Powers v Werner Enterprises

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Powers v Werner Enterprises

  1. 1. Page 12000 Neb. App. LEXIS 220, *2 of 100 DOCUMENTSROBERT POWERS, APPELLANT, v. WERNER ENTERPRISES, INC., ANEBRASKA CORPORATION, AND DRIVERS MANAGEMENT, INC., ANEBRASKA CORPORATION, APPELLEES.No. A-99-583.NEBRASKA COURT OFAPPEALS2000 Neb. App. LEXIS 220July 18, 2000, FiledNOTICE: [*1] NOT DESIGNATED FORPERMANENT PUBLICATION.PRIOR HISTORY: Appeal from the District Court forDouglas County: SANDRA L. DOUGHERTY, Judge.DISPOSITION: AFFIRMED.CASE SUMMARY:PROCEDURAL POSTURE: Appellant challengedorder from the District Court for Douglas County(Nebraska) granting summary judgment to appellees inworkers compensation case.OVERVIEW: Appellant challenged an order of thedistrict court granting summary judgment in favor ofappellees. Summary judgment was granted on the basisthat appellee employer was a special employer andentitled to the benefits of the exclusive remedy doctrineof workers compensation law. The court concluded thatthere was no genuine issue of material fact concerningthe applicability of the special employer doctrine. Allthree conditions of the special employer test wererequired to be met for a party to whom an employeesservices were loaned to be considered an employer underthe workers compensation laws. On appeal, appellanthad not challenged the courts findings that the threerequirements were sufficiently shown by appellees. Infact, at oral argument, appellant conceded that theelements were shown, but appellant argued that anexception to the rule should be applied. The court did notfind support for appellants assertion that an exceptionwas warranted, and the court affirmed the trial courtsfinding that the special employer doctrine applied.OUTCOME: Judgment was affirmed. Trial courtproperly found that special employer doctrine applied inworkers compensation case and there was no genuineissue as to the doctrines applicability.LexisNexis(R) HeadnotesCivil Procedure > Summary Judgment > AppellateReview > General OverviewCivil Procedure > Summary Judgment > Motions forSummary Judgment > General OverviewCivil Procedure > Summary Judgment > Standards >General Overview[HN1] In reviewing a trial courts ruling on a motion forsummary judgment, an appellate court views theevidence in a light most favorable to the party againstwhom the judgment is granted and gives such party thebenefit of all reasonable inferences deducible from theevidence. Summary judgment is proper only when thepleadings, depositions, admissions, stipulations, andaffidavits in the record disclose that there is no genuineissue as to any material fact or as to the ultimateinferences that may be drawn from those facts and thatthe moving party is entitled to judgment as a matter oflaw.Workers Compensation & SSDI > Coverage >Employment Relationships > Borrowed EmployeesWorkers Compensation & SSDI > Coverage >Employment Relationships > Employers[HN2] The Nebraska Supreme Court has recognized thespecial employer doctrine in situations involvingemployees who are loaned, or whose services are leased,by their primary employer to another party. The situation
  2. 2. Page 22000 Neb. App. LEXIS 220, *primarily arises where a person works for a temporaryservice or other employment agency and is placed onassignment with a third party. The question to beresolved is whether the person becomes an employee ofthe third party. If so, the persons sole remedy against hisor her primary employer and the third party is workerscompensation.Labor & Employment Law > EmploymentRelationships > Employment Contracts > Conditions &Terms > General OverviewWorkers Compensation & SSDI > Coverage >Employment Relationships > Borrowed EmployeesWorkers Compensation & SSDI > Coverage >Employment Relationships > Employers[HN3] When a general employer, such as a labor broker,loans an employee to another for the performance ofsome special service, then that employee may becomethe employee of the party to whom his or her serviceshave been loaned. If such is the case, then the employeeis simultaneously considered an employee of both thelabor broker and the party to whom his or her serviceswere loaned, and workers compensation would be thesole remedy for the employee as to either employer. Therelevant test for determining whether a party to whom anemployees services have been loaned is considered aspecial employer requires the following three conditionsto be met: (1) The employee has made a contract of hire,express or implied, with the special employer; (2) thework being done is essentially that of the specialemployer; and (3) the special employer has the right tocontrol the details of the work.Civil Procedure > Summary Judgment > Burdens ofProduction & Proof > MovantsCivil Procedure > Summary Judgment > EvidenceCivil Procedure > Summary Judgment > Opposition >General Overview[HN4] The party moving for summary judgment has theburden to show that no genuine issue of material factexists and must produce sufficient evidence todemonstrate that the moving party is entitled to ajudgment as a matter