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Neither a hospital nor the construction company it contracted with can be held liable for the injuries suffered by a subcontractor while working at the site, according to a recent Pennsylvania Superior Court opinion. The three-judge panel in Kenney v. Jeanes Hospital, led by Superior Court Judge Patrick Tamilia, concluded that the contractor met each element of the five-part test used to determine whether the statutory employer defense is available. Barclay White Inc. contracted with Jeanes Hospital in 1990 to construct a new building on the hospital’s property. Barclay White hired Metropolitan Contract Carpets Inc. as a subcontractor. Plaintiff Raymond Kenney worked for Metropolitan. He injured his back while loading a roll of carpet onto an elevator at the construction site. Raymond and his wife, Clare, filed a personal injury action. Barclay White filed a motion for partial summary judgment, stating it was Kenney’s statutory employer and was therefore immune from liability under the exclusivity provision of the Workers’ Compensation Act. The trial court granted Barclay White’s motion without filing an opinion. Jeanes then filed a motion for summary judgment, arguing it was not liable for Kenney’s injuries because it relinquished exclusive control of the construction site to Barclay White. The trial court granted the hospital’s motion. The Superior Court heard the case and affirmed Jeanes’ grant of summary judgment but reversed Barclay White’s and remanded the case. The Superior Court said the independent contractor clause in the company’s subcontract created a material issue of genuine fact as to Kenney’s employment. On remand, the trial court found there was no genuine issue that Barclay White was Kenney’s statutory employer. The Kenneys appealed. In the Superior Court’s second look at the case, Tamilia said the Pennsylvania Supreme Court set forth the elements that create a statutory employer defense in McDonald v. Levinson Steel Co. in 1930, which are: An employer who is under contract with an owner or one in the position of an owner. Premises occupied by or under the control of such employer. A subcontract made by such employer. Part of the employer’s regular business entrusted to such subcontractor. An employee of such subcontractor. When the Superior Court first heard the case, it based its ruling on the independent contractor clause of the contract between Barclay White and Metropolitan. The Kenneys argued the clause waived the statutory employer defense. But, the court found Barclay White met all the standards of the McDonald test.

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