Download in the court of appeals of iowa

IN THE COURT OF APPEALS OF IOWA
No. 4-489 / 03-1327
Filed November 15, 2004
KYLE WILLMS,
Plaintiff-Appellant,
vs.
ASSOCIATED MATERIALS
INCORPORATED, d/b/a ALSIDE
WINDOW COMPANY MIDWEST
and STAFF SOURCE, INC,
Defendants-Appellees.
Appeal from the Iowa District Court for Linn County, L. Vern Robinson,
Judge.
Kyle Willms appeals the grant of summary judgment to defendants based
on the exclusive remedy provision of Iowa’s workers’ compensation law.
AFFIRMED.
William G. Nicholson of Rush & Nicholson, P.L.C., Cedar Rapids, for
appellant.
James W. Radig and J. Richard Johnson of White & Johnson, P.C., Cedar
Rapids, for appellee Associated Materials.
J. Michael Weston, James P. Craig, and Brenda K. Wallrichs of Moyer &
Bergman, P.L.C., Cedar Rapids, for appellee StaffSource, Inc.
Considered by Huitink, P.J., and Hecht and Eisenhauer, JJ.
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HUITINK, P.J.
I. Background Facts and Proceedings
On December 11, 2001, Kyle Willms sued Associated Materials Inc. d/b/a
Alside Window Company Midwest (Alside) and later amended his petition to
include Staff Source, Inc. (Staff Source) for personal injuries suffered on April 12,
2001, when his hand was crushed between a bundle of tubing and a boom
attached to a forklift operated by Michael Tobin. Alside and Staff Source denied
liability and moved for summary judgment, arguing Willms’s action was barred by
the exclusive remedy provision of Iowa’s workers’ compensation law because
both Willms and Tobin were employees of Alside at the time of injury. See Iowa
Code § 85.20 (2001).
The summary judgment record indicates that on February 6, 2001, Willms
applied for work with Advance Services, an employment agency engaged in the
business of providing temporary workers to commercial and industrial customers.
Willms had applied at other temporary employment agencies as well in search for
factory work. Advance Services eventually placed Willms in contact with Alside,
and Alside hired Willms as a temporary worker.
Alside hired Tobin as a temporary worker after he was referred by Staff
Source, another employment agency utilized by Alside to find workers.
Subsequent to the date of Willms’s injury, Tobin became a permanent employee
at Alside.
Both Tobin and Willms were temporary workers at Alside when Willms
was injured. At the time of Willms’s injury, Alside employed approximately 230
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workers.
Of those 230 workers, around eighty to eighty-five workers were
permanent, and the remaining employees were temporary. According to Alside’s
statement of undisputed facts:
There was no difference in dress of temporary and permanent
employees. . . . There was no difference in the shift assignments
for temporary and permanent employees. . . . There was no
segregation of temporary and permanent employees on the work
floor. . . . There was no segregation of temporary and permanent
employees off the floor. . . . It was impossible to tell, by
observation, which workers were permanent or temporary
employees. . . . Temporary and permanent employees were
governed by the same attendance policy.
...
Temporary
employees were included for special events like picnics, and could
receive bonuses as permanent employees.
Alside assigned the number of hours for temporary workers and retained the right
to hire and fire them. Moreover, Alside was the sole supervisor at the factory.
No representatives of the employment agencies were present at Alside.
However, Alside paid the employment agency instead of the workers, and
temporary workers did not receive pensions or other benefits from Alside.
On August 12, 2003, the trial court granted both Alside’s and Staff
Source’s motions for summary judgment. The court held “Willms and Tobin were
employees of Alside at the time of Willms’ injury. Alside and Staff Source, Inc.
are entitled to the protections of the Iowa Worker’s Compensation Act just as
Willms was entitled to the benefits of it.” Willms appeals.
Willms asserts the trial court erred in concluding he and Tobin were
employees of Alside as a matter of law. He contends summary judgment “was
improper
because
there
remain[s]
disputed
fact
issues
on
Willms[’s]
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employment,” and “the question of whether there was an employment
relationship is a question of fact, precluding summary judgment.”
II. Standard of Review
We review a district court’s ruling on a motion for summary judgment for
correction of errors of law. Financial Mktg. Servs., Inc. v. Hawkeye Bank & Trust,
588 N.W.2d 450, 455 (Iowa 1999). Summary judgment will be upheld when the
moving party shows there are no genuine issues of material fact and the party is
entitled to judgment as a matter of law.