of law. A prima facie case forsummary judgment is shown by producing enoughevidence to demonstrate that the movant is entitled to ajudgment in its favor if the evidence were uncontrovertedat trial. If the moving party has shown a prima facie casefor summary judgment, the burden of producingevidence to show a genuine issue of material fact shiftsto the party opposing the motion.Torts > Procedure > Multiple Defendants > Joint &Several Liability[HN5] See Neb. Rev. Stat. § 25-21,239.COUNSEL: James E. Harris and Britany S. Shotkoski,of Harris, Feldman Law Offices, for appellant.Walter R. Metz, Jr., for appellees.JUDGES: IRWIN, Chief Judge, and SIEVERS andMOORE, Judges.OPINION BY: IRWINOPINIONIRWIN, Chief Judge.I. INTRODUCTIONRobert Powers appeals from an order of the districtcourt granting summary judgment in favor of WernerEnterprises, Inc. (Werner), and Drivers Management,Inc. (DMI) (collectively defendants). Summary judgmentwas granted on the basis that Werner was a specialemployer of Powers and entitled to the benefits of theexclusive remedy doctrine of workers compensation law.Because we find that there is no genuine issue ofmaterial fact, we affirm.II. BACKGROUNDOn December 17, 1997, Powers filed a secondamended petition alleging the following facts:Powers was employed by DMI as an over-the-roaddriver. On January 17, 1994, Powers suffered variousinjuries as the result of an accident involving a semi-truck in which Powers was a passenger. The truck wasbeing driven by a fellow DMI employee, and Powerswas [*2] in the sleeper berth of the truck. The truck wasowned by Werner.Powers alleged that DMI paid workerscompensation benefits, and DMI was named as adefendant in the present action for subrogation purposesonly. Powers alleged various acts of negligence on thepart of DMI. Powers sought to hold Werner jointly andseverally liable for the alleged negligence by DMIpursuant to a Nebraska statute governing leased trucks,Neb. Rev. Stat. § 25-21,239 (Cum. Supp. 1998). Powersfurther alleged that Werner breached variousnondelegable duties owed by interstate common carriersand that Werner was liable for negligent entrustment ofthe truck.On January 5, 1998, defendants filed an answer. Inthe answer, defendants alleged that Powers serviceswere leased from DMI to Werner, making Powers a jointemployee of defendants. DMI is a wholly ownedsubsidiary of a company known as Gra-Gar, Inc., whichin turn is a wholly owned subsidiary of Werner.Defendants specifically alleged that Powers claim wasbarred by the exclusive remedy doctrine of workerscompensation. Defendants alleged that Powers injuriesarose out of and during the course of his employment
  3. 3. Page 32000 Neb. App. LEXIS 220, *with defendants, that Powers workers [*3]compensation claim had been settled by virtue of a lump-sum settlement approved by the compensation court, andthat the workers compensation claim was Powersexclusive remedy against defendants.On February 18, 1999, defendants renewed anearlier motion for summary judgment. Defendantsasserted that there was not a genuine issue as to anymaterial fact and that the issues could be decided as amatter of law. Defendants alleged they were entitled tosummary judgment because of the exclusive remedyprovision of the workers compensation law and becausea provision of Powers lump-sum settlement approved bythe compensation court purported to dischargedefendants from all other liability arising out of thisaccident.On May 5, 1999, the court entered a memorandumand order. The court ruled on the motion for summaryjudgment specifically on the basis of whether Wernerwas a "special employer" of Powers pursuant to theNebraska Supreme Courts holding in Daniels v. Pamida,Inc., 251 Neb. 921, 561 N.W.2d 568 (1997). The courtfound that based on the factors outlined in Daniels,Werner was a special employer of Powers. As such, thecourt held that Werner was an employer [*4] of Powerswithin the meaning of the workers compensation lawand that Powers exclusive remedy was in workerscompensation. The court further specifically found thatthe Nebraska statute governing leased trucks wasinapplicable to this case, as the truck involved in theaccident was owned by Werner and was not leased to orfrom anyone. The court granted defendants motion forsummary judgment. This timely appeal followed.III. ASSIGNMENTS OF ERROROn appeal, Powers has assigned four errors, whichwe have consolidated for discussion to two. First, Powersasserts that the court erred in applying the specialemployer doctrine to the facts of the present case.Second, Powers asserts that the court erred in refusing toapply the truck owner liability statute to the facts of thepresent case.IV. ANALYSIS1. STANDARD OF REVIEW[HN1] In reviewing a trial courts ruling on a motionfor summary judgment, an appellate court views theevidence in a light most favorable to the party againstwhom the judgment is granted and gives such party thebenefit of all reasonable inferences deducible from theevidence. Keene v. Teten, 8 Neb. App. 819, 602 N.W.2d29 (1999). Summary judgment [*5] is proper only whenthe