Santa Cruz Poultry, Inc. v. Superior Court

• Decision Date: 27 August 1987
• Citation: 239 Cal.Rptr. 578,194 Cal.App.3d 575
• Court: California Court of Appeals Court of Appeals
• Parties: SANTA CRUZ POULTRY, INC., Petitioner, v. The SUPERIOR COURT of Santa Cruz County, Respondent; David C. STIER, et al., Real Parties in Interest. H003090.

Page 578

239 Cal.Rptr. 578

194 Cal.App.3d 575

SANTA CRUZ POULTRY, INC., Petitioner, v. The SUPERIOR COURT of Santa Cruz County, Respondent;

David C. STIER, et al., Real Parties in Interest.

H003090.

Court of Appeal, Sixth District, California.

Aug. 27, 1987.

[194 Cal.App.3d 576]

Page 579

Timothy J. Walsh, Grunsky, Pybrum, Ebey & Farrar, Watsonville, for petitioner

No appearance for respondent.

[194 Cal.App.3d 577] Paul B. Watkins, Goshkin, Pollatsek, Meredith & Lee, Inc., San Francisco, Lark A. Lucas, Robert J. Ricks, Glynn & Harvey, Stockton, for real parties in interest.

AGLIANO, Presiding Justice.

A temporary employee furnished by Manpower, Inc., was injured on a one-day job assignment to the business Santa Cruz Poultry, Inc. The employee, Stier, sued Santa Cruz Poultry (SCP) for damages for his injuries, and SCP, by motion for summary judgment, asserted exclusivity of Stier's worker's compensation remedy. The trial court denied summary judgment, and SCP seeks statutory mandate under Code of Civil Procedure section 437c, subdivision (l ). The issue is whether a temporary employee who finds work through the services of an agency such as Manpower, Inc., may bring a negligence action for industrial injuries received on the job against the employer to whom he is assigned, or whether he is relegated to a claim for worker's compensation under the provisions of Labor Code section 3601. We have concluded where the employer has supervision and control over the employee's job duties, as here, then the employee is in a special employment relationship with that employer. Under such circumstances the exclusive remedy for job-related injuries is worker's compensation. Accordingly we will issue a writ of mandate compelling summary judgment in favor of the employer, SCP.

FACTS

David C. Stier and Citation Insurance Company (Citation) brought this negligence action against petitioner, Santa Cruz Poultry, Inc., Stier claiming damages for injuries sustained on the job while working as a temporary employee for SCP, and Citation claiming a lien for worker's compensation benefits paid to Stier as the compensation carrier for Manpower, Inc., the temporary labor agency which referred Stier to SCP. It is undisputed Stier received an industrial injury while temporarily employed by SCP on New Year's Eve, 1984, helping to deliver wholesale poultry products.

Stier's assignment was for one day only.

Stier was on Manpower's payroll and had the option of refusing any work assignment.

Stier was injured when attempting to jump onto a delivery truck belonging to SCP. He did so at the direction of its driver, an SCP employee who also supervised and controlled Stier's work. The trial court found as an [194 Cal.App.3d 578] issue without controversy that SCP had the ability to control the result of Stier's work and the means by which it was accomplished including the details relating to his job performance at the time of the injuries alleged.

Stier offered documents in which Manpower reminds its employees that it, and not the company they may be temporarily assigned to, is their employer. Instruction sheets given to Manpower employees encourage them to come to Manpower for assistance if a job is not going smoothly or if problems arise. It also emphasizes the employee's right to refuse an assignment.

Page 580

Stier also pointed to deposition testimony of Richard Johnson, president of SCP, who stated that SCP was not Stier's employer on the date of injury. He testified: " 'No. This was not our employee; this was a Manpower employee.... And we notified Manpower Services immediately that an injury to one of their employees had occurred." [p] Well, I don't hire people from Manpower. I hire Manpower. They provide people for me. That is a clarification that must be made.' "

All parties have conceded Stier's injury was industrial. Manpower's compensation carrier, Citation, has paid benefits and seeks a lien in Stier's action against SCP.

DISCUSSION

Although Stier has strongly emphasized the existence of his employment relationship with Manpower, that unquestionable relationship is not controlling in this situation. An employee may have more than one employer for purposes of worker's compensation, and in situations of dual employers, the second or "special" employer may enjoy the same immunity from a common law negligence action on account of an industrial injury as does the first or "general" employer. Identifying and analyzing such situations "is one of the most ancient and complex questions of law in not only compensation but tort law." (1C Larson, Workmen's Compensation Law, (1986 supp.) § 48.23, p. 19.)

