Taft v. Brinley's Grading Servs., Inc.

• Decision Date: 05 February 2013
• Docket Number: No. COA12–790.,COA12–790.
• Citation: 738 S.E.2d 741
• Parties: Donna W. TAFT, Administratrix of the Estate of Michael Wayne Paul, Jr., Plaintiff, v. BRINLEY'S GRADING SERVICES, INC., Ismael Dominguez and Thomas E. Brinley, Sr., Defendants.
• Court: North Carolina Court of Appeals

738 S.E.2d 741

Donna W. TAFT, Administratrix of the Estate of Michael Wayne Paul, Jr., Plaintiff,

v.BRINLEY'S GRADING SERVICES, INC., Ismael Dominguez and Thomas E. Brinley, Sr., Defendants.

No. COA12–790.

Court of Appeals of North Carolina.

Feb. 5, 2013.

Appeal by plaintiff from orders entered 4 January 2012 by Judge W. Russell Duke, Jr. in Pitt County Superior Court. Heard in the Court of Appeals 11 September 2012.

Abrams & Abrams, P.A., Raleigh, by Douglas B. Abrams, Margaret S. Abrams, and Noah B. Abrams; and Taft, Taft & Haigler, P.A., Greenville, by Thomas F. Taft, for plaintiff-appellant.

Bryant, Lewis & Lindsley, P.A., by David O. Lewis, Durham, for defendants-appellees Brinley's Grading Services, Inc. and Thomas E. Brinley, Sr.

GEER, Judge.

Plaintiff Donna W. Taft, administratrix for the Estate of Michael Wayne Paul, Jr., appeals from the trial court's orders granting summary judgment to defendants Brinley's Grading Services, Inc. and Thomas E. Brinley, Sr. Plaintiff brought a wrongful death action based upon a workplace accident resulting in Mr. Paul's death. Plaintiff primarily argues on appeal that the trial court erred in granting summary judgment to Brinley's Grading on plaintiff's claims based on the exclusivity provision of the Workers' Compensation Act. SeeN.C. Gen.Stat. § 97–10.1 (2011). We agree that the evidence in the record gives rise to genuine issues of material fact regarding whether Mr. Paul, who was actually employed by a company other than Brinley's Grading, amounted to a “special employee” subject to the Workers' Compensation Act's exclusivity provision.

Because we also find that plaintiff presented sufficient evidence to defeat summary judgment of Brinley's Grading's vicarious liability for the acts of defendant Ismael Dominguez, we reverse the trial court's order entering summary judgment for Brinley's Grading. We affirm the order granting summary judgment to Mr. Brinley.

Facts

On 14 February 2008, Mr. Paul was an employee of Pro–Tech Management & Equipment Services, Inc. and was working at Brinley's Grading's facility in Durham, North Carolina pursuant to an “Employee Leasing Agreement” between Pro–Tech and Brinley's Grading. At approximately 7:20 a.m., Mr. Paul was beside a large commercial trailer working to load it for travel to a worksite. At the same time, Mr. Dominguez, an employee of Brinley's Grading, started a Brinley's Grading pickup truck that was facing the trailer, put the truck in gear, and popped the clutch. The truck lunged forward and pinned Mr. Paul in between the front bumper of the truck and the trailer. As a result of the collision, Mr. Paul sustained injuries leading to his death.

On 26 January 2010, plaintiff filed a wrongful death action against Brinley's Grading, Mr. Brinley (the president of Brinley's Grading), and Mr. Dominguez asserting that Mr. Paul's death was the result of their negligence. On 31 March 2010, Brinley's Grading and Mr. Brinley filed an answer denying the material factual allegations of the complaint and asserting as defenses contributory negligence and the fellow servant doctrine. Mr. Dominguez, who left the scene immediately after the accident, did not file an answer, has not been located by the parties since the accident, and was never interviewed or deposed.

On 15 November 2011, Brinley's Grading filed a motion for summary judgment. Brinley's Grading contended that Mr. Paul was a “special employee” of Brinley's Grading and a fellow servant of Mr. Dominguez at the time of the accident and, therefore, plaintiff's claims were barred by the exclusivity provision of the Workers' Compensation Act set out in N.C. Gen.Stat. § 97–10.1 and the fellow servant doctrine. Brinley's Grading further argued that Ms. Taft could not show that Mr. Dominguez was acting within the scope of his employment, that Brinley's Grading was in any way negligent, or that any negligence was the proximate cause of Mr. Paul's death.

Also on 15 November 2011, Mr. Brinley filed a separate motion for summary judgment. Mr. Brinley argued that Ms. Taft could not show that Mr. Brinley was responsible for the day-to-day operations of Brinley's Grading, that Mr. Brinley was in any way negligent, that any negligence was the proximate cause of Mr. Paul's death, or that Mr. Brinley possessed actual or constructive knowledge of any dangerous condition existing on the premises of the Durham facility where the accident occurred.

