Gansch v. Nekoosa Papers, Inc.

EICH, C.J.

Nekoosa Papers, Inc., and Sentry Insurance appeal from a judgment awarding Randy Gansch $95,649.32 in damages for injuries he sustained while performing services for Nekoosa. The issues are: (1) whether, at the time of his injury, Gansch was Nekoosa's "loaned employee," and thus subject to the exclusive remedy provisions of the Worker's Compensation Act, ch. 102, Stats.;1 and (2) whether the jury's award of damages should be overturned as excessive. We resolve both issues against Nekoosa and affirm the judgment.

Gansch was employed by Midway Transport Corporation, a wholly owned subsidiary of Bassuener Construction, Inc. Bassuener and Nekoosa entered into a *670contract whereby Bassuener agreed to lease a bulldozer to Nekoosa — along with an operator (Gansch) — for work in Nekoosa's lime pit while Nekoosa's own bulldozer was being repaired.

At the time of the accident, Gansch had been working at the Nekoosa lime pit for ten days. Generally, Nekoosa's foreman would instruct Gansch at the beginning of the workday whether to pile or disk the lime and, if piled, where to place the piles. Two or three times a day, Darrel Bassuener, the owner of Bassuener Construction, would drive to the lime pit to make sure that Gansch was not "sloughing off." Midway Transport continued to pay Gansch's wages and handle his withholding, and social security tax deductions, and only Bas-suener could fire him.

On the tenth day, Nekoosa's bulldozer was returned to the job site after being repaired. Gansch left his machine to assist in the unloading of the bulldozer and was injured when the bulldozer blade fell on his foot.

Gansch sued Nekoosa for damages and the case was tried to a jury. At the close of the evidence, both parties moved the court to direct a verdict on the issue of whether Gansch was a loaned employee. The court granted Gansch's motion, holding that, as a matter of law, he was not a loaned employee of Nekoosa and thus his action was not barred by the exclusive remedy provisions of the Worker's Compensation Act. The jury found both Gansch and Nekoosa negligent and apportioned sixty-eight percent of the negligence to Nekoosa's employees and thirty-two percent to Gansch. Damages were set at $95,649.32 — $79,200 for past and future pain, suffering and disabilities, $13,000 for past wage loss, and $3,449.32 for medical and hospital expenses. The trial court denied Nekoosa's postverdict motions and entered *671judgment on the verdict. Other facts will be discussed below.

I. THE "LOANED EMPLOYEE" ISSUE

The trial court’s ruling that at the time of the accident Gansch was not Nekoosa's loaned employee involves the application of a legal standard to found facts, a question of law which we decide without deference to the trial court's decision. Matter of Mental Condition of W.R.B., 140 Wis. 2d 347, 351, 411 N.W.2d 142, 143 (Ct. App. 1987).

The court's ruling was based solely on the provisions of the written contract between Bassuener and Nekoosa, which stated that Gansch would remain Bas-suener's employee at all times. This was error. While the terms of the agreement between the employers constitute "important. . . evidence" of the employee's status, they are not controlling. Hanz v. Industrial Comm., 7 Wis. 2d 314, 318, 96 N.W.2d 533, 535 (1959), quoting Schmidlkofer v. Industrial Comm., 265 Wis. 535, 539, 61 N.W.2d 862, 865 (1953). Courts must "not only . . . consider . . . the writings which attempt to define the status of the parties, but also all of the surrounding circumstances in order correctly to ascertain the exact relation which has resulted from the dealings between the parties." Hanz, 7 Wis. 2d at 317-18, 61 N.W.2d at 535, quoting Montello Granite Co. v. Industrial Comm., 227 Wis. 170, 183, 278 N.W. 391, 397 (1938).

We analyze the circumstances of the employment by considering the following factors:

(1) Did the employee actually or impliedly consent to work for the special employer?
*672(2) Was the employee performing the special employer's work at the time of the injury?
(3) Did the special employer have the right to control the details of the work being performed?
(4) Was the work of the employee primarily for the benefit of the special employer? Meka v. Falk Corp., 102 Wis. 2d 148, 151, 306 N.W.2d 65, 68 (1981)

(a) Consent

The first factor is considered the most important — whether the employee actually or impliedly consented to work for the special employer. Ryan, Inc. v. ILHR Department, 39 Wis. 2d 646, 650, 159 N.W.2d 594, 595 (1968). An employee simply cannot be transferred to a special employer without his consent. Skornia v. Highway Pavers, Inc., 39 Wis. 2d 293, 298, 159 N.W.2d 76, 79 (1968).

