|
COURT OF APPEALS DECISION DATED AND RELEASED APRIL 9, 1996 |
NOTICE |
|
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62(1), Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-2833-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
BRIAN TORGERSON and
TAMARA TORGERSON,
Plaintiffs-Appellants,
v.
REUBEN JOHNSON &
SON, INC., and
AETNA CASUALTY &
SURETY COMPANY,
Defendants-Respondents,
v.
L. H. SOWLES
COMPANY and AMERICAN
MUTUAL INSURANCE
COMPANY,
Third-Party Defendants-Respondents.
APPEAL from a judgment
of the circuit court for Douglas County:
JOSEPH A. McDONALD, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
LaROCQUE, J. Brian and Tamara Torgerson appeal a summary
judgment dismissing their tort claim against Reuben Johnson & Son, Inc.
(RJS), a general contractor.[1] The Torgersons alleged that the negligence
of Les Korhonen, a crane operator at a building construction site, caused
Brian's injuries. The issue is whether
Korhonen was a special employee of Brian's employer, L. H. Sowles Company
(Sowles), the subcontractor on the job.
If so, the workers compensation statute bars tort recovery.[2] Because it decided Korhonen was Sowle's
special employee, the circuit court dismissed the Torgersons' negligence
claim. We affirm the summary judgment.
The relevant facts are
undisputed. A developer hired RJS as a
general contractor to construct a warehouse.
RJS hired Sowles as a subcontractor to erect the steel structure. Brian Torgerson was a laborer for
Sowles. Sowles originally submitted a
bid of approximately $272,000 to erect the steel structure, but later acceded
to a reduced bid of approximately $232,000 in return for RJS' promise to
provide the crane and crane operator to Sowles. Under the arrangement, Sowles was to take custody and control of
the crane for purposes of the steel erection project. Korhonen, the loaned employee, operated the crane under the
detailed direction of Sowles' employees.
Brian's injuries occurred when Korhonen set some steel bundles down with
the crane on a structure on which Brian was standing. The load caused the structure to sway, and Brian fell to the
ground, sustaining wrist and spine injuries.
The Torgersons' claim
against RJS is grounded upon the agency principle of respondeat superior (let
the master answer), holding a master liable for the wrongful acts of his
servant. RJS obtained summary judgment
on the grounds that Korhonen was a special employee of Sowles at the time of
the accident, making Sowles Korhonen's employer for purposes of tort claims.[3]
We apply the summary
judgment standard set forth in § 802.08(2), Stats., in the same manner as the circuit court. See Hake v. Zimmerlee,
178 Wis.2d 417, 421, 504 N.W.2d 411, 412 (Ct. App. 1993). Application of a statute to an undisputed
set of facts is a question of law we review de novo. Id.
With a notable
exception, inapplicable here but discussed later, Seaman Body Corp. v.
Industrial Comm'n, 204 Wis. 157, 163, 235 N.W. 433, 435 (1931), first
applied the four-part test to determine whether a loaned employee retains his
employment with his loaning employer (the general employer) or becomes the
employee of the borrowing employer (the special employer). Under the borrowed servant rule, the special
employer or borrowing master, not the general employer or loaning master, is
liable for the negligent acts of a loaned servant if the loaned servant becomes
the servant of the borrowing master. DePratt
v. Sergio, 102 Wis.2d 141, 306 N.W.2d 62 (1981). The test questions are:
(1) Did the employee actually or
impliedly consent to work for a special employer?
(2) Whose was the work he was
performing at the time of injury?
(3) Whose was the right to control
the details of the work being performed?
(4) For
whose benefit primarily was the work being done?
Id. at
143, 306 N.W.2d at 63.
Thus, the initial
inquiry is whether Korhonen actually or impliedly consented to work for
Sowles. An employee who receives all of
his directions on the job in question from the special employer and complies
with those directions constitutes sufficient performance and acquiescence to
imply his consent to work for the special employer. Huckstorf v. Vince L. Schneider Enters., 41 Wis.2d
45, 52-53, 163 N.W.2d 190, 194 (1968).
Korhonen gave his implied consent to work for Sowles.
