Venezia v. Egan, 94-1742

CourtCourt of Appeal of Florida (US)
Citation671 So.2d 175
Parties21 Fla. L. Weekly D555 Nicholas R. VENEZIA, Appellant, v. Andy EGAN and R. & J. Crane Service, Inc. etc., Appellees.
Docket NumberNo. 94-1742,94-1742
Decision Date01 March 1996

Page 175

671 So.2d 175
21 Fla. L. Weekly D555
Nicholas R. VENEZIA, Appellant,
Andy EGAN and R. & J. Crane Service, Inc. etc., Appellees.
No. 94-1742.
District Court of Appeal of Florida,
Fifth District.
March 1, 1996.
Rehearing Denied April 8, 1996.

Page 176

Appeal from the Circuit Court for Brevard County; Lawrence V. Johnston, Judge.

Roy D. Wasson, Miami and Hubert C. Childress of Childress and Charpentier, P.A., Melbourne, for Appellant.

Kenneth E. Cohen of Kroll & Tract, P.A., Miami, for Appellees.

ANTOON, Judge.

Nicholas Venezia, an employee of East Coast Welding (ECW), sued R. & J. Crane Services, Inc. and Andy Egan for negligence. R. & J. Crane raised the defense of "borrowed servant immunity" under Florida's Workers' Compensation Law, section 440.11(2), Florida Statutes (1991). Finding, as a matter of law, that Egan was the "borrowed servant" of ECW, the trial court entered final summary judgment in favor of R. & J. Crane and Egan. We reverse.

Venezia, an iron worker, was employed by ECW, a subcontractor on a construction project at St. Joseph Church in Palm Bay. ECW leased a crane from R. & J. Crane for the specific purpose of unloading steel beams from a truck and properly setting them. R. & J. Crane also provided ECW with Egan, a trained crane operator, in the general employment of R. & J. Crane. Prior to commencing work, Egan discussed the details of the job with Venezia and Lambert, another ECW employee. The work then began. Venezia and Lambert hooked the beams to the crane, and Venezia, standing on the flatbed of a truck, gave hand signals to Egan, who operated the crane. According to Venezia, he hooked a 14,000 pound beam to the crane, but before he gave the appropriate hand signal, Egan lifted the beam forcing Venezia to jump off of the truck to avoid being struck by the beam. Venezia was injured when he landed.

After Venezia received workers' compensation benefits through ECW, he instituted this lawsuit against R. & J. Crane and Egan, alleging negligent operation of the crane as the proximate cause of his injury. In response, R. & J. Crane and Egan raised the defense of the borrowed servant immunity doctrine. The trial court entered summary judgment on this issue in favor of R. & J. Crane and Egan, concluding that Egan was the borrowed servant of ECW. The key issue on appeal is whether the court erred in so ruling.

The party moving for summary judgment has the burden to prove conclusively the nonexistence of any genuine issue of material fact. Juno Industries, Inc. v. Heery Intern, 646 So.2d 818, 821 (Fla. 5th

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DCA 1994). On appellate review, we must view the evidence in the light most favorable to the appellant and must draw all competing inferences in favor of the appellant. Robbins v. Hess, 659 So.2d 424 (Fla. 1st DCA 1995). "If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined." Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). See also Crandall v. Southwest Florida Blood Bank, Inc., 581 So.2d 593 (Fla. 2d DCA 1991). The instant record contains genuine issues of material fact regarding Egan's status as a borrowed servant of ECW and thus, entry of summary judgment was improper.

In Shelby Mutual Insurance Co. v. Aetna Insurance Co., 246 So.2d 98 (Fla.1971), our supreme court held that in a situation where a presumption of continuing general employment exists, such presumption can be overcome only upon a clear demonstration that new temporary employment has been substituted for the general employment. The Shelby test for determining whether the presumption in favor of general employment has been overcome, and thereby an employee had become a borrowed servant, was aptly summarized in Crawford v. Florida Steel Corp., 478 So.2d 855, 859 (Fla. 1st DCA 1985), as follows:

