Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. C05-02210
McGuiness, P.J.
A temporary employment agency assigned appellant Kenneth Johnson to work for respondent John Deere Landscapes, Inc. (John Deere). While working on John Deere’s premises, Johnson was injured when a metal pipe rack fell on him. Johnson sued John Deere for negligence. The trial court granted summary judgment in favor of John Deere on the ground the exclusive remedy for Johnson’s injuries was provided for by workers’ compensation as a consequence of his status as a “special employee” of John Deere. On appeal, Johnson contends the court erred in determining as a matter of law that John Deere was his special employer. He further contends John Deere is bound by the initial determination of its workers’ compensation carrier that John Deere was not Johnson’s employer. We affirm the judgment.
Factual And Procedural Background
This appeal arises out of a claim that Johnson suffered substantial injuries while working on the premises of John Deere on March 9, 2004. At the time of the incident, Johnson was employed by Labor Connection, a temporary employment agency.
John Deere is in the business of selling irrigation and landscape supply products. In March 2004, John Deere was relocating its Concord, California branch to Martinez and required temporary employees to assist with the move.
Jean Zurbuchen, John Deere’s Martinez branch manager, discussed with an account executive at Labor Connection the use of its temporary workers’ service and was faxed a “Service Agreement - Quote of Billing” that identified the rate for workers hired through Labor Connection. Labor Connection assigned Johnson to assist John Deere.
Johnson reported to work for John Deere on March 5, 2004. His duties included sorting pipes, cleaning the yard, removing debris, and placing materials and equipment in the correct location. Under its agreement with Labor Connection, John Deere was required to provide any tools, equipment, clothing, or devices that might be necessary for Johnson to perform his work. John Deere provided Johnson with straps, ropes, and heavy duty gloves to perform his job. Johnson supplied his own back brace.
Johnson was assigned to work under the supervision of Karl Sosa, a counter/sales person who directed the outside work in the yard. As branch manager, Zurbuchen managed and supervised the work of all temporary workers at the Martinez branch. She assigned work to them through counter and sales personnel and monitored their daily assignments. Zurbuchen supervised Sosa’s work and had the authority to supervise Johnson’s work. Johnson was given assignments by Sosa and told how to complete those assignments. Among other things, Sosa explained the differences between types of pipe, instructed Johnson on the correct location for storing pipe, and instructed Johnson on how to separate and store plastic valve boxes. Labor Connection did not direct the manner in which Johnson performed his daily assignments for John Deere, and Johnson did not undertake work on his own initiative.
John Deere did not compensate Johnson directly for his labor. Instead, John Deere paid Labor Connection an hourly rate for Johnson’s work. John Deere did not have the right to terminate Johnson from his employment with Labor Connection, but it did have the right to send Johnson home or notify Labor Connection if there was a problem with his work.
On March 9, 2004, on his second day at John Deere’s job site, Johnson was assigned to assist Sosa with gathering materials for disposal offsite. Sosa and Johnson loaded an old metal pipe rack onto a flatbed truck to be taken to a metal recycling facility. Sosa was responsible for directing Johnson on how to load the rack onto the truck and instructed Johnson to help him push the base of the pipe rack to make it flush with the side of the truck. While Johnson and Sosa were attempting to secure a second pipe rack on the truck, the rack fell off the truck and onto Johnson. Appellant allegedly suffered substantial injuries as a consequence.
In August 2004, Johnson filed an application for adjudication of a workers’ compensation claim against Labor Connection for damages he allegedly sustained as a result of his on-the-job injury at the John Deere job site on March 9, 2004. Labor Connection, through its workers’ compensation carrier, petitioned to join John Deere as a codefendant in the claim, alleging that John Deere was the special employer in the matter and that Labor Connection acted in the capacity of a labor outsourcing agency. In July 2005, the Workers’ Compensation Appeals Board granted Labor Connection’s request and named John Deere as a party to Johnson’s workers’ compensation proceeding. In a letter dated August 16, 2005, John Deere’s workers’ compensation carrier, AIG, denied Johnson’s workers’ compensation claim on the ground he was not an employee of John Deere.
On October 20, 2005, Johnson filed a complaint against John Deere in the Contra Costa County Superior Court alleging the following four causes of action: (1) premises liability/negligence, (2) products liability/negligence, (3) strict products liability, and (4) products liability/false representation. Johnson subsequently dismissed the second, third, and fourth causes of action, leaving at issue only the first cause of action for negligence under a premises liability theory.
