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Harold K. Vradenburgh v. Southern California Edison Company

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE


December 6, 2010

HAROLD K. VRADENBURGH, PLAINTIFF AND APPELLANT,
v.
SOUTHERN CALIFORNIA EDISON COMPANY, DEFENDANT AND RESPONDENT.

Appeal from a judgment of the Superior Court of Orange County, Peter J. Polos, Judge. Affirmed. (Super. Ct. No. 07CC08627)

The opinion of the court was delivered by: Rylaarsdam, Acting P. J.

Vradenburgh v. Southern California Con Edison

CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

A truck driver, who had worked at Southern California Edison's San Onofre nuclear power facility for some four years, was injured while unloading Edison materials from an Edison truck. The undisputed evidence, including the truck driver's deposition testimony, established that Edison had direct supervision and control over him.

To avoid the bar of worker's compensation, the truck driver sought to sue Edison in tort for his job-related injuries, arguing that Edison had no employment relationship with him, and did not direct how he was to drive his truck. Because of union hiring rules, the truck driver was formally retained and paid by a unionized contractor, pursuant to two long-term loaned employee agreements with Edison.

We affirm a summary judgment based on the trial court's determination that Edison was the truck driver's special employer as a matter of law, leaving workers' compensation rather than civil litigation as his exclusive remedy for his job-related injuries.

FACTS AND PROCEDURAL HISTORY

1. Plaintiff's Employment at Edison

Plaintiff Harold Vradenburgh, a Teamster truck driver, worked at the San Onofre nuclear generating station (San Onofre) for a four-year period. He was injured on August 23, 2006. He fell while climbing into the truck cab, as he stood on an improperly secured step, which also served as a battery cover.

Edison is a joint owner as well as the operating manager of San Onofre. Because Edison did not have an agreement with a local council of building trades unions, Edison could not directly hire union personnel to work at San Onofre.

In 2004, Edison signed two related agreements with Bechtel Construction Company (Bechtel), which has had a longstanding relationship with organized labor, to provide so-called "Loaned Employees" (both union and nonunion) to work at San Onofre over a six-year period. The agreements further provided that the loaned employees would perform their job tasks "under the exclusive supervision, direction, and control of Edison at all times during their performance under this Agreement. . . ." Because Edison was to exercise exclusive control over such employees, the agreements relieved Bechtel from any liability "to Edison for the performance or results of the Work, or for completion of the Work by any certain date."

Plaintiff, a Bechtel employee, worked at San Onofre pursuant to the loaned employee agreements. He drove Edison trucks within the facility to load and unload warehouse materials "everything from toilet paper to plywood, pipe, prefabricated pipe. You name it we haul it." Bechtel paid plaintiff's wages and benefits, and had the authority to fire him. Bechtel also provided plaintiff with gloves and safety glasses, and conducted a weekly safety meeting.

Plaintiff's "primary supervisor" was Carla Brown, an Edison transportation manager. Brown supervised and dispatched the truck drivers at San Onofre, and managed the garage vehicle fleet and garage personnel. She supervised plaintiff from May 2003 until September 2006, directing him which truck to drive and where to deliver the haul.

Every morning, plaintiff attended a prejob meeting with Brown, who gave him, and his fellow Teamster truck drivers, a delivery job and an Edison truck. Plaintiff received anywhere from two to five assignments a day. Plaintiff would report back to Brown, either in person or by radio, to receive a new assignment once he was finished. Brown also kept track of plaintiff's completed work. According to plaintiff, "she was in control."

On the day of the accident, Brown, according to her customary practice, assigned to plaintiff both his delivery task and the specific Edison vehicle he was to drive.

2. The Litigation

Plaintiff filed a negligence claim against Edison. Edison asserted the "special employment" doctrine as an affirmative defense. Plaintiff also filed products liability claims against a co-defendant, General Motors, which manufactured the truck and battery cover.

Edison sought summary judgment based on the undisputed evidence regarding its right to control plaintiff's activities and the method and manner in which the work was to be performed. Plaintiff opposed summary judgment by contending the jury, not the trial court, should weigh the factors regarding special employment, since not all of them tilted in Edison's favor. Each side relied on testimonial evidence from plaintiff and Brown, not any other witnesses.

