Appeal
from the Superior Court No. 3AN-13-10647 of the State of
Alaska, Third Judicial District, Anchorage, Erin B. Marston,
Judge.
Michael Cohn, Weidner & Associates, APC, Anchorage, for
Appellant.
Susan
Orlansky, Reeves Amodio LLC, and Eric Sanders, Law Office of
Eric Sanders, Anchorage, for Appellees.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen, and
Carney, Justices.
OPINION
BOLGER, CHIEF JUSTICE
I.
INTRODUCTION
A
worker for a temporary employment service was injured while
working for a shipping company. At the time of injury he was
performing a task prohibited by the contract between the
temporary employment service and the shipping company. The
injury resulted in loss of the worker's hand and part of
his arm. After getting workers' compensation benefits
from the temporary employment service, the worker brought a
negligence action against the shipping company and one
shipping company employee. The superior court decided on
cross-motions for summary judgment that the exclusive
liability provision of the Alaska Workers' Compensation
Act (Act)[1] barred the action. We reverse the grant of
summary judgment because material issues of fact preclude it.
II.
FACTS AND PROCEEDINGS
John
Buckley started working for Labor Ready, Inc., a temporary
employment service, in 2009. According to Buckley, workers
would go to the Labor Ready office in the morning for
assignments, and "there would be some days that [they]
would be sent out and some days when there would be no
work." Workers with assignments were given a
"ticket" that they presented to the company using
Labor Ready's services. Labor Ready employees could get
"repeat" tickets when a contracting employer wanted
Labor Ready to send those employees again, but Labor Ready
did not always honor such requests. Labor Ready workers had
to get approval from Labor Ready to work for a specific
customer even if the customer and the worker both wanted the
worker to continue to work for that customer.
The
"conditions of service" on the ticket prohibited
Labor Ready employees from engaging in specified activities
without Labor Ready's "prior written consent."
For purposes of this case, the important restriction was that
Labor Ready workers were not allowed "to operate
dangerous machinery, mobile equipment or vehicles."
Labor Ready paid the worker and provided workers'
compensation coverage. The customer was required to determine
whether Labor Ready's workers were qualified for the
particular work assignment "during the first two hours
of work" and "inform Labor Ready of any changes in
work assignment." The contract provided that Labor
Ready's employees were "under Customer's
supervision, direction and control" and required the
customer to provide safety equipment, information, and
briefing to Labor Ready's employees. The contract did not
specifically provide that a customer could fire a worker
supplied by Labor Ready.
Labor
Ready's workers did not have to report for work every
day; as Buckley put it, it was "up to you to go."
He testified that Labor Ready employees could call beforehand
to let Labor Ready know they would not be there, but if
employees did not, Labor Ready "didn't really
care" and would "put somebody else" on the
job. Buckley, for example, did not work for several weeks in
2011 because he was helping care for his mother.
During
the time he worked for Labor Ready, Buckley reported to Labor
Ready's office in the morning and picked up a ticket with
his job assignment. Buckley prided himself on being a good
worker and testified that Labor Ready at times sent him to
work for new clients to impress the clients even if another
client had requested Buckley for those days. In late 2011
Labor Ready at times assigned Buckley to work at American
Fast Freight as a general laborer; he worked 17
non-consecutive days for American Fast Freight during the six
weeks preceding the accident underlying this case.
Buckley
enjoyed his work with American Fast Freight; "the goal
was that [Buckley] wanted to go to work as an employee of
American Fast Freight . . . and American Fast Freight was
hoping to hire [him]." But Buckley also testified that
Labor Ready had sent him to work elsewhere, even when
American Fast Freight had requested him. When he worked for
American Fast Freight his job mainly involved loading and
unloading freight. On any given day he might work in the
warehouse or be assigned to a particular truck to accompany
the driver for deliveries. During the time Buckley was
assigned to American Fast Freight he got to know some of the
drivers and had established relationships with some of them.
Buckley indicated he could refuse to work with a truck driver
there and that he had done so.
On
December 22, 2011, Labor Ready assigned Buckley to work at
American Fast Freight. A driver, Denny Hawkins, told Buckley
to come with him to deliver freight in the Wasilla area.
Buckley grabbed "[his] stuff" - his
"stuff" included a box knife, warm clothes, and an
extra pair of gloves - and went out to Wasilla with Hawkins.
