*1 Dist., 33087. 1974.] No. First Div. Three. Nov. [Civ. MARTIN, J.
WILLIAM Plaintiff and Appellant, PHILLIPS COMPANY, PETROLEUM Defendant and Respondent; HARTFORD ACCIDENT AND COMPANY, INDEMNITY Intervener and Appellant.
Counsel Jameson, & David A. Kully and Bruce I.
Dolgin, Comblum for Dolgin Plaintiff and Appellant. Pollock,
Robert E. Edward I. William H. Cartwright, Ame Tally, Werchick, I. Beloud, Robert Good, G. Ned Stephen David Zetterberg, Baum, B. Elmer Low and Leonard Sacks as Amici Curiae on behalf of Plaintiff and Appellant.
Leonard & Thomas for Intervener and Appellant.
Gordon, Waltz & Allan James A. DeFraga, DeFraga Pezzaglia Defendant and Respondent.
Opinion Martin, intervener, Plaintiff, Ac DEVINE, J.* William J. Hartford rendered Indemnity cident Company, appeal judgment scheduled trial. The court in the first of what was to be a bifurcated part *3 defendant, is based Petroleum in favor Phillips Company, judgment, a of the defendant on the conclusion that Martin was special employee to in his at the sustained referred injuries complaint. time he allegedly for insurance carrier The Hartford as workmen’s compensation Company, Inc., Maintenance, has all of the benefits Labor by Plant paid Martin, Code. Plant Maintenance was the surely general employer the court’s it was his sole If it is contended that by employer. appellants at the Martin’s and conclusion that finding Phillips special employer correct, it not have may time of the asserted follows injury plaintiff (Lab. action means of this injury against Phillips. damages personal Howard, 128]; Code, 3601; v. Sehrt 187 739 Cal.Rptr. § Cal.App.2d [10 Co., 700]; Signal & Gas 403 v. Oil 12 [90 Oxford Co., 698, 923].) P.2d v. Voorheis-Trindle 702 McFarland Cal.2d [343 hand, On the other he would be entitled workmen’s compensation Co., supra, at (McFarland either or v. Voorheis-Trindle both employers. Co., 702; 411; Auto. Signal supra, Oil & National Gas p. p. Oxford Com., 481]; Dept. Ins. Co. v. Ind. Acc. 23 Cal.2d P.2d [143 Com., 354].) P.2d Water & Power v. Ind. Acc. 220 Cal. Phillips Petroleum Between Plant Maintenance and Contract Oil as one of the contract names Tidewater Although Company Tide- Petroleum is the successor of it was parties, stipulated Phillips shall refer to water and that the contract is on We binding Phillips. as further reference Tidewater. Plant a without to. party other industries. in the business of to oil refineries and supplying manpower Maintenance for several years Plaintiff had been an of Plant accident, refinery but he had worked at the Avon before testi- to his for as as two according about or much year, years, perhaps to be obviously designed of the contract are such as mony. terms only prevent of Plant Maintenance workmen designate employees Thus, the contract pro- considered being employer. but is an vides that Maintenance is independ- agent control over contractor; ent that Plant Maintenance maintains complete Mainte- “as an aid to Contractor that this is so even [Plant employees; assignment by the sitting Presiding under Appeal *Retired Justice of the Court of Chairman of the Judicial Council. nance],” work or under solely some of may employees partially shall be such direction or direction or supervision Phillips; account; that shall su- contractor’s benefit and contractor constantly work its own and instructions given said super- perintend superintendent contractor; have been to the and that intendent shall be deemed to given all all the shall be deemed to be of contractor for employees that their work is or wholly notwithstanding finding partially purposes, under the direction or of which the trial
Even before the factual situation im- judge considering with the written we note that found to be pliedly incompatible the labored to maintain of the two effort potential employers independence in itself is fictitious. For evidence that gives example, independence how can it be that work done laborers shall be for Plant Main- believed *4 benefit, that Plant Maintenance tenance’s of course for the fact except to be other benefit does Plant Maintenance by What expects paid Phillips? to facts from work done at an oil And brief reference the gain refinery? below, as described does an whose work calls for using what employee hammer do the of a of labor? have to with interest jack general supplier Further, shall be deemed the in the contract that the provision Maintenance, notwithstanding any finding to be those of Plant work is the under direction or of performed Phillips, appears to be an to control the status of the various a finding attempt parties despite a court or the con- by Workmen’s Board. The Compensation Appeals tract cannot affect the true of the to it. can it Nor place relationship parties (Mark an in a different which he employee actually held. position Com., Hopkins, 792]; Inc. v. Cal. etc. Emp. 86 15 P.2d Cal.App.2d [193 Com., P.2d 985].) 