Dawson v. Burgs

373 So.3d 759

Rodger DAWSON, Appellant

v.Larry BURGS and Professional Staffing Company, Inc., Appellees

NO. 2021-CA-01038-COA

Court of Appeals of Mississippi.

04/11/2023

Rehearing Denied August 15, 2023

SUNFLOWER COUNTY CIRCUIT COURT, HON. RICHARD A. SMITH, JUDGE

ATTORNEYS FOR APPELLANT: CHARLES ?. MERKEL JR., EDWARD P. CONNELL JR., Clarksdale, ROBERT ALEXANDER CARSON III

ATTORNEYS FOR APPELLEES: ROBERT P. THOMPSON, CHARLES BARTON WYNN JR., Ridgeland

EN BANC.

GREENLEE, J., FOR THE COURT:

¶1. After being injured while working at a Dollar General warehouse, Rodger Dawson filed a complaint in the Sunflower County Circuit Court against Larry Burgs and Professional Staffing Company Inc. (Professional Staffing). The defendants moved for summary judgment, which the circuit court granted. Finding no error, we affirm thè circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶2. Brambles Inc., a staffing agency, assigned Dawson to work for Dollar General at a warehouse in Indianola, Mississippi. Brambles Inc. agreed to and did provide workers’ compensation coverage to Dawson. Similarly, Professional Staffing, another staffing agency, had assigned Burgs to work for the same Dollar General warehouse. According to a temporary service agreement between Professional Staffing and Dollar General, Burgs was to remain an employee of Professional Staffing, and Professional Staffing agreed to and did provide workers’ compensation coverage to Burgs. The agreement provided, in relevant part:

Assigned employees are employees of [Professional Staffing] and shall not be considered or treated as employees of [Dollar General] by the parties. Nothing contained in this Agreement shall entitle Assigned Employees to any benefits or compensation from [Dollar General]. As a condition of their assignment, [Professional Staffing] must require Assigned Employees to acknowledge in writing that they are employees of [Professional Staffing], not [Dollar General], and are not entitled to participate in any of [Dollar General’s] benefit plans. [Professional Staffing] shall bear sole responsibility for payment of compensation to its personnel. [Professional Staffing] shall be solely responsible to pay and report, for all personnel assigned to [Dollar General’s] work, all federal, state and local income tax withholding, social security taxes, and unemployment insurance applicable to such personnel as employees of [Professional Staffing]. [professional Staffing] shall bear sole responsibility for any health or disability insurance, retirement benefits, or other welfare or pension benefits, if any, to which such personnel may be entitled …. [Professional Staffing] shall procure and, maintain workers’ compensation coverage sufficient to meet the statutory requirements of every state in which the Assigned Employees are engaged in [Dollar General’s] work and, if such personnel reside in another state, such insurance shall also meet the requirements of such other state.¹

….

At all times during the term of this Agreement, [Professional Staffing] shall be an independent contractor to [Dollar General], and employees assigned under this Agreement shall remain exclusively the employees of [Professional Staffing] …, [Professional Staffing] shall perform the services hereunder as an independent contractor.

Additionally, as to training and supervision, the agreement provided, in relevant part:

[Dollar General] will reasonably train, instruct, assist and supervise Assigned Employees in performing the agreed upon duties.

[Dollar General] shall not … request or permit Assigned Employee to use any vehicle or forklift, regardless of ownership, in connection with the performance of services for [Dollar General] unless [Professional Staffing] has given prior written approval to [Dollar General].

The agreement was dated September 2018, and it provided that "[t]he initial term of [the] Agreement" would continue for a period of one year.²

¶3. More than one year later, in December 2019,. while working at the Dollar General warehouse, Burgs allegedly asked Dawson to assist him with a pallet jack that had become stuck. Burgs allegedly turned the throttle on the pallet jack, the pallet jack began to spin, and then the pallet jack pinned Dawson’s leg against a rack of merchandise, causing injuries to Dawson. Dawson was compensated by Brambles Inc.’s workers’ compensation carrier—Liberty Mutual Fire Insurance Company (Liberty Mutual).

¶4. In November 2020, Dawson filed a complaint against Burgs and Professional Staffing. Dawson alleged that Burgs had been negligent and that Professional Staffing was liable for Burgs’ alleged negligence under the doctrine of respondeat superior. Burgs and Professional Staffing filed answers to the complaint and asserted, among other things, that Dawson’s exclusive remedy was through workers’ compensation.