After they completed their deliveries, Hawkins told Buckley
he would treat him to lunch. Hawkins told American Fast
Freight's dispatcher that he and Buckley were headed to
lunch. According to Buckley, Hawkins got a call on his cell
phone from another driver, Matthew Carroll, asking Hawkins
for assistance, and Hawkins agreed to help him without
informing the dispatcher.[2] Carroll's tractor-trailer was stuck
in a snow berm near the Frontiersman newspaper office in
Wasilla, and he was unable to move it.[3]Instead of going
to lunch, Hawkins and Buckley headed to Carroll's truck.
Hawkins
unhitched his trailer and drove his truck so it was facing
Carroll's truck; he then attached a tow chain to the
trucks. In the meantime Buckley began to dig out the stuck
wheel, first using his hands and then a shovel, but
Carroll's truck remained stuck. The precise sequence of
events that followed is difficult to discern because
witnesses gave inconsistent accounts at different times, but
someone decided to use tire chains to try to gain traction.
American Fast Freight drivers sometimes laid tire chains out
on the ground, rather than put them around the tire, to
improve traction when a truck was stuck on snow or ice:
Buckley said he had seen other American Fast Freight drivers
do so and had assisted them in the past; Carroll said he too
had previously used chains this way and had seen others do
it; and Hawkins also indicated he had done this before. Two
company officials reported during the subsequent accident
investigation that drivers used chains this way at times, and
company officials indicated that American Fast Freight was
aware of the practice - one official said he had himself used
chains this way as an American Fast Freight driver.
Buckley
laid a tire chain in front of the wheel and used hand and
verbal signals to let the drivers know when he was clear of
the truck. Carroll then tried to move the truck to engage the
chain and get traction. The method was not successful, and in
fact the wheel's spinning caused the tire chain to shoot
out the back. The three men used the same approach four times
with no success. Buckley then thought of laying a second
chain behind the wheel, because he "noticed [Carroll]
was rocking back a little bit." He asked Carroll where
another chain was and got a second chain from one of the
trucks so there would be a chain both in front of and behind
the stuck wheel.
The
accident happened on the fifth attempt to move the truck. The
drivers reported being focused on their trucks because they
were concerned about a collision if Carroll got traction.
According to Buckley, he was in the process of positioning
the second tire chain behind the stuck wheel when Carroll
gunned the truck engine; the wheel turned and caught the tire
chain Buckley was adjusting, pulling his arm under the wheel.
Buckley later said he had not given Carroll "any signal
or indication . . . to move the vehicle." Hawkins
noticed something amiss, got out of his truck, ran toward
Buckley, and told Carroll to "put it in gear and spin
it" because Buckley's hand was trapped. Hawkins went
to the Frontiersman's office to get help. Buckley's
arm was sliced just below the elbow and, in every practical
sense, severed - the two parts of his arm remained barely
attached. Buckley was also bleeding heavily. Frontiersman
employees and the two drivers assisted Buckley. One
Frontiersman employee used his belt as a tourniquet to
staunch the bleeding until emergency medical personnel
arrived; Buckley credited him with saving his life. Buckley
had multiple surgeries, and according to American Fast
Freight, his right arm was amputated above the elbow. He
received workers' compensation benefits, presumably from
Labor Ready given the terms of the contract between Labor
Ready and American Fast Freight.
The
Alaska Department of Labor & Workforce Development,
Division of Labor Standards & Safety, Occupational Safety
& Health (AKOSH) conducted an investigation that
ultimately led to a $5, 600 fine against American Fast
Freight. American Fast Freight indicated that Buckley should
not have been engaged in any activities related to freeing
the truck and said "that for [the] future, [the] company
has specifically prohibited temporary employees from being
involved with tire chain up and stuck vehicles."
According to AKOSH, the workers' actions during the
incident reflected a number of violations of company policy.
In
November 2013 Buckley sued American Fast Freight, Carroll,
and John Does 1-5 for negligence. American Fast Freight and
Carroll answered, denying liability and raising the exclusive
liability provision of the Act, AS 23.30.055, as a defense.
No one joined Labor Ready.
The
parties filed cross-motions for summary judgment. American
Fast Freight argued that it met all three tests for a special
employer relationship set out in Anderson v. Tuboscope
Vetco, Inc.[4] and that Buckley's suit was barred by
AS 23.30.055 on that basis.[5] Buckley's cross-motion sought
to bring his case under Estate of Milos v. Quality
Asphalt Paving, Inc., [6] where we reversed a summary
judgment on exclusive remedy grounds because a material issue
of fact remained about the "work-relatedness" of
the injury, i.e. whether it arose out of and in the course of
employment.