506 Stewart 55 & Nuss v. Ind. Acc. [130 Cal.App.2d find in the nature from assert- We of to nothing estoppel prevent the the true It the case was tried on theory situation. does not seem that ing on the of record contains no for a finding subject estoppel. request the should be acted intention on that its conduct any part respondent or that any Martin himself relied upon appellant deceptive represen- upon tation or concealment under a or to the duty injury appellant speak facts, set relied the written contract and on such as Martin. on Appellants times, below, at all forth which would favor their contending position, do was the sole of Mar- on employer appeal, (Crestline are Mobile Homes tin. The essential elements of lacking. estoppel 448, 356 Mfg. Corp., Co. v. Finance 54 773 Cal.2d [8 Pacific 192].) P.2d that Martin was a a conclusion special employee Although does, as we the the written it cannot be with terms of squared circumstances, the law and the deci view the totality comport for an industrial injury sions. The workman assured recovery in this case the both and although general employer’s employers, particular benefits, liable. The carrier has the was likewise paid special employer one, should true between the rather than the parties, professed be held to and dúties the Leg establish the Although rights parties. matter, islature has as a liabilities of recognized, practical respective situation, insurance carriers in a general-special employer providing Insurance Code section 11663 that the insurer of the general employer liable for the entire cost of unless the employer compensation time on his at the the section does not employee injury, pur payroll (Argonaut the rule of of full Exch. Ins. port abrogate liability employers. Com., 759]; v. Ind. Acc. McFarland v. P.2d Co., 923].) Voorheis-Trindle P.2d Thus the Cal.2d 698 [343 has the benefit additional re as an having special employer party industrial which he suffers on that job. sponsible injury employer’s If there be serious em and willful misconduct on part no (which creates a which cannot be insured doubt ployer liability against), he has the under to an increased award against special employer Labor Code section 4553.
The Accident took a injury lunch hour. He during gone place plaintiff’s which, locker room it was on was Avon’s although premises, provided It Maintenance. that the defendant maintained alleged negligently room, the lockers within the so that fell on do not find We plaintiff. merit in the that because he had suggestion by retired to the appellant luncheon, locker room for he was not under the direction of the special luncheon, etc., rule employer. as to breaks for ordinary applicable cases, workmen’s Herlick, obtains. Cal. Workmen’s (See compensation Handbook, 10.12, Law 259.) § Compensation p.
The Contract Hire did make a contract of employment not Although Phillips expressly Inferred his Martin, Martin’s consent may acceptance (1A and direction. Larson’s Workmen’s Compensation control employer’s did the work of Phil- Law, which Martin 48.10.) The term long during § between did know of the contract this inference. Martin confirms lips that he was on the and knew payroll Phillips, because former, he knew the situation but it is evident that general I hired at Shell and testified, was hired out was out to work “when I he and I stayed.” then I came to Phillips
Special Employment whole, which, elements taken as a de analysis An various Martin us that termine convinces Martin was a special employee. Payroll.
1. Martin was on the of Plant Maintenance. Withhold- payroll taxes and social contributions was handled Main- ing security by Plant This is tenance. No doubt the service rendered relatively unimportant. Wasof value to but it has with the duties to do Phillips, nothing performed employee.
2. Duration. Martin worked for for at least without interruption two, year, a factor to show possibly tending special employment. (Oxford Co., Signal v. Oil & supra, 408.) Gas at 12 Cal.App.3d p.
3. Nature the work. Martin had two la- categories employment: accident, borer and brick mason. Just he had been before using jack hammer, which he was to do union rules in his permitted capacity brick mason. The unskilled nature the services which relatively would make them to control -foreman readily subject also tends to by Phillips’ Co., show (Oxford Signal supra, v. & Oil Gas employment. 408; Housewright Line, Inc., Far East p. 229 Cal.App.2d Pacific above, 208].) As said the work properly performed of benefit to in a unrelated to the Phillips, only general way perform- ance of the details of the task was it of use to Plant Maintenance.
