Hot off of the presses from the Georgia Court of Appeals is the decision rendered 11/7/12 in the cases of Aimwell Inc et al. v. McLendon Enterprises, Inc. et al.and McLendon Enterprises, Inc. et al.v. Aimwell, Inc et al. As the names of the cases might suggest, these were cross appeals made by the same parties to a compensable injury involving Mr. Orlando Gaffney.
In order to understand the case, let's first set the players. Orlando Gaffney was employed by Aimwell. Aimwell is a trucking company that leased both trucks and drivers to its customers. McLendon was a road grading and utility contractor and Aimwell's largest customer. Aimwell and McLendon both operated out of the same building and were owned, one by a brother and the other by his sister. In its business dealings, McLendon required that Aimwell provide both liability coverage for the trucks and workers' compensation coverage for its drivers before the trucks could be used.
Mr. Gaffney, in the course of his employ with Aimwell would be responsible for supervising the drivers who were loaned to its customers, including McLendon. From time to time, Gaffney himself would be called upon to drive on of the trucks when no other drivers were available. However, even while driving, Gaffney continued his supervisory responsiblity over the trucks and drivers loaned to its customers. Aimwell would submit an invoice to its customers, including McLendon for the truck usage and driver's hourly time. This invoice would be paid by the customer to Aimwell and Aimwell would compensate its drivers. As you might have surmised by now, the injury to Mr. Gaffney occurred when he was driving the truck on assignment to McLendon.
Aimwell's carrier, Graphic Arts Mutual Insurance, accepted Mr. Gaffney's claim, paying income and medical and then sought a determination from the SBWC as to whether McLendon was liable in whole or in part for Gaffney's injuries. At the trial level by the Administrative Law Judge, the ALJ determined that Gaffney was jointly employed by Aimwell and McLendon thus obligating each for equal portions of Gaffney's claim. The Appellate Division of the SWBC disagreed finding Aimwell 100% responsible for Gaffney's injuries. The Superior Court agreed with the SBWC and Aimwell appealed the 100% finding. For its part McLendon appealed the finding from the SBWC that Gaffney was a borrowed servant.
The concepts at issue here are 1) Borrowed Servant and 2) Joint Employment. Understanding those legal doctrines will help to make sense of them and what the Court did with Mr. Gaffney's claim. The BORROWED SERVANT is an employee who is loaned by his original employer to another for a particular employment and will be dealt with as a servant of the person to whom he is lent although he remains a servant of the person by whom he was lent. For workers compensation purposes, the employee working as a borrrowed servant may recover for his injuries sustain from his work from either his general (original and loaning) employer or his special employer (the one to whom he was lent) or, in some instances, both. The borrowed servant is, then, statutorily limited to WC benefits from either employer. If the borrowed employee is not found to be a joint employee, then the special employer is fully responsible for compensating the injured employee. The concept of JOINT EMPLOYMENT requires that the employee be engaging in services for both his original employer and the special employer. In the case of a joint employee, the Court may apportion liability pursuant to the Official Code of Georgia Annotated (O.C.G.A.) §34-9-224. That code section provides, however, that "nothing in this code section shall prevent any reasonable arrangement between such employers for a different distribution as between themselves of the ultimate burden of compensation."
Neither Aimwell nor McLendon disputed Gaffney's "joint employment" at the time of his injury, only the apportionment of the liability for those injuries. The dispute boiled down to the "wage liablity" for Gaffney's services. Aimwell contended that since McLendon used Gaffney's services as a driver for 11.5 hours on the date of his injury, that McLendon should share the responsiblity for the injury. McLendon pointed out, however, that they did not pay Gaffney directly, and instead that they paid Aimwell for Gaffney's services and that Aimwell paid Gaffney's wages. This is definitely, by the Court of Appeals' reasoning a significant distinction. Aimwell would have paid Gaffney the same amount whether he acted as a driver, as a supervisor for Aimwell's other drivers and vehicles or both. As mentioned, he was, at the time of his injury doing both so the "joint employment" label seems aptly applied. As such O.C.G.A. §34-9-224 would apply and apportionment of liability might be applicable UNLESS the parties made other "reasonable arrangments" within the context of the statute. In this regard, the Court of Appeals noted that McLendon required that Aimwell provide liability coverage and workers' compensation coverage for vehicles and drivers involved in the contracted work. The bottom line: the borrowed servant (Gaffney) was the joint employee of the original employer (Aimwell) and the special employer (McLendon). The agreement between Aimwell and McLendon that Aimwell provide WC coverage for its employees represented the reasonable arrangement between the parties, that Aimwell would alone bear the responsibility for WC coverage for those drivers.
With this finding, the Court had no reason to decide the issue that McLendon presented on its cross appeal objecting to the SBWC finding that Gaffney was McLendon's borrowed servant.
"Skedsvold & White
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