Cowan v. Interdyne Corp.

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State: Ohio

Court: Ohio Southern District Court

Docket No: 2013-Ohio-642

Case Date: 02/25/2013

Plaintiff: Cowan

Defendant: Interdyne Corp.

Preview:[Cite as Cowan v. Interdyne Corp., 2013-Ohio-642.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
ROSEMARY COWAN, EXECUTOR
OF THE ESTATE OF WINFRED COWAN,
PLAINTIFF-APPELLANT,
-and-                                                CASE NO.   1-12-26
ROSEMARY COWAN,
PLAINTIFF-APPELLANT,
v.                                                   O P I N I O N
INTERDYNE CORP., ET AL.,
DEFENDANTS-APPELLEES.
Appeal from Allen County Common Pleas Court
Trial Court No. CV 2012 0163
Judgment Affirmed
Date of Decision:    February 25, 2013
APPEARANCES:
Brian J. Vennekotter for Appellant, Rosemary Cowan
William E. Clark   for Appellee, Interdyne Corp.

Case No.   1-12-26
PRESTON, P.J.
{¶1} Plaintiffs-appellants, Rosemary Cowan as the Executor of the Estate
of Winfred Cowan, and Rosemary Cowan, filed an appeal of the Allen County
Court  of  Common  Pleas’  judgment  granting  defendants-appellees,  Interdyne
Corporation  and  the  Bureau  of  Workers’  Compensation,  summary  judgment.
Appellants  argue  the  trial  court  erred  when  it  granted  appellees’  motion  for
summary judgment because the record creates a genuine issue of material fact in
dispute.   For the reasons that follow, we affirm.
{¶2} On  February                                                                                         27,                                                                    2012,  Winfred  and  Rosemary  Cowan  filed  a
complaint against Interdyne and the BWC alleging that Interdyne had negligently
exposed Winfred to chemicals and materials that caused his restrictive pulmonary
defect.1                                                                                                  (Doc. No.  1).    The Cowans sought damages in excess of  $25,000 to
recover  for  Rosemary’s  loss  of  consortium  with  her  husband  and  Winfred’s
medical expenses.   (Id.).
{¶3} The BWC filed its answer on April 9, 2012.                                                           (Doc. No. 6).   Interdyne
filed its answer on April 30, 2012.   (Doc. No. 7).
1 The Cowans included the BWC as a party to this action because, according to the Cowans’ complaint and
the BWC’s answer, the BWC has paid some of Winfred’s medical expenses.                                    (Doc. No. 1); (Doc. No. 6).
Consequently, the Cowans and the BWC assert that the BWC has a right of subrogation in this matter.
(Id.); (Id.).
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{¶4} On April 30, 2012, Interdyne filed a motion for summary judgment.
(Doc. No. 8).   Interdyne argued that R.C. 4123.74 grants it immunity from the
Cowans’ claims.   (Id.).
{¶5} On May 25, 2012, the Cowans filed their motion in response.                                       (Doc.
No. 10).   The Cowans argued Patrick Staffing, a temporary placement agency, was
Winfred’s employer so R.C. 4123.74 did not apply to Interdyne.   (Id.).
{¶6} On June  4,  2012, the  trial court filed its judgment entry granting
Interdyne summary judgment.   (Doc. No. 11).   The trial court found that Interdyne
was Winfred’s employer within the meaning of R.C. 4123.74 because it controlled
his day-to-day tasks in the workplace.   (Id.).
{¶7} On June 20, 2012, the Cowans filed a notice of appeal.2                                           (Doc. No.
12).    Appellants now raise one assignment of error for our review.
Assignment of Error
The  trial  court  committed  a  reversible  error  by  granting
summary  judgment  in  favor  of  Interdyne  when  there  is  a
genuine  issue  of  material  fact  whether  the  loaned  servant
doctrine applied.