The courts have generally agreed that the criteria for determining the existence of an employer-employee relationship for purposes of the "borrowed servant" doctrine are: (1) whether a contract for hire, expressed or implied, exists between the employee and the alleged special employer; (2) whether the work being done at the time of the injury was essentially that of the alleged special employer; and (3) whether the power to control the details of work being done at the time of the accident resided in the alleged special employer. Rumsey, [v. Eastern Distribution, Inc., 445 So.2d 1085 (Fla. 1st DCA 1984) ] supra; Hamilton v. Shell Oil Company, 215 So.2d 21 (Fla. 4th DCA 1968), later appealed, 233 So.2d 179 (Fla. 4th DCA 1970), cert. denied, 237 So.2d 762 (Fla.1970); see generally, 1C Larson, Law of Workmen's Compensation, § 48.00 (1985). The factors referred to are not equal, the first factor being the most important, and the second and third factors being merely indicators of the existence of the first factor. Shelby Mutual Insurance Company v. Aetna Insurance Co., 246 So.2d 98, 101 n. 5 (Fla.1971). Since the contract for hire to be proved is frequently an implied one, factors showing a consensual relationship such as benefit, right of control and payment of compensation are sometimes considered. Id. at 101.

The application of this presumption in favor of continuing general employment in situations involving heavy equipment leased along with an operator was explained by Judge Griffin in Sherrill v. Corbett Cranes Services, Inc., 656 So.2d 181, 186 (Fla. 5th DCA 1995) by reference to the Restatement (Second) of Agency § 227, cmt. c (1958):

A continuance of general employment is also indicated in the operation of a machine where the general employer rents the machine and a servant to operate it, particularly if the instrumentality is of considerable value. Normally, the general employer expects the employee to protect his interests in the use of the instrumentality, and these may be opposed to the interests of the temporary employer. If the servant is expected only to give results called for by the temporary employer and to use the instrumentality as the servant would expect his general employer would desire, the original service continues. Upon this question, the fact that the general employer is in the business of renting machines and men is relevant, since in such case there is more likely to be an intent to retain control over the instrumentality. A person who is not in such business and who, gratuitously or not, as a matter not within his general business enterprise, permits his servant instrumentality to assist another, is more apt to intend to surrender control.

Stated another way, the presumption of continued general employment makes particularly good sense in those situations where an employee is provided for the specific purpose

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of operating heavy equipment belonging to the lending employer because the lending employer, who owns expensive and often complex machinery, would naturally prefer to continue control and maintenance of that machinery, and thus be reluctant to lease his equipment without also sending along an employee who has knowledge of the equipment and an interest in seeing that the equipment is used and maintained properly.

Application of the Shelby criteria in the instant case leads us to the conclusion that there is a genuine issue of fact as to whether Egan was the borrowed servant of ECW. First, we address the requirement that there be "a contract for hire" between the employee, Egan, and the special employer, ECW. The record does not include an express contract between Egan and ECW, but R. & J. Crane maintains that an implied contract existed between Egan and ECW, evidenced by a document prepared by R. & J. Crane and signed by ECW. The document, a 5 1/2"' by 8"' form, indicated that a crane was ordered from R. & J. Crane to "set steel" at an unspecified church in Palm Bay on May 11, 1992, that the work would begin at 8:00 and conclude at 1:30, and that Egan would be the operator of the crane. The document also included the price to be paid to R. & J. Crane, and disclaimers in small print at the bottom. There was no indication concerning the details of the work to be done by Egan, or how and by whom Egan was to be paid. As pointed out by Venezia, the record is unclear as to whether the document existed prior to the accident, or was actually the "job ticket" drafted by Egan at the completion of the job. Moreover, even if the document could be construed as a contract, there is no record evidence that Egan had knowledge of the details of the contract. Shelby provides that such knowledge is critical to the determination of whether Egan was a borrowed servant. Lund v. General Crane, Inc., 638 So.2d 146 (Fla. 4th DCA), rev. denied, 649 So.2d 233 (Fla.1994); Pepperidge Farm, Inc. v. Booher, 446 So.2d 1132 (Fla. 4th DCA 1984), approved, 468 So.2d 985 (Fla.1985). The question also remains as to whether Egan's consent to the new employment was deliberate and informed so as to constitute a bar to an action for negligence. See Sagarino v. Marriott Corporation, 644 So.2d 162 (Fla. 4th DCA 1994).

As for the second prong of the Shelby test, the record is clear that the work being done at the time of Venezia's injury was essentially for the benefit of the alleged special employer, ECW. However, there are serious questions regarding the third prong of the test--whether ECW had the power to control the details of the work being done by Egan. Although the affidavits of representatives of R. & J. Crane and ECW included general statements that Egan was under the control of ECW, the affidavits were void of any detail. Furthermore, the record contains no details as to whether R. & J. Crane told Egan which crane to use on this job. With regard to the issue of control, Egan testified in his deposition that although he conferred with ECW personnel about the details of the lift, he would not necessarily...

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