Billy Etheridge v. JJ Curran Crane Company ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
BILLY ETHERIDGE, UNPUBLISHED
February 17, 2022
Plaintiff-Appellant,
v No. 356775
Wayne Circuit Court
JJ CURRAN CRANE COMPANY, LC No. 20-003588-NO
Defendant-Appellee.
Before: K. F. KELLY, P.J., and SAWYER and GADOLA, JJ.
PER CURIAM.
Plaintiff, Billy Etheridge, appeals as of right the trial court’s order granting summary
disposition in favor of defendant, JJ Curran Crane Company. Finding no error warranting reversal,
we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
Defendant is a crane-rental company that provides cranes with and without operators.
Defendant provides customers with the crane and the operator, but the operator’s daily tasks are at
the customer’s direction. In March 2018, defendant entered into a Crane Rental & Operator
Agreement (“Agreement”) with Ferraro Pile & Shoring, Inc., to provide two cranes and two
operators for construction of a seawall in Detroit, Michigan. Defendant hired Ryan Blake as the
crane operator, and Ferraro hired plaintiff as a welder for the job. Ferraro paid defendant an hourly
rate for Blake’s operation of the crane, but Blake’s paychecks came from defendant.
Each day before Blake began work, he inspected the crane using a checklist from
defendant, attended sitewide and Ferraro-specific meetings, and presented a “daily crane ticket”
to a Ferraro supervisor for approval. The daily crane ticket required the Ferraro supervisor to
acknowledge terms and conditions that were identical with those in the Agreement. As relevant
here, the terms and conditions stated that Blake would be “under the exclusive jurisdiction,
supervision and control of [Ferraro],” and would be “[Ferraro]’s agent, servant, and employee.”
On October 29, 2018, as plaintiff was conducting a cutting operation on the seawall,
Blake’s operation of the crane caused a suspended piece of metal to crush plaintiff’s hand, resulting
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in significant injuries. Plaintiff subsequently filed a complaint against defendant alleging Blake—
as defendant’s employee—negligently operated the crane that injured plaintiff. Defendant moved
for summary disposition, arguing it was entitled to judgment as a matter of law because Blake was
a Ferraro employee and, consequently, the exclusive-remedy provision under the Worker’s
Disability Compensation Act of 1969 (WDCA), MCL 418.101 et seq., barred plaintiff from
bringing suit against defendant for his work-related injuries. Plaintiff opposed the motion, arguing
the economic-reality test established a question of fact as to whether Blake was a Ferraro employee
and, therefore, whether the WDCA’s exclusive-remedy provision applied. The trial court
concluded there was no question of fact that Blake was a Ferraro employee because the evidence
demonstrated Ferraro directed and controlled Blake’s work, Ferraro paid for Blake’s wages, and
Blake worked toward completion of Ferraro’s project. Accordingly, the trial court granted
defendant summary disposition under MCR 2.116(C)(10) because the WDCA barred plaintiff’s
negligence suit as a matter of law. This appeal followed.
II. STANDARD OF REVIEW
This Court reviews “de novo a trial court’s decision on a motion for summary disposition.”
El-Khalil v Oakwood Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). This Court
“review[s] a motion brought under MCR 2.116(C)(10) by considering the pleadings, admissions,
and other evidence submitted by the parties in the light most favorable to the nonmoving party.”
Latham v Barton Malow Co, 480 Mich 105, 111; 746 NW2d 868 (2008). “Summary disposition
is appropriate . . . if there is no genuine issue regarding any material fact and the moving party is
entitled to judgment as a matter of law.” West v Gen Motors Corp, 469 Mich 177, 183; 665 NW2d
468 (2003). “A genuine issue of material fact exists when the record, giving the benefit of
reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might
differ.” Id.III. ANALYSIS
Plaintiff argues the trial court erred when it granted summary disposition in favor of
defendant because, under the economic-reality test, reasonable minds could differ as to whether
Blake was an employee of defendant or Ferraro. Thus, plaintiff contends defendant was not
entitled to summary disposition because a question of fact existed as to whether the WDCA barred
plaintiff’s suit against defendant. We disagree.
