Case opinion for Powers vs. Werner Enterprises

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2000 Neb. App. LEXIS 220, *
2 of 100 DOCUMENTS
ROBERT POWERS, APPELLANT, v. WERNER ENTERPRISES, INC., A
NEBRASKA CORPORATION, AND DRIVERS MANAGEMENT, INC., A
NEBRASKA CORPORATION, APPELLEES.
No. A-99-583.
NEBRASKA COURT OFAPPEALS
2000 Neb. App. LEXIS 220
July 18, 2000, Filed
NOTICE: [*1] NOT DESIGNATED FOR
PERMANENT PUBLICATION.
PRIOR HISTORY: Appeal from the District Court for
Douglas County: SANDRA L. DOUGHERTY, Judge.
DISPOSITION: AFFIRMED.
CASE SUMMARY:
PROCEDURAL POSTURE: Appellant challenged
order from the District Court for Douglas County
(Nebraska) granting summary judgment to appellees in
worker's compensation case.
OVERVIEW: Appellant challenged an order of the
district court granting summary judgment in favor of
appellees. Summary judgment was granted on the basis
that appellee employer was a special employer and
entitled to the benefits of the exclusive remedy doctrine
of worker's compensation law. The court concluded that
there was no genuine issue of material fact concerning
the applicability of the special employer doctrine. All
three conditions of the special employer test were
required to be met for a party to whom an employee's
services were loaned to be considered an employer under
the worker's compensation laws. On appeal, appellant
had not challenged the court's findings that the three
requirements were sufficiently shown by appellees. In
fact, at oral argument, appellant conceded that the
elements were shown, but appellant argued that an
exception to the rule should be applied. The court did not
find support for appellant's assertion that an exception
was warranted, and the court affirmed the trial court's
finding that the special employer doctrine applied.
OUTCOME: Judgment was affirmed. Trial court
properly found that special employer doctrine applied in
worker's compensation case and there was no genuine
issue as to the doctrine's applicability.
LexisNexis(R) Headnotes
Civil Procedure > Summary Judgment > Appellate
Review > General Overview
Civil Procedure > Summary Judgment > Motions for
Summary Judgment > General Overview
Civil Procedure > Summary Judgment > Standards >
General Overview
[HN1] In reviewing a trial court's ruling on a motion for
summary judgment, an appellate court views the
evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the
benefit of all reasonable inferences deducible from the
evidence. Summary judgment is proper only when the
pleadings, depositions, admissions, stipulations, and
affidavits in the record disclose that there is no genuine
issue as to any material fact or as to the ultimate
inferences that may be drawn from those facts and that
the moving party is entitled to judgment as a matter of
law.
Workers' Compensation & SSDI > Coverage >
Employment Relationships > Borrowed Employees
Workers' Compensation & SSDI > Coverage >
Employment Relationships > Employers
[HN2] The Nebraska Supreme Court has recognized the
special employer doctrine in situations involving
employees who are loaned, or whose services are leased,
by their primary employer to another party. The situation

2. Page 2
2000 Neb. App. LEXIS 220, *
primarily arises where a person works for a temporary
service or other employment agency and is placed on
assignment with a third party. The question to be
resolved is whether the person becomes an employee of
the third party. If so, the person's sole remedy against his
or her primary employer and the third party is worker's
compensation.
Labor & Employment Law > Employment
Relationships > Employment Contracts > Conditions &
Terms > General Overview
Workers' Compensation & SSDI > Coverage >
Employment Relationships > Borrowed Employees
Workers' Compensation & SSDI > Coverage >
Employment Relationships > Employers
[HN3] When a general employer, such as a labor broker,
loans an employee to another for the performance of
some special service, then that employee may become
the employee of the party to whom his or her services
have been loaned. If such is the case, then the employee
is simultaneously considered an employee of both the
labor broker and the party to whom his or her services
were loaned, and worker's compensation would be the
sole remedy for the employee as to either employer. The
relevant test for determining whether a party to whom an
employee's services have been loaned is considered a
special employer requires the following three conditions
to be met: (1) The employee has made a contract of hire,
express or implied, with the special employer; (2) the
work being done is essentially that of the special
employer; and (3) the special employer has the right to
control the details of the work.
Civil Procedure > Summary Judgment > Burdens of
Production & Proof > Movants
Civil Procedure > Summary Judgment > Evidence
Civil Procedure > Summary Judgment > Opposition >
General Overview
[HN4] The party moving for summary judgment has the
burden to show that no genuine issue of material fact
exists and must produce sufficient evidence to
demonstrate that the moving party is entitled to a
judgment as a matter of law. A prima facie case for
summary judgment is shown by producing enough
evidence to demonstrate that the movant is entitled to a
judgment in its favor if the evidence were uncontroverted
at trial. If the moving party has shown a prima facie case
for summary judgment, the burden of producing
evidence to show a genuine issue of material fact shifts
to the party opposing the motion.
