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rejecting appellant's “contention that because [the general master] had the sole right to discharge her from its employ, the third prong of the test was not satisfied”
Summary of this case from City v. HerreraOpinion
77246, 77292.
DECIDED OCTOBER 24, 1988.
Action for damages. Peach Superior Court. Before Judge Johnson.
Robert H. Malone III, for appellant.
Wallace Miller III, Dan Bullard IV, for appellees.
Geneva Knight Stephens brought suit against Kenneth Oates, Jr., and TGY Stores, Inc. to recover damages for injuries she suffered when a forklift driven by Oates, a TGY employee, collided with a cart pulled by Stephens, an employee of Kelly Temporary Services, Inc. (Kelly) on assignment at a TGY warehouse pursuant to a contract between TGY and Kelly. Oates and TGY moved for summary judgment on the grounds that workers' compensation benefits were Stephens' exclusive remedy, both because Stephens was the borrowed servant of TGY and because TGY was her statutory employer. The trial court determined that Stephens was the borrowed servant of TGY and therefore granted summary judgment in favor of Oates and TGY, which is the subject of Stephens' appeal in Case No. 77246. Oates and TGY filed a cross-appeal in Case No. 77292, contingent upon reversal in the main appeal, based on the denial of their motion on the alternate statutory employer ground.
1. In the main appeal, Stephens contends the trial court erred by granting summary judgment to Oates and TGY because the three-pronged test for establishing that she was TGY's borrowed servant was not met. The definitive test for determining whether an employee is a "borrowed servant" was set forth in U.S. Fidelity c. Co. v. Forrester, 230 Ga. 182, 183 ( 196 S.E.2d 133) (1973). The evidence must show that "(1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control, and (3) the special master had the exclusive right to discharge the servant." Id. In Six Flags Over Ga. v. Hill, 247 Ga. 375, 377-378 (1) ( 276 S.E.2d 572) (1981), the Supreme Court further refined this test by indicating that all three prongs of the test must focus on "the occasion when the injury occurred" rather than the work relationship in general. We must apply this test to the facts in the case sub judice.
The record reveals that Kelly is a national corporation which supplies temporary personnel. All personnel supplied by Kelly were paid directly by Kelly. The approximately one dozen employees supplied by Kelly to work at TGY's warehouse were supervised by TGY personnel. There were no distinctions between the work assignments given to the temporary (Kelly) employees and TGY's own, permanent employees. They worked side by side, at the same tasks. Stephens testified by deposition that on her first day of work at TGY, she went to an orientation at which two TGY employees instructed the Kelly workers as to their duties. She further testified there were no differences between the TGY employees and the Kelly personnel regarding privileges, parking, dress code, or amount of hours worked. Stephens received her assignments from Carl, a TGY employee. Carl also assigned another TGY employee to show her how to perform her work, e.g., how to read orders, "pull" the orders, and retrieve the merchandise from the shelves to fill the orders. She was also instructed as to when she was to do certain tasks.
"[W]e are not concerned here with whether [Stephens] was always under the control and direction of [TGY] but whether [she] was on the occasion when the injury occurred. [Cits.]" Six Flags Over Ga., supra at 377 (1). TGY had "complete control and direction of the servant for the occasion." U.S. Fidelity, supra at 183, and Kelly had none, satisfying the first two portions of the test. "The same is
true of the rights of the special master to discharge the servant and to put another in his place. This applies only to the special matter or occasion," Merry Bros. Brick c. Co. v. Jackson, 120 Ga. App. 716, 719 ( 171 S.E.2d 924) (1969), rendering meritless Stephens' contention that because Kelly had the sole right to discharge her from its employ, the third prong of the test was not satisfied, as it would appear that TGY had the exclusive right to discharge Stephens from her assignment at TGY if it was dissatisfied with her performance.
We thus find that all three prongs of the test were satisfied, that Stephens was the "borrowed servant" of TGY at the time she was injured, and that both TGY and Oates, its employee, were immune from suit. See generally Pulliam v. Richmond County Board c., 184 Ga. App. 403 ( 361 S.E.2d 544) (1987). Accordingly, we affirm the trial court's grant of summary judgment to both defendants on this ground. See id.
2. As TGY and Oates have conditioned their cross-appeal upon our reversal in the main appeal of the trial court's grant of summary judgment in their favor, and we have affirmed the trial court's grant of summary judgment in their favor in Division 1, it is unnecessary that we consider the issues raised in the cross-appeal and accordingly it is dismissed.
Judgment affirmed in Case No. 77246. Appeal dismissed in Case No. 77292. Deen, P. J., and Carley, J., concur.