Nekoosa, contending that Gansch impliedly consented to work for Nekoosa as a loaned employee, emphasizes that during his ten days on the Nekoosa job, he worked the same hours as the other Nekoosa employees and followed the directions of the Nekoosa foreman.

We start with the presumption that the original employment relationship remains. Skornia, 39 Wis. 2d at 300, 159 N.W.2d at 80. That presumption may only be overcome by a "clear demonstration that a new temporary employer has been substituted for the old . . .." 1C A. Larson, Workmen's Compensation Law, sec. 48.14 (1986) (footnote omitted).

In Skornia, 39 Wis. 2d at 299-300, 159 N.W.2d at 80, the supreme court adopted the rules stated in *673Restatement (Second) of Agency, sec. 227 comments b and c (1958), relating to loaned employees:

b. Inference that original service continues. In the absence of evidence to the contrary, there is an inference that the actor remains in [the general employer's] employment so long as, by the service rendered another, he [or she] is performing the business entrusted to him [or her] by the general employer. There is no inference that because the general employer has permitted a division of control, he [or she] has surrendered it.
c. Factors to be considered. . . . Thus a continuation of the general employment is indicated by the fact that the general employer can properly substitute another servant at any time, that the time of the new employment is short, and that the lent servant has the skill of a specialist.

Applying these rules to the facts of this case, we first note that Gansch was on the job for Nekoosa for only ten days.2 Darrel Bassuener testified that he only intended to keep Gansch on the Nekoosa job until one of his other operators became free to work the job. In addition, Vern Nelson, Nekoosa's foreman, acknowledged that Gansch was a "fine" employee and that his job required skill and training. We have no doubt that a bulldozer operator is a "specialist" within the meaning of the Restatement rule. All of these factors support the conclusion that Gansch had not given his implied consent to work for Nekoosa.

*674While it is true that Nekoosa's foreman gave Gansch general directions as to the placement of lime piles and similar matters, the mere fact that an employee submits himself to the control and direction of the special or temporary employer is not conclusive on the issue of whether the employee consented to work for the special employer. Where the original employer directs the employee to perform services for the special employer, the special employer's right to direct the work, standing alone, is insufficient to support an inference of implied consent. Meka, 102 Wis. 2d at 155 n. 10, 306 N.W.2d at 69-70. Bassuener testified that he told Gansch to do whatever project Nekoosa asked him to do. By taking orders from Nekoosa's foreman, Gansch was only doing as Bassuener had instructed him.

Gansch's testimony also indicates that in his own mind he considered himself to be Bassuener's employee:

Q: When you went to Nekoosa, in your mind and in your perception, who were you working for?
A: Darrel Bassuener.
Q: Did anybody ever suggest you were working for Nekoosa, that they were you[r] employer or anything else?
A: No.
Q: Who told you where to go on what job?
A: Darrel Bassuener.
Q: So that in your understanding as a man who has worked for alot of contractors, at the time of this accident, who were you working for?
A: Darrel Bassuener.

We conclude that Gansch did not consent to become Nekoosa's employee.

*675(b) Nekoosa's Work

There is no question that Gansch's work in Nekoosa's lime pit and his assistance in unloading the bulldozer was work being done for Nekoosa.

(c) Right to Control the Details

Relying on Huckstorf v. Vince L. Schneider Enterprises, 41 Wis. 2d 45, 163 N.W.2d 190 (1968), Nekoosa contends that it had the right to control the details of Gansch's work because Gansch disked and piled lime at the direction of Nekoosa's foreman. In Huckstorf, the employee, a crane operator who relied on extensive hand signals by other employees of the special employer to determine what specific objects to pick up and where to place them, was held to be a loaned employee. Id., 41 Wis. 2d at 48, 54, 163 N.W.2d at 192, 195.

We do not believe Gansch's situation can be likened to that of a crane operator, whose almost every move is directed by the special employer, either orally or through hand signals. We believe it to be more akin to the so-called "carriage cases," such as those described in Nepstad v. Lambert, 50 N.W.2d 614, 622 and n. 17 (Minn. 1951). There, the Minnesota court explained the concept of "control" in loaned employee cases by distinguishing between: (1) "[t]he line of cases known as the 'carriage cases' . . . where a person hires an automobile and driver and merely designates the destination he [or she] wishes to reach, the route to be taken, or even the approximate speed he [or she] wishes to travel"; and (2) cases where the employer has "detailed control over the driver and. . . the right to tell him [or her] how to drive . . .." In the former situation, the driver does not become the special employer's employee, and in the latter he or she does. Id.