Torts > Procedure > Multiple Defendants > Joint &
Several Liability
[HN5] See Neb. Rev. Stat. § 25-21,239.
COUNSEL: James E. Harris and Britany S. Shotkoski,
of Harris, Feldman Law Offices, for appellant.
Walter R. Metz, Jr., for appellees.
JUDGES: IRWIN, Chief Judge, and SIEVERS and
MOORE, Judges.
OPINION BY: IRWIN
OPINION
IRWIN, Chief Judge.
I. INTRODUCTION
Robert Powers appeals from an order of the district
court granting summary judgment in favor of Werner
Enterprises, Inc. (Werner), and Drivers Management,
Inc. (DMI) (collectively defendants). Summary judgment
was granted on the basis that Werner was a special
employer of Powers and entitled to the benefits of the
exclusive remedy doctrine of workers' compensation law.
Because we find that there is no genuine issue of
material fact, we affirm.
II. BACKGROUND
On December 17, 1997, Powers filed a second
amended petition alleging the following facts:
Powers was employed by DMI as an over-the-road
driver. On January 17, 1994, Powers suffered various
injuries as the result of an accident involving a semi-
truck in which Powers was a passenger. The truck was
being driven by a fellow DMI employee, and Powers
was [*2] in the sleeper berth of the truck. The truck was
owned by Werner.
Powers alleged that DMI paid workers'
compensation benefits, and DMI was named as a
defendant in the present action for subrogation purposes
only. Powers alleged various acts of negligence on the
part of DMI. Powers sought to hold Werner jointly and
severally liable for the alleged negligence by DMI
pursuant to a Nebraska statute governing leased trucks,
Neb. Rev. Stat. § 25-21,239 (Cum. Supp. 1998). Powers
further alleged that Werner breached various
nondelegable duties owed by interstate common carriers
and that Werner was liable for negligent entrustment of
the truck.
On January 5, 1998, defendants filed an answer. In
the answer, defendants alleged that Powers' services
were leased from DMI to Werner, making Powers a joint
employee of defendants. DMI is a wholly owned
subsidiary of a company known as Gra-Gar, Inc., which
in turn is a wholly owned subsidiary of Werner.
Defendants specifically alleged that Powers' claim was
barred by the exclusive remedy doctrine of workers'
compensation. Defendants alleged that Powers' injuries
arose out of and during the course of his employment

3. Page 3
2000 Neb. App. LEXIS 220, *
with defendants, that Powers' workers' [*3]
compensation claim had been settled by virtue of a lump-
sum settlement approved by the compensation court, and
that the workers' compensation claim was Powers'
exclusive remedy against defendants.
On February 18, 1999, defendants renewed an
earlier motion for summary judgment. Defendants
asserted that there was not a genuine issue as to any
material fact and that the issues could be decided as a
matter of law. Defendants alleged they were entitled to
summary judgment because of the exclusive remedy
provision of the workers' compensation law and because
a provision of Powers' lump-sum settlement approved by
the compensation court purported to discharge
defendants from all other liability arising out of this
accident.
On May 5, 1999, the court entered a memorandum
and order. The court ruled on the motion for summary
judgment specifically on the basis of whether Werner
was a "special employer" of Powers pursuant to the
Nebraska Supreme Court's holding in Daniels v. Pamida,
Inc., 251 Neb. 921, 561 N.W.2d 568 (1997). The court
found that based on the factors outlined in Daniels,
Werner was a special employer of Powers. As such, the
court held that Werner was an employer [*4] of Powers
within the meaning of the workers' compensation law
and that Powers' exclusive remedy was in workers'
compensation. The court further specifically found that
the Nebraska statute governing leased trucks was
inapplicable to this case, as the truck involved in the
accident was owned by Werner and was not leased to or
from anyone. The court granted defendants' motion for
summary judgment. This timely appeal followed.
III. ASSIGNMENTS OF ERROR
On appeal, Powers has assigned four errors, which
we have consolidated for discussion to two. First, Powers
asserts that the court erred in applying the special
employer doctrine to the facts of the present case.
Second, Powers asserts that the court erred in refusing to
apply the truck owner liability statute to the facts of the
present case.