{¶8} In their sole assignment of error, appellants argue Winfred was an
employee of Patrick Staffing and not Interdyne.   Appellants contend that Winfred
was assigned to work at Interdyne through Patrick Staffing.   Appellants argue that
pursuant to Interdyne’s contract with Patrick Staffing, Patrick Staffing retained the
2 Pursuant to App.R. 29(A), this Court substituted Rosemary Cowan, Executor of the Estate of Winfred
Cowan, for Winfred as a party to this action due to Winfred’s recent death.
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right  to  direct  and  control  Winfred,  so  Patrick  Staffing  was  Winfred’s  sole
employer.
{¶9} We review a decision to grant summary judgment de novo.   Doe v.
Shaffer, 90 Ohio St.3d 388, 390 (2000).   Summary judgment is proper where there
is no genuine issue of material fact, the moving party is entitled to judgment as a
matter of law, reasonable minds can reach but one conclusion when viewing the
evidence in favor of the non-moving party, and the conclusion is adverse to the
non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist.
Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).
{¶10} Material facts are those facts “that might affect the outcome of the
suit under the governing law.”   Turner v. Turner, 67 Ohio St.3d 337, 340 (1993),
citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).                        “Whether a
genuine issue exists is answered by the following inquiry:  [d]oes the evidence
present ‘a sufficient disagreement to require submission to a jury’ or is it ‘so one-
sided that one party must prevail as a matter of law[?]’”   Turner at 340, citing
Liberty Lobby, Inc., at 251-252.
{¶11} Summary judgment should be granted with caution, resolving all
doubts in favor of the nonmoving party.   Osborne v. Lyles, 63 Ohio St.3d 326, 333
(1992).                                                                                  “The purpose of summary judgment is not to try issues of fact, but is
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rather to determine whether triable issues of fact exist.”   Lakota Loc. Schools Dist.
Bd. of Edn. v. Brickner, 108 Ohio App.3d 637, 643 (6th Dist.1996).
{¶12} Interdyne argues that it is immune from claims for common law
negligence damages pursuant to R.C. 4123.74.   R.C. 4123.74 provides:
Employers who comply with section 4123.35 of the Revised Code
shall not be liable to respond in damages at common law or by
statute for any injury, or occupational disease, or bodily condition,
received or contracted by any employee in the course of or arising
out of his employment, or for any death resulting from such injury,
occupational disease, or bodily condition occurring during the period
covered by such premium so paid into the state insurance fund, or
during the interval the employer is a self-insuring employer, whether
or not such injury, occupational disease, bodily condition, or death is
compensable under this chapter.
Interdyne contends that based on the loaned servant doctrine, it is an employer
within the meaning of R.C. 4123.74 and consequently immune from appellants’
claims.
{¶13} The  Supreme  Court  of  Ohio  addressed  this  issue  in  Daniels  v.
MacGregor, 2 Ohio St.2d 89 (1965).   In Daniels, the plaintiff was employed by
Manpower, Inc., a company that provided temporary workers to individuals and
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Case No.   1-12-26
companies.    Id.  at  89.    Manpower  sent  the  plaintiff  to  work  for  MacGregor
Company, one of Manpower’s customers, where he was injured while installing a
light fixture.  Id. at 89-91.
{¶14} The pleadings, affidavits, a deposition, and a stipulation revealed that
Manpower’s employees received instructions from the customer regarding what
tasks the individual should perform and how to perform those tasks.   Id. at 89-90.
Manpower retained the right to hire and discharge its employees, and the right to
determine which employees were assigned to which customers.   Id.   Manpower
also reserved the right to remove its employees from one customer and place them
with another, even during the course of a work day.   Id. at 90.
{¶15} Manpower’s  customers  paid  a  fixed  hourly  rate  for  the  work
performed  by  Manpower’s  employees.     Id.     The  customers  did  not  pay
Manpower’s employees directly; rather, Manpower paid all of the wages, taxes,
and workers’ compensation premiums for its employees.   Id.