Pertinent
to the question of a special employment relationship, Buckley
argued that (1) no contract existed between himself and
American Fast Freight; (2) Tuboscope was factually
distinguishable from his case for various reasons, including
that he reported to Labor Ready rather than American Fast
Freight; and (3) the special employment doctrine did not
apply to his case because Labor Ready continued to exercise
control over its employees' duties through its customer
contract. And with respect to his own cross-motion for
summary judgment, Buckley contended that as a matter of law
the injury did not arise out of and in the course of the
employment because (1) he was on an unpaid lunch break when
the accident happened; (2) using the tire chains as the
workers did amounted to operating dangerous machinery, a
violation of the contract between Labor Ready and American
Fast Freight; (3) Hawkins's and Carroll's actions
violated company policy; and (4) he had personal motives for
participating in the activity. Buckley supported his
assertion about operating dangerous machinery with a
mechanical engineer's expert opinion.
In
opposition to Buckley's motion, American Fast Freight
said that for purposes of summary judgment, it would assume
several facts, including the following: Carroll and Hawkins
violated employer rules; "letting Buckley handle tire
chains . . . violated the contract between Labor Ready and
[American Fast Freight]"; and Buckley and Hawkins were
on an unpaid lunch break at the time they went to assist
Carroll. It argued that even if those facts were true,
Buckley's lawsuit was still barred by the exclusive
remedy provision.
The
superior court granted summary judgment to American Fast
Freight, deciding it was shielded by the exclusive liability
provision of the Act. The superior court first considered the
three-part test in Tuboscope, [7] deciding as a
matter of law that (1) Buckley had an implied employment
contract with American Fast Freight; (2) his work was done
exclusively for the benefit of American Fast Freight; and (3)
American Fast Freight had the right to supervise Buckley.
From these findings the court concluded that American Fast
Freight was Buckley's employer and was, in addition to
Labor Ready, liable for workers' compensation benefits
for the accident.
The
court then turned to whether Buckley's injuries arose out
of and in the course of his employment with American Fast
Freight and decided as a matter of law that they did.
Applying factors discussed in Estate of
Milos,[8] the court decided that Buckley being on an
unpaid lunch break was immaterial because of the "strong
nexus between Buckley's action and his employment with
[American Fast Freight]." It also decided that
Buckley's injury was "reasonably foreseeable from
his employment" because "[a] truck getting stuck in
the snow is not an uncommon occurrence in Alaska" and
"it was common practice for nearby [American Fast
Freight] employees to be called to assist other
drivers."
The
court decided that the following facts were immaterial to the
question of work-relatedness: (1) Buckley's activity was
outside his job duties; (2) the activity was prohibited by
the contract between American Fast Freight and Labor Ready;
and (3) American Fast Freight admitted to AKOSH that Buckley
was injured performing a task "outside the scope of his
duties." The superior court granted summary judgment to
American Fast Freight based on the exclusive remedy provision
and denied summary judgment to Buckley,[9] dismissing the
case and entering final judgment against Buckley. Buckley
appeals.
III.
STANDARD OF REVIEW
We
review a grant of summary judgment de novo.[10] "Summary
judgment is proper if there is no genuine factual dispute and
the moving party is entitled to judgment as a matter of
law."[11] "[A] party seeking summary judgment
has the initial burden of proving, through admissible
evidence, that there are no disputed issues of material fact
and that the moving party is entitled to judgment as a matter
of law."[12] If the moving party makes that showing,
"the burden shifts to the non-moving party 'to set
forth specific facts showing that he could produce evidence
reasonably tending to dispute or contradict the movant's
evidence and thus demonstrate that a material issue of fact
exists.' "[13] "[A] material fact is one upon
which resolution of an issue turns."[14] "The
standard for finding a genuine issue of fact at summary
judgment is lenient."[15] Whether a person is an
employee for purposes of the Workers' Compensation Act is
a mixed question of law and fact.[16]
IV.
DISCUSSION
A.
Material Factual Disputes Precluded Summary Judgment
On The Special Employment Relationship.