John Deere filed a general denial to Johnson’s unverified complaint. Among the affirmative defenses John Deere asserted was a claim that Johnson’s complaint was barred by the exclusivity provision of the Workers’ Compensation Act (Lab. Code, § 3600 et seq.).
On June 23, 2006, John Deere filed a motion for summary judgment, claiming that Johnson’s complaint was barred by the worker’s compensation exclusivity provision. John Deere argued that the undisputed facts established as a matter of law that it was Johnson’s special employer, rendering John Deere immune from tort liability for Johnson’s injuries. Johnson opposed the motion, contending that triable issues of fact precluded a determination as a matter of law that John Deere was his special employer. He also asserted that John Deere was bound by the admission of its workers’ compensation carrier, AIG, which had initially denied workers’ compensation coverage upon the ground that John Deere was not his employer.
The trial court granted summary judgment in favor of John Deere, concluding the evidence established as a matter of law that John Deere was Johnson’s special employer and that, consequently, workers’ compensation is Johnson’s exclusive remedy. The court found the “secondary factors” concerning the special employment determination “mixed,” although it found that the “primary factor of control” was established, “i.e., John Deere Landscapes, Inc. had the right to control and direct [Johnson’s] activities or the manner and method in which the work was performed, whether that right was exercised or not. [Citations.]” The court concluded the undisputed facts showed that Labor Connection did not direct the manner in which Johnson performed his daily assignments for John Deere. With regard to the contention that John Deere was bound by the “admission” of its workers’ compensation carrier, the court sustained John Deere’s objections to the additional facts and the supporting evidence offered by Johnson that related to that contention.
The trial court entered judgment against Johnson and in favor of John Deere on January 8, 2006. Johnson timely appealed the judgment.
Discussion
1. Standard of Review
We review orders granting or denying a summary judgment motion de novo. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579.) “In reviewing an order granting summary judgment, we must assume the role of the trial court and redetermine the merits of the motion. In doing so, we must strictly scrutinize the moving party’s papers. The declarations of the party opposing summary judgment, however, are liberally construed to determine the existence of triable issues of fact. All doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment. While the appellate court must review a summary judgment motion by the same standards as the trial court, it must independently determine as a matter of law the construction and effect of the facts presented. [Citation.]” (Cochran v. Cochran (2001) 89 Cal.App.4th 283, 287.)
2. Undisputed Facts Establish that John Deere was Johnson’s Special Employer.
As a general matter, when an employee is injured on the job, workers’ compensation constitutes the employee’s exclusive remedy against the employer. (Lab. Code, §§ 3600, 3602, subd. (a).) Johnson contends this principle is inapplicable here because John Deere was not his employer under the workers’ compensation laws. More specifically, he argues John Deere failed to establish it was his “special employer” and that, at a minimum, triable issues of material fact preclude such a determination as a matter of law. We begin our analysis with an overview of the law governing dual employment.
“The possibility of dual employment is well recognized in the case law.” (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174.) For purposes of workers’ compensation, an employee may have more than one employer. (Santa Cruz Poultry, Inc. v. Superior Court (1987) 194 Cal.App.3d 575, 578 (Santa Cruz Poultry).) “A ‘special employment’ relationship arises when an employer lends an employee to another employer and relinquishes to the borrowing employer all right of control over the employee’s activities. [Citation.] The borrowed employee is ‘ “held to have two employers—his original or ‘general’ employer and a second, the ‘special’ employer.” ’ [Citation.] In this dual employer situation, the employee is generally limited to a statutory workers’ compensation remedy for injuries he receives in the course of his employment with the special employer; he may not bring a separate tort action against either employer. [Citations.]” (Riley v. Southwest Marine, Inc. (1988) 203 Cal.App.3d 1242, 1247-1248 (Riley).)
The question whether a special employment relationship exists is generally a factual question reserved for the trier of fact. (Kowalski v. Shell Oil Co., supra, 23 Cal.3d at p. 175.) “However, if neither the evidence nor inferences are in conflict, then the question of whether an employment relationship exists becomes a question of law which may be resolved by summary judgment. [Citations.]” (Riley, supra, 203 Cal.App.3d at p. 1248.)
