Gansch v. Nekoosa Papers, Inc.

449 N.W.2d 307, 152 Wis. 2d 666, 1989 Wisc. App. LEXIS 953
CourtCourt of Appeals of Wisconsin
DecidedOctober 19, 1989
Docket88-1190
StatusPublished
Cited by8 cases

This text of 449 N.W.2d 307 (Gansch v. Nekoosa Papers, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gansch v. Nekoosa Papers, Inc., 449 N.W.2d 307, 152 Wis. 2d 666, 1989 Wisc. App. LEXIS 953 (Wis. Ct. App. 1989).

Opinions

EICH, C.J.

Nekoosa Papers, Inc., and Sentry Insurance appeal from a judgment awarding Randy Gansch $95,649.32 in damages for injuries he sustained while performing services for Nekoosa. The issues are: (1) whether, at the time of his injury, Gansch was Nekoosa's "loaned employee," and thus subject to the exclusive remedy provisions of the Worker's Compensation Act, ch. 102, Stats.;1 and (2) whether the jury's award of damages should be overturned as excessive. We resolve both issues against Nekoosa and affirm the judgment.

Gansch was employed by Midway Transport Corporation, a wholly owned subsidiary of Bassuener Construction, Inc. Bassuener and Nekoosa entered into a [670]*670contract whereby Bassuener agreed to lease a bulldozer to Nekoosa — along with an operator (Gansch) — for work in Nekoosa's lime pit while Nekoosa's own bulldozer was being repaired.

At the time of the accident, Gansch had been working at the Nekoosa lime pit for ten days. Generally, Nekoosa's foreman would instruct Gansch at the beginning of the workday whether to pile or disk the lime and, if piled, where to place the piles. Two or three times a day, Darrel Bassuener, the owner of Bassuener Construction, would drive to the lime pit to make sure that Gansch was not "sloughing off." Midway Transport continued to pay Gansch's wages and handle his withholding, and social security tax deductions, and only Bas-suener could fire him.

On the tenth day, Nekoosa's bulldozer was returned to the job site after being repaired. Gansch left his machine to assist in the unloading of the bulldozer and was injured when the bulldozer blade fell on his foot.

Gansch sued Nekoosa for damages and the case was tried to a jury. At the close of the evidence, both parties moved the court to direct a verdict on the issue of whether Gansch was a loaned employee. The court granted Gansch's motion, holding that, as a matter of law, he was not a loaned employee of Nekoosa and thus his action was not barred by the exclusive remedy provisions of the Worker's Compensation Act. The jury found both Gansch and Nekoosa negligent and apportioned sixty-eight percent of the negligence to Nekoosa's employees and thirty-two percent to Gansch. Damages were set at $95,649.32 — $79,200 for past and future pain, suffering and disabilities, $13,000 for past wage loss, and $3,449.32 for medical and hospital expenses. The trial court denied Nekoosa's postverdict motions and entered [671]*671judgment on the verdict. Other facts will be discussed below.

I. THE "LOANED EMPLOYEE" ISSUE

The trial court’s ruling that at the time of the accident Gansch was not Nekoosa's loaned employee involves the application of a legal standard to found facts, a question of law which we decide without deference to the trial court's decision. Matter of Mental Condition of W.R.B., 140 Wis. 2d 347, 351, 411 N.W.2d 142, 143 (Ct. App. 1987).

The court's ruling was based solely on the provisions of the written contract between Bassuener and Nekoosa, which stated that Gansch would remain Bas-suener's employee at all times. This was error. While the terms of the agreement between the employers constitute "important. . . evidence" of the employee's status, they are not controlling. Hanz v. Industrial Comm., 7 Wis. 2d 314, 318, 96 N.W.2d 533, 535 (1959), quoting Schmidlkofer v. Industrial Comm., 265 Wis. 535, 539, 61 N.W.2d 862, 865 (1953). Courts must "not only . . . consider . . . the writings which attempt to define the status of the parties, but also all of the surrounding circumstances in order correctly to ascertain the exact relation which has resulted from the dealings between the parties." Hanz, 7 Wis. 2d at 317-18, 61 N.W.2d at 535, quoting Montello Granite Co. v. Industrial Comm., 227 Wis. 170, 183, 278 N.W. 391, 397 (1938).

We analyze the circumstances of the employment by considering the following factors:

(1) Did the employee actually or impliedly consent to work for the special employer?
[672]*672(2) Was the employee performing the special employer's work at the time of the injury?
(3) Did the special employer have the right to control the details of the work being performed?
(4) Was the work of the employee primarily for the benefit of the special employer? Meka v. Falk Corp., 102 Wis. 2d 148, 151, 306 N.W.2d 65, 68 (1981)

(a) Consent

The first factor is considered the most important — whether the employee actually or impliedly consented to work for the special employer. Ryan, Inc. v. ILHR Department, 39 Wis. 2d 646, 650, 159 N.W.2d 594, 595 (1968). An employee simply cannot be transferred to a special employer without his consent. Skornia v. Highway Pavers, Inc., 39 Wis. 2d 293, 298, 159 N.W.2d 76, 79 (1968).

Nekoosa, contending that Gansch impliedly consented to work for Nekoosa as a loaned employee, emphasizes that during his ten days on the Nekoosa job, he worked the same hours as the other Nekoosa employees and followed the directions of the Nekoosa foreman.

We start with the presumption that the original employment relationship remains. Skornia, 39 Wis. 2d at 300, 159 N.W.2d at 80. That presumption may only be overcome by a "clear demonstration that a new temporary employer has been substituted for the old . . .." 1C A. Larson, Workmen's Compensation Law, sec. 48.14 (1986) (footnote omitted).

In Skornia, 39 Wis. 2d at 299-300, 159 N.W.2d at 80, the supreme court adopted the rules stated in [673]*673Restatement (Second) of Agency, sec. 227 comments b and c (1958), relating to loaned employees:

b. Inference that original service continues. In the absence of evidence to the contrary, there is an inference that the actor remains in [the general employer's] employment so long as, by the service rendered another, he [or she] is performing the business entrusted to him [or her] by the general employer. There is no inference that because the general employer has permitted a division of control, he [or she] has surrendered it.
c. Factors to be considered. . . . Thus a continuation of the general employment is indicated by the fact that the general employer can properly substitute another servant at any time, that the time of the new employment is short, and that the lent servant has the skill of a specialist.

Applying these rules to the facts of this case, we first note that Gansch was on the job for Nekoosa for only ten days.2 Darrel Bassuener testified that he only intended to keep Gansch on the Nekoosa job until one of his other operators became free to work the job. In addition, Vern Nelson, Nekoosa's foreman, acknowledged that Gansch was a "fine" employee and that his job required skill and training.

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Gansch v. Nekoosa Papers, Inc.
449 N.W.2d 307 (Court of Appeals of Wisconsin, 1989)

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449 N.W.2d 307, 152 Wis. 2d 666, 1989 Wisc. App. LEXIS 953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gansch-v-nekoosa-papers-inc-wisctapp-1989.