Thornton v. Paktank Florida, Inc., s. 79-2174

• Decision Date: 09 December 1981
• Docket Number: 80-42,Nos. 79-2174,s. 79-2174
• Citation: 409 So.2d 31
• Parties: Fulton THORNTON, Appellant, v. PAKTANK FLORIDA, INC., Appellee.
• Court: Florida District Court of Appeals

Page 31

409 So.2d 31

1983 A.M.C. 2802

Fulton THORNTON, Appellant, v. PAKTANK FLORIDA, INC., Appellee.

Nos. 79-2174, 80-42.

District Court of Appeal of Florida, Second District.

Dec. 9, 1981.

As Corrected Dec. 15, 1981.

Rehearings Denied Jan. 29, 1982.

Roger Vaughan, of Wagner, Cunningham, Vaughan, Genders & McLaughlin, Tampa, and Joel D. Eaton of Podhurst, Orseck & Parks, Miami, for appellant.

T. Paine Kelly, Jr., of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee.

OTT, Judge.

Appellant was injured while working on a coal barge appellee had contracted to clean. He sued for negligence, but the trial court directed a verdict in favor of appellee on the ground that appellee was his employer and therefore immune from liability for common law negligence. We reverse.

Appellant was a member of a crew hired by an independent contractor, Gale Porter Temporary Help, for the specific and sole purpose of performing appellee's duties under its contract with the barge owner. The contract between appellee and Temporary Help expressly provided that the workers thus furnished to appellee would not be employees of appellee for any purpose. All the employment and tax records showed Temporary Help as the employer of the workers, and all wages were paid by Temporary Help, which billed appellee at a rate which included the wages, overhead and profit on each worker. The overhead portion of such rate included the premiums which Temporary Help paid for compensation insurance under the requirements of the Longshoremen's and Harbor Workers' Compensation Act. Appellee did not carry compensation insurance covering the crew.

Special work clothes for the crews were provided by Temporary Help, while appellee furnished all necessary tools and also provided the necessary supervision of the work being done. Appellee had no power to fire the workmen, but could send them, or any of them, off the job and back to Temporary Help's office. In such event, employment of the "rejected" worker would be terminated because Temporary Help never hired anyone until a specific request for manpower was received, whereupon new employment forms were prepared, even for those workers who regularly filled Temporary Help's contracts.

The trial court concluded that the undisputed facts established, as a matter of law, appellee's immunity from common law negligence by virtue of the so-called "borrowed employee" doctrine. See, generally, Ruiz v. Shell Oil Co., 413 F.2d 310 (5th Cir. 1969), and Gaudet v. Exxon Corp., 562 F.2d 351 (5th Cir. 1977), cert. denied, 436 U.S. 913, 98 S.Ct. 2253, 56 L.Ed.2d 414 (1978), for extensive discussions of the various criteria for determining when a worker, regularly employed by one employer, can become a temporary employee of someone who merely "borrows" him for a specified period or job. The doctrine is predicated on common experience that, under modern business practices, an employee may be employed by more than one employer, even while doing the same work. Beaver v. Jacuzzi Brothers, Inc., 454 F.2d 284 (8th Cir. 1972).

The one thing that is clear from all the cases is that it is essential that the borrowed worker actually become the employee, even if only temporarily, of the borrower. If that never occurs, the doctrine never applies. Dugas v. Pelican Construction Co., Inc., 481 F.2d 773 (5th Cir. 1973), cert. denied, 414 U.S. 1093, 94 S.Ct. 723, 38 L.Ed.2d 550 (1973). That question usually arises from the opposite side of the coin, when an injured employee attempts to collect workmen's compensation from a "temporary" employer. In section 48.00 of his text, Workmen's Compensation Law, Larson states the qualifications for application of the doctrine: "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, expressly or impliedly, 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 conditions are satisfied, both employers are liable for workmen's compensation."

The cases relied upon by appellee expressly recognize the principal element of the doctrine, and distinguish contrary results on the basis of the presence or absence of an express or implied contract of hire. Thus, in Maynard v. Kenova Chemical Co., 626 F.2d 359 (4th Cir. 1980), the court found temporary workers to be employees of the special employer, and distinguished its previous holding in a similar case, Kirby v. Union Carbide Corp., 373 F.2d 590 (4th Cir. 1967), noting that in Kirby a contract between the special employer and the regular employer specifically provided that the workers were to remain employees of the latter.

