Special Employee – Workers’ Compensation Exclusivity

Ex parte Midsouth Paving, Inc., and Christopher Nivert, [Ms. SC-2022-0860, May 19, 2023] __ So. 3d __ (Ala. 2023). The Court (Stewart, J.; Parker, C.J., and Shaw, Wise, Bryan, Mendheim, Mitchell, and Cook, JJ., concur; Sellers, J., concurs in the result) issues a writ of mandamus to the Tallapoosa Circuit Court directing the court to dismiss an action against Midsouth Paving, Inc. (“Midsouth”) on the ground of employer immunity from tort.

The Court reiterates

[The] three-pronged test adopted in Terry v. Read Steel Products, 430 So. 2d 862 (Ala. 1983): “ ‘ “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 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." '" Gaut, 630 So. 2d at 364 (quoting Terry, 430 So. 2d at 865, quoting in turn 1C A. Larson, The Law of Workmen’s Compensation § 48 (1980)).

Ms. *10.

The only criterion in dispute was whether the plaintiff Yvonne Mason impliedly consented to the contract of hire with MidSouth. The factors relevant to implied consent are “1) ‘whether the general employer is, in reality, acting as a 'labor broker' or a temporary employment agency for the special employer,’ G.UB.MK Constructors v. Garner, 44 So. 3d 479, 488 (Ala. 2010); 2) ‘whether the special employer provided the workers' compensation insurance,’ id., and 3) ‘whether the employment with the borrowing employer was of such duration that the employee could be reasonably presumed to have evaluated and acquiesced in the risks of his employment, '" Ms. **11-12, some internal quotation marks omitted.

The Court concludes that MidSouth demonstrated that Mason was its special employee and rejected Mason’s argument that in signing an acknowledgment that she was a special employee of Midsouth’s, she did not realize the ramifications of being a special employee, “Mason’s ignorance of the terms of her employment agreement with PeopleReady does not serve as substantial evidence that she did not have an implied contract of hire with Midsouth or that she was not a special employee of Midsouth’s.” Ms. *21.

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