4. tools, hats, Work tools. all of the Basically, hard and in including particular jack hammer which had been were plaintiff using, supplied *6 by another indication of Phillips, special employment. Badges.
5. Plant Maintenance were issued which employees badges, wear, did not they to always them from on the Phil- distinguish employees This factor lips have some the payroll. may slight bearing against pro- but position there is in the record to show special employment, nothing of what use the were in practical the badges performance tasks. assignments.
6. Check-in and foreman of kept own on the but all he did was to check-in the refinery Plant premises, as and hand day’s to them their appeared which assignments, the foreman in turn had received Plant Phillips. to do with the details or Maintenance’s foreman nothing quality the work. to is a Right to terminate. The terminate significant right employment
7. the the of control. did not have factor in showing right Although Phillips so, did do it was to fire Plant Maintenance men and not attempt right to ter- Maintenance’s officer that on testified Plant request by testified that minate “we him out.” A foreman an employee, got where Maintenance refused to remove an he knew of no instance Indeed, the it would seem unlikely at job employee Phillips’ request. Maintenance, the would that Plant if it renewal of hoped It retained on the insist that an unsatisfactory Phillips job. employee is the to terminate the and not right relationship special employment Signal v. (Oxford that is important. right discharge employee outright Howard, Co., 410; supra, supra, Oil & Gas Sehrt v. at Cal.App.3d p. 743.) at If a union were by grievances presented, p. as a But this arbitration was conducted with Plant Maintenance party. and does not result flows from its naturally capacity general employer Martin to have much Phillips. significance determining Control and the work. This is the most important 8. record, brief, is that control testimony factor. The although replete was done foremen. and of the actual work Phillips’ the details laid out work to be done. quality Phillips supervised has re of the tasks The fact general employer performed. control, will, the em at and can can recall siduary discharge employee test of or him other orders is not the employment. ployee give control the details of test is whether the has the right employer “loaned” the work for which the was the “lent” or employee. Howard, (Sehrt supra, 743.) 187 Cal.App.2d p. case, parties. As in the only representa-
9. Phillips’ Belief of Oxford but he also tive to knew he could testify discharge employees, believed their that he had to terminate special employment he had the right understood that Plant Maintenance. He merely notifying knew nothing to control the the work. Martin Although specifics he knew that the contract between Plant Maintenance Phillips, that his day by day was on the he was aware of course former’s payroll, and hour hour was under the direction of work *7 conclusion, is not that the correct criterion
In we are of the opinion em- a truly what one of them general sort of two arrangement parties, what but and the describe on may other ployer paper, special employer, 923 between them is the nature of the transactions relationship actually with an employee. The is affirmed. judgment J., P. concurred.
Draper, Appellant Martin, (H. C.), J., an of Plant BROWN Dissenting. employee Maintenance, filed a that he sustained injuries alleging personal complaint result of while on its as the Phillips’ negligence working property. Phillips and, defense, that at denied the time of negligence alleged accident Martin was the The of this majority special employee court affirmed the trial court’s that Martin was a special judgment and as such was barred from an action for Phillips maintaining damages The burden of affirmative defense personal injuries. proving was, course, who asserted it. “special employment” upon Phillips Whether the in the case existed special employment relationship present the facts. As the facts here are ultimate dependent upon undisputed, conclusion to drawn these facts is a of law for the question ap 214, (Morrison courts. (1969) v. State Board Education 1 Cal.3d pellate 175, Appeals 375]; Comp. Jones v. 461 P.2d Workmen’s Cal.Rptr. [82 (1971) 124, Bd. 554]; Rullman v. State [97 Farm Mut. Automobile Ins. Cal. (1970) Co. 8 Cal.App.3d 551].) Rptr. in their that a majority arriving opinion special employment existed (1) did so on the basis that the contract establishing and duties of and Plant does not control rights Phillips and, fact, to Martin is evidence question Phillips’ relationship circumstances, fictitious;
that their (2) the totality par- independence the control exercised over Plant Maintenance ticularly Phillips employees, (3) showed a the contract between special employment relationship; Plant Maintenance and did asserting Phillips estop Phillips defense of special employment.