{¶16} Thus, the issue before the Court was whether MacGregor was the
plaintiff’s employer for the purposes of the immunity provisions of R.C. 4123.74.
The Court determined that MacGregor was the plaintiff’s employer at the time of
the injury, holding that where:
an employer employs an employee with the understanding that the
employee is to be paid only by the employer and at a certain hourly
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rate  to  work  for  a  customer  of  the  employer  and  where  it  is
understood that customer is to have the right to control the manner
or means of performing the work, such employee in doing that work
is  an  employee  of  the  customer  within  the  meaning  of  the
Workmen’s  Compensation  Act;  and,  where  the  customer  has
complied with the provisions of the Workmen’s Compensation Act,
he will not be liable to respond in damages for any injury received
by such employee in the course of or arising out of that work for
such customer.
Id. at 92.
{¶17} This Court has previously recognized that, “for purposes of workers’
compensation immunity, an employee may have dual employment status.”   Below
v. Dollar General Corp., 3d Dist. No. 9-05-08, 2005-Ohio-4752, ¶ 15.   Whether a
loaned servant is a customer’s employee depends on who had the right to manage
the  manner  or  means  of  day-to-day control over  the  employee,  not  who  was
responsible  for  administrative  human  resources  matters.    Cottrill  v.  Thermo
Electron North America, LLC, 4th Dist. No. 09CA34, 2010-Ohio-2238, ¶ 24.   In
determining who had the right to control the manner or means of doing the work,
this  Court  has  considered  several  factors  including,  but  not  limited  to,     “who
controls the details and quality of the work; who controls the hours worked; who
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Case No.   1-12-26
selects the materials, tools, and personnel used; who selects the routes; the length
of employment; the type of business; the method of payment; and any pertinent
agreements or contracts.”   Below at ¶ 24, citing Bostic v. Connor, 37 Ohio St.3d
144, 146 (1988).
{¶18} In the present case, the trial court granted summary judgment in
favor of Interdyne based on the pleadings, an affidavit by William Bresson, who is
an operations supervisor with Interdyne, an affidavit by Winfred, and the contract
between Interdyne and Patrick Staffing.                                                (Doc. No. 11).   In his affidavit, Bresson
testified that as an operations supervisor, he is familiar with Interdyne’s day-to-
day activities, “as well as its method and manner of supervision, direction, and
control of all regular and leased employees.”                                          (Doc. No. 8).   Bresson testified that
Winfred was an Interdyne employee from June 1, 2004 to January 1, 2005, and
was leased from Patrick Staffing from January 19, 2005 to April 16, 2010.              (Id.).
Bresson  testified  that  Interdyne  was  in  compliance  with  all  Ohio  Workers’
Compensation requirements and that Interdyne acted according to the terms of its
contract with Patrick Staffing.                                                        (Id.).   Bresson further testified that Interdyne’s
“method and manner of supervision, direction, and control was the same with
respect to Winifred (sic) Cowan as it was with its regular employees.”   (Id.).
{¶19} In his affidavit, Winfred testified that he has been employed with
Patrick Staffing from 2004 or 2005 through  2010, and that he was assigned to
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Case No.   1-12-26
work for Interdyne during that time.                                                   (Doc. No. 10).   Winfred testified that he
applied for the position through Patrick Staffing, that Patrick Staffing provided
him with his paycheck, took out his taxes, and notified him that he was no longer
assigned to Interdyne.   (Id.).
{¶20} The  contract  between  Interdyne  and  Patrick  Staffing  details  their
respective rights and responsibilities.                                                (Doc. No. 8).   Section 7 of the contract is
titled                                                                                 “Administration/Management”  and  provides  that  Patrick  Staffing   “is
responsible for employment matters such as payment for all Federal, State and
local employment taxes.”   (Id.).   Subsection (j) states:
Client agrees that, since it controls the work-site and scheduling and
supervision of  Covered Employees, and exercises the  day-to-day
direction  and  control  over  Covered   Employees,  Client  will
determine, verify and accurately report to [Patrick Staffing]:
(i)                                                                                    The total number of hours worked by all Covered Employees
and their exempt and non-exempt status; and
(ii)  The total remuneration due each Covered Employee for every
payroll * * *.