pleadings, depositions, admissions, stipulations, andaffidavits in the record disclose that there is no genuineissue as to any material fact or as to the ultimateinferences that may be drawn from those facts and thatthe moving party is entitled to judgment as a matter oflaw. Parnell v. Madonna Rehab. Hosp., 258 Neb. 125,602 N.W.2d 461 (1999).2. SPECIAL EMPLOYER DOCTRINEThe trial court granted defendants summaryjudgment on the basis that Werner was a specialemployer of Powers, and accordingly, Powers exclusiveremedy against defendants was the workerscompensation law. On appeal, Powers has asserted thatthe court erred in applying the exclusive remedy doctrineand in failing to hold that the facts of the present casewarrant an exception to the special employer doctrine.We conclude that there was no genuine issue of materialfact concerning the applicability of the special employerdoctrine in this case.(a) General Principles[HN2] The Nebraska Supreme Court has recognizedthe special employer doctrine in situations involvingemployees who are loaned, or whose services are leased,by their primary employer to another party. See, [*6]Kaiser v. Millard Lumber, 255 Neb. 943, 587 N.W.2d 875(1999); Daniels v. Pamida, Inc., 251 Neb. 921, 561N.W.2d 568 (1997). The situation primarily arises wherea person works for a temporary service or otheremployment agency and is placed on assignment with athird party. See, Kaiser v. Millard Lumber, supra;Daniels v. Pamida, Inc., supra. The question to beresolved is whether the person becomes an employee ofthe third party. See, Kaiser v. Millard Lumber, supra;Daniels v. Pamida, Inc., supra. If so, the persons soleremedy against his or her primary employer and the thirdparty is workers compensation. Kaiser v. MillardLumber, supra; Daniels v. Pamida, Inc., supra.[HN3] When a general employer, such as a laborbroker, loans an employee to another for the performanceof some special service, then that employee may becomethe employee of the party to whom his or her serviceshave been loaned. Kaiser v. Millard Lumber, supra;Daniels v. Pamida, Inc., supra. If such is the case, thenthe employee is simultaneously considered an [*7]employee of both the labor broker and the party to whomhis or her services were loaned, and workerscompensation would be the sole remedy for theemployee as to either employer. Kaiser v. MillardLumber, supra. The relevant test for determining whethera party to whom an employees services have beenloaned is considered a special employer requires thefollowing three conditions to be met: (1) The employeehas made a contract of hire, express or implied, with thespecial employer; (2) the work being done is essentiallythat of the special employer; and (3) the specialemployer has the right to control the details of the work.Id.; Daniels v. Pamida, Inc., supra.(b) Powers AssertionsOn appeal, Powers asserts that this appeal presentsan issue of first impression in Nebraska and that "anexception, uniformly recognized in other jurisdictions, tothe special employer rule" should be recognized by this
  4. 4. Page 42000 Neb. App. LEXIS 220, *court. Brief for appellant at 8. Powers provides a state-by-state analysis that purportedly demonstrates that"courts have consistently held that workerscompensation immunity . . . does not extend to parentcorporations that wholly own or own [*8] controllingshares of subsidiary corporations." Id. Our review of thecases outlined by Powers, however, reveals that they donot stand for any exception to the special employer rule,but, rather, represent factual situations that are distinctfrom the present case.The cases cited and discussed by Powers do indeedhold that parent or sibling corporations may not claimimmunity from civil liability through use of the exclusiveremedy doctrine of workers compensation simplybecause of their status of being somehow "related" to theinjured partys employer. In none of the cases cited byPowers, however, was the parent or sibling corporationthat sought immunity in a position to be a "specialemployer" of the injured employee. In none of the caseswere the employees services on loan to the parent orsibling corporation. In short, none of the cases cited byPowers presents a factual scenario in which the three-part test set forth above could be fulfilled. The cases donot stand for an exception to the special employerdoctrine, but, rather, represent cases where the facts donot establish the doctrines applicability.For example, in Smith v. CRST Intern., Inc., 553N.W.2d 890 [*9] (lowa 1996), a case Powers alleges is"directly on point," brief for appellant at 20, the lowaSupreme Court was not even presented with the questionof whether the parent corporation could be considered aspecial employer. In Smith, the plaintiff was employedby Lincoln and his services were leased to CRST. BothLincoln and CRST were wholly owned subsidiaries ofInternational. The plaintiff was injured in an accidentwhile he was a passenger in a truck owned by Rapid, awholly owned subsidiary of Lincoln. The plaintiff filed anegligence action against International, CRST, Rapid,and Lincoln. At trial, Lincoln and CRST were grantedsummary judgment on the basis of being the plaintiffsemployers. International was granted summary judgmenton the basis of not actively doing any business and beingmerely a holding company. Rapids motion for summaryjudgment on the basis of enjoying immunity because ofits relationship with the plaintiffs employers was denied,but it was granted summary judgment on other grounds.The only issue appealed was whether Rapid, as owner ofthe truck, was subject to liability under an lowa statutegoverning liability of truck owners. The grant ofsummary [*10] judgment to International and CRST,parent and sibling corporations, was not appealed from.There was no issue raised on appeal concerning thespecial employer doctrine. See id.