I am in with the was not agreement majority Phillips estopped and Plant Maintenance to of the contract between provisions assert the defense between special employment relationship and Martin. It is could assert that defense but my position failed it. to sustain burden of proving between Plant Mainte- of the contract majority’s disparagement to, is, as it seems
nance and in my opinion, illogical, suggesting, *8 that and inclusive is evidence of sham.1 be very attempt specific I that work while at the of agree employees the issue was for the benefit of but that fact is irrelevant plant Phillips, contractors, All existence of a special employment. independent a third or any maintenance firms services for janitorial party performing other, services. That is. what are exactly benefit the of those recipient a benefit since it for. Just as Maintenance receives paid obviously, is that Plant its There their work Maintenance fulfills by obligations. foremen in the nothing any by suspect provision supervision Phillips’ would be for the benefit of Plant Maintenance. Plant Maintenance and, of its if obligation furnishing supervision employees work, undertook this it would of a relieve Plant Maintenance portion its There could this be a multitude of reasons obligation. why arrangement be the offered most economical or efficient. No evidence has been' might pertinent 1Provisions to this case read as follows: necessary agrees all Except specified, “First: otherwise to furnish as Contractor tools, labor, mechanics, materials, supervision, and to do implements appliances, and jobs Refinery, perform and such and Avon Amorco maintenance work Tidewater’s n Terminal, site) (hereinafter job County, designated or as Port Costa California may specified. required by be hereinafter Tidewater time to time under written orders as (15) including supply employees Contractor of fifteen shall minimum supervisory requirements that Tidewater this personnel clerical Tidewater’s mechanical and who shall be familiar with immediately any and size crew shall be available to direct and assist may request provisions in accordance with the elsewhere provided agreement. agent always “Third: Contractor is not the but be of Tidewater is and shall deemed contractor, maintaining complete employees independent an and all control over Contractor’s that, Contractor, (if notwithstanding any), as an some subcontractors aid to employees may partially supervision wholly said work or under the direction or of Tidewater; agreed any by being supervision it such direction Tidewater shall or way Contractor’s and account and shall in no limit or affect Con for benefit added.) agreement. (Italics responsibility tractor’s under this duly shall constantly superintend “Seventh: Contractor said work authorized Contractor, superintendent, representative who shall be deemed for all purposes given given and instructions or information him shall be deemed to have been Con supervisory personnel tractor. Additional water. requested shall be furnished as Tide Tidewater, agrees “Ninth: protect property, Contractor its lands and other against all liens or claims of filed done lien or made in connection with the work hereunder, mediately agrees any may to cause such lien which be filed or made to be im discharged released and of record. agrees promptly to all pay supplied performed “Contractor for labor or on said work, work and for all except materials furnished in connection with said materials furnished Tidewater. select, carry payroll, “Tenth: employ Contractor shall on its all labor and work; performance whatever kind and all such for employees withstanding purposes, shall be deemed to be the Contractor all not finding wholly partially that their work or under the direction or (Italics' added.) Tidewater.”
925 to cover all was other than parties’ attempt contingencies anything an effort to their clarify of most contracts. certainly relationship, goal
The that a conclusion that was a majority recognizes Martin em- “cannot be with the terms of contract” ployee the be- Phillips squared asserts, however, tween and Plant Maintenance. The that majority the duties, “true the must establish their and relationship” parties rights not, thus fact, that did in suggesting adhere to terms their parties however, The agreement. only to which the specific, majority points substantiate this assertion Plant Mainte- control oí supervision nance employees by Phillips. evidence in the only record on the of control and subject super- that,
vision after their initial work from Plant receiving assignments Maintenance each day, to their employees dispersed work around the received further any Phillips plant during day work directions from There is no as to what or testimony just how much “The fact that instructions are supervision required. given as to the result to be achieved does not the conclusion that a require spe- cial (McFarland exists.” v. Voorheis-Trindle Co. employment relationship (1959) 698, 52 Cal.2d 923].) There is evidence that 704 P.2d no [343 instructed Plant Maintenance in the use of equipment or in the of their duties. Since Plant performance Maintenance personnel were in the business of maintenance work and was in the oil re- business, it finery seems instructions other than unlikely Phillips gave those which are directions to the result to be “merely accomplished, such as are in the nature of to be things given independent contractors in any (Umsted Eng. (1928) case.” v. Const. Co. 203 Scofield 224, Cal. 799]; Long 230 P. Miller Oil Dev. see also Beach Co. [263 (1959) 695].) P.2d [334 however,
We cannot as to the extent or kind of speculate, had the burden of Phillips gave. that a establishing existed. did not do so show- They clearly by merely employment detail, without more directed some of the work of Plant ing, factor in whether a personnel. important determining right employees’ existed is the to control the duties and special employment activities. The relative to details of what is to be ac- of instructions giving Com., is not Exch. v. Ind. Acc. determinative. In Industrial Ind. complished 926], 26 Cal.2d P.2d the court said: “The to control direct activities of an or the manner and method alleged employee not, which the work is whether exercised or rise to the em- performed, gives added.) (Italics (See McFarland v. Voorheis- ployment also relationship.” Co., supra, 704.) Trindle at p.