(Id.).   Section 9 of the contract is titled “Covered Employee On-Site Supervision.”
(Id.).   The provision states:
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Case No.   1-12-26
Client will designate on-site Supervisors.   These on-site Supervisors
shall determine and be responsible for all procedures to be followed
by employees regarding the time, manner and performance of their
duties.   If determined to be necessary, [Patrick Staffing] reserves the
right of direction and control over management of safety and hazard
control  affecting  its  Employees,  including:  responsibility  for
performing  inspections  of  client  equipment  and  premises;  the
promulgation of safety policies; and the management of workers
compensation claims, claims filing and related procedures.
(Id.).
{¶21} After reviewing the record, we find that the present case is similar to
Daniels.     The  contract  between  Interdyne  and  Patrick  Staffing  specifically
provides  for  Interdyne  to  exercise                                                   “day-to-day  direction  and  control”  over
Winfred.                                                                                 (Id.).   The contract also requires Interdyne to designate supervisors who
would “be responsible for all procedures to be followed by employees regarding
the time, manner and performance of their duties.”                                       (Id.).   Thus, it was Interdyne,
and  not  Patrick  Staffing,  that  exercised  day-to-day  control  over  Winfred  and
determined how he would perform his tasks.
{¶22} This construction of the contract is supported by the affidavits by
Bresson and Winfred.   Bresson testified that Interdyne supervised Winfred like
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Case No.   1-12-26
any other employee.   (Id.).   Bresson also testified that Interdyne acted according to
its contract with Patrick Staffing, which required Interdyne to have “day-to-day
direction and control” over Winfred.                                                      (Id.).   Winfred testified that Patrick Staffing
performed administrative and human resources services related to his employment,
such as providing him with his paycheck, deducting his taxes, and notifying him
when he was no longer assigned to Interdyne.                                              (Doc. No. 10).   Notably, Winfred
did not make any statements demonstrating that Patrick Staffing exercised day-to-
day control over his work activities.   (Id.).
{¶23} Appellants argue that pursuant to Interdyne’s contract with Patrick
Staffing, Patrick Staffing reserved:
the right of direction and control over management of safety and
hazard control affecting its Employees, including: responsibility for
performing  inspections  of  client  equipment  and  premises;  the
promulgation of safety policies; and the management of workers
compensation claims, claims filing and related procedures.
(Doc. No. 8).   Appellants contend that since Patrick Staffing reserved the right to
direct and control the management of safety and hazard issues affecting Winfred,
Interdyne did not have the required day-to-day control over Winfred to be his
employer pursuant to R.C. 4123.74.   We find this argument unpersuasive.   The
contract’s  plain  language  reserves                                                     “the  right  of  direction  and  control  over
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management of safety and hazard control,” not the right to control the manner in
which Winfred performs his day-to-day tasks.                                              (Id.).   Sections 7(j) and 9 of the
contract  allocate  those  responsibilities  to  Interdyne.                               (Id.).    Consequently, we
cannot find that Patrick Staffing was Winfred’s employer to the  exclusion of
Interdyne as appellants contend.