See Iowa R. Civ. P. 1.981(3).
In
reviewing a motion for summary judgment, we consider the evidence in a light
most favorable to the party opposing the motion.
Crippen v. City of Cedar
Rapids, 618 N.W.2d 562, 565 (Iowa 2000).
III. The Merits
Iowa Code section 85.20 precludes any action other than workers’
compensation against an employer of an employee for injuries arising out of and
in the course of employment. “The threshold determination in deciding whether a
worker falls into the workers’ compensation scheme is whether the worker
entered into a contract of hire, express or implied.” Parson v. Proctor & Gamble
Mfg. Co., 514 N.W.2d 891, 893 (Iowa 1994). Because an express contract in
many cases will not exist, courts must look for evidence of the employee’s
consent to enter into an employment relationship with a special employer. Id. at
894. Ordinarily, the question of whether a contract for hire exists is one of fact.
Id. at 893. Accordingly, Alside and Staff Source have the burden to show the
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nonexistence of a material fact that Willms and Alside, and Tobin and Alside
entered into a contract for hire. See id.
Citing Parson, Willms argues a material issue of fact precluding summary
judgment remains as to whether an employment relationship existed between
Alside and Willms, and Alside and Tobin. He contends his testimony and other
evidence proves his intention to be employed by Advance Services rather than
Alside.
While we agree Parson is controlling, we disagree that Parson requires
reversal.
We believe Parson is distinguishable by the degree of control
exercised by the employment agency over the temporary worker. In Parson, the
worker was injured while working for Kelly Temporary Services (Kelly) on
assignment at Proctor and Gamble’s (P & G) Iowa City plant. Id. at 892. At P &
G, Kelly supervisors checked its employees into work and assigned the
employees to their production lines. Id. P & G retained no right to fire Kelly
workers, and Kelly workers were required to use separate break rooms,
entrances, and parking lots. Id. Kelly workers wore badges that differentiated
them from full-time P & G employees, and they were not allowed to use the P &
G cafeteria or locker-room.
Id.
P & G even labeled Kelly an independent
contractor in the parties’ agreement. Id. at 894. The court in Parson held that
“under [that] record,” the worker was not considered an employee of P & G. Id.
at 892.
In granting summary judgment for Alside and Staff Source, the trial court
stated:
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Alside’s practice of hiring temporary employees made those
people “employees” for the purpose of Workers’ Compensation
protection and liability. Willms received a paycheck from Advance
Services. Advance Services was paid by Alside based on Willms’
hours of service. Willms did not receive health insurance or
retirement benefits which were available to permanent Alside
employees. Willms was, however, in all respects, an employee of
Alside, given the undisputed facts of this case. Willms was
interviewed by Alside’s Human Resource Manager before he began
his work at the plant. Alside made the decision whether to take
Willms on. That is, Alside could reject a person referred by a
temporary employment agency. Willms could potentially become a
full-time employee of Alside depending on how he worked out.
When Willms first went to work for Alside, he was introduced to the
work requirements by Alside personnel and then trained by Alside
representatives. It was Alside’s supervisors who directed Willms’
(and all temporary employees’) work in the same way as
permanent employees. It was Alside’s supervisors who assigned
hours for the temporary workers (including overtime) and gave
warnings for any employee (temporary or permanent) for
misconduct. Alside kept track of the time worked by Willms. Alside
at all times, had the ability to decide whether to terminate Willms’
employment. Advance Services had no representatives on site at
Alside and provided no control whatsoever as to Willms’ duties and
responsibilities.
Willms and other “temporary” employees were treated the
same as permanent employees. There was no difference in dress
or uniform. There was no difference in shift assignments. All the
workers worked together and with each other. The workers were
not segregated while at work or off duty. All workers followed the
same rules and regulations and all were included in company
extracurricular events.
Alside had no express contract with Advance Services which
provided the temporary employment company was considered an
independent contractor.
The same arrangement as with Willms, Advance Services,
and Alside, existed as to the relationship between Tobin,
Staffsource, and Alside.