The trial court granted the motion, finding the undisputed evidence established Edison's "right to fully control" plaintiff's work. As the trial court stated at the hearing: "It's undisputed that - to me anyway - that Edison exercised complete and utter control over this employee, who . . . would be classified as a special employee. Even though [Brown] didn't sit in the truck and say . . . turn left, turn right, go straight, she could have done that by the terms of the agreement. She could have said . . . go 10 miles an hour, turn right, turn left. And she had the absolute discretion to do that."

Plaintiff has timely appealed from the summary judgment in favor of Edison. The products claims against General Motors are not a part of this appeal.

DISCUSSION

1. The Doctrine of Special Employment and Standard of Review

Workers' compensation laws are designed to provide injured workers with swift and certain payments for on-the-job injuries, without the need to prove employer negligence, and without such common law defenses as comparative negligence. Part of this trade-off for the workers' compensation remedy is the statutory bar to tort actions against employers. (Lab. Code § 3602, subd. (a).) In this way, California's workers' compensation system "represents a balance between the advantage to the employer of immunity from liability at law and the advantage to the employee of swift and certain compensation." (Jones v. Kaiser Industries Corp. (1987) 43 Cal.3d 552, 562.)

The workers' compensation system recognizes that employees may work for dual employers, with the original or "general" employer hiring out employees to the "special" employer. (Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 174 (Kowalski).) In such circumstances, the employee who sustains work-related injuries will be limited to redress through the no-fault workers' compensation system. The employee accordingly is barred from bringing a civil action against either employer. (Id. at p. 175.)

The primary indicator of a special employment relationship is whether the special employer has the right to control and direct the detailed activities of the employee or the manner and method in which the work is performed. (Kowalski, supra, 23 Cal.3d at p. 175; Wedeck v. Unocal Corp. (1997) 59 Cal.App.4th 848, 857 (Wedeck).) There may be secondary factors as well, such as whether the work is for a brief period of time, whether the employee himself or herself controls the operational details of the work, whether the employee uses his or her own tools or equipment, and whether the employee is on the special employer's payroll.

Usually, the question whether a special employment relationship exists is a factual question for the trier of fact. (Kowalski, supra, 23 Cal.3d at p. 175.) However, if the evidence and the reasonable inferences to be drawn from such evidence are not in conflict, then the question becomes one of law resolvable by summary judgment. (Wedeck, supra, 59 Cal.App.4th at p. 857.)

Wedeck affirmed a summary judgment in favor of a special employer on workers' compensation exclusivity where the undisputed evidence on the "primary" indicator of control and direction and a "great majority" of the secondary factors established the existence of a special employment relationship. (Wedeck, supra, 59 Cal.App.4th at p. 860.) Similarly, in Caso v. Nimrod Productions, Inc. (2008) 163 Cal.App.4th 881 (Caso), the Court of Appeal affirmed a summary judgment on a professional stuntman's tort lawsuit based on undisputed evidence regarding the detailed control and supervision over the stunt by the special employer, a production company. The court so acted notwithstanding the stuntman's efforts to create a factual dispute because of the degree of skill and discretion involved in the planning and choreographing of his stunt. After reviewing the evidence on summary judgment, Caso concluded the facts did not support any conflicting inferences on the production company's ultimate authority and control over the stunt performances.

As in Caso and Wedeck, we review de novo the summary judgment in favor of Edison and against plaintiff, and independently determine "whether the parties have met their respective burdens and whether facts not subject to triable dispute warrant judgment for the moving party as a matter of law." (Caso, supra, 163 Cal.App.4th at p. 887; see also Wedeck, supra, 59 Cal.App.4th at p. 855.)

2. Undisputed Evidence Establishes that Edison Was Plaintiff's Special Employer

Edison satisfied its burden on summary judgment that it was plaintiff's special employer. Edison's evidence establishes that it had the ability to control the result of plaintiff's work and the means by which it was accomplished, including the details relating to his job performance at the time of the accident. As discussed above, the right to control an employee is the primary consideration for determining the existence of a special employment relationship. (Kowalski, supra, 23 Cal.3d at p. 175; Wedeck, supra, 59 Cal.App.4th at p. 857.)

The loaned employee agreements between Bechtel and Edison provide the starting point for our analysis. The agreements gave Edison the right of "exclusive supervision, direction and control" over plaintiff's work at San Onofre. (Italics added.) By contrast, the agreements released Bechtel from any responsibility over plaintiff's work performance.

The agreements are highly probative of Edison's right to control, although they are not dispositive if there is disputed evidence to show that the parties ignored the contractual language, or otherwise created different realities in practice. (See Kowalski, supra, 23 Cal.3d at p. 176 ["'The contract cannot affect the true relationship of the parties to it. Nor can it place an employee in a different position from that which he actually held'"].)

