X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
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.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.