{¶24} Appellants also argue that the present case is similar to a case from
the Tenth District Court of Appeals, Sellers v. Liebert Corp., 10th Dist. No. 05AP-
1200,                                                                                     2006-Ohio-4111.    In  Sellers,  the  plaintiff  was  employed  by  Tailored
Management, a professional employment organization, and assigned to work at
Liebert Corporation.    Id. at  ¶  1.    The plaintiff was injured while working for
Liebert.   Id.   The contract between Tailored and Liebert stated, “Tailored retains
all rights of supervision and control of Tailored Associates including, but not
limited to, the hiring and promotion, discipline and discharge, wages and salary
administration,  processing  of  grievances,  policing  of  employee  conduct  and
appearance, and labor relations.”   Id. at ¶ 9.   The contract further provided, “[t]he
parties acknowledge and agree that all Tailored Associates shall at all times be
under the supervision and control of Tailored, and shall not be under the direct
control of Client.”   Id.
{¶25} The Tenth District determined that the contract clearly provided that
Tailored retained the rights of supervision and control over its employees.   Id. at ¶
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10.   The Court decided the case was distinguishable from Daniels because in its
contract,  Tailored  retained  these  rights  to  day-to-day  control,  which  had  not
occurred in Daniels.   Id. at ¶ 16.   Consequently, the Tenth District held that the
trial court’s grant of summary judgment in favor of Liebert was inappropriate.   Id.
{¶26} The  present  case  is  distinguishable  from  Sellers.    Here,  Patrick
Staffing did not retain the right to control and supervise its employees.   Rather,
Patrick Staffing retained “the right of direction and control over management of
safety and hazard control.”                                                               (Doc. No. 8).   This control is much more limited than
the control at issue in Sellers.    The contract provides ways in which Patrick
Staffing  could  exercise  this  right,  including                                        “responsibility  for  performing
inspections of client equipment and premises; the promulgation of safety policies;
and the management of workers compensation claims, claims filing and related
procedures,” none of which involve the day-to-day control over the manner in
which the employees complete their tasks.                                                 (Id.).   In comparison to this limited
right that Patrick Staffing retained, the contract explicitly states that Interdyne has
day-to-day control over the employees.                                                    (Id.).   Thus, Sellers does not apply to the
instant case because Patrick Staffing did not reserve the right to day-to-day control
over the employees.   Furthermore, appellants have not provided any evidence that
Patrick Staffing ever invoked this contract provision while Winfred worked for
Interdyne.
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{¶27} In  their  reply brief,  appellants  argue  that  they have  not  had  the
opportunity to determine whether Patrick Staffing used this contract provision
because  Interdyne  filed  its  motion  for  summary  judgment  with  its  answer.
Appellants contend they have not had a chance to complete discovery, so it is not
possible  to  determine  whether  Patrick  Staffing  ever  acted  pursuant  to  this
provision.   However, appellants failed to file a motion requesting a continuance to
complete  the  necessary discovery prior  to  filing  their  response  to Interdyne’s
motion  for  summary  judgment  and  failed  to  present  this  argument  in  their
response.                                                                               (Doc. No. 10).   “A party’s failure to raise an issue in response to an
adverse party’s motion for summary judgment waives that issue for purposes of an
appeal.”    Pottorf v. Sell,  3d Dist. No.  17-08-30,  2009-Ohio-2819,  ¶  24, citing
Minster Farmers Coop. Exch. Co. v. Meyer, 3d Dist. No. 17-08-31, 2009-Ohio-
1445, ¶ 22.   Therefore, this issue is not properly before this Court.
{¶28} Even  if  appellants  presented  evidence  that  Patrick  Staffing  had
invoked its “right of direction and control over management of safety and hazard
control,” we are not persuaded that they would prevail on this issue.                   (Doc. No. 8).
The  evidence  demonstrates  that  Patrick  Staffing  paid  Winfred  with  the
understanding that Winfred would be working for Interdyne, and that Interdyne
had the right to control the manner and means in which Winfred performed his
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day-to-day  tasks.    Consequently,  we  conclude  that  Interdyne  was  Winfred’s
employer for the purposes of the immunity provisions of R.C. 4123.74.
{¶29} The appellants’ assignment of error is, therefore, overruled.
{¶30} Having found no error prejudicial to the appellants herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr
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