Opinion
No. 99-1020-BH-C.
February 7, 2001.
JUDGMENT
Pursuant to the Findings of Fact; Conclusions of Law and Order entered this day it is ORDERED, ADJUDGED and DECREED that JUDGMENT be and is hereby entered in favor of the defendant, Smurfit-Stone Container Corporation a/k/a Jefferson Smurfit Corporation (U.S.), and against the plaintiff, Doris McLellan, the plaintiff to have and recover nothing of this defendant. Costs are taxed against the plaintiff.
FINDINGS OF FACT; CONCLUSIONS OF LAW AND ORDER
This action is before the Court on defendant's motion for summary judgment (Docs. 25, 26 and 27). In this action, plaintiff seeks compensatory and punitive damages for injuries sustained when she was struck by a forklift being operated by an employee of the defendant. The defendant argues that it is entitled to judgment as a matter of law it was plaintiffs' special employer at the time of the accident and thus entitled to the immunity provided employers under Ala. Code § 25-5-53. Upon consideration of defendant's motion, plaintiffs' response in in opposition thereto (Docs. 30 and 31), defendant's reply brief (Doc. 33) and all other pertinent portions of the record, the Court agrees that defendant is entitled to summary judgment.
Plaintiff has also filed a motion to strike (Doc. 29) the affidavit of Sarah Catherine Tomlin submitted in support of defendant's motion for summary judgment. For the reasons stated in defendant's response in opposition thereto (Doc. 32), it is ORDERED that plaintiffs' motion to strike be and is hereby DENIED.
FINDINGS OF FACT:
Upon consideration of documentary and testimony evidence presented in support of and opposition to summary judgment together with the record as a whole, the Court finds that the following material facts are undisputed or uncontroverted:
1. The plaintiff, Doris McLellan ("McLellan"), was employed by Brown Root, Inc. ("BR") from March 31, 1997, through February 13, 1998, as an accounts payable clerk. (Plaintiffs' Depo. at 7, 11 and Exh. 1).
2. The defendant, Smurfit-Stone Container Corporation a/k/a Jefferson Smurfit Corporation (U.S.) ("Smurfit"), is a Delaware corporation, having its principal place of business in Chicago, Illinois. Smurfit operated a plant in Brewton, Alabama,
3. BR was performing a project on site at Smurfit's plant in Brewton during the time McLellan was employed by BR. Consequently, BR maintained a trailer on Smurfit's property which is where McLellan performed her work for BR. (Plaintiffs' Depo. at 12-15.) McLellan's job for BR essentially involved processing subcontractor invoices for payment by BR. ( Id. at 11-12).
4. Before McLellan's employment with BR ended on February 13, 1998, Smurfit's employees Kris Pratte and Jane Rotch referred McLellan to a temporary employment placement agency, Office Relief, Inc. ("ORI"), in order that McLellan could obtain a temporary clerical job with Smurfit. (Plaintiffs' Depo. at 40-42).
5. Smurfit has a contract with ORI under which ORI provides temporary employees, such as McLellan, to Smurfit. (Herdman Depo at 11-13; Tomlin Affidavit at ¶ 4; Plaintiffs' Depo. at 41-42).
6. McLellan applied for employment through ORI specifically to obtain a temporary job working for Smurfit. (Plaintiffs' Depo. at 41-42). McLellan knew that ORI was merely a temporary employment agency and that she would be working for Smurfit. ( Id. at 41, 50-51).
7. ORI acted merely as an employment agent in placing McLellan with Smurfit. (Tomlin Affidavit at ¶ 3 and 7). ORI did not enter into a relationship with McLellan in order for McLellan to do ORI's work. ( Id.). Instead, ORI merely marketed McLellan's qualifications so that she could obtain a position with Smurfit where she would perform Smurfit's work under Smurfit's supervision. ( Id.). ORI did not supervise or otherwise direct McLellan's work. ( Id.; Plaintiffs' Depo. at 40).
8. On February 18, 1998, McLellan began her temporary job for Smurfit. (Plaintiffs' Depo. at 16, 51; Tomlin Affidavit at ¶ 5). McLellan worked as a clerk in Smurfit's accounting department. (Plaintiffs' Depo. at 19-20; Pratte Affidavit at ¶ 3). McLellan's job with Smurfit involved processing invoices, which was similar to the work she had previously performed while employed by BR. (Plaintiffs' Depo. at 22). Smurfit's employees Kris Pratte and Jane Rotch supervised McLellan's work for Smurfit. (Id at 19-20; Pratte Affidavit at ¶ 3; Tomlin Affidavit at ¶ 6). McLellan gave all her completed assignments to Kris Pratte and Jane Rotch. (Plaintiffs' Depo. at 19-20, 32). If McLellan had any questions about the job, she would ask Kris Pratte or Jane Rotch. ( Id. at 38). McLellan submitted her time sheets each week to Kris Pratte or Jane Rotch for approval. ( Id. at 38-39; Pratte Affidavit at ¶ 4; Tomlin Affidavit at ¶ 6).
9. The work performed by McLellan between February 18 and March 31, 1998, was for Smurfit's benefit (Pratte Affidavit at ¶ 3). Smurfit provided anything McLellan needed to perform her job for Smurfit. ( Id. at ¶ 4; Tomlin Affidavit at ¶ 6). Smurfit controlled not only the work that McLellan performed, but also determined McLellan's work schedule including her lunch and break schedules. (Pratte Affidavit at ¶ 4; Tomlin Affidavit at ¶ 6).
