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Zapatero v. George & Lynch, Inc.

Superior Court of Delaware

November 29, 2017

ELVIA QUIROZ ZAPATERO, Individually and as the Administratrix of the Estate of Jose Luis Garcia-Hernandez, Plaintiff,

          Submitted: July 19, 2017

         Defendants George & Lynch, Inc. and Aaron F. Harley's Motion for Summary Judgment - DENIED

          Timothy A. Dillon, Esquire, McCann & Wall, LLC, 300 Delaware Avenue, Suite 805, Wilmington, DE 19801. Attorney for Plaintiff.

          Louis J. Rizzo, Jr., Esquire, Reger Rizzo & Darnall LLP, 1523 Concord Pike, Suite 200 Brandywine Plaza East, Wilmington, DE 19801. Attorney for Defendants.



         Before the Court is George & Lynch, Inc.'s ("G&L") and Aaron Harley's ("Harley") (jointly "Defendants") Motion for Summary Judgment. For the foregoing reasons, the Court will deny the motion.


         On December 26, 2014, Jose Luis Garcia-Hernandez (the "Deceased" or "Hernandez") was crushed by a Caterpillar D6E LGP Crawler Tractor (the "Tractor") at Cherry Island Landfill (the "Landfill") in Wilmington, Delaware.[1]Hernandez suffered fatal bodily injuries from the Tractor and died the same day (the "Accident").[2] At the time of Accident, it is alleged that Harley, who was employed by G&L, was said to be operating and reversing the Tractor in a careless and unsafe manner.[3] Hernandez was "an outsourced employee who had been provided to George & Lynch by Access Labor Services, Inc./Countrywide HR ("Access Labor")."[4] Hernandez's initial hire date with Access Labor is unknown, but it is undisputed by both parties that he had been a temporary employee at the Landfill since 2006.[5]

         When G&L needed workers at the Landfill, they would contact Access Labor.[6] Access Labor would provide workers pursuant to an oral agreement with G&L.[7] Each pay period, G&L paid Access Labor a contractually agreed-upon fee for employees provided by Access Labor and Access Labor paid its employees directly.

         During Hernandez's employment at the Landfill, G&L would supervise and direct the work performed by Hernandez and if need be, instructed him on how to perform the work.[8] G&L supervised the day-to-day activities at the Landfill and was present throughout the day.[9] None of the Access Labor management was at the Landfill to supervise its employees, [10] and if a situation arose, G&L had the authority to discipline or request Access Labor to no longer send that employee to work at the Landfill.[11]

         G&L supplied all safety equipment and devices necessary for work at the Landfill.[12] It also provided Access Labor employees with any tools and equipment needed to perform daily work activities.[13] Additionally, G&L provided classroom and on-site training to Access Labor employees. Hernandez completed annual training sessions on fire prevention/protection, waste screening, and operational procedures of the Landfill.[14] Participation in training was verified by sign-in sheets and confirmed by G&L at the 30(b)(6) deposition.[15]

         After the Accident, G&L contacted Occupational Safety & Health Administration ("OSHA") regarding the workplace fatality and was compliant with their investigation.[16] The worker's compensation carrier for Access Labor, Countrywide HR, "accepted financial responsibility for the worker's compensation claim of Hernandez."[17]

         The Deceased's spouse Elvia Quiroz Zapatero, individually and as administratrix of the estate of Jose Luis Garcia-Hernandez ("Zapatero" or "Plaintiff), filed a wrongful death action against Defendants, Harley and G&L, as well as Access Labor, Caterpillar, Inc., and Delaware Solid Waste Authority on December 29, 2015 seeking judgment for personal injuries, pain and suffering, medical expenses, punitive damages, lost wages, and court costs. In response to the suit, Defendants G&L and Harley filed a Motion to Dismiss Plaintiffs Complaint. The Court denied Defendants' Motion to Dismiss on April 6, 2016, and discovery in the case proceeded. Defendants G&L and Harley now filed the instant Motion for Summary Judgment arguing they are entitled to immunity from suit as Hernandez was a "borrowed servant" and thus they are entitled to rely upon the exclusivity provision under the Worker's Compensation Act ("the Act").