Our decision in Kirby was premised on the validity of the contractual arrangement between Dupont (regular employer) and Union Carbide.

626 F.2d at 361.

The facts at bench bear an additional similarity to an aspect of Kirby to which Maynard attached great significance. In Kirby, as here, the special employer had not assumed responsibility for payment of workmen's compensation benefits, and Maynard noted that distinction from its own facts, where the special employer had carried workmen's compensation insurance. That same factor seems to have influenced the result in yet another case relied upon by appellee, Huff v. Marine Tank Testing Corp., 631 F.2d 1140 (4th Cir. 1980), where the court pointed out that the special employer had covered the temporary employees with workmen's compensation insurance, whereas the regular employer had not. Evidently this arrangement implied an understanding and agreement that the workers were employees of the special employer.

The one case directly in point is Dugas v. Pelican Construction Co., Inc., supra, where the contract between the special employer and the regular employer expressly provided, as does the one at bench, that the workers would not be employees of the special employer "for any purpose." The Dugas court gave that provision paramount significance, and distinguished cases in which such a contract merely provided that the workers were to remain the employees of the regular employer.

In the instant case appellee's president informed appellant's attorney, upon initial contact regarding payment of workmen's compensation benefits, of that contract provision and thereafter adamantly insisted, even in deposition, that appellee was not appellant's employer. Only at trial did appellee's chief executive reverse himself and not only concede but insist that appellant indeed was an employee.

Notwithstanding that repudiation of a clause obviously designed to protect appellee from workmen's compensation liability, which was suddenly perceived as being not too onerous after all, the facts of this case simply do not support the conclusion that appellee ever actually became appellant's employer, or that there was any contract of hire, whether express or implied, between them. We think the case is governed by the reasoning and law enunciated in Dugas.

Accordingly, the judgment is REVERSED and the case REMANDED for trial on the issues of negligence and damages. Obviously, the postjudgment order taxing costs against appellant must be, and is, also set aside.

RYDER, J., concurs.

GRIMES, A. C. J., dissents with opinion.

GRIMES, Acting Chief Judge, dissenting.

In many borrowed servant cases, the real question is which employer actually controlled the employee's work. However, practically all of the borrowed servant cases involving general employers in the business of furnishing temporary help hold that an employee who is covered by his general employer's workmen's compensation cannot claim damages against his special employer for injuries suffered while working on the temporary job. Huff v. Marine Tank Testing Corp., 631 F.2d 1140 (4th Cir. 1980); Maynard v. Kenova Chemical Co., 626 F.2d 359 (4th Cir. 1980); Beaver v. Jacuzzi Brothers, Inc., 454 F.2d 284 (8th Cir. 1972); St. Claire v. Minnesota Harbor Service, Inc., 211 F.Supp. 521 (D.Minn.1962); Martin v. Phillips Petroleum Co., 42 Cal.App.3d 916, 117 Cal.Rptr. 269 (1974); Highway Insurance Co. v. Sears Roebuck & Co., 92 Ill.App.2d 214, 235 N.E.2d 309 (1968); Renfroe v. Higgins Rack Coating & Manufacturing Co., 17 Mich.App. 259, 169 N.W.2d 326 (1969); Danek v. Meldrum Manufacturing & Engineering Co., 312 Minn. 404, 252 N.W.2d 255 (1977); Wright v. Habco, Inc., 419 S.W.2d 34 (Mo.1967); Chickachop v. Manpower, Inc., 84 N.J.Super. 129, 201 A.2d 90 (1964); Shipman v. Macco Corp., 74 N.M. 174, 392 P.2d 9 (1964); Daniels v. MacGregor Co., 2 Ohio St.2d 89, 206 N.E.2d 554 (1965); Meka v. Falk Corp., 102 Wis.2d 148, 306 N.W.2d 65 (1981). ¹ Probably the reason why the temporary help cases reach this result is that there is seldom any doubt that the special employer is controlling the details of the employment. Obviously, the company furnishing the temporary help is not engaged in the business of the customer to whom it has provided a temporary employee. Thus, a contract for hire with the special employer is implied...