NVR, Incorporated v. Just Temps Inc , 31 F. App'x 805 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NVR, INCORPORATED, d/b/a NVR 
Homes, Incorporated, d/b/a Ryan
Homes,
Plaintiff-Appellant,
 No. 01-2029
v.
JUST TEMPS, INCORPORATED,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
J. Frederick Motz, District Judge.
(CA-00-2991-JFM)
Argued: January 23, 2002
Decided: March 11, 2002
Before NIEMEYER and TRAXLER, Circuit Judges, and
Cynthia Holcomb HALL, Senior Circuit Judge of the
United States Court of Appeals for the Ninth Circuit,
sitting by designation.
Reversed and remanded by unpublished per curiam opinion.
COUNSEL
ARGUED: Brian L. Lincicome, COZEN O’CONNOR, Philadelphia,
Pennsylvania, for Appellant. Stacey Ann Moffet, ECCLESTON &
WOLF, P.C., Baltimore, Maryland, for Appellee. ON BRIEF: Jason
2 NVR, INC. v. JUST TEMPS, INC.
G. Bates, COZEN O’CONNOR, Philadelphia, Pennsylvania, for
Appellant. Edward J. Hutchins, Jr., ECCLESTON & WOLF, P.C.,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
This action arises out of an explosion and fire that substantially
damaged real property owned by NVR, Inc. ("NVR"). At the time of
the incident, the property ("the Durham Manor Project"), consisting
of three multi-unit residential buildings, was under construction and
near completion. The explosion happened when Willie Everett, a tem-
porary employee provided to NVR by Just Temps, released propane
from a partially-filled tank near open-flame burners that were being
used to dry construction materials. The gas ignited when it came into
contact with the open flame and the ensuing fire caused considerable
damage to the building. NVR filed an action in federal district court
seeking to recover damages from Just Temps on the theory that Just
Temps was vicariously liable for Everett’s alleged negligence under
respondeat superior principles.* Just Temps moved for summary
judgment, arguing that at the time of the incident Everett had been the
"borrowed servant" of NVR, and that Just Temps therefore was not
vicariously liable for Everett’s acts. The district court agreed and
granted Just Temps’ summary judgment motion. NVR timely
appealed, and we now reverse and remand for further proceedings.
*NVR actually advanced several claims, but it only appeals that part
of the district court’s ruling that granted summary judgment to Just
Temps on NVR’s claim of vicarious liability.
NVR, INC. v. JUST TEMPS, INC. 3
I.
Just Temps is in the business of supplying temporary laborers for
construction and warehouse work. NVR, a developer and builder of
single and multi-family homes has, on occasion, utilized the services
of temporary labor providers, including Just Temps. NVR requires all
such companies to enter into a standard contract to govern the parties’
relationship. Such a contract was in effect at the time of the explosion
that damaged the Durham Manor Project. Of particular relevance to
the instant controversy, the contract contained an indemnification pro-
vision whereby Just Temps "agree[d] to indemnify NVR . . . for
. . . any and all liabilities, losses, and costs . . . regardless of cause,
arising from or connected with . . . any alleged personal injury, death,
or property damage arising from or connected with the Work" that
Just Temps laborers were performing for NVR. J.A. 17.
Prior to the explosion that damaged the Durham Manor Project,
NVR periodically used temporary laborers supplied by Just Temps.
When placing an order for labor, NVR usually advised Just Temps of
the particular tasks involved and the amount of weight the temporary
laborers would be required to lift. One of the tasks typically assigned
to such laborers was the moving of empty or partially-filled 100-
pound propane cylinders. NVR had several such cylinders at the Dur-
ham Manor Project to fuel open-flame heaters called "salamanders,"
which are used to dry newly taped and spackled drywall. At the time
of the explosion and fire, two salamanders were in operation, one on
the ground floor and the other on the third floor. The salamanders
were connected by long rubber hoses to two 100-pound propane cyl-
inders positioned considerable distances away from the operating
heaters.
Everett had not worked before at the Durham Manor Project. When
he arrived there, he reported to Kenneth Dudley, NVR’s on-site proj-
ect supervisor, who initially assigned Everett and a co-worker from
Just Temps the task of moving bricks. When that task was completed,
Dudley asked the workers to move four partially-filled propane cylin-
ders from behind the building to the parking area on the opposite side
of the building, where the cylinders would be refilled by NVR’s pro-
pane gas supplier.
4 NVR, INC. v. JUST TEMPS, INC.
Shortly after giving that assignment, Dudley left the Durham
Manor Project to check on another nearby construction project. Ever-
ett and his co-worker began moving the cylinders by rolling them
upright through the building. Josef Kokes, a masonry subcontractor,
heard a loud hissing noise coming from within the building and asked
Everett’s co-worker about the noise. The co-worker replied that Ever-
ett was in the building "releasing gas because [the cylinder] got too
heavy for him to carry." J.A. 182. An explosion then occurred and fire
spread rapidly throughout the building. Michael Newberry, a certified
fire investigator, concluded that the explosion and fire were the result
of Everett’s release of the propane gas.
