sued Southwest Marine in tort for his injuries based on theories of negligence, failure to provide proper safety equipment and products liability. In January 1987, he amended his complaint to add causes of action based on breach of statutory duty, breach of contract, ultra hazardous activity, failure to warn, negligent supervision, negligent training and failure to provide a safe place of employment. All these causes of action were based on the theory that he was not a Southwest Marine employee and therefore was not limited to a remedy in the nature of workers' compensation, specifically to recovery under the LHWCA. ³ Southwest Marine moved for summary judgment, contending it was Riley's employer under the "special employment" or "borrowed servant" doctrine and therefore was immune from tort liability under the LHWCA. The trial court agreed and granted summary judgment to Southwest Marine.

DISCUSSION

I

Riley contends summary judgment was improper because the question of whether a "special employment" relationship existed A "special employment" relationship arises when an employer lends an employee to another employer and relinquishes to the borrowing employer all right of control over the employee's activities. (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 492, 162 Cal.Rptr. 320, 606 P.2d 355.) The borrowed employee is " 'held to have two employers--his original or "general" employer and a second, the "special" employer.' " (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174, 151 Cal.Rptr. 671, 588 P.2d 811.) In this dual employer situation, the employee is generally limited to a statutory workers' compensation remedy for injuries he receives in the course of his employment with the special employer; he may not bring a separate tort action against either employer. (See, e.g., Hebron v. Union Oil Co. of California (5th Cir.1981) 634 F.2d 245, 248; Jones v. Kaiser Industries Corp. (1987) 43 Cal.3d 552, 556, 237 Cal.Rptr. 568, ----, 737 P.2d 771; 33 U.S.C. § 905(a); Lab. Code, § 3600.)

between himself and Southwest Marine was a factual matter which could not be resolved by summary judgment.

The aim of the summary judgment procedure is to discover whether the parties possess evidence requiring the fact-weighing procedures of a trial. (Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851, 94 Cal.Rptr. 785, 484 P.2d 953.) In reviewing the propriety of a summary judgment, the appellate court must resolve all doubts in favor of the party opposing the judgment. (Wynner v. Buxton (1979) 97 Cal.App.3d 166, 172, 158 Cal.Rptr. 587.) The reviewing court conducts a de novo examination to see whether there are any genuine issues of material fact or whether the moving party is entitled to summary judgment as a matter of law. (Lichty v. Sickels (1983) 149 Cal.App.3d 696, 699, 197 Cal.Rptr. 137.) While "[s]ummary judgment is a drastic procedure, should be used with caution [citation] and should be granted only if there is no issue of triable fact" (Brose v. Union-Tribune Publishing Co. (1986) 183 Cal.App.3d 1079, 1081, 228 Cal.Rptr. 620), it is also true that "[j]ustice requires that a defendant be as much entitled to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one." (Larsen v. Johannes (1970) 7 Cal.App.3d 491, 507, 86 Cal.Rptr. 744.)

The question of whether an employment relationship exists " 'is generally a question reserved for the trier of fact.' " ( Marsh v. Tilley Steel Co., supra, 26 Cal.3d 486, 493, 162 Cal.Rptr. 320, 606 P.2d 355; Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 175, 151 Cal.Rptr. 671, 588 P.2d 811.) This remains true "[w]here the evidence, though not in conflict, permits conflicting inferences." ( Marsh v. Tilley Steel Co., supra, 26 Cal.3d at p. 493, 162 Cal.Rptr. 320, 606 P.2d 355.) However, if neither the evidence nor inferences are in conflict, then the question of whether an employment relationship exists becomes a question of law which may be resolved by summary judgment. (Santa Cruz Poultry, Inc. v. Superior Court (1987) 194 Cal.App.3d 575, 239 Cal.Rptr. 578; Gaudet v. Exxon Corp., supra, 562 F.2d 351.) ⁴

                Riley's assertion there exists a factual dispute requiring resolution by a trial rests on his deposition testimony that he did not "consider [himself] to be an employee of Southwest Marine during that period of time" and evidence supporting a finding he was a Manpower employee. 5  As we shall subsequently explain, even assuming Riley was and believed himself to be a Manpower employee that fact does not negate a finding Riley was also a Southwest employee and therefore limited to a statutory workers' compensation remedy
                

II

As our Supreme Court explained in Kowalski v. Shell Oil Co., supra, 23 Cal.3d 168, 174, 151 Cal.Rptr. 671, 588 P.2d 811:

"The possibility of dual employment is well recognized in the case law. 'Where an employer sends an employee to do work for another person, and both have the right to exercise certain powers of control over the employee, that employee may be held to have two employers--his original or "general" employer and a second, the "special" employer.' [Citation.]" (See also Standard Oil Co. v. Anderson (1909) 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480.)

The primary consideration in determining whether a special employment relationship exists "... is whether the special employer has ' "[t]he right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not...." ' [Citation.]" ( Kowalski v. Shell Oil Co., supra, 23 Cal.3d at p. 175, 151 Cal.Rptr. 671, 588 P.2d 811.) Factors relevant to determining whether an employee is the borrowed employee of another include: (1) whether the borrowing employer's control over the employee and the work he is performing extends beyond mere suggestion of details or cooperation; (2) whether the employee is performing the special employer's work; (3) whether there was an agreement, understanding, or meeting of the minds between the original and special employer; (4) whether the employee acquiesced in the new work situation; (5) whether the original employer terminated his relationship with the employee; (6) whether the special employer furnished the tools and place for performance; (7) whether the new employment was over a considerable length of time; (8) whether the borrowing employer had the right to fire the employee and (9) whether the borrowing employer had the obligation to pay the employee. ( Gaudet v. Exxon Corp., supra, 562 F.2d 351, 355; Ruiz v. Shell Oil Company (5th Cir.1969) 413 F.2d 310, 312-313.)

Circumstances which tend to negate the existence of a special employment relationship include the following factors: the worker is skilled and has substantial control over operational details, the worker is not engaged in the borrower's usual business, the worker works only for a brief period of time, does not use the tools or Here, Riley's own deposition testimony establishes he specifically agreed to the Southwest Marine work assignment. He was an unskilled general laborer who was working exclusively at Southwest Marine's job site. Southwest Marine personnel trained Riley, provided his daily job instructions and supervised his work. Southwest Marine provided all safety equipment and work tools. Riley worked for Southwest more than briefly; he had been on the job for over seven months at the time of his injury. Riley believed Southwest Marine had the power to discharge him. In sum, Southwest Marine had the right to control and direct Riley's activities and the manner in which he performed the work; Southwest Marine did not merely make suggestions of details or cooperation.

equipment of the borrowing employer but uses...