“Factors relevant to determining whether an employee is the borrowed employee of another include: (1) whether the borrowing employer’s control over the employee and the work he is performing extends beyond mere suggestion of details or cooperation; (2) whether the employee is performing the special employer’s work; (3) whether there was an agreement, understanding, or meeting of the minds between the original and special employer; (4) whether the employee acquiesced in the new work situation; (5) whether the original employer terminated his relationship with the employee; (6) whether the special employer furnished the tools and place for performance; (7) whether the new employment was over a considerable length of time; (8) whether the borrowing employer had the right to fire the employee and (9) whether the borrowing employer had the obligation to pay the employee. [Citations.]” (Riley, supra, 203 Cal.App.3d at p. 1250.)
“Circumstances which tend to negate the existence of a special employment relationship include the following factors: the worker is skilled and has substantial control over operational details, the worker is not engaged in the borrower’s usual business, the worker works only for a brief period of time, does not use the tools or equipment of the borrowing employer but uses his own tools or the tools of the lending employer and the borrower employer neither pays the worker nor has the right to discharge him. [Citation.]” (Riley, supra, 203 Cal.App.3d at p. 1250.)
Of the considerations relevant to special employment status, “the primary consideration is whether the special employer has ‘ “[t]he right to control and direct the activities of the alleged employee or the manner and method in which the work is performed, whether exercised or not . . . .” ’ [Citation.]” (Kowalski v. Shell Oil Co., supra, 23 Cal.3d at p. 175.)
Here, we are concerned with a labor brokerage situation in which a temporary employment agency assigned its employee to work for another business. It is well settled that the “ ‘special employment’ or ‘borrowed servant’ doctrine applies to the labor brokerage situation and bars an employee who is injured while on assignment from a labor broker . . . from bringing a tort suit against the assigned employer. [Citations.]” (Riley, supra, 203 Cal.App.4th at p. 1251.) “[I]n cases such as this where the general employer is a temporary employment agency . . . and the business to which the employee is assigned has the right of supervision and direction of the employment duties, the typical result is to find the existence of a special employment relationship.” (Santa Cruz Poultry, supra, 194 Cal.App.3d at p. 579.) Indeed, in the labor brokerage context, “when the general employer . . . merely arranges for labor and does not provide equipment, the majority of decisions hold the worker is a special employee. [Citation.]” (Id. at p. 582.)
In Santa Cruz Poultry, supra, 194 Cal.App.3d at pp. 577-578, a temporary employee assigned by Manpower, Inc. was injured during a one-day job assignment to deliver wholesale poultry for Santa Cruz Poultry, Inc. (SCP). The worker filed a negligence action against SCP for injuries he suffered while jumping onto a delivery truck that belonged to SCP. He did so at the direction of the truck’s driver, an SCP employee who supervised and controlled the injured employee’s work. (Ibid.) SCP filed a motion for summary judgment, arguing that the employee’s civil suit was barred by the workers’ compensation exclusivity doctrine. (Id. at p. 577.) After the trial court denied summary judgment, SCP sought writ relief in the Court of Appeal. The issue presented was whether a temporary employee who finds work through the services of an agency such as Manpower, Inc., may bring a negligence action for job-related injuries against the employer to whom the employee is assigned, or whether the employee is relegated to a claim for workers’ compensation. (Ibid.)
The Court of Appeal for the Sixth Appellate District held that summary judgment should have been granted in favor of SCP. (Santa Cruz Poultry, supra, 194 Cal.App.3d at p. 584.) The appellate court noted the trial court had found “without controversy that SCP had the ability to control the result of [the employee’s] work and the means by which it was accomplished, including the details relating to his job performance at the time of the injuries alleged.” (Id. at p. 578.) The appellate court concurred in this assessment, finding that the employee “worked under the supervision and control and at the pleasure of SCP, exactly like any employee of SCP.” (Id. at p. 583.) However, unlike the trial court, the appellate court concluded this fact compelled the conclusion the worker was SCP’s special employee whose remedy against SCP was limited to workers’ compensation. (Id. at pp. 583-584.) The court explained, “No rational reason countenances a result by which he may reap the benefits of a common law negligence action against SCP when none of SCP’s regular employees could do so.” (Id. at p. 583.)
