Ex parte Tenax Corp., [Ms. 1151122, Jan. 27, 2017] __ So. 3d __ (Ala. 2017). The Supreme Court grants a petition for a writ of mandamus and reverses a judgment of the Conecuh Circuit Court which had denied a motion for summary judgment claiming workers’ compensation immunity under § 25-5-1, et seq., Ala. Code 1975.
The Court first reiterates that mandamus is an appropriate means for reviewing a denial of a claim of employer immunity under the exclusive-remedy provisions of the Workers’ Compensation Act. Ms. *8-9, citing, inter alia, Ex parte Rockwell Mfg. Co., 202 So. 3d 669 (Ala. 2016).
The Court next cites Gaut v. Medrano, 630 So. 2d 362 (Ala. 1993) for its recitation of the elements of the Special Employer defense:
In Terry v. Read Steel Products, 430 So. 2d 862 (Ala. 1983) this Court adopted a three-pronged test for determining when an employee of a general employer can become the employee of a ‘special employer’ for purposes of workers’ compensation:
“‘“ When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation [and thus immune from liability for tort actions brought by the special employee] 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.
“‘When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen’s compensation.’”
“430 So. 2d at 865 (quoting 1C A. Larson, The Law of Workmen’s Compensation, § 48 (1980)). The requirement of a contract of hire comports directly with our Workers’ Compensation Act, which defines an ‘employee’ as a ‘person in the service of another under any contract of hire, express or implied, oral or written.’ Ala. Code 1975, § 25-5-1(5).”
Ms. *10-11, quoting Gaut, 630 So. 2d at 364.
In this case, the ultimate issue was whether there was an implied agreement for the plaintiff to work under a contract of hire with the petitioner Tenax. Substantial evidence shows that the employee intended to enter into a contract of hire with Tenax, that he submitted to its control and supervision and he admitted it was his understanding that he was employed by Tenax. Ms. *14. Additionally, the evidence established that Tenax provided workers’ compensation insurance, albeit through the temporary employment agency by paying a compensation rate above the rate paid to the employee, which was used in part to pay for workers’ compensation insurance premiums. Ms. *15-16. Finally, the employee’s activities at Tenax were “of such duration that [he] could be reasonably presumed to have evaluated and acquiesced in the risk of his employment.” Ms. *17. Accordingly, the special employer was entitled to summary judgment on the basis of workers’ compensation immunity.