Rivera v. Sagebrush Sales, Inc.

• Decision Date: 26 August 1994
• Docket Number: No. 14724,14724
• Parties: Jerry RIVERA, Plaintiff-Appellant, v. SAGEBRUSH SALES, INC., a New Mexico corporation, and subsidiary of Fly-Gem Industries, a Delaware corporation, Defendant-Appellee.
• Court: Court of Appeals of New Mexico

Page 832

884 P.2d 832

118 N.M. 676

Jerry RIVERA, Plaintiff-Appellant, v. SAGEBRUSH SALES, INC., a New Mexico corporation, and subsidiary of Fly-Gem Industries, a Delaware

corporation, Defendant-Appellee.

No. 14724.

Court of Appeals of New Mexico.

Aug. 26, 1994.

Certiorari Denied Sept. 30, 1994.

[118 N.M. 677] Charles R. Finley, Warner & Finley, Albuquerque, for plaintiff-appellant.

James C. Ritchie, Edward Ricco, Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, for defendant-appellee.

OPINION

PICKARD, Judge.

We grant the motion for rehearing, withdraw the prior opinion, and substitute the following.

This case requires us to determine whether Defendant, Sagebrush Sales, Inc. (Sagebrush), was Plaintiff's (Rivera) employer for purposes of the Workers' Compensation Act (the Act). Madden Temporary Services, Inc. (Madden), was Rivera's direct employer and had a contract with Sagebrush to provide temporary workers to Sagebrush on an as-needed basis. Rivera was injured while tagging lumber for Sagebrush at its lumberyard. After Rivera's on-the-job injury, Madden and its insurer paid Rivera's workers' compensation benefits. Rivera then sued Sagebrush for personal injuries resulting from Sagebrush's alleged negligence. Sagebrush moved for summary judgment, claiming Rivera's suit was barred by the exclusivity provisions of the Act. See NMSA 1978, Secs. 52-1-8 and -9 (Repl.Pamp.1991). The district court granted summary judgment, and Rivera appeals. We affirm.

The Act provides that any employer who complies with the Act relating to insurance is not subject to any other liability except as provided in the Act. Section 52-1-8. This provision also abolishes all causes of action against the employer for personal injury to the employee except as provided in the Act. Id. The questions we must decide are whether there is any genuine issue of material fact concerning whether Sagebrush was Rivera's employer for the purposes of the Act and whether Sagebrush is entitled to judgment as a matter of law. See Garcia v. Smith Pipe & Steel Co., 107 N.M. 808, 809, 765 P.2d 1176, 1177 (Ct.App.), cert. denied, 107 N.M. 673, 763 P.2d 689 (1988).

Initially, we address Rivera's argument that Sagebrush waived its right to rely on the exclusivity provisions of the Act. Rivera argues that Sagebrush waived its right based on its contract with Madden. See Matkins v. Zero Refrigerated Lines, Inc., 93 N.M. 511, 513-16, 602 P.2d 195, 197-200 (Ct.App.1979). The parties agree that the contract consists of two documents. One, a one-page letter from Madden to Sagebrush, indicates among other things that the hourly rates Madden charged Sagebrush included payment for payroll taxes, unemployment compensation, and workers' compensation insurance. The second is a one-page document signed by Madden and Sagebrush that provides, expressly in light of the above, that Sagebrush "will be in no way responsible" for any injury suffered by a Madden employee on the job at Sagebrush.

In Matkins, the worker was the employee of a truck company that had entered into a lease agreement with a licensed interstate common carrier. The contract between the truck company and common carrier provided that the common carrier was not responsible for workers' compensation insurance for the truck company or its drivers, helpers, or laborers and that "[s]uch matters are the sole and exclusive responsibility and liability" of the truck company. Id. at 514, 602 P.2d at 198. In the present case, however, the contract between Sagebrush and Madden did not absolve Sagebrush of responsibility for workers' compensation coverage and, in fact, provided that the amount Sagebrush paid to Madden would include the cost of providing this coverage. Therefore, unlike the common carrier in Matkins, Sagebrush has not relinquished the right to invoke the exclusivity provisions of the Act. Consequently, this case is appropriately analyzed, from the perspective of the purposes of the Act, under the usual rules governing employer-employee relationships.

It is to those rules that we now turn. We focus on the determination of whether Sagebrush was Rivera's employer for purposes of the Act. Although Sagebrush has argued, both below and on appeal, that it is Rivera's statutory employer under NMSA 1978, Section 52-1-22 (Repl.Pamp.1991), the cases that it relied on, both below and on appeal, are special- or borrowed-employee cases. We directed the parties' attention to the distinction between statutory and special employees and held oral argument in this matter. We learned that the distinction is a matter of some confusion within the practicing bar, with some people taking the position that there is no distinction and that borrowed employees are just one sort of statutory employee. We disagree with this position and take this opportunity to sort out the different types of employees, the special rules applicable to each, and the situations to which the special rules apply. We first address special or borrowed employees, which we believe is the concept that applies to this case. We conclude with a discussion of the concept of statutory employees.