The WDCA “substitutes statutory compensation for [an employer’s] common-law
negligence liability” for employees injured during their employment. Clark v United Technologies
Auto, Inc, 459 Mich 681, 686-687; 594 NW2d 447 (1999). The WDCA thus entitles injured
employees to statutory benefits as the “exclusive remedy against the employer” regardless of fault
and, consequently, bars negligence actions against employers for work-related injuries. Id. at 687;
MCL 418.131(1).1 “[T]he exclusive remedy provision of the WDCA limits the liability of the
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The exclusive-remedy provision of the WDCA states, in relevant part: “The right to the recovery
of benefits as provided in this act shall be the employee’s exclusive remedy against the employer
for a personal injury or occupational disease. The only exception to this exclusive remedy is an
intentional tort.” MCL 418.131(1).
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employer and provides statutory compensation for employees regardless of fault.” Pro-Staffers,
Inc v Premier Mfg Support Servs, Inc, 252 Mich App 318, 323; 651 NW2d 811 (2002). The
WDCA does not define the term “employer,” and courts look to the economic-reality test to
“determine whether an employment relationship exists for the purposes of the exclusive[-]remedy
provision.” Clark, 459 Mich at 687. Defining the employment relationship under the WDCA is
a question of law “if the evidence on the matter is reasonably susceptible of but a single inference,”
but it is an issue of fact for a jury “where conflicting inferences may reasonably be drawn from the
known facts.” Id. at 694.
Determining whether an employment relationship exists under the economic-reality test
requires consideration of “the totality of the circumstances” using the following factors, none of
which alone are controlling: “(1) [the] control of a worker’s duties, (2) the payment of wages, (3)
the right to hire and fire and the right to discipline, and (4) the performance of the duties as an
integral part of the employer’s business towards the accomplishment of a common goal.” Id.
at 688-689 (quotation marks and citation omitted; alteration in original). The economic-reality
test recognizes an employee may simultaneously work for two employers, wherein “both claim
employer status for the purposes of the [WDCA’s] exclusive[-]remedy provision.” Id. at 690. See
also Kidder v Miller-Davis Co, 455 Mich 25, 46; 564 NW2d 872 (1997) (holding the economic-
reality test established two businesses shared “the rights and responsibilities over [their] workers”
and were, therefore, both employers under the WDCA).
Neither party disputes defendant acted as a labor broker for Ferraro. A labor broker
provides personnel for temporary employment. Farrell v Dearborn Mfg Co, 416 Mich 267, 277;
330 NW2d 397 (1982).
The customers of a labor broker typically call in their employment needs on a daily
basis, and workers are sent by the broker to fill these needs. After arriving at the
place of business, the worker is subject to the control and authority of the customer
and the customer’s supervisory personnel. The customer has the power to discharge
the employee from the daily work assignment and can refuse to accept a worker
sent by the broker. The customer does not pay the employee directly. Rather, the
labor broker pays the employee and includes as part of its charge to the customer
amounts to cover its expenses for compensation premiums, social security and other
taxes. [Id. at 275-276.]
“A labor broker-customer arrangement presents a unique employment relationship and
adds a further dimension to the analysis of who is an employer for purposes of the WDCA.”
Kidder, 455 Mich at 35. Under such a system, generally both the labor broker and the customer
are considered employers under the WDCA. Farrell, 416 Mich at 277. Therefore, “the exclusive
remedy available to the employee in a labor[-]broker situation is provided by the [WDCA]” and
the injured employee may not maintain a negligence suit against either employer. Id. at 278.
“Establishing a labor[-]broker relationship does not . . . necessarily end the analysis,” however,
because courts must still evaluate the employment relationship under the economic-reality test.
Kidder, 455 Mich at 42.
As to the first factor of the economic-reality test, control over Blake’s work, Ferraro
“received a worker each day who was subject to its authority,” as is common in most labor-broker
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relationships. See Farrell, 416 Mich at 277. Despite plaintiff’s assertions, Ferraro did not merely
direct Blake as to general tasks. Ferraro employees directly controlled all of Blake’s work, which
was dictated by Ferraro’s daily goals and needs. Moreover, Blake relied on Ferraro employees to
direct and signal his use of the crane, again indicating every task he performed with the crane
required Ferraro’s implicit or explicit direction and approval. Additionally, Blake performed his
work at the same time as the Ferraro crew and received his daily tasks at the Ferraro-specific
meetings.
The terms of the Agreement and the daily crane tickets are also relevant to demonstrate
control over Blake’s work. See Kidder, 455 Mich at 46 (explaining a contractual agreement is
“but one factor” for courts to consider when analyzing an employment relationship). The terms
Ferraro agreed to each day stated that “the [crane] operator is under the Lessee’s exclusive
direction and control and is Lessee’s agent, servant, and employee.” At a minimum, this provision
demonstrates Ferraro had the contractual ability to exert authority over Blake’s work.
