Alabama Workers' Comp Blawg

Supreme Court Affirms Summary Judgment in Favor of Special Employer

On January 24, 2014, the Supreme Court of Alabama affirmed the Circuit Court of Shelby County Alabama’s decision, without opinion, in the case of Vinson v. G & R Mineral Services, Inc. However, Chief Justice Roy Moore pinned an interesting dissent. The employee, David Vinson, Jr., sought employment with G & R, a contractor that provided services to Chemical Line Company of Alabama in Calera. G & R then directed Vinson to a temporary employment agency, Diversified Sourcing Solutions (DSS), to apply for the job. Vinson was then hired by DSS to work for G & R at the Chemical Lime bag house, where his job involved changing out lime filters. On his second day of employment, Vinson allegedly inhaled lime dust, had to be hospitalized, and never returned to work. Vinson sought workers’ compensation benefits from DSS. However DSS’s workers’ compensation carrier later became insolvent, so the Alabama Insurance Guarantee Association (AIGA) assumed responsibility for paying for Vinson’s care. AIGA eventually discontinued the payment of benefits, and Vinson then filed a lawsuit against G & R seeking workers’ compensation benefits. However, G & R’s workers’ compensation carrier convinced Vinson to dismiss the action on the grounds that DSS, and not G & R, was Vinson’s employer.

Vinson then filed an action for negligence against G & R. G & R moved for summary judgment, asserting that it was a "special employer" of Vinson, and was therefore immune from tort liability. Vinson moved to strike G & R’s special employer defense. The trial court found that DSS was merely a temporary employment agency and that Vinson had an implied contract of special employment with G & R. Based on these findings, the trial Court entered summary judgment in favor of G & R. On appeal, Vinson argued that G & R’s insistence in the workers’ compensation case that it was not his employer, created a genuine issue of fact as to whether it should be considered Vinson’s employer in the negligence case. In support of that position, Vinson produced a letter to the Mine Safety and Health Administration (MSHA) from G & R’s safety officer stating that Vinson was an employee of DSS and not G & R, and that DSS was paying Vinson’s workers’ compensation benefits. Despite this evidence, the Supreme Court upheld the trial Court’s ruling.

In his dissent, Judge Moore stated that G & R’s opportunistic switch from non-employer to employer was sufficient to raise a factual question as to whether G & R was a special employer immune from tort liability under the exclusivity provisions of the Act. Judge Moore stated that since that question was not one purely of law, but of fact, reasonable persons might draw different conclusions as to whether G & R was a special employer. Based on that, Judge Moore stated that the issue of whether G&R was a special employer should have been one decided by the jury.

MY TWO CENTS

Although Judge Moore was the only judge that dissented, I believe that the principals of judicial estoppel support his opinion. A party is generally precluded from taking a position in a case which is contrary to a position they have taken in earlier legal proceedings. Employers need to be aware that if they deny that they are the employer, they may be estopped from seeking protection under the exclusivity provisions of The Alabama Workers’ Compensation Act in the event a tort claim is later brought by the employee. Therefore, it is critical that employers and their attorneys consider the pros and cons of pleading tort immunity at the outset of any case.

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ABOUT THE AUTHOR

This article was written by Charley M. Drummond, Esq. of Fish Nelson, LLC. Fish Nelson is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at cdrummond@fishnelson.com or (205) 332-3414.