Furthermore, agreement, Phillips under the Plant Maintenance-Phillips when it for Plant Maintenance furnished was acting contract provided of Plant Maintenance. The which was obligation *10 and assistant for and supervisors Plant Maintenance supervision specificity The was to those supervisors. Plant Maintenance salary pay the amount economical, su- or necessary might that where Phillips recognized parties was be for Plant Maintenance’s work but such to any pervise contract, was a duty the terms the enforceable legally benefit. By imposed and direct the activities of Maintenance to control supervise, upon on the its Phillips premises. employees
If, be be a on its can held to employer Phillips despite case, this I find it difficult to situation where any the facts of then imagine of an contractor would not also the em- the employees independent their had voice for services.2 no contracting Phillips ployees person them; did not did not in the of Plant Maintenance employees; pay hiring such as records social security withholding; keep required employment insurance. did not Plant Maintenance provide unemployment employees wore distinc- were kept physically separate Phillips employees—'they office, tive to a had washroom badges, reported separate separate to locker facilities. had no a Plant Maintenance discharge Phillips a if with The fact that could man “out” not satisfied get employee. Phillips his work would be in the of an situation where any employees expected are to work on the another. independent contractor dispatched premises to its employees could then have simply reassigned another oil to which it workers.3 company assigned (1970) Signal & Cal. majority Oil Co. 2The of this court cite Gas Oxford 700], similarity to App.3d a the case which basic factual shares case, employment In re hand. the was a dual the court concluded that there Oxford lationship which companies Compensation rendered both liable under the Workmen’s injuries injured pursuing Act and the for employee personal excluded a claim who, claimed, agaipst the special employer negligently injury. it caused was injured general basic was the similarity consists of fact that the in worker Oxford which, employee company, regular of a to an com employees furnished on a basis oil pany. opinion separation There is no the em physical evidence related in specificity or of the ployees companies of the contract in the two defined the which relationship employees. of each the contract no with furnished In made Oxford contracting provision any possible for the supervision by company for service employees. questionable I in company consider it oil established Oxford law. event, relationship of a In employment existence as a matter however, controlling. not question special employment depends Oxford peculiar the facts upon to each case. worker, management Phillips’ 3If was dissatisfied with to a to report complaint supervisor Plant Maintenance’s then decided dis who on the employee, reassignment position disposition of that could either such result in of that grievances or Employee processed by dismissal. were the terms of a union Plant Maintenance furnished a number of each fluctuating between day the number could Phillips, normally although be raised “on turnaround situation” to 200 or 300. The fact that appel- lant Martin worked for at least year important determining That fact attests to his relationship. only satisfactory Martin shares the same did the performance. other Plant Maintenance The accident employees assigned Phillips. could as easily have to a man for a day happened assigned single
I conclude that did not carry its burden of demonstrating it exercised the actually control and of an over Plant *11 employer which, Maintenance’s to the terms of its employees, contrary did not specifically to exercise such control give except when the “for was Contractor’s benefit.” [Plant Maintenance]
In I summary, would hold that no special employment relationship therefore, existed between Martin and Martin’s as to work- Phillips; rights men’s benefits as Plant Maintenance and his compensation against per- Also, sonal claim injury are both against such conclusion protected. the right of Plant Maintenance and preserves tract, to enter into a con- in both its contents legal without objectives, infringement courts or otherwise. I would reverse the and remand the matter judgment for trial for determination of the merits of Martin’s claim for personal injuries. Petitions for a 4, were denied (H. December 1974. Brown rehearing J.,
C), should be opinion petitions granted. petition plaintiff appellant hearing Supreme Court was Mosk, denied J., 1975. was of the January opinion should be petition granted. Maintenance,
bargaining agreement employer, as the and the union. between had its own contract for include union which did not the em- ployees Plant Maintenance.