In Riley, supra, 203 Cal.App.3d 1242, the plaintiff filed a tort action against Southwest Marine after he was injured on Southwest Marine’s job site while working on assignment from a temporary employment agency, Manpower, Inc. The Court of Appeal affirmed the trial court’s grant of summary judgment in favor of Southwest Marine, finding that, as a matter of law, it was Riley’s special employer. (Id. at p. 1251.) The court found that the following facts unequivocally established a special employment relationship existed between the plaintiff and Southwest Marine: he agreed to the Southwest Marine work assignment; he was an unskilled general laborer working exclusively at Southwest Marine’s job site; Southwest Marine personnel trained him, provided his daily job instructions, and supervised his work; Southwest Marine provided all safety equipment and work tools; plaintiff had worked for Southwest Marine more than briefly, i.e., for over seven months at the time of his injury; and plaintiff believed Southwest Marine had the power to discharge him. (Id. atp. 1250.) “In sum, Southwest Marine had the right to control and direct [plaintiff’s] activities and the manner in which he performed the work; Southwest Marine did not merely make suggestions of details or cooperation.” (Ibid.)
With these principles in mind, we consider whether the facts of this case justify a determination as a matter of law that John Deere was Johnson’s special employer.
As noted above, the right to control an employee is the primary consideration in determining whether a special employment relationship exists. (Kowalski v. Shell Oil Co., supra, 23 Cal.3d at p. 175; Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848, 857.) The undisputed evidence established that John Deere had the right to control and direct Johnson’s activities and the manner in which he performed his job.
While he was working for John Deere, Johnson was generally under the supervision of Jean Zurbuchen, John Deere’s branch manager, and under the direct supervision of Karl Sosa. Labor Connection did not direct the manner in which Johnson performed his assignments for John Deere. Instead, as a Labor Connection account executive testified, John Deere was “expected to” supervise the workers assigned by the temporary employment agency, including supervising their daily activities at the job site. A Labor Connection representative was not available on the site at all times to supervise its employees. In fact, on the day Johnson was allegedly injured, no Labor Connection representative was at the John Deere site. Moreover, Johnson did not undertake work on his own initiative.
Johnson attempts to create an issue of fact by arguing that John Deere did not exercise sufficient control over him, even if it possessed the right to do so. He contends that Zurbuchen saw him for just 15 to 45 minutes during the two days he was on the job site, and in a similar vein he asserts that Sosa was working inside the building while Johnson was working outside by himself, suggesting the exercise of their control over him was limited. However, what is relevant is the right to supervise and not whether that right is exercised. (Wedeck v. Unocal Corp., supra, 59 Cal.App.4th at p. 859.) “[C]ontrol need not be exercised. It is sufficient if the right to direct the details of the work is present. [Citations.].” (Ibid.) The fact Johnson performed his job “without constant intervention by supervisors” does not negate the undisputed fact he was subject to John Deere’s control and direction. (See ibid.) Furthermore, even if actual exercise of control were the standard, is undisputed that Johnson performed work as directed by John Deere. He did not perform any work on his own initiative, under the supervision of Labor Connection, or without supervision or direction from John Deere employees. The control exercised by John Deere extended beyond “ ‘mere suggestion of details or cooperation.’ ” (See id. at p. 857.) Indeed, at the time of the accident, he was following the directions he had been given by Sosa regarding the placement of the metal pipe racks.
Johnson repeatedly emphasizes throughout his brief that the task resulting in his injury was performed in an unsafe manner and thus constituted an illegal activity. He asserts that if Labor Connection had known Johnson would be asked to perform activities that violate state and federal safety rules, it would have withdrawn John Deere’s right to control Johnson’s work activities. Johnson cites no authority to support his contention that engaging in allegedly unsafe activities vitiates the conclusion that a special employer had a right to control an employee. The fact remains that John Deere had a right to control Johnson’s work activities and it exercised that right, even if it may have done so in a manner that placed Johnson at risk of harm.
Although Johnson contends the issue of control is generally a question of fact, here the material facts are undisputed that John Deere possessed control over Johnson’s work activities. “Whether there is control may indeed be a question of fact, but if it exists, then the special [employment] relationship normally follows as a matter of law. [Citations.]” (Santa Cruz Poultry, supra, 194 Cal.App.3d at p. 579.)
While Johnson concedes the primary consideration in a special employment determination is the right to control, he argues it is not the sole or dispositive consideration. We do not suggest it is dispositive, or that we may disregard the other considerations that bear upon the question of a special employment relationship. (See Barajas v. USA Petroleum Corp. (1986) 184 Cal.App.3d 974, 984 [bare right to control is not determinative].) However, particularly when the right to control is combined with the actual exercise of control over an employee, this fact is “paramount” in the assessment of the special employment relationship. (See McFarland v. Voorheis-Trindle Co. (1959) 52 Cal.2d 698, 705 [paramount consideration is whether alleged special employer exercises control over the details of the work].)
