McConnaughhay, Coonrod, Weaver, Stern & Thomas, P.A.

Workers' Compensation

General Crane, Inc. v. McNeal

24 FLW D2212

Employer rented a crane and operator from defendant crane company. Employee of employer injured and filed cause of action against crane company and crane operator. Crane company and crane operator defended asserting the workers' compensation exclusive remedy defense taking the position that the operator of the crane was a special employee of employer. Court determined that crane operator was not the borrowed servant or special employee of the employer and rejected the crane company's claim that the exclusive remedy defense applied. There is a presumption in favor of continuance of the employee's general employment as opposed to creating a special employment situation. This presumption can be overcome only by a clear demonstration that a new temporary employer had been substituted for the old which demonstration should include a showing that a contract was made between the special employer and the employee, the work being done was essentially that of the special employer, and the special employer assumed the right to control the details of the work. The most important factor in this determination is a showing that a contract was made between the special employer and the employee. The other two factors (i.e., the work performed was the work of the alleged special employer and the special employer exercised control over the employee) are essentially indicia of the existence of the first factor. Court differentiated the line of cases holding that workers' compensation is the sole remedy available where the worker is injured by a borrowed dangerous instrumentality. In this case, not only was the borrowed instrumentality being used but also, the owner of the dangerous instrumentality had leased the operator.

Cases

Workers' Compensation

General Crane, Inc. v. McNeal