(c) Application of Law to Facts[HN4] The party moving for summary judgment hasthe burden to show that no genuine issue of material factexists and must produce sufficient evidence todemonstrate that the moving party is entitled to ajudgment as a matter of law. Kaiser v. Millard Lumber,255 Neb. 943, 587 N.W.2d 875 (1999). A prima faciecase for summary judgment is shown by producingenough evidence to demonstrate that the movant isentitled to a judgment in its favor if the evidence wereuncontroverted at trial. Id. If the moving party has showna prima facie case for summary judgment, the burden ofproducing evidence to show a genuine issue of materialfact shifts to the party opposing the motion. Id.Accordingly, our analysis will focus upon, first, whetherWerner has presented facts proving a prima facie case forsummary judgment in its favor.As noted above, all three conditions of the specialemployer test must be met for a party to whom anemployees services are loaned to [*11] be considered anemployer under the workers compensation laws. Id. Onappeal, Powers has not challenged the courts findingsthat the three requirements were sufficiently shown byWerner. In fact, at oral argument, Powers conceded thatthe elements were shown, but Powers argues that anexception to the rule should be applied. As noted above,we do not find support for Powers assertion that anexception is warranted, and we affirm the courts findingthat the special employer doctrine applies.3. TRUCK OWNER LIABILITY STATUTEThe court also specifically held that contrary toPowers allegations at trial, Werner was not liable under§ 25-21,239. As amended in 1997, [HN5] § 25-21,239,titled "Leased trucks, truck-tractors, and trailers; liabilityof owner for damages," provides as follows:The owner of any truck, truck-tractor,whether with or without trailer, or trailer,leased for a period of less than thirty daysor leased for any period of time and usedfor commercial purposes, shall be jointlyand severally liable with the lessee andthe operator thereof for any injury to orthe death of any person or persons, ordamage to or the destruction of anyproperty resulting from [*12] theoperation thereof in this state, except thatthe owner shall not be jointly andseverally liable if there is in effect at thetime the claim arises a valid liabilityinsurance policy with coverage limits inthe minimum amount of one milliondollars per occurrence which is availableto compensate any person with a claimarising out of the operation or use of theleased truck, truck-tractor, or trailer. Thissection shall not limit or reduce theowners liability for his or her own acts oromissions which cause damage to anyperson or when the lessee is a relatedentity or by reason of any workerscompensation law.
  5. 5. Page 52000 Neb. App. LEXIS 220, *The trial court held that "in this case, Werner ownedthe truck and did not lease it to or from anyone." Assuch, the court held that Werner was not liable under thestatute for Powers injuries. The plain language of thesection, as well as its title, makes it clearly applicable totrucks, truck-tractors, and trailers that are leased by theirowner to another entity. See Parnell v. Madonna Rehab.Hosp., 258 Neb. 125, 602 N.W.2d 461 (1999) (in absenceof anything to contrary, statutory language is to be givenits plain and ordinary meaning).As noted [*13] above, Powers has conceded that hewas working for Werner, being controlled by Werner, andin a Werner truck. Under these circumstances, there is nogenuine issue of fact concerning whether the truck wasleased. The evidence shows Werner owned the truck,Werner was Powers special employer, and the truck wasnot being leased to anyone. The statute is thusinapplicable.V. CONCLUSIONWe affirm the courts grant of summary judgmentconcerning the special employer doctrine. We affirm thecourts grant of summary judgment concerning theapplicability of § 25-21,239 because, on the recordbefore us, there exists no factual dispute concerningwhether Werner leased the truck to anyone.AFFIRMED.
  6. 6. 1153JN********** Print Completed **********Time of Request: Tuesday, June 11, 2013 09:46:46 ESTPrint Number: 2828:413445875Number of Lines: 252Number of Pages:Send To: SMITH, GRANTDENNIS CORRY PORTER & SMITH3535 PIEDMONT RD. SUITE 900
  7. 7. ATLANTA, GA 30305

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