Turning our attention to the secondary factors bearing on the special employment relationship, we note that the trial court described them as “mixed.” We would agree with that general assessment, although the great majority of the factors favor the conclusion that Johnson was John Deere’s special employee. To the extent certain factors do not support the existence of a special employment relationship, they tend to be ones with less probative value in a labor brokerage situation involving a temporary employment agency.
With regard to the issue of who supplied Johnson with the equipment, tools, and materials necessary for him to perform his job(see Riley, supra, 203 Cal.App.3d at p. 1250), it is undisputed that John Deere filled that role. Johnson simply argues he supplied his own clothes, shoes, and back brace, but this does not negate the undisputed fact that John Deere provided the particular equipment and tools used by him for the job he was asked to perform. There is no indication that specialized work clothes were required. Johnson also claims he was not provided with a hard hat, but that is beside the point. The proper inquiry is whether the general employer or the special employer was responsible for providing the necessary tools and equipment. It is undisputed here that John Deere and not Labor Connection had that responsibility.
It is also undisputed the job did not require skilled labor, a factor that if present tends to negate the existence of a special employment relationship. (Riley, supra, 203 Cal.App.3d at p. 1250.) It is more likely that an unskilled laborer will require the type of control and direction that is suggestive of a special employment relationship.
With regard to whether there was an agreement or “meeting of the minds” between the original and special employer (Riley, supra, 203 Cal.App.3d at p. 1250), there was plainly an understanding about the respective roles each party would play. Both parties understood that Labor Connection was a labor outsourcing agency only and would not direct the manner in which Johnson performed his job. Johnson contends there was no agreement because nothing had been reduced to writing other than a pay scale. However, provided the parties had a mutual understanding and agreement about their roles, it was unnecessary to reduce it to writing. Furthermore, the actual conduct of the parties evidenced their understanding. A written contract “ ‘cannot affect the true relationship of the parties to it. Nor can it place an employee in a different position from that which he actually held.’ [Citation.]” (Kowalski v. Shell Oil Co., supra, 23 Cal.3d at p. 176; see also Santa Cruz Poultry, supra, 194 Cal.App.3d at p. 581 [reality of employment relationship, rather than paper agreement, controls the parties’ rights].)
On the question of whether Johnson acquiesced to working for John Deere (Riley, supra, 203 Cal.App.3d at p. 1250), Johnson contends he did not give a deliberate and informed consent to do so but merely followed the direction of his employer, Labor Connection. What Johnson ignores is that “consent to the special employment relationship is normally implied, by the weight of authority, from acceptance of the special employer’s control. [Citation.]” (Santa Cruz Poultry, supra, 194 Cal.App.4th at pp. 581-582.) Here, the undisputed facts demonstrate that Johnson acquiesced in the employment relationship by accepting direction from John Deere.
As for whether the employee performed the special employer’s work (Riley, supra, 203 Cal.App.3d at p. 1250), this factor also tends to support a finding that John Deere was Johnson’s special employer. Johnson disputes the point, claiming that the proper inquiry is whether the employee was engaged in the special employer’s usual business. According to Johnson, he was not engaged in John Deere’s usual business of supplying irrigation and landscape supply products but was instead assisting with a one-time move as well as “unwittingly engaging in illegal activity” by performing work assignments in an unsafe manner. We are not persuaded by Johnson’s analysis. However an employer’s “usual” business is defined, ancillary tasks must be performed that are not necessarily associated with the core business functions. Moving stock and disposing of outmoded personal property (such as old pipe racks) were ancillary functions that John Deere had to perform. The relevant inquiry is whether Johnson was performing John Deere’s work (unsafe or not) as to opposed to someone else’s work.
Johnson focuses on the fact he was on the job just two days before his injury, purportedly demonstrating he was not employed “over a considerable length of time.” (See Riley, supra, 203 Cal.App.3d at p. 1250.) While the brief duration of employment may tend to negate the existence of a special employment relationship, this factor is not dispositive. In Santa Cruz Poultry, the court found a special employment relationship as a matter of law despite the fact the worker, a temporary employee furnished by a labor brokerage, was injured during a one-day job assignment. (Santa Cruz Poultry, supra, 194 Cal.App.3d at p. 577.)