Although McLellan contends that she was doing work for the benefit of BR on March 31, 1998, she has conceded that "[b]y February 1998, [BR] had basically pulled all of their employees off the jobsite at Smurfit"; "McLellan was hired as an employee of Office Relief"; and "[BR] paid me up to [2/13/98] . . . [a]nd after that date is when Office Relief began paying [McLellan]." Plaintiffs' Brief in Opposition (Doc. 30) at 3 and 4.
10. Smurfit had authority to terminate McLellan's employment at any time if it desired. (Pratte Affidavit at ¶ 4; Tomlin Affidavit at ¶ 6).). McLellan had the option to decline the job at Smurfit if she wished. (Tomlin Affidavit at ¶ 6).
11. Under Smurfit's contract with ORI, Smurfit paid ORI a set hourly rate for each employee, including McLellan, which included a "40% agency fee." (Herdman Depo. at 20; Tomlin Affidavit at ¶ 4). ORI uses a portion of the 40% agency fee to pay for workers' compensation insurance for temporary employees such as McLellan, as required under the contract between Smurfit and ORI. (Tomlin Affidavit at ¶ 4).
12. On March 31, 1998, McLellan was accidentally struck by a forklift while walking through Smurfit's plant and injured. See, Complaint at ¶ 4; Plaintiffs' Depo. at 77. McLellan was working for Smurfit as a temporary employee at the time of this accident. (Pratte Affidavit at ¶ 3).
CONCLUSION OF LAW
It is undisputed and well-established that, except for workers' compensation benefits, an employer cannot be held civilly liable to an employee for an on-the-job injury pursuant to the exclusive remedy provision contained in Alabama's Workers' Compensation Act, Ala. Code § 25-5-53 (1975). Smurfit's motion for summary judgment presents, and Smurfit prevails on, the sole issue of whether an employee who is placed with an employer (the "special employer") through a temporary employment agency (the "general employer") is barred under the exclusivity provision of the Alabama Workers' Compensation Act from asserting personal injury claims against the special employer beyond a worker's compensation claims. See, Marlow v. Mid South Tool Co., 535 So.2d 120, 123 (Ala. 1988) ("[F]or workmen's compensation purposes, that a temporary services employee is the employee of both his or-her general employer (i.e., the employment agency) and his or her special employer (i.e., the employer to which the employment agency assigned the employee to work."), citing, Terry v. Read Steel Products, 430 So.2d 862 (Ala. 1983); Pettaway v. Mobile Paint Manufacturing Co., 467 So.2d 228 (Ala. 1985); and Bechtel v. Crown Central Petroleum Corp., 495 So.2d 1052 (Ala. 1986). See also, Key v. Maytag Corp., 671 So.2d 96, 99-100 (Ala.Civ.App. 1995) (Where a "general employer" is an employment agency which furnishes employees under contract to a "special employer," the special employer is entitled to immunity under Ala. Code § 25-5-53). The parameters of the "dual employer" cases was first addressed in Terry, as reported in Marlow:
"When a general employer lends an employee to a special employer, the special employer becomes liable for workmen's compensation only if
"[1] the employee has made a contract of hire, express or implied, with the special employer;
"[2] the work being done is essentially that of the special employer; and
"[3] the special employer has the right to control the details of the work.
"When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen's compensation.Marlow, 535 So.2d at 123, quoting material excerpts from Terry, 430 So.2d at 865 (renumbered herein to correspond with the parties briefs).
McLellan concedes that Smurfit has established elements [1] and [3], but argues that Smurfit "has presented no evidence that, at the time of the Plaintiffs' accident, she was doing the work of Smurfit." Plaintiffs' Brief in Opposition (Doc. 30) at 10. Such an argument is specious. Smurfit has submitted ample evidence to establish that McLellan was performing "essentially" the work of Smurfit at the time of the accident. There are indeed only two potential employers in this case, Smurfit as the "special employer" and OCI, the employment agency as the "general employer." McLellan does not contend that she was performing OCI's work at the time of the accident. Nowhere does McLellan dispute that, as between Smurfit and OCI, she was performing Smurfit's work at the time of the accident. The Court agrees that, at best, McLellan attempts to interject a former employer, BR, into the "special employer" equation, which is both illogical and inconsistent with the governing Alabama law. The fact that McLellan previously did the same type of work (i.e., processing accounts payable) for a prior employer is irrelevant. Furthermore, the fact that Smurfit hired McLellan to process invoices to BR for payment by Smurfit does not mean that she was doing the work of BR. McLellan concedes that BR was not her employer and had ceased being her employer on February 5 or 13, 1998.
Consequently, for the reasons cited in Smurfit's initial and reply briefs (Docs. 26 and 33) in support of its motion for summary judgment and stated above, the Court concludes that Smurfit was McLellan's "special employer" at the time of the accident and that Smurfit is therefore entitled to immunity under Ala. Code § 25-5-53.
CONCLUSION AND ORDER
For the reasons stated above, the Court concludes that there exists no material issue of fact in this case and that the defendant is entitled to judgment as a matter of law. It is therefore ORDERED that Smurfit's motion for summary judgment be and is hereby GRANTED and that JUDGMENT accordingly be entered in favor of the defendant, Smurfit-Stone Container Corporation a/k/a Jefferson Smurfit Corporation (U.S.), and against the plaintiff, Doris McLellan, the plaintiff to have and recover nothing of this defendant. Costs are taxed against the plaintiff.