On 4 January 2012, the trial court entered an order granting summary judgment to Brinley's Grading and a separate order granting summary judgment to Mr. Brinley. Plaintiff timely appealed both orders to this Court.

Discussion

A motion for summary judgment may be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” N.C.R. Civ. P. 56(c). In deciding the motion, “ ‘all inferences of fact ... must be drawn against the movant and in favor of the party opposing the motion.’ ” Caldwell v. Deese, 288 N.C. 375, 378, 218 S.E.2d 379, 381 (1975) (quoting 6 James W. Moore et al., Moore's Federal Practice § 56–15[3], at 2337 (2d ed.1971)).

The party moving for summary judgment has the burden of establishing the lack of any triable issue. Collingwood v. Gen. Elec. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). Once the moving party meets its burden, then the non-moving party must “produce a forecast of evidence demonstrating that the plaintiff will be able to make out at least a prima facie case at trial.” Id. We review a trial court's grant of summary judgment de novo. Coastal Plains Utils., Inc. v. New Hanover Cnty., 166 N.C.App. 333, 340–41, 601 S.E.2d 915, 920 (2004).

I

Plaintiff first contends that the trial court erred in granting summary judgment to Brinley's Grading based on the exclusivity provision of the Workers' Compensation Act contained in N.C. Gen.Stat. § 97–10.1. N.C. Gen.Stat. § 97–10.1 provides:

If the employee and the employer are subject to and have complied with the provisions of this Article, then the rights and remedies herein granted to the employee, his dependents, next of kin, or personal representative shall exclude all other rights and remedies of the employee, his dependents, next of kin, or representative as against the employer at common law or otherwise on account of such injury or death.

Under the Act, “ ‘employee’ ” is defined in part as “every person engaged in an employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written....” N.C. Gen.Stat. § 97–2(2) (2011).

In addition to the definition of employee set out in the Workers' Compensation Act, our courts have adopted the “special employment” doctrine, which provides that, for purposes of the Workers' Compensation Act, “under certain circumstances a person can be an employee of two different employers at the same time.” Brown v. Friday Servs., Inc., 119 N.C.App. 753, 759, 460 S.E.2d 356, 360 (1995). When the special employment doctrine applies, the joint liability under the Act of the company that directly employs the employee (the “general” employer) and a second company (the “special” employer) provides the plaintiff-employee with two separate potential sources of workers' compensation benefits. Shelton v. Steelcase, Inc., 197 N.C.App. 404, 410, 677 S.E.2d 485, 491 (2009); Brown, 119 N.C.App. at 759, 460 S.E.2d at 360. However, under the special employment doctrine, the employee's receipt of workers' compensation benefits from either employer bars the employee from proceeding at common law against either of the employers. Id.

Defendants contend that the exclusivity provision applies to bar plaintiff's claims against Brinley's Grading because Mr. Paul qualified as an employee of both Pro–Tech and Brinley's Grading under the Workers' Compensation Act pursuant to the special employment doctrine, and plaintiff had already received workers' compensation benefits from Pro–Tech.

Our courts apply a three-prong test to determine whether the employee is a “special employee” for purposes of the Workers' Compensation Act's exclusivity provision:

“When a general employer lends an employee to a special employer, the special employer becomes liable for workmen's compensation only if:

(a) the employee has made a contract of hire, express or implied, with the special employer;

(b) the work being done is essentially that of the special employer; and

(c) the special employer has the right to control the details of the work.

When all three of the above conditions are satisfied in relation to both employers, both employers are liable for worker's compensation.”

Anderson v. Demolition Dynamics, Inc., 136 N.C.App. 603, 606, 525 S.E.2d 471, 473 (2000) (quoting 3 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 67 (1999)). In addition, “[c]ontinuance of the ‘general’ employment is presumed, and the party asserting otherwise must make a ‘clear demonstration that a new ... employer [was] substituted for the old.’ ” Id. at 607, 525 S.E.2d at 473 (quoting Larson's § 67.02).

The first prong of the special employer test asks whether Mr. Paul entered into a contract for hire with Brinley's Grading. This Court has described the “contract requirement” as “crucial” because the application of the special employment doctrine results in the employee losing the right to sue the special employer at common law for negligence. Id.

In Anderson, the defendant—much like defendants here—argued that the first prong was established by evidence that the decedent “ ‘expressly accepted’ ” employment with the defendant when, after being contacted by the defendant, he sought permission from the general employer to work at the defendant's site and then “ ‘accepted that assignment’ ” by coming to the worksite. Id. at 608, 525...