In
Ex parte The Salvation Army, [Ms. 2100033, Feb. 18, 2011] __ So. 3d __(Ala. Civ. App. 2011), the Alabama
Court of Civil Appeals addressed a variety of procedural and substantive
issues relating to a trial court's denial of the defendant's motion
for summary judgment as to tort claims filed against it on the grounds
that the plaintiff's exclusive remedy was pursuant to the Alabama
Workers' Compensation Act, ¤ 25-5-1
et seq ("the Act"). First, the Court held that the denial of Defendant's
summary judgment motion is subject to mandamus review. Second, the Court
held that the exclusive-remedy affirmative defense need not be pleaded
with particularity. Third, the Court held that absent a finding of prejudice,
noncompliance with Rule 56(c)(2) of the Alabama Rules of Civil Procedure
(which requires all motions for summary judgment, briefs, and supporting
materials be served at least ten days before a hearing) does not constitute
reversible error. Finally, the Court considered whether the defendant,
The Salvation Army, was the plaintiff's "special employer,"
given that his general employer was First Choice Personnel, LLC, a temporary
employment agency. If The Salvation Army was Plaintiff's special employer,
then it was immune to Plaintiff's tort claims. The Court considered
the three factors necessary for proving that a person is both an employee
of a temporary employment agency and another organization with whom he
or she has been placed: (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."
Terry v. Read Steel Products, 430 So. 2d 862, 865 (Ala. 1983) (quoting 1C A. Larson,
The Law of Workmen's Compensation, ¤ 48 (1980)). The only factor that was disputed in this case was
the first factor D the parties disagreed about whether there was a contract
of hire between them. The Court held that because First Choice hired the
plaintiff to perform general labor for its clients, First Choice was the
"bargaining agent" or "employment agent" of the plaintiff.
Because First Choice assigned the plaintiff to work for The Salvation
Army and the plaintiff worked under The Salvation Army's control,
there was an implied contract between the plaintiff and The Salvation
Army. The Court also held that it was immaterial that First Choice had
previously assigned the plaintiff to other clients before assigning him
to The Salvation Army. Thus, all of the
Terry factors were satisfied and the plaintiff's only remedy against The
Salvation Army was the remedy available under the Alabama Workers'
Compensation Act.
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