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Shurvington v. Cavender Drywall1/30/2001
ing drywall in a house a few miles away.
Cavender did not order Shurvington to do so, but rather the choice lay with Shurvington as to whether he would work for Huff or wait until Cavender had work for him. He consented to work for Huff.
Cavender did not go to or visit the Huff site with Shurvington. He did, however, tell Shurvington he could take two of Cavender's other employees with him.
When Shurvington began work for Huff, he was told to start upstairs. Huff gave Shurvington about thirty minutes of instruction as to how he wanted the job completed. Shurvington and Huff discussed the starting time for work each day; they agreed upon the time Shurvington suggested.
Payment terms were not discussed between Huff and Shurvington; in the past, Cavender paid Shurvington for work done for Huff.
When Shurvington began work the following day, he used his own screw gun, and a bench owned by Cavender. Huff furnished the remainder of the tools and job materials. Huff directed Shurvington throughout the day as to how he wanted things done.
The ALJ dismissed the claim against Cavender on a finding that Shurvington was a borrowed servant of Huff in that Cavender had completely surrendered control of Shurvington to Huff, and gave no instructions to him.
On April 29, 1999, Huff appealed the decision of the ALJ, challenging the sufficiency of the evidence to support the Division's ruling. Huff argued, inter alia, that Shurvington was a joint employee and not a borrowed servant, and that Huff and Cavender should be jointly liable for Shurvington's injuries. The Commission rejected that argument, finding that Shurvington was a borrowed servant of Huff and, therefore, Huff alone was liable for benefits payable to Shurvington. The Commission affirmed the decision of the ALJ on a finding that there was competent and substantial evidence supporting it.
Huff now appeals the decision of the Commission. He contends that the Commission erred in finding him solely liable for benefits payable to Shurvington. He claims the findings of the Commission were not supported by sufficient and competent evidence.
STANDARD OF REVIEW
In a workers' compensation case, we review the Commission's decision to see if it is supported by competent and substantial evidence on the record as a whole. Davis v. Research Med. Ctr., 903 S.W.2d 557, 571 (Mo. App. 1995).
DISCUSSION
The sole issue to be decided on appeal is whether Leonard Shurvington was an employee of Les Huff through application of the borrowed servant doctrine. Huff claims that the Commission erred in finding him solely liable for Shurvington's injuries, in that the finding is not supported by substantial evidence. Huff argues that Shurvington was the joint employee of both employers rather than a borrowed servant, and that since Cavender testified that he directed Shurvington and his crew to work on Huff's job site, and retained the right to withdraw them, Cavender cannot avoid liability by the ALJ's reliance upon Shurvington's testimony that he consented to the work. Huff asserts that Cavender retained control over whether or not his employees could work for Huff; and that, in determining the issue of control, the Commission should have found facts consistent with Cavender's testimony, rather than that of Shurvington.
It is well known that employers sometimes loan, borrow, or share workers with other employers. The lessor employer, the one loaning the employee to another employer, is known as the general employer. The lessee employer, the one borrowing the employee, is known as the special employer. If the employers are
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