Sherry Clark Home Improvement v. Gary Herndon
59 Va. App. 544
| Va. Ct. App. | 2012Background
- Claimant Herndon sustained a serious injury August 11, 2008 on a Grundy job site with a two-story structure; he fell through a hole while working near the stairwell.
- David Clark framed the job; his framing crew included Herndon; Sherry Clark (SCHI) managed cleaning and related work on the site.
- CAC (Addison Construction) hired SCHI to work on the site; payments were issued via SCHI, though men were effectively controlled by David.
- David and Sherry each hired the claimant; David controlled work actions; Sherry paid wages; the business relationship created financial entanglement between SCHI and David.
- Deputy Commissioner initially found no compensable injury but held Herndon employed by SCHI; full Commission later found Herndon a borrowed employee and that the injury arose out of employment.
- The Commission ultimately held CAC liable as the statutory employer; Liberty Mutual and SCHI challenged but were not aggrieved, so their appeals were moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the injury arise out of the employment? | Herndon | CAC/Nationwide | Yes; there is causal connection to work conditions. |
| Was Herndon a borrowed employee of David Clark at the time of the accident? | Herndon | CAC/Nationwide | Yes; claimant worked under David's control as the special employer. |
| Is Liberty Mutual/SCHI's appeal moot or proper given lack of aggrievement? | Liberty Mutual and SCHI | Liberty Mutual and SCHI | Moot; no standing to appeal; affirm on other grounds. |
Key Cases Cited
- PYA/Monarch & Reliance Ins. Co. v. Harris, 22 Va. App. 215 (1996) (injury must arise out of and in the course of employment; mixed questions of law and fact)
- United Parcel Serv. of Am. v. Fetterman, 230 Va. 257 (1985) (actual risk test for causation between injury and employment)
- Immer & Co. v. Brosnahan, 207 Va. 720 (1967) (causation from risk connected with employment; origin of danger must be employment-related)
- Green Hand Nursery v. Loveless, 55 Va. App. 134 (2009) (risk may be common to neighborhood if it is traced to employment as a contributing proximate cause)
- Metro Machine Corp. v. Mizenko, 244 Va. 78 (1992) (borrowed servant factors; control is key in determining liability among employers)