¶5. Thereafter, an agreed order was entered granting Liberty Mutual permission to intervene, and Liberty Mutual filed an intervening complaint. Liberty Mutual asserted that it had paid benefits to Dawson and that it was entitled to reimbursement in the event Burgs or Professional Staffing were found liable.

¶6. In March 2021, Burgs and Professional Staffing filed a motion for summary judgment. They alleged in the motion, among other things, that Burgs was a "borrowed servant" of Dollar General at the time of the accident, and therefore Dawson’s exclusive remedy was through workers’ compensation. Attached to the motion for summary judgment was an affidavit that had been executed by the office manager for Professional Staffing—Barbara Johnson. She stated in her affidavit, in relevant part:

Professional Staffing … had no control over the job assignments … Burgs was to perform once Dollar General accepted him as a temporary employee.

Professional Staffing … had no supervisory responsibility for … Burgs once he was placed for employment with Dollar General.

Burgs voluntarily accepted his assignment for employment at Dollar General.

After being assigned to the position at Dollar General, … Burgs performed work on behalf of Dollar General and at their direction.

The staffing agreement between Professional Staffing… and Dollar General memorializes that Professional Staffing … is not responsible for the supervision or safety training of … Burgs.

….

Professional Staffing … did not own or furnish … Burgs with the "pallet jack" at issue in this lawsuit. Professional Staffing … has, no knowledge regarding the pallet jack and did not train (nor did they have a duty to train) … Burgs in the proper and safe use of that piece of equipment he was to use while working for Dollar General.

¶7. After a hearing, the circuit court granted the defendants’ motion for summary judgment in August 2021. The circuit court noted that the parties agreed Burgs had accepted temporary employment with Dollar General and was performing work for Dollar General at the time of the accident. The court found that "[e]ven though Professional Staffing’s agreement with Dollar General regarded … Burgs as an independent contractor and an employee of Professional Staffing, the reality of the workplace and the parties’ actions … show[ed] that … Burgs was … temporary employee …" and that Burgs was a "borrowed servant" for Dollar General. Ultimately, the circuit court held that Burgs was immune from liability as Dawson’s "fellow servant" and that Professional Staffing was not vicariously liable for Burgs’ actions. After the circuit court entered an order of dismissal, Dawson appealed.

STANDARD OF REVIEW

¶8. The "grant of summary judgment is reviewed de novo." Wright v. R.M. Smith Invs. L.P.; 210 So. 3d 555, 557 (¶6) (Miss. Ct. App. 2016) (citing Thrash v. Deutsch, Kerrigan & Stiles LLP, 183 So. 3d 838, 841 (¶10) (Miss. 2016)). "Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law." Id. "The moving party bears the burden to show that no genuine issue of material fact exists, and the evidence must be viewed in the light most favorable to the nonmovant." Id.

DISCUSSION

¶9. We must decide whether the circuit court erred by granting summary judgment.

[1] ¶10. "The Mississippi Workers’ Compensation Act (MWCA) affords employers immunity from tort liability in actions by employees due to its ‘exclusive remedy’ provision." Robert A. Weems & Robert M. Weems, Mississippi Law of Torts § 16:1.70 (2d ed. updated Dec, 2022) (citing Miss, Code Ann, § 71-3-9). "An employer that secures workers’ compensation coverage that complies with the law enjoys immunity from suit in tort for an employee’s injury." Id. "In general terms; other employers, their employees, and their agents at the worksite occupy the status of ‘any other party’ and are not protected by the exclusive remedy defense." John R. Bradley and Linda R. Thompson, Mississippi Workers’ Compensation § 11:27 (2021). "This limited availability of the defense was established in the early cases and reiterated and strictly applied in later cases." Id.; see Clark v. Luther McGill Inc., 240 Miss. 509, 127 So. 2d 858, 862-63 (1961); see also Index Drilling Co, v. Williams, 242 Miss. 775, 137 So. 2d 525, 528 (1962). However, "[i]n some instances, when an injured worker filed a tort suit against another employer at the worksite, that defendant-employer … contended that because the worker had become its employee by loan from the actual employer …, the exclusive remedy defense protected it from the suit." Bradley & Thompson, Mississippi Workers’ Compensation § 11:28. This is known as the loaned-employee, or borrowed-servant, doctrine.

[2, 3] ¶11. "The borrowed-servant doctrine is a common-law rule that a servant, in general employment of one person, who is temporarily loaned to another person to do the latter’s work, becomes, for the time being, the servant of the borrower, although he remains in the general employment of the lender." James v. Dedeaux, 217 So. 3d 785, 787 (¶5) (Miss. Ct. App. 2017) ...