Once a special employment relationship is identified, two consequences ensue: (1) the special employer's liability for worker's compensation coverage to the employee, and (2) the employer's immunity from a common law tort action, the latter consequence flowing from the exclusivity of the compensation remedy embodied in Labor Code section 3601. Larson sets out three factors generally regarded as determining whether the special employer is liable for worker's compensation: (a) Whether the employee has made a contract of hire, express or implied, with the special employer; [p] (b) Whether the work being done is essentially that of the special employer; and [p] (c) [194 Cal.App.3d 579] Whether the special employer has the right to control the details of the work. (1C Larson, Workmen's Compensation Law, § 48.00, p. 8-405.)

According to Larson, supra, in cases such as this where the general employer is a temporary employment agency like Manpower, Inc., and the business to which the employee is assigned has the right of supervision and direction of the employment duties, the typical result is to find the existence of a special employment relationship. "[E]mployers obtaining workers from the kind of labor service typified by Manpower, Inc. have usually, but not invariably, been held to assume the status of special employer." (1C Larson, Workmen's Compensation Law, § 48.23, p. 8-488--8-489, fns. omitted.)

Further, Larson points out that this issue is properly a question of law. He cites recent decisions from various jurisdictions which imply the special employment relationship from the existence of control over the employee's job duties. Whether there is control may indeed be a question of fact, but if it exists, then the special relationship normally follows as a matter of law. (See discussion in 1C Larson, Workmen's Compensation Law, § 48.23, p. 8-470; id. (1986 supp.) p. 19; see such decisions as Pettaway v. Mobile Paint Mfg. Co., Inc. (Ala. 1985) 467 So.2d 228 [Manpower case]; Nation v. Weiner (App.1985), 145 Ariz. 414, 701 P.2d 1222; Whitehead v. Safway Steel Products (1985) 304 Md. 67, 497 A.2d 803 [holding the issue is one of law].)

In accordance with these principles, the California Supreme Court decision in Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 492, 162 Cal.Rptr. 320, 606 P.2d 355, says, "The special employment relationship and its consequent imposition of liability upon the special employer [on the basis of respondeat superior] flows from the borrower's power to supervise the details of the employee's work." That case involved a "lent employee" situation. The decision treats the factor of control as primary in determining whether a new employment relationship arises. The primacy of control in determining respondeat superior liability

Page 581

is equally relevant, under the precedent discussed above, when applied to determining applicability of worker's compensation

Here, the trial court denied summary judgment, although finding SCP had the right to control Stier's job performance, because the judge felt compelled to treat the existence of the special employment relationship as a question of fact under the California Supreme Court decision in Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 151 Cal.Rptr. 671, 588 P.2d 811. The Kowalski decision discusses language in Larson concerning the existence of the first requirement of a special employment relationship stated above, namely, whether there is a contract of hire with the employer. With respect to that requisite, Larson notes the employee's informed consent to such a [194 Cal.App.3d 580] contract is required, because he gives up rights when he enters into a new employment relationship, specifically the right to sue the employer at common law for negligence, and therefore it is necessary to show deliberate, informed consent to establish the existence of the new relationship. (1C Larson, Workmen's Compensation Law, § 48.12, p. 8-409.) The Kowalski decision also states the necessity to find such consent. (Kowalski v. Shell Oil Co., supra, 23 Cal.3d 168, 178, note 10, 151 Cal.Rptr. 671, 588 P.2d 811 and accompanying text.) However, we believe a careful analysis of the Kowalski decision reveals that decision is consistent with the general precedent discussed above which implies the special employment relationship as a matter of law from the existence of control.

In Kowalski, a jury found plaintiff not to be the special employee of defendant, on whose job site plaintiff had been working. The Supreme Court reversed a judgment notwithstanding the verdict for the defendant employer on facts showing defendant and his employees had no control over plaintiff's work, plaintiff was on the general employer's payroll, plaintiff was on a temporary assignment to defendant, the general employer furnished most of the tools and equipment used, defendant could not terminate plaintiff's employment, and plaintiff was unaware of a contract between the two employers purportedly establishing a special employment relationship. The facts showed Peterson, the general employer, and an independent contractor, entered into a maintenance contract with Shell Oil. Peterson provided its employees to do the work for Shell, including Kowalski who was injured on the job site. While performing the work...