908 N.W.2d 486
Wis. Ct. App.2018Background
- Decedent Carlos Rivera was employed by Alex Drywall (a temporary help agency) and was provided to Alpine, which paid Alex Drywall; Rivera died in a vehicle accident while riding in an Alpine vehicle driven by a temporary employee retained through JC Staffing.
- Rivera’s estate sued Alpine and its insurer (West Bend) for wrongful death; the estate has not filed a workers’ compensation claim against Alex Drywall (but retains the right to do so).
- Alpine and West Bend moved for summary judgment arguing the Worker's Compensation Act bars the estate’s tort claims because Rivera was a temporary (or loaned) employee.
- The circuit court granted summary judgment to Alpine and West Bend; the estate appealed.
- The appellate court reviewed statutory interpretation de novo to decide whether the Act and specific subsections preclude the estate’s tort claims against the temporary/borrowing employer.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Act’s exclusive remedy bars tort claims against a temporary employer | Estate: exclusive remedy does not apply because Alex Drywall (the temporary help agency) is Rivera’s employer under the Act, not Alpine | Alpine: exclusive remedy shields any employer who has the right to compensation claims, so Alpine should be immune | Held: Exclusive remedy bars tort claims only against the statutory "employer" (Alex Drywall); it does not bar claims against Alpine as a third party/temporary employer |
| Whether WIS. STAT. § 102.29(6)(b)1. bars tort suits by temporary employees against the employer who compensates the temp agency | Estate: § 102.29(6)(b)1. bars only temporary employees who "make a claim for compensation," so absence of a comp. claim leaves tort suit permissible | Alpine: statute should be read contextually to bar tort suits whenever the employee has a right to comp. (to preserve Act’s balance) | Held: Plain language controls: § 102.29(6)(b)1. bars only those temporary employees who make a workers’ compensation claim; because the estate has not, tort claims may proceed |
| Whether allowing a tort suit permits double recovery or creates an improper choice between remedies | Estate: present-tense "makes" allows the employer to plead the statute to bar subsequent comp. claims; statute prevents double recovery | Alpine: permitting tort suits allows plaintiffs to choose and possibly recover twice, undermining exclusive remedy policy | Held: Not absurd—statute’s tense and other provisions permit the temporary employee either to sue tortfeasor or claim comp.; defenses and statutory interplay prevent unjust double recovery |
| If Rivera was a loaned employee, whether WIS. STAT. § 102.29(7) or Bauernfeind bars tort claims against borrowing employer | Estate: § 102.29(7) contains same "who makes a claim for compensation" language, so it only bars tort suits by loaned employees who make comp. claims | Alpine: Bauernfeind (common-law rule) and policy require barring all loaned-employee tort suits by borrowing employers | Held: Bauernfeind dealt with pre-§102.29(7) law; § 102.29(7) applies and uses same limiting language—only loaned employees who make comp. claims are barred from tort suits against borrowing employers |
Key Cases Cited
- County of La Crosse v. WERC, 182 Wis. 2d 15 (1994) (explains Worker's Compensation Act as legislative compromise and the exclusive remedy concept)
- Nelson v. Rothering, 174 Wis. 2d 296 (1993) (exclusive remedy does not bar suits against third-party tortfeasors)
- Bauernfeind v. Zell, 190 Wis. 2d 701 (1994) (pre-§102.29(7) loaned-employee common-law treatment; court notes later statutory change)
- State ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633 (2004) (statutory-interpretation principles: plain meaning and context)
- Byers v. LIRC, 208 Wis. 2d 388 (1997) (employers’ strict liability under the Act)
- Braun v. Jewett, 1 Wis. 2d 531 (1957) (older common-law rule regarding loaned employees and exclusivity of compensation remedy)