Loaning and Borrowing Employers Both Immunized From a Common Law Liability Claim Because of Exclusivity Provisions of Section 5
July 02, 2007
Behrens v. California Cartage Company, Inc. and Staffing Resources, Inc.
In Behrens v. California Cartage Company, Inc. and Staffing Resources, Inc., the court addressed the issue of the possible liability of loaning and borrowing employers and concluded there existed a complete absence of common law liability for all possible defendants.
On November 17, 2004, the claimant, Marshall Behrens, an experienced truck driver, was employed by People Link Staffing Solutions, a temporary employment agency, and had been sent to work at a freight distribution facility of California Cartage Company. Cynthia Smith was employed by another temporary employment agency, Staffers Resources, and was working in the dispatcher’s office of California Cartage, at which time Smith requested Behrens to relocate a shipping container. Because Smith misinformed Behrens about the weight of the container, Behrens sustained back injuries which resulted in surgical intervention and resulted in a permanent injury. Behrens filed a compensation claim only as to his temporary employment agency, People Link Staffing Solutions, and received workers’ compensation benefits. Behrens also filed a common law suit against California Cartage and Staffing Resources, Smith’s temporary employment agency. California Cartage argued that as the borrowing employer, it had the direction and control of Behrens and as such could not be liable for a common law action.
The other defendant, Staffing Resources, who had sent Smith to the California Cartage Company facility, was also not liable because when it sent Smith to California Cartage Company, it ceased to have any direction and control of Smith, who then came under the direction and control of California Cartage. Clearly, both Behrens and Smith were acting under the direction and control of California Cartage Company and were therefore fellow employees. As such, Behrens could not sue Smith because of the exclusivity provision of Section 5.
In retrospect, one wonders why this case was ever filed. Two of the possible defendants were temporary employment agencies who would not normally be liable for injuries occurring after the employee was working at the business of the borrowing employer. Certainly, Behrens and Smith were referred by two temporary employment agencies but since they were loaned to the same employer, they clearly became employees of that borrowing employer.
Behrens v. California Cartage Company, Inc. and Staffing Resources, Inc. No. 1-06-2729, decided June 4, 2007
Frank J. Wiedner, Editor
Wiedner & McAuliffe, Ltd
One North Franklin, #1900
Chicago, IL 60606