There is no such contradictory evidence in the record, nor any evidence showing that Bechtel or Edison acted inconsistently with the contractual terms. Edison's direction and control over plaintiff's activities was undisputed. During the four years in which he was driving trucks at San Onofre, plaintiff was under the supervision of Carla Brown, Edison's transportation manager, who provided his job assignments frequently throughout the day, and to whom he reported when he finished each task. Plaintiff completed an Edison daily log to track his location, time and activities. At the end of every day, plaintiff gave the completed log to Brown. Bechtel did not direct the manner in which plaintiff performed his deliveries for Edison.

Here is how plaintiff himself described his working relationship with Brown during his deposition:

"Q. But in the morning would you say, Carla [Brown], I'm going to Delivery X and Delivery Y?

"A. No.

"Q. She would tell you how to do it?

"A. Exactly."

And, in the same deposition:

"A. [Carla Brown] was in control.

"Q. She was in control. She receive[d] the assignments. She gave out assignments. And she also kept track of your completion of work, correct?

"A. Yes.

"Q. So when you finish making a delivery, you would call her and say okay done?

"A. Done."

Plaintiff's deposition testimony shows Edison's actual right to control the manner and means in which he performed his deliveries. In addition to the loaned employment agreements, "'consent to the special employment relationship is normally implied, by the weight of authority, from acceptance of the special employer's control.'" (Wedeck, supra, 59 Cal.App.4th at p. 861, fn. 7.)

Plaintiff challenges Brown's supervision and control by arguing her lack of behind-the-wheel experience as a truck driver. "There is no evidence that Ms. Brown or anyone else at [Edison] had the ability to provide the technical instruction or guidance as to how Mr. Vradenburgh was to drive his truck or load or unload it." Plaintiff, who took considerable pride in his skill and experience as a Class A licensed commercial truck driver, testified at his deposition that "[N]obody needed to tell me how to do my job."

Such evidence is immaterial to the undisputed evidence regarding Edison's right to control and supervise plaintiff's work. Just as business executives may supervise a secretary's work even though they lack typing or word processing skills, so too could Brown supervise plaintiff's deliveries even though she did not hold a Class A license and did not sit alongside him in his truck cab as he made his deliveries.

Wedeck, supra, 59 Cal.App.4th 848 is on point. In Wedeck, the plaintiff, a skilled chemist, opposed a summary judgment by raising factual allegations of self-supervision and technical expertise. The Wedeck court was unpersuaded: "That she performed her job without constant intervention by supervisors does not negate the undisputed fact that she was subject to Unocal's control and direction. 'As indicated, the control need not be exercised. It is sufficient if the right to direct the details of the work is present.'" (Id. at p. 859.)

Beyond the "primary" consideration of the right to control and direct, a substantial number of secondary factors favor the conclusion Edison was plaintiff's special employer: plaintiff performed Edison's work for a substantial period of time (some four years); Edison furnished most of the tools, including the truck, as well as the place of performance, and plaintiff acquiesced in the ongoing work situation by accepting Edison's control and direction through the direction of his primary supervisor, Carla Brown.

3. Plaintiff's Evidence Regarding His Technical Ability to Operate a Truck and His Relationship with Bechtel and His Fellow Teamsters Does Not Establish Triable Issues of Fact Plaintiff attempts to create an issue of fact by arguing that there are disputed questions on several of the criteria that may be considered in determining whether Edison acted as his special employer. He cites evidence regarding George Mitchell, a Teamster foreman and a Bechtel employee, who was available at the San Onofre site to respond to "any technical questions on Teamster duties." Like plaintiff, Mitchell was a Bechtel employee. Mitchell distributed the paychecks to plaintiff and the other Teamsters.

But aside from these incidental roles, the evidence belies plaintiff's assertion that Mitchell, rather than Brown, acted as his supervisor. Mitchell neither directed nor even communicated with plaintiff about his Edison assignments. Only in the absence of both Brown and her immediate supervisor, another Edison employee, would Mitchell temporarily fill in to inform plaintiff of his immediate tasks. Indeed, as plaintiff testified at his deposition, Mitchell himself received his daily work assignments from Brown at the morning briefings.