IV. ANALYSIS
1. STANDARD OF REVIEW
[HN1] In reviewing a trial court's ruling on a motion
for summary judgment, an appellate court views the
evidence in a light most favorable to the party against
whom the judgment is granted and gives such party the
benefit of all reasonable inferences deducible from the
evidence. Keene v. Teten, 8 Neb. App. 819, 602 N.W.2d
29 (1999). Summary judgment [*5] is proper only when
the pleadings, depositions, admissions, stipulations, and
affidavits in the record disclose that there is no genuine
issue as to any material fact or as to the ultimate
inferences that may be drawn from those facts and that
the moving party is entitled to judgment as a matter of
law. Parnell v. Madonna Rehab. Hosp., 258 Neb. 125,
602 N.W.2d 461 (1999).
2. SPECIAL EMPLOYER DOCTRINE
The trial court granted defendants summary
judgment on the basis that Werner was a special
employer of Powers, and accordingly, Powers' exclusive
remedy against defendants was the workers'
compensation law. On appeal, Powers has asserted that
the court erred in applying the exclusive remedy doctrine
and in failing to hold that the facts of the present case
warrant an exception to the special employer doctrine.
We conclude that there was no genuine issue of material
fact concerning the applicability of the special employer
doctrine in this case.
(a) General Principles
[HN2] The Nebraska Supreme Court has recognized
the special employer doctrine in situations involving
employees who are loaned, or whose services are leased,
by their primary employer to another party. See, [*6]
Kaiser v. Millard Lumber, 255 Neb. 943, 587 N.W.2d 875
(1999); Daniels v. Pamida, Inc., 251 Neb. 921, 561
N.W.2d 568 (1997). The situation primarily arises where
a person works for a temporary service or other
employment agency and is placed on assignment with a
third party. See, Kaiser v. Millard Lumber, supra;
Daniels v. Pamida, Inc., supra. The question to be
resolved is whether the person becomes an employee of
the third party. See, Kaiser v. Millard Lumber, supra;
Daniels v. Pamida, Inc., supra. If so, the person's sole
remedy against his or her primary employer and the third
party is workers' compensation. Kaiser v. Millard
Lumber, supra; Daniels v. Pamida, Inc., supra.
[HN3] When a general employer, such as a labor
broker, loans an employee to another for the performance
of some special service, then that employee may become
the employee of the party to whom his or her services
have been loaned. Kaiser v. Millard Lumber, supra;
Daniels v. Pamida, Inc., supra. If such is the case, then
the employee is simultaneously considered an [*7]
employee of both the labor broker and the party to whom
his or her services were loaned, and workers'
compensation would be the sole remedy for the
employee as to either employer. Kaiser v. Millard
Lumber, supra. The relevant test for determining whether
a party to whom an employee's services have been
loaned is considered a special employer requires the
following three conditions to be met: (1) The employee
has made a contract of hire, express or implied, with the
special employer; (2) the work being done is essentially
that of the special employer; and (3) the special
employer has the right to control the details of the work.
Id.; Daniels v. Pamida, Inc., supra.
(b) Powers' Assertions
On appeal, Powers asserts that this appeal presents
an issue of first impression in Nebraska and that "an
exception, uniformly recognized in other jurisdictions, to
the 'special employer' rule" should be recognized by this

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2000 Neb. App. LEXIS 220, *
court. Brief for appellant at 8. Powers provides a state-
by-state analysis that purportedly demonstrates that
"courts have consistently held that workers'
compensation immunity . . . does not extend to parent
corporations that wholly own or own [*8] controlling
shares of subsidiary corporations." Id. Our review of the
cases outlined by Powers, however, reveals that they do
not stand for any exception to the special employer rule,
but, rather, represent factual situations that are distinct
from the present case.
The cases cited and discussed by Powers do indeed
hold that parent or sibling corporations may not claim
immunity from civil liability through use of the exclusive
remedy doctrine of workers' compensation simply
because of their status of being somehow "related" to the
injured party's employer. In none of the cases cited by
Powers, however, was the parent or sibling corporation
that sought immunity in a position to be a "special
employer" of the injured employee. In none of the cases
were the employee's services on loan to the parent or
sibling corporation. In short, none of the cases cited by
Powers presents a factual scenario in which the three-
part test set forth above could be fulfilled. The cases do
not stand for an exception to the special employer
doctrine, but, rather, represent cases where the facts do
not establish the doctrine's applicability.