*676Professor Larson makes the same point:

[T]he right to control the end result as distinguished from the method of arriving at it falls short of showing employment. Thus, the borrower of a truck and driver can specify the cargo, destination and route without thereby being deemed to assume control over the work. Larson, supra, sec. 48.30, at 8-500 [footnotes omitted].

At tried, both Gansch and Nekoosa's foreman testified that the foreman only gave Gansch general directions at the start of each day. Gansch was in charge of all of the details of his work and the operation of his machine. He was not dependent on more specific instructions. Nor was he acting under anyone's directions at the time of his injury. He decided on his own to help Nekoosa's employees unload the bulldozer. Nekoosa's general directions to Gansch cannot be said to constitute "detailed control" over the specifics of his work.

(d) Whose Benefit?

Nekoosa argues that Gansch's disking and piling of lime was for its benefit, not Bassuener's. However, in cases where the original employer leases a piece of equipment with an operator, the supreme court has recognized that the original employer receives a benefit from the services rendered by the operator because it not only gains financially from the lease but also reaps the benefit of having its property entrusted to an operator it has selected.

A continuance of the general employment is also indicated in the operation of a machine where the general employer rents the machine and a servant to *677operate it, particularly if the instrumentality is of considerable value. Normally, the general employer expects the employee to protect his [or her] interests in the use of the instrumentality, and these may be opposed to the interests of the temporary employer . . .. Skornia, 39 Wis. 2d at 300, 159 N.W.2d at 80, quoting Restatement (Second) of Agency, sec. 227 comment c (1958).

Bassuener testified that the piece of equipment leased to Nekoosa was worth about $80,000 and that he relied on Gansch to operate it in a sensible manner. He also stated that he charged Nekoosa an hourly rate of $65 and that he received a total of $6,020 for the project. Bassuener's benefit from the Nekoosa project and Gansch's work is apparent.

Considering all these factors and the terms of the contract between Bassuener and Nekoosa, we are satisfied that Gansch was not a loaned employee at the time he was injured.

II. DAMAGES

The amount of damages is for the jury to decide, and where the trial court has approved a damage award over a claim of excessiveness, the issue on appeal is whether there is any credible evidence that under any reasonable view supports the verdict and removes the issue from the realm of conjecture. White v. General Cas. Co. of Wisconsin, 118 Wis. 2d 433, 440, 348 N.W.2d 614, 618 (Ct. App. 1984). To reverse, we must be able to conclude that there is such a complete absence of proof that the verdict is based on speculation. Id.

*678At the hearing on motions after verdict, the trial court stated as follows in rejecting Nekoosa's claim of excessiveness:

I can safely say that I think this $79,200 is a high verdict, quite high, but does not shock the conscience of the Court.
This man has 48 years to live. He has got a foot that is not going to work properly after more than six or so horns of work a day.. . . When the temperature reaches 32 degrees Fahrenheit, he has problems with that foot. . . . There is permanent pain and discomfort.

In addition, the record indicates that Gansch's foot was crushed by the bulldozer blade. There was medical evidence of bone breakage, the permanency of injury, and the attendant pain and discomfort. Portions of the bones in Gansch's foot were surgically removed, and there was evidence that he would continue to experience discomfort and a severe intolerance of cold in his foot, and that his injuries interfere with his ability to continue working in the construction industry and his enjoyment of outdoor activities in general.

Given that evidence and the trial court's evaluation and approval of the verdict, we conclude that Nekoosa has not met its burden of establishing that the damages were excessive.

By the Court. — Judgment affirmed.

We obviously disagree with the dissent's formulation of the issue as "whether Gansch is subject to sec. 102.29(6), Stats.," which deals with employees of "temporary help" agencies. Neither party even refers to that statute, much less argues that it applies — or does not apply — to this case.

Other cases where the court has found that the employees gave implied consent to work for the special employers, the employees were on the job for a period of three and four months respectively. See Meka, 102 Wis. 2d at 151, 306 N.W.2d at 67; Freeman v. Krause Milling Co., 43 Wis. 2d 392, 396, 168 N.W.2d 599, 601 (1969).