There is no dispute that Madden was Rivera's direct or general employer. Under the undisputed facts of this case, we conclude that Sagebrush was Rivera's special employer at the time of the accidental injury. See 1B Arthur Larson, The Law of Workmen's Compensation Sec. 48.23, at 8-515 to -532 (1993) (hereinafter Larson) (when the general employer merely arranges for labor for another entity, without providing heavy equipment, the worker generally becomes a special employee of the other entity). Under certain conditions, both the general and special employer are liable for workers' compensation. See Larson, supra, Sec. 48.00, at 8-434. The special employer is liable when:

(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.

Id. See Johnson v. Aztec Well Servicing, Inc., 117 N.M. 697, 699, 875 P.2d 1128, 1130 (Ct.App.1994). See also Wuertz v. Howard, 77 N.M. 228, 421 P.2d 441 (1966); Shipman v. Macco Corp., 74 N.M. 174, 178, 392 P.2d 9, 11-12 (1964).

In determining whether the employee has made a contract of hire with the special employer, the employee must have consented to the employment relationship. See Larson, supra, Secs. 48.11 & 48.12, at 8-434 to -445. In the present case, there is no dispute that Rivera accepted the assignment from Madden to work for Sagebrush. This undisputed fact is sufficient to establish as a matter of law an implied contract of hire existed between Rivera and Sagebrush. See Larson, supra, Sec. 48.15, 8-464 to -470. See, e.g., Antheunisse v. Tiffany & Co., 229 N.J.Super. 399, 551 A.2d 1006, 1008 (App.Div.1988) (worker knew she would be hired out to various employers and impliedly contracted with the special employer when she voluntarily reported to work and followed the instructions of the special employer), cert. denied, 115 N.J. 59, 556 A.2d 1206 (1989); Santa Cruz Poultry, Inc. v. Superior Ct., 194 Cal.App.3d 575, 239 Cal.Rptr. 578, 580, 582-83 (1987) (special employer's control over worker's job performance implies, as a matter of law, the employment relationship between them); English v. Lehigh County Auth., 286 Pa.Super. 312, 428 A.2d 1343, 1353-54 (1981) (consent to employment demonstrated by worker's submitting himself to the control and supervision of the special employer); Wright v. Habco, Inc., 419 S.W.2d 34, 36 (Mo.1967) (fact that worker entered into employment relationship with a labor broker constituted consent to work for special employers; worker also had gone to special employer's premises and worked under its supervision for several weeks before the accidental injury); see also Jelso v. World Balloon Corp., 97 N.M. 164, 167, 637 P.2d 846, 849 (Ct.App.1981) (whether the status of an employer-employee relationship exists is a question of law if the material facts are undisputed).

In this connection, Guerrero v. Standard Alloys Manufacturing Co., 566 S.W.2d 100 (Tex.Civ.App.1978), relied on by Rivera, is distinguishable. In that case, the plaintiff did not speak English, and the defendant's supervisors did not speak Spanish. The labor broker stopped at plaintiff's work site several times a week to supervise the work. These facts among others raised a question of fact as to who was the employer. The facts are not at all similar in this case.

The fact that Rivera's affidavit asserted that he had no employment contract with Sagebrush and that he had not been told he would be considered Sagebrush's employee for purposes of the Act does not change this result. See, e.g., English, 428 A.2d at 1354 (characterization of relationship by worker or employer does not control determination of whether employment relationship exists). Similarly, Sagebrush's interrogatory answer stating that it did not have a written or oral employment contract with Rivera does not create a genuine issue of material fact. See id.; Whitehead v. Safeway Steel Prods., Inc., 304 Md. 67, 497 A.2d 803, 812 (1985) (special employer's answer to interrogatory that failed to list worker as an employee was not dispositive of legal question concerning existence of employment relationship, which depended on worker's submission to the control of the special employer).

The work that Rivera was doing, tagging lumber, was clearly the work of Sagebrush, which was in the lumberyard business, as opposed to the work of Madden, which was in the business of recruiting and supplying temporary laborers. Rivera's complaint alleged that he was injured when an employee of Sagebrush instructed him to step on a forklift operated by an employee of Sagebrush in order to tag a stack of lumber on a flatbed truck. There was evidence that Sagebrush was training Rivera as a tally man to...