For example, in Smith v. CRST Intern., Inc., 553
N.W.2d 890 [*9] (lowa 1996), a case Powers alleges is
"directly on point," brief for appellant at 20, the lowa
Supreme Court was not even presented with the question
of whether the parent corporation could be considered a
special employer. In Smith, the plaintiff was employed
by Lincoln and his services were leased to CRST. Both
Lincoln and CRST were wholly owned subsidiaries of
International. The plaintiff was injured in an accident
while he was a passenger in a truck owned by Rapid, a
wholly owned subsidiary of Lincoln. The plaintiff filed a
negligence action against International, CRST, Rapid,
and Lincoln. At trial, Lincoln and CRST were granted
summary judgment on the basis of being the plaintiff's
employers. International was granted summary judgment
on the basis of not actively doing any business and being
merely a holding company. Rapid's motion for summary
judgment on the basis of enjoying immunity because of
its relationship with the plaintiff's employers was denied,
but it was granted summary judgment on other grounds.
The only issue appealed was whether Rapid, as owner of
the truck, was subject to liability under an lowa statute
governing liability of truck owners. The grant of
summary [*10] judgment to International and CRST,
parent and sibling corporations, was not appealed from.
There was no issue raised on appeal concerning the
special employer doctrine. See id.
(c) Application of Law to Facts
[HN4] The party moving for summary judgment has
the burden to show that no genuine issue of material fact
exists and must produce sufficient evidence to
demonstrate that the moving party is entitled to a
judgment as a matter of law. Kaiser v. Millard Lumber,
255 Neb. 943, 587 N.W.2d 875 (1999). A prima facie
case for summary judgment is shown by producing
enough evidence to demonstrate that the movant is
entitled to a judgment in its favor if the evidence were
uncontroverted at trial. Id. If the moving party has shown
a prima facie case for summary judgment, the burden of
producing evidence to show a genuine issue of material
fact shifts to the party opposing the motion. Id.
Accordingly, our analysis will focus upon, first, whether
Werner has presented facts proving a prima facie case for
summary judgment in its favor.
As noted above, all three conditions of the special
employer test must be met for a party to whom an
employee's services are loaned to [*11] be considered an
employer under the workers' compensation laws. Id. On
appeal, Powers has not challenged the court's findings
that the three requirements were sufficiently shown by
Werner. In fact, at oral argument, Powers conceded that
the elements were shown, but Powers argues that an
exception to the rule should be applied. As noted above,
we do not find support for Powers' assertion that an
exception is warranted, and we affirm the court's finding
that the special employer doctrine applies.
3. TRUCK OWNER LIABILITY STATUTE
The court also specifically held that contrary to
Powers' allegations at trial, Werner was not liable under
§ 25-21,239. As amended in 1997, [HN5] § 25-21,239,
titled "Leased trucks, truck-tractors, and trailers; liability
of owner for damages," provides as follows:
The owner of any truck, truck-tractor,
whether with or without trailer, or trailer,
leased for a period of less than thirty days
or leased for any period of time and used
for commercial purposes, shall be jointly
and severally liable with the lessee and
the operator thereof for any injury to or
the death of any person or persons, or
damage to or the destruction of any
property resulting from [*12] the
operation thereof in this state, except that
the owner shall not be jointly and
severally liable if there is in effect at the
time the claim arises a valid liability
insurance policy with coverage limits in
the minimum amount of one million
dollars per occurrence which is available
to compensate any person with a claim
arising out of the operation or use of the
leased truck, truck-tractor, or trailer. This
section shall not limit or reduce the
owner's liability for his or her own acts or
omissions which cause damage to any
person or when the lessee is a related
entity or by reason of any workers'
compensation law.

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2000 Neb. App. LEXIS 220, *
The trial court held that "in this case, Werner owned
the truck and did not lease it to or from anyone." As
such, the court held that Werner was not liable under the
statute for Powers' injuries. The plain language of the
section, as well as its title, makes it clearly applicable to
trucks, truck-tractors, and trailers that are leased by their
owner to another entity. See Parnell v. Madonna Rehab.
Hosp., 258 Neb. 125, 602 N.W.2d 461 (1999) (in absence
of anything to contrary, statutory language is to be given
its plain and ordinary meaning).
As noted [*13] above, Powers has conceded that he
was working for Werner, being controlled by Werner, and
in a Werner truck. Under these circumstances, there is no
genuine issue of fact concerning whether the truck was
leased. The evidence shows Werner owned the truck,
Werner was Powers' special employer, and the truck was
not being leased to anyone. The statute is thus
inapplicable.
V. CONCLUSION
We affirm the court's grant of summary judgment
concerning the special employer doctrine. We affirm the
court's grant of summary judgment concerning the
applicability of § 25-21,239 because, on the record
before us, there exists no factual dispute concerning
whether Werner leased the truck to anyone.
AFFIRMED.

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