The remaining special employment factors are of questionable importance when assessing a labor brokerage situation. For example, a temporary employment agency will typically not terminate its relationship with an employee who is placed in a temporary assignment. (See Riley, supra, 203 Cal.App.3d at p. 1250.) In addition, in connection with the inquiry of whether the borrowing employer “had the right to fire the employee” (id. at p. 1250), “the ability of a special employer to discharge the employee from his or her general employment would be unusual indeed, particularly in the labor broker context.” (Wedeck v. Unocal Corp., supra, 59 Cal.App.4th at p. 862.) John Deere had a right to terminate the special employment relationship, i.e., to ask Johnson to leave John Deere, but it could not be expected to have a right to terminate his employment with Labor Connection, the general employer. Finally, with regard to whether John Deere had an obligation to pay Johnson (see Riley, supra, 203 Cal.App.3d at p. 1250), it had no obligation to pay him directly but it did have an obligation to pay Labor Connection an hourly rate based on Johnson’s work. As one court has said, “[t]his factor is not particularly enlightening in determining whether a special employment relationship exists [citation], particularly in the labor brokerage context where the general employer handles administrative details, including payroll. [Citation.]” (Wedeck v. Unocal Corp., supra, 59 Cal.App.4th at p. 861, fn. 8.)
In sum, the undisputed facts demonstrate that John Deere had a right to control and direct Johnson’s activities and the manner and method in which his work was performed. Beyond this “primary” consideration, a substantial number of secondary factors favor the conclusion John Deere was Johnson’s special employer: John Deere furnished the tools and place of performance; the original and special employers had an understanding or meeting of the minds concerning their respective roles; Johnson performed John Deere’s work; Johnson acquiesced in the new work situation by accepting John Deere’s control and direction; and the job did not require skilled labor. Although his employment for John Deere was relatively short-lived, that factor is not determinative, as Santa Cruz Poultry confirms. The three remaining factors—whether the general employer terminates its relationship with the employee, the ability of the borrowing employer to terminate the employee, and the obligation of the borrowing employer to pay the employee—are not particularly meaningful in the labor brokerage context.
Although the special employment factors do not unanimously favor a finding of special employment, there is no requirement of unanimity. Given the strength of the conclusion John Deere had the right to control and direct Johnson’s activities, along with our conclusion that a substantial number of other factors favor a finding of a special employment relationship, we conclude as a matter of law that John Deere was Johnson’s special employer.
3. John Deere is not Bound by its Workers’ Compensation Carrier’s Initial Determination Concerning Johnson’s Employment Status.
Johnson contends that the “admission” by John Deere’s workers’ compensation carrier that John Deere was not Johnson’s employer vitiates the affirmative defense based on workers’ compensation exclusivity. In essence, Johnson contends John Deere is bound by its insurance carrier’s initial position regarding his employment status and cannot now take an inconsistent position in this litigation.
We have little difficulty disposing of Johnson’s contention. A third person’s hearsay statement is inadmissible against a party absent evidence that the person was authorized to speak for the party. (Evid. Code, § 1222.) Johnson has produced no evidence showing that John Deere authorized its insurer, AIG, to speak on its behalf or to take any particular position with respect to the legal characterization of its employment relationship with Johnson.
Johnson relies on the principle that an agent’s statement, made “within the scope of his authority, having relation to, and connected with, and in the course of the particular contract or transaction in which he is then engaged [for his principal], is in legal effect, said by his principal, and admissible as evidence . . . .” (Miller v. Anson-Smith Construction Co. (1960) 185 Cal.App.2d 161, 166.) He also cites Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1077, in which the Supreme Court held that the trial court did not abuse its discretion in admitting into evidence a letter written by an insurance agent as evidence of the insurance company’s policy provisions.
These authorities do not aid Johnson. They still leave unanswered the question of what authority AIG had to speak on behalf of its insured about the legal nature of John Deere’s relationship with Johnson. It is one thing to say, as in Dart Industries, that an insurance agent has authority to speak on behalf of the insurance company, but it is another thing entirely to say that an insurance company has authority to speak on behalf of its insured. Johnson has failed to cite any authority that would support that proposition.
Furthermore, as Johnson acknowledges in his opening brief, AIG reconsidered its initial position and determined he was an employee of John Deere under special employment principles. As a practical matter, this decision had no consequence for Johnson or AIG, because the insurer for the general employer, Labor Connection, remained liable for the entire cost of the workers’ compensation. (Ins. Code, § 11663 [general employer’s insurer bears entire cost of compensation unless employee was on special employer’s payroll].) But the acknowledged change in AIG’s position nevertheless renders Johnson’s argument moot.
Disposition
The judgment is affirmed. Respondent shall recover its costs on appeal.
We concur: Siggins, J., Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.