Special Employer Protected by Exclusive Remedy Doctrine
On February 18, 2011, the Alabama Court of Civil Appeals released its opinion in Ex parte Salvation Army (In re: Roy Williams v. First Choice Personnel, LLC and The Salvation Army). In that case, the Court issued a writ of mandamus, directing the trial court to enter summary judgment in favor of The Salvation Army on the tort claims brought by the plaintiff arising from an automobile accident. The plaintiff was employed by First Choice Personnel, a temporary employment agency, and was assigned to work at The Salvation Army as a general laborer. On October 2, 2007, the plaintiff sued First Choice, seeking workers’ compensation benefits, and also asserted claims of negligence and wantonness against The Salvation Army. The Salvation Army asserted that the plaintiff’s claims were barred by the exclusive remedy provision of The Alabama Workers’ Compensation Act. The Salvation Army filed a motion for summary judgment, asserting that it was a "special employer" as defined by the Act. The trial Court denied The Salvation Army’s motion for summary judgment and The Salvation Army filed a petition for writ of mandamus seeking an order directing the trial court to grant its motion.
After first addressing several procedural issues raised by the plaintiff, which were resolved in favor of The Salvation Army, the Court addressed the issue of whether The Salvation Army was immune to the tort claims pursuant to the exclusive remedy doctrine. Citing Ex parte Shelby County Health Care Authority, 850 So. 2d 332, 338 (Ala. 2002), the Court reiterated that "the Act is the exclusive remedy when an employee is injured in an accident proximately resulting from, and that occurred while the employee was engaged in, the actual performance of the duties of his or her employment." There was no dispute that First Choice was the plaintiff’s "general employer" but The Salvation Army claimed it was his "special employer". The Court cited Hicks v. Alabama Power, Co., 623 So. 2d 1050, 1052 (Ala. 1993), which incorporated the three-prong test delineated in Terry v. Read Steel Products, 430 So. 2d 862, 865 (Ala. 1983) to determine whether The Salvation Army was a "special employer" as contemplated by the Act. According to the three-pronged approach in Terry, a special employer becomes liable for workers’ compensation only if (1) the employee has made either an express or implied contract for hire 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. The plaintiff conceded that The Salvation Army had the right to control the details of the work, and that the work he was performing was that of The Salvation Army. However, he argued that he did not have a contract for hire with The Salvation Army. The plaintiff argued that the terms of the agreement between First Choice and The Salvation Army contained a provision prohibiting him from operating an automobile without first obtaining First Choice’s permission. However, the Court, citing Terry, supra; and Pettaway v. Mobile Paint Mfg. Co., 467 So. 2d 228, 230 (Ala. 1985), held that similar agreements did not preclude a finding of an implied contract for hire. The plaintiff also argued that he had worked for other clients of First Choice prior to his assignment with The Salvation Army, and that he had worked at The Salvation Army for a relatively brief time. The Court ruled that those factors has been addressed in other opinions and were also unpersuasive.
Citing Hicks, supra, the Court held that an implied contract for hire exists, thus creating a special employer-employee relationship, when the general employer is an employment agency or service which furnishes employees under contract to the special employer. When the plaintiff contacted First Choice, it was not for the purpose of entering into an employment relationship to do the work of First Choice, but instead he intended First Choice to market him to other employers. Once the plaintiff was presented by First Choice to The Salvation Army, and he agreed to accept the position, he entered into an implied contract for hire with The Salvation Army. As such, all three prongs of the Terry test had been satisfied, and The Salvation Army was a special employer as contemplated in the Act. The Salvation Army was thus protected by the exclusive remedy provision of the Act and the plaintiff’s tort claims were barred.