Even though Willms argues he subjectively intended to remain an employee of
Advance, the record clearly demonstrates that Willms and Tobin both intended to
enter into an employment relationship with Alside. While the parties did not enter
into an express contract for hire, we agree with the trial court’s determination that
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no genuine dispute of material fact remains that Alside and Willms, and Alside
and Tobin had entered into an implied contract of employment at the time of
Willms’s injury. See Jones v. Sheller-Globe Corp., 487 N.W.2d 88, 93 (Iowa Ct.
App. 1992) (granting summary judgment to the customer of labor broker based
on the exclusive remedy provision of Iowa’s workers’ compensation statute).
Accordingly, the decision of the trial court is affirmed.
AFFIRMED.
Eisenhauer, J., concurs; Hecht, J., dissents.
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HECHT, J. (dissenting)
I respectfully dissent. The determination of the intent of the parties to
make a contract is normally a question of fact for the jury. Parson v. Procter &
Gamble Mgf. Co., 514 N.W.2d 891, 894 (Iowa 1994) (citing 75A Am. Jur.2d Trial
§ 795, at 403 (1991)).
The fact question of whether Willms and Tobin were
employees of Alside can be resolved at the summary judgment stage “only when
but one inference can reasonably be drawn from the facts.” Id. (quoting Gigax v.
Ralston Purina Co., 186 Cal. Rptr. 395, 399 (1982)). The appropriate inferences
to be drawn at this stage must be determined after viewing the evidence in the
light most favorable to Willms who resisted the motion for summary judgment.
Thorp Credit, Inc. v. Gott, 387 N.W.2d 342, 343 (Iowa 1986). In cases such as
this, where the question is raised whether an employee of a general employer
became the employee of a special employer, we are to presume the general
employer continues as the sole employer. Parson, 514 N.W.2d at 894 (citing
O’Brien v. Garden Way Mfg., Inc., 421 N.Y.S.2d 729, 730 (1979)).
Courts
should be “vigilant in insisting upon a showing of a deliberate and informed
consent by the employee before [an] employment relation will be held a bar to
common-law suit.”
Id. (quoting 1B Arthur Larson, The Law of Workmen’s
Compensation § 48.12, at 8-440 (1993)).
In this case, there is no claim that Willms and Tobin had formed express
contracts of employment with Alside prior to Willms’s injury.
It is therefore
appropriate to analyze whether a fact question existed on the issue of whether
Willms and Tobin had formed employer-employee relationships by implied
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contracts with Alside. See id.
When the evidence is viewed in the light most
favorable to Willms, I find substantial evidence that Alside did not intend to be the
employer of the two workers at the time of the injury. The summary judgment
record contains substantial evidence tending to prove that Alside has an
unwritten policy to hire permanent employees only after they work for the
company as employees of employment agencies or brokers during a
probationary period of three months.
When Tobin sought employment directly with Alside, he was referred to
Staff Source.
The written employment agreement between Tobin and Staff
Source required Tobin to handle all workplace problems and concerns through
Staff Source rather than through Alside. The same agreement referred to Alside
as Staff Source’s client—not as Tobin’s employer. It is undisputed that Alside
paid Staff Source for work performed by Tobin. The summary judgment record
shows that an express employment contract between Tobin and Alside was
formed on June 25, 2001, well after the April 12, 2001 injury which is the subject
of this case.
The summary judgment record includes substantial evidence tending to
prove Willms sought temporary (three or four weeks) factory work when he
applied at Advance Services. He preferred to work short periods of time for
employment agencies that would allow him to do “different jobs,” spend time with
his daughter, and visit family out of state. As in the case of Tobin, Alside did not
pay wages directly to Willms. Alside instead paid Advance Services an amount
that was approximately twenty-five percent less than the value of wages and
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benefits paid to Alside’s permanent employees. Willms testified he believed he
was employed by Advance Services who withheld taxes from his paychecks.
Willms affirmed by affidavit that he never spoke to any representative of Alside
about becoming an employee of that company.
I would hold the district court failed to view the evidence in the light most
favorable to Willms. This failure is evidenced by the court’s description of the
ruling as a product of “an objective evaluation of the undisputed facts.” I also
believe the district court failed to give Willms the benefit of the presumption that
Advance Services and Staff Sources continued as the sole employers after they
assigned Willms and Tobin to work for their client Alside. Moreover, I would
reverse the ruling because the summary judgment record does not contain
evidence from which the court could, as a matter of law, find the deliberate and
informed consent of Willms and Tobin to form an employer-employee relationship
with Alside.