Nevertheless, Plaintiff argues Blake was independent of Ferraro—and Ferraro had no
authority over Blake’s work—because Blake felt free to leave during Ferraro’s daily task meeting.
Plaintiff’s argument, however, misstates the record. Blake stated he walked away while a manager
was informally directing Ferraro employees after Ferraro’s daily meeting, which Blake attended.
In addition to being an informal discussion that Blake was not required to attend, the employees
were discussing a portion of the cutting operation that did not apply to Blake’s operation of the
crane.
Plaintiff also argues that because he and defendant’s financial controller, Michael Coffman,
considered Blake to be defendant’s employee, that demonstrates defendant’s control over Blake.
That Blake was on the job to use a crane owned by defendant does not diminish the control Ferraro
had over Blake’s use of that crane. Similarly, the fact that defendant required Blake to perform
daily inspections of the crane and that defendant ordered Blake be drug tested after the incident do
not demonstrate defendant exerted significant control over Blake’s daily activities. To the extent
these facts show control over Blake, they still do not demonstrate there was a question of fact as
to which company employed Blake, however, because “[i]t is not necessary to make fine semantic
distinctions as to types of degrees of control, et cetera. It is enough to say that either [employer]
could be liable under the [WDCA], therefore, both are protected by it.” Kidder, 455 Mich at 37(quotation marks and citation omitted).
With respect to the second economic-reality factor, the payment of Blake’s wages, it is
undisputed Blake’s checks came from defendant. However, “who writes the check is not
dispositive of the employer-employee relationship,” especially considering Ferraro paid defendant
for each hour Blake worked on the job. See Kidder, 455 Mich at 44. It is generally understood in
labor-broker relationships that, “[b]y engaging the services of the labor broker, the customer
[knows] that, in exchange for a set fee, the broker would pay the employees, handle all paperwork,
and provide compensation coverage.” Farrell, 416 Mich at 277. Thus, Ferraro’s payment for
Blake’s work merely passed through defendant. To say Blake’s wages came from defendant
ignores the economic reality of the situation—the money to pay those wages came from Ferraro,
which also received the benefit of Blake’s work.
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As to the third economic-reality factor, Ferraro had authority over Blake’s acquisition,
retention, and discipline. Although defendant selected Blake for Ferraro, the agreement expressly
stated Ferraro “may reject [the] operator” defendant selected. Nonetheless, plaintiff argues Ferraro
had no right to discipline Blake because it did not order him to get drug tested after the incident as
defendant did. This argument, however, is unpersuasive because nothing in the record
demonstrates Ferraro wanted to or attempted to require Blake be drug tested. Nor does the record
demonstrate Ferraro was prohibited from ordering Blake to take a drug test. In light of the
Agreement, which gave Ferraro unqualified control over Blake by giving Ferraro the affirmative
“duty . . . to give specific instructions and directions” to the crane operator, who was “under
[Ferraro’s] exclusive direction and control,” that Ferraro did not discipline Blake cannot be seen
as evidence that Ferraro could not discipline Blake. Moreover, Derrick Stanek, Ferraro’s
operations manager, acknowledged he had unilateral authority to remove Blake from the jobsite if
he were visibly impaired.
Lastly, under the fourth economic-reality factor, “[t]he roles of [defendant] and [Ferraro
were] defined and structured to fulfill [their] respective short-term needs.” See Farrell, 416 Mich
at 277. Defendant supplied the crane operator that Ferraro ordered. Ferraro could not have
completed its project without Blake operating defendant’s crane, and Blake worked toward
completing Ferraro’s project goals. Blake arrived and left with the Ferraro crew, whom he worked
alongside and from whom he took direction. The evidence therefore demonstrates that Ferraro
and defendant were “so integrally related that their common objectives [were] only realized by a
combined business effort.” Id.Considering the totality of the circumstances, the evidence presented to the trial court
demonstrates there is no question of fact that, under the economic-reality test, Blake was a Ferraro
employee. Consequently, the WDCA served as plaintiff’s exclusive remedy for injuries Blake
caused during the course of their employment with Ferraro. Because the WDCA barred plaintiff
from bringing a negligence suit against defendant for his work-related injuries, defendant was
entitled to summary disposition under MCR 2.116(C)(10).
Affirmed. Defendant, as the prevailing party, may tax costs.
/s/ Kirsten Frank Kelly
/s/ David H. Sawyer
/s/ Michael F. Gadola
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