         In reviewing a motion for summary judgment pursuant to Superior Court Civil Rule 56, the Court must determine whether any genuine issues of material fact exist.[18] The moving party bears the burden of showing that there are no genuine issues of material fact, such that he or she is entitled to judgment as a matter of law.[19] In reviewing a motion for summary judgment, the Court must view all factual inferences in a light most favorable to the non-moving party.[20]Where it appears that there is a material fact in dispute or that further inquiry into the facts would be appropriate, summary judgment will not be granted.[21] The Court must also determine whether any genuine issues of material fact exist.[22]


         Before addressing the specific issues presented by this litigation, it is important to step back and appreciate the fundamental underpinning of the borrowed servant doctrine. In its simplest terms, the doctrine provides protection to companies that use agencies to obtain employees and pay a premium to that agency to provide benefits that they would otherwise have to provide. They get the protection because, even if the temporary agency purchases the benefit for the employee, the company in essence is paying through their contractual relationship for that benefit. As such, if they meet the employer-employee test outlined in Lester C. Newton Trucking Company v. Neal ("Lester")[23] and have paid a clearly defined premium to cover the cost of the benefit purchased by the third-party employer, in this case, the worker's compensation requirement, they get the benefit of the exclusivity provision of the Act. As such, the Court is required to review both the relationship with the injured individual and also the contractual understanding between the companies connected to this worker.

         A. The Lester Test

         The common law borrowed servant doctrine states that:

an employee, with his consent, may be loaned by his general employer to another to perform specific services, and in that, in the course of and for the purpose of performing such services, he may become the employee of the specific employer rather than the employee of the general employer.[24]

         Delaware Courts use the four-factor employer-employee test outlined in Lester to determine if a loaned employee is a borrowed servant.

         The Lester employer-employee relationship test requires the Court to consider: "(1) who hired the employee; (2) who may discharge the employee; (3) who pays the employee's wages, and (4) who has the power to control the conduct of the employee when he is performing the particular job in question."[25] Such a determination is generally a question of law and the greatest weight is given to the issue of control.[26] However, control "must be more than merely pointing out the area where the operator is to work and the results which he is to accomplish."[27]

         In the instant case, Defendant G&L does not dispute that only Access Labor hired Hernandez. There is little information regarding Access Labor's hiring process with Hernandez, but both parties agree he was working at the Landfill prior to G&L becoming the Landfill operator in 2012.[28] Additionally, G&L corporate designee, Leonard J. Brooks, stated that G&L never conducted any pre-job interviews or screenings of Hernandez that may have suggested G&L also hired him.[29] Factor number two is not as clear. G&L had the authority to reprimand Access Labor employees and could advise Access Labor that an employee was no longer welcome on the job site. So clearly they could make the decision to terminate an Access Labor employee from continuing to perform work for them but it appears only Access Labor could actually fire the individual.[30]

         In regard to factor three, there is no question that Hernandez received his paycheck from Access Labor. Access Labor would bill G&L $15.80 per hour for Hernandez's services and $23.70 per hour if he worked overtime.[31] On payday an Access Labor employee would come to the work site and issue checks to its employees. At no time was any money or check directly given to Hernandez by G&L.

         As to the final factor of control, Defendants contend that they exercised control over Hernandez by regulating many aspects of Hernandez's employment at the Landfill. For instance, Defendants stated that G&L created Hernandez's work schedules, determined when he could take breaks, regulated overtime, and provided on-site supervision of his work.[32] Additionally, Defendants provided Hernandez with safety gear and tools as needed, as well as annual training sessions.[33] Finally, G&L also maintained a regular presence at the Landfill and was able to remove employees like Hernandez from the work site if their work was not satisfactory. Plaintiff does not dispute G&L's control over Hernandez's work at the Landfill.

         Despite at most satisfying two of the four factors, G&L insists there is an employer-employee relationship and they are immune from suit pursuant to the exclusivity provision of the Act.[34] Plaintiff contends that all four factors of the Lester employer-employee relationship test must be satisfied for the borrowed servant doctrine to apply.

         The Supreme Court in Le ...

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