The next inquiry is
whose work Korhonen was performing at the time of Brian's injury. In Huckstorf, the court held
that the crane operator, whose services along with the crane were leased to the
special employer, was the employee of the special employer whose job was to
erect the building addition under construction. Id. at 53, 163 N.W.2d at 194. The special employer in this case, Sowles,
was similarly responsible for the construction of the steel structure that led
directly to Brian's injury.
Other facts in our case
closely parallel those of Huckstorf. In each case, the crane operator remained on the payroll of the
general employer. See id.
at 47, 163 N.W.2d at 192. In each case,
the general employer received a form of financial reimbursement or compensation
from the special employer: In Huckstorf,
the general employer agreed to lease the crane and operator for a monthly
rental to the special employer, id. at 47, 163 N.W.2d at
191. In this case, the general employer
agreed to loan the crane and operator in return for a reduced contract price
for the special employer.
The inquiry for whose
benefit primarily was the work being done, as noted in Huckstorf,
is somewhat analogous to the second test "whose work" was being
done. Id. at 53, 163
N.W.2d at 195. Further, as in Huckstorf,
the work done here was done to facilitate its obligation under the construction
contract. See id.
Perhaps the
determinative question should be who had the right to control the details of
the work. As in Huckstorf,
the special employer, Sowles, used the crane operator to facilitate its work in
the construction project, and did control the details of the work. See id. at 53, 163
N.W.2d at 195. The right to control the
details of the work here was with the subcontractor and special employer,
Sowles.
We turn now to the
exception to the four-part Seaman test, which both the Torgersons
and RJS pursued in the circuit court and pursue again on appeal. We conclude that the exception does not
apply here. In Gansch v. Nekoosa
Papers, 158 Wis.2d 743, 463 N.W.2d 682 (1990), our supreme court
perceived § 102.29(6), Stats.,
as a legislative response to the court's criticism of the four-part loaned
employee test. The legislature passed
§ 102.29(6) and replaced the Seaman four-part test with an
inquiry that hinges on a showing that the plaintiff's employer meets the
definition of a "temporary help agency" contained in
§ 102.01(2)(f), Stats. Gansch, 158 Wis.2d at 751-52,
463 N.W.2d at 685. Section 102.29(6)
provides:
No
employe of a temporary help agency who makes a claim for compensation may make
a claim or maintain an action in tort against any employer who compensates the
temporary help agency for the employe's services.
Section 102.01(2)(f), Stats., defines "temporary help
agency" as "an employer who places its employe with or leases its
employes to another employer who controls the employe's work activities and
compensates the first employer for the employe's services ...."
However, at about the
time RJS and the Torgersons were arguing the two-part Gansch
analysis in the circuit court, our supreme court restricted Gansch
in Bauernfeind v. Zell, 190 Wis.2d 702, 528 N.W.2d 1 (1995). Bauernfeind held that when the
plaintiff's employer is not a temporary help agency, the test to determine
whether an employee is a "loaned employee" is still controlled by Seaman. Bauernfeind, 190 Wis.2d at
712, 528 N.W.2d at 5.
Under the plain language
of § 102.29(6), Stats., and
our supreme court's holding in Bauernfeind, the statute exempts
only a "temporary help agency," which is the employer of the employee
who makes the claim. The Torgersons and
RJS focus their arguments on whether RJS acted as a temporary help agency by
lending the crane operator, Korhonen, to Sowles. Sowles correctly argues that the relevant inquiry is whether the employer
of the plaintiff, in this case Sowles, is a "temporary help
agency." See § 102.29(6),
Stats.; see also Bauernfeind,
190 Wis.2d at 712, 528 N.W.2d at 5. The
Torgersons do not assert that Sowles is a temporary help agency. It is undisputed that Brian worked for
Sowles. We conclude that Sowles was not
a temporary help agency, so that the Torgersons' claim falls outside the scope
of the statute.
In conclusion, the
four-part loaned employee doctrine applies here and, because the negligent
crane operator, Korhonen, was Sowles' employee at the time of injury, the
Torgersons' tort claim is barred.
By the Court.—Judgment
affirmed.
Not recommended for
publication in the official reports.
[1] This is an expedited appeal under Rule 809.17, Stats. Although the court's decision is designated an order, we interpret it as a summary judgment granted pursuant to § 802.08(2), Stats.