The
superior court granted American Fast Freight's summary
judgment motion, deciding as a matter of law that American
Fast Freight was Buckley's special employer under the
test we adopted in Anderson v. Tuboscope Vetco,
Inc.[17] In that case we adopted a three-part
test for special employment relationships from Larson's
treatise on workers' compensation:
When a general employer lends an employee to a special
employer, the special employer becomes liable for
workmen's compensation only if:
(a) the employee has made a contract of hire, express or
implied, with the special employer;
(b) the work being done is essentially that of the special
employer; and
(c) the special employer has the right to control the details
of the work.[18]
When
these conditions are satisfied in relation to both the
general employer and the special employer, then both
employers are liable for workers'
compensation.[19]
Although
Tuboscope is our most recent decision about the
special employment relationship, we acknowledged in
Tuboscope that we had applied parts of the special
employment doctrine in prior cases.[20] In Cluff v.
NANA-Marriott, we stated that "the requirements for
finding an employment relationship for workers'
compensation purposes between a lent employee and a special
employer are stricter than the standards for finding an
employment relationship between an employee and an employer
where there is only one employer."[21]
Determining
whether an implied employment contract was formed involves
"considering all the factors in light of the surrounding
circumstances."[22] "An implied employment contract is
formed by a relation resulting from 'the manifestation of
consent by one party to another that the other shall act on
his behalf and subject to his control, and consent by the
other so to act.' "[23] In the special employment
context, we have also noted Larson's "great emphasis
on the importance of a contract for hire with a special
employer"[24] because in a special employment
relationship, the employee "loses the right to sue the
special employer at common law for negligence; and . . . the
courts have usually been vigilant in insisting upon a showing
of a deliberate and informed consent by the employee before
employment relation will be held a bar to common-law
suit."[25] The parties here disagree about the
existence of an implied contract of hire between Buckley and
American Fast Freight.[26] Buckley has consistently argued that
his employment relationship with American Fast Freight is
different from the employment relationship described in
Tuboscope and that no special employment
relationship existed between himself and American Fast
Freight. In contrast American Fast Freight has argued that
its relationship with Buckley falls squarely within the
framework set out in Tuboscope.
Tuboscope
involved two companies, Tuboscope Vetco, Inc. and Olsten
Staffing Services, that had "a continuing contract
agreement for Olsten to provide temporary employees to
Tuboscope," including a category of employees called PTP
("personnel transfer plan")
employees.[27] "Tuboscope recruited, hired,
placed, and directly and exclusively supervised PTP
employees; Olsten provided the payroll administration,
benefits, and workers' compensation coverage for PTP
employees."[28]A PTP employee was injured while working
for Tuboscope; he received workers' compensation benefits
from Olsten and later sued Tuboscope.[29] After
adopting the three-part test from Larson's treatise, we
applied it to the facts of the case and held that Tuboscope
met all of the tests.[30]
We
stated, "If the temporary employer hires, trains,
employs, directs, and reserves the right to terminate the
temporary employee, and the labor broker merely acts in the
capacity of a payroll and benefits administrator, an
employment contract exists between the temporary employer and
the temporary employee."[31] We noted in our discussion
that "[t]he contract between Olsten and Tuboscope
regarding PTP employees effectively provided that Tuboscope
would interview, hire, train, and employ the PTP
employees."[32]
The
written contract between Labor Ready and American Fast
Freight lacked several of these provisions, and the only
additional pieces of evidence American Fast Freight submitted
to the superior court were portions of Buckley's
deposition testimony, a copy of the work ticket from the day
Buckley was injured, a copy of the "Conditions of
Service" in its contract with Labor Ready, and copies of
some invoices from Labor Ready to American Fast Freight,
showing that Buckley had worked at American Fast Freight on
November 21.
Unlike
the worker in Tuboscope, Buckley did not
"interview[] directly with" American Fast Freight,
and no evidence shows that American Fast Freight recruited
him.[33] The uncontested facts showed that while
American Fast Freight may have requested Buckley as a worker,
as the superior court noted, Labor Ready was evidently not
obligated to comply with the request and provide Buckley as a
worker to American Fast Freight. Buckley testified that Labor
Ready had sent him to work for other clients of Labor Ready,
even when American Fast Freight had requested
him.[34] Buckley's testimony does not
establish that American Fast Freight could hire him as that
term is generally understood, [35] nor does any testimony or
other evidence indicate that ...