At oral argument, plaintiff's counsel argued there was evidence in the record that Mitchell was available onsite to provide direct supervision to plaintiff about how to secure a load. We have scoured the record, and have found no such evidence, and none is cited in plaintiff's briefs. At the same time that plaintiff described Brown as "my immediate supervisor," he called Mitchell "the Teamster foreman who keeps my time." Brown similarly characterized Mitchell's duties: "He's the Teamster foreman. He also drives a truck, he drives also. . . . [¶] . . . I just know that he's there for them in case they have any technical questions on Teamster duties. . . . He's there to assist. He hands them their paycheck."

Plaintiff fails to recognize that general employers often retain some form of control over their loaned employees. (Brassinga v. City of Mountain View (1998) 66 Cal.App.4th 195, 216 ["[R]elinquishment of 'all' control is not necessary for creation of a special employment relationship. 'Facts demonstrating the existence of a special employment relationship do not necessarily preclude a finding that a particular employee also remained under the partial control of the original employer'"].)

Evidence that the general employer (here Bechtel) handled such administrative details as payroll and safety briefings is inherent in loaned employment relationships, "where the general employer often handles administrative details, including payroll." (Wedeck, supra, 59 Cal.App.4th at p. 861, fn. 8.) "Despite retaining the right to terminate the special employment relationship, the ability of a special employer to discharge the employee from his or her general employment would be unusual indeed, particularly in the labor broker context." (Id. at p. 862.)

As in Wedeck, there is no requirement of unanimity in the special employment factors before summary judgment may be granted. Given the undisputed evidence with respect to Edison's right to control and direct the plaintiff's activities, along with the substantial number of other factors favoring a special employment relationship, we conclude as a matter of law that Edison was plaintiff's special employer.

4. The California Supreme Court Decisions in Kowalski and McFarland Are Distinguishable Plaintiff argues that we should follow two California Supreme Court decisions, Kowalski, supra, 23 Cal.3d 168 and McFarland v. Voorheis-Trindle Co. (1959) 52 Cal.2d 698 (McFarland), and allow the jury to determine whether Edison had the right to control the details of his work.

Neither case is on point. In Kowalski, the Supreme Court reversed a judgment notwithstanding the verdict in favor of the special employer, an oil refinery, following a plaintiff's verdict in a personal injury case. In Kowalski, unlike here, the injured employee was under the direct supervision of the general employer's foreman and was following the direct orders of this foreman at the time he was injured. To quote from the opinion: "He was assigned to the Peterson carpentry crew and was under the direct supervision of Peterson's carpenter foreman. When he was injured, Kowalski was following the carpenter foreman's express orders." (Kowalski, supra, 23 Cal.3d at p. 173.) Here, in contrast, plaintiff was under the direct supervision of an Edison employee (Carla Brown), whom he saw repeatedly throughout the day and with whom he was in contact (via an Edison-supplied walkie-talkie) even while he was driving the truck.

In Kowalski, the evidence showed that the injured plaintiff was not "permanently assigned" to work at the refinery. (Kowalski, supra, 23 Cal.3d at p. 173.) He was there on a job-specific assignment, and had worked there for several months before he would move on to another location. Here, in contrast, the undisputed evidence shows that plaintiff was permanently assigned to be at San Onofre, where he had been for nearly four years.

McFarland is equally distinguishable. In McFarland, a landowner entered into an oral contract with the worker's employer, a tractor company, to clear about 14 acres of brush on the property on a one-time, job-specific assignment. Unlike plaintiff's deposition testimony below, the McFarland tractor driver testified that he did not consider the landowner's employee to be his supervisor or foreman. Given such evidence, the California Supreme Court construed the tractor driver and his employer as more akin to independent contractors than special employees. (McFarland, supra, 52 Cal.2d at p. 701.)

Under like circumstances, the Wedeck court, supra, 59 Cal.App.4th 848 distinguished Kowalski and McFarland by citing undisputed facts that closely resemble the undisputed facts adduced below: "The present case does not resemble those relied on by Wedeck. Wedeck was not sent in briefly to Unocal to perform a task, with unlimited discretion in how she achieved the result. She was given specific training by Unocal, was expected to and did follow Unocal's particularized procedures, and was given regular assignments by Unocal supervisors during the nearly one year she worked at the chemical laboratory. The undisputed facts show that the direction given to Wedeck at Unocal was not merely informational." (Id. at p. 860.)

DISPOSITION

The judgment is affirmed. Defendant shall recover its costs on appeal.

WE CONCUR: BEDSWORTH, J. FYBEL, J.

20101206

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