The district court resolved the issue of which of the two companies,
NVR or Just Temps, bore responsibility for the damage by reference
to the borrowed servant doctrine. Focusing largely on the degree of
control that NVR exercised over Everett while he worked at the Dur-
ham Manor Project, the district court held that Everett was the bor-
rowed servant of NVR and that NVR, not Just Temps, was therefore
responsible for Everett’s negligent acts. On appeal, NVR argues that
the district court should not have employed a borrowed servant analy-
sis because, regardless of Everett’s status under the borrowed servant
doctrine, the parties allocated the risk of Everett’s negligent acts to
Just Temps by contract.
II.
The borrowed servant doctrine arose as a means of determining
which of two employers, the general employer or the borrowing
employer, should be held liable for the tortious acts of an employee
whose conduct injured a third party and who, although in the general
employ of the former, was performing a task for the latter. See Stan-
dard Oil Co. v. Anderson, 212 U.S. 215, 220 (1909) ("[W]hen . . . an
attempt is made to impose upon the master the liability for [the ser-
vant’s tortious acts], it sometimes becomes necessary to inquire who
was the master at the very time of the negligent act or omission.").
The Supreme Court summed up the doctrine as follows: "One may be
in the general service of another, and, nevertheless, with respect to
particular work, may be transferred . . . to the service of a third per-
son, so that he becomes the servant of that person, with all the legal
consequences of the new relation." Id.NVR, INC. v. JUST TEMPS, INC. 5
Although the district court analyzed this case under those princi-
ples, we agree with NVR that application of the borrowed servant
doctrine does not resolve the ultimate issue presented. Under Mary-
land law, in cases like this one between a general employer and a bor-
rowing employer, "whatever the status of an employee under the
‘borrowed servant’ doctrine, the parties may allocate between them-
selves the risk of any loss resulting from the employee’s negligent
acts." Sea Land Indus., Inc. v. General Ship Repair Corp., 530 F.
Supp. 550, 563 (D. Md. 1982) (discussing Hercules Powder Co. v.
Harry T. Campbell Sons Co., 144 A. 510 (Md. 1928)). Thus, if the
parties contractually agreed that one or the other of them should bear
the risk of a particular employee’s negligent acts, that employee’s sta-
tus under the borrowed servant doctrine is immaterial.
Here, the contract clearly allocated the risk of Everett’s negligence
to Just Temps. Specifically, Just Temps expressly agreed to indem-
nify NVR for "all liabilities, losses, and costs . . . arising from or con-
nected with . . . any alleged personal injury, death, or property
damage arising from or connected with the Work" that Everett was
performing for NVR. J.A. 17. The indemnification provision made
clear, however, that Just Temps was not required to indemnify NVR
for "any liability attributable solely to the negligence of NVR or its
affiliates," J.A. 17, a term that NVR presumably placed in its standard
form contract to ensure that the risk-shifting indemnification provi-
sion comported with Maryland law. See Bethlehem Steel Corp. v.
G.C. Zarnas & Co., 498 A.2d 605, 610 (Md. 1985) (holding that
clauses in construction contracts providing for indemnity against the
results of one’s sole negligence are void as against public policy).
Essentially then, by virtue of the indemnification clause, Just Temps
contractually agreed to bear the financial burden of any damage
caused in whole or in part by any Just Temps laborer, including
Everett.
Just Temps attempts to support the district court’s decision to grant
it summary judgment by pointing to several cases such as White v.
Bethlehem Steel Corp., 222 F.3d 146 (4th Cir. 2000), and Whitehead
v. Safway Steel Prods., Inc., 497 A.2d 803 (Md. 1985). We find Just
Temps’ reliance on these cases misplaced. All of the cases cited by
Just Temps involve disputes between an employee and one of the
employers. None of the cases involve a dispute between a general
6 NVR, INC. v. JUST TEMPS, INC.
employer and a borrowing employer in which the employers contrac-
tually allocated the risk of the loss that materialized. Thus, the cases
relied on by Just Temps are inapposite.
Just Temps also argues that because the district court correctly
found that NVR waived the applicability of certain provisions of the
contract (none of which are an issue in this appeal), it necessarily fol-
lows that NVR waived the applicability of the risk-shifting provi-
sions. We disagree. Waiver is "the intentional relinquishment of a
known right or such conduct as warrants an inference of the relin-
quishment of that right; waiver may result from an express agreement
or be inferred from circumstances." One Twenty Realty Co. v. Baer,
272 A.2d 377, 382 (Md. 1971). There is no evidence in the record that
NVR ever intentionally relinquished its right to enforce the provisions
of the contract that allocate the risk of Just Temps’ laborers’ negligent
acts to Just Temps. Thus, the waiver argument is unavailing.
III.
Accordingly, the district court’s order granting summary judgment
in favor of Just Temps is reversed, and this matter is remanded for
further proceedings consistent with this opinion.
REVERSED AND REMANDED