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Federal Insurance Co. v. Pennsylvania National Mutual Casualty8/17/2000
Mailed - July 17, 2000
This workers' compensation appeal has been referred to the Special Workers' Compensation Appeals Panel in accordance with the Tenn. Code Ann. §50-6-225(e)(3) for hearing and reporting findings of fact and conclusions of law. In this case, a temporary employer and its insurance company contend the trial court erred in finding a deceased employee to be a loaned servant. The panel has concluded that the judgment of the trial court should be affirmed because the deceased employee was a loaned servant.
Tenn. Code Ann. § 50-6-225(e)(3) Appeal as of Right; Judgment of the Chancery Court Affirmed
Turnbull, Sp.J., delivered the opinion of the court, in which Drowota, J., and Loser, Sp.J, joined.
MEMORANDUM OPINION
Background
The deceased employee, David Turner, was a concrete finisher for BBC Construction Company and had worked for the company for nine years prior to his death. He is survived by a wife and three children. George Powell Construction Company performs commercial and industrial construction; its insurer is Pennsylvania National Mutual Casualty. BBC Construction does primarily concrete-related construction; it is insured by Federal Insurance Company.
George Powell Construction Company ("GPC") had contracted to construct a building at the Bonnell Treadguard plant in Smith County, Tennessee. George Powell, the owner of GPC, needed a person to assist his regular employees with concrete finishing work at the job site because the regular concrete finisher on staff had recently resigned and no one else had experience with finishing large slabs. Previously GPC had subcontracted some work on the project to Eugene Bausell, d/b/a BBC Construction ("BBC"), but that work had been completed. In this instance, Powell requested Bausell's help with the concrete finishing portion of the project. Powell first asked for Eugene Bausell's brother, Don, who is not a BBC employee. Previously, GPC had contacted BBC to arrange for work to be done by Don Bausell. When work was arranged for him by BBC, Don Bausell was paid separately; he did not represent BBC. When Eugene Bausell notified Powell that Don Bausell was unavailable, Powell asked for anybody that Eugene Bausell could find to help. Bausell told Powell that one of two workers could aid GPC for the day. Since neither had a driver's license, Bausell told Powell he would need to pick up whichever employee could be spared and take him home afterwards. Powell agreed. Bausell asked Turner if he wanted to do the job for Powell and Turner accepted.
On April 15, 1998, Powell sent an employee of GPC to pick up Turner. GPC needed Turner to lead the crew in finishing large slabs since no one on the crew had experience in such practices. When Turner arrived at the job site, the concrete finishing job was already underway. Turner helped GPC employees finish the already begun portion of concrete work and started on another finishing job. In its operations, GPC utilized a crane to transport large buckets of concrete from the truck to the area where it would be poured and finished. The crane came in contact with electricity, and Turner, who had been on the ground with two other employees maneuvering the buckets, was electrocuted.
Pennsylvania National Mutual Casualty ("Penn"), GPC's workers' compensation carrier, refused to acknowledge liability. Federal Insurance Company, BBC's carrier, paid benefits to Turner's family pending the determination of which company is to be held liable.
From the evidence, the trial judge found that Turner was a "loaned servant" by law and imposed liability on Pennsylvania National Mutual Casualty and GPC fo
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