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A company supervising a work site is not entitled to immunity in a negligence case in which a construction worker was injured on the job, because the plaintiff was not the site supervisor’s “borrowed servant,” a Philadelphia common pleas court judge has ruled. The defendant company and the plaintiff’s employer were “interrelated,” Philadelphia Judge Victor J. DiNubile explained. In such cases, the judge said, “where the functions of each corporation are separate and distinct and … the employee was pursuing work on behalf of his employer when injured, then the other company cannot assert immunity” under the Workers’ Compensation Act. DiNubile’s decision in Stout v. Morrisville Supply Corp. affirms a $2.4 million jury verdict against Morrisville Supply Co. Plaintiff Leroy Stout was awarded $2.8 million in damages and delay damages. Two other defendants, Portec Inc. and Labor Ready Inc., settled during the trial. The jury found Portec to be 15 percent liable in relation to Morrisville. According to Black’s Law Dictionary, before a person can be considered a “borrowed servant,” he or she must be loaned with his or her permission and must become fully in control of the second employer. Under the borrowed servant doctrine, if the second employer is fully in control at the time a negligent act occurs, liability rests on the second employer. The twist in Stout’s case is that his employer, Pennsbury Excavating and Landscaping Co., and Morrisville were “inextricably interrelated.” Stout was working for Pennsbury on a site supervised by Morrisville. Stout was struck in the head by a piece of falling concrete and suffers from vertigo, imbalance, headaches, brain damage, loss of memory and depression. Stout’s claim against Portec was a products liability claim, while his claim against Morrisville was one sounding in negligence. The case went to the jury solely on the issue of Morrisville’s negligence, with possible negligence on the part of Portec. DiNubile said Morrisville’s principal issue in its post-trial motion was its argument that it was immune from liability under the borrowed servant doctrine. The court said because the relationship between Pennsbury and Morrisville was not contested, the borrowed servant issue was a matter of law for the court to decide. DiNubile said Pennsbury and Morrisville and another corporation were connected because Francis Branagan, a major defense witness, “appeared to be involved in the ownership of all three.” Stresscon Inc., the owner of the property where the accident occurred, entered into a contract with Morrisville for crushing and removing unwanted prestressed concrete and other debris. Stresscon paid Morrisville and allowed Morrisville to conduct other waste removal at the site. Morrisville also leased the site under a one dollar a year lease. Morrisville then contracted with Pennsbury to supply heavy equipment operators, such as Stout, to crush the concrete. Morrisville paid Pennsbury in money and/or materials. DiNubile said, therefore, that case law worked against establishing immunity for Morrisville under the borrowed servant doctrine, because he said the facts supported the conclusion that the functions of Pennsbury and Morrisville were separate and distinct. “Morrisville had contracted to crush and remove the prestressed concrete,” DiNubile wrote. “The function of Pennsbury was to supply heavy equipment operators to collect and crush the material. “There is no question that at the time of the incident plaintiff was operating the front end loader pursuant to his employer’s contract with Morrisville.” DiNubile said it was also unclear whether Branagan and the foreman were working on behalf of Pennsbury or Morrisville and the “demarcation between who was working for whom” was too vague. DiNubile said two other factors led to his conclusion that Morrisville could not have immunity in the case — the fact that Stout was a skilled operator and the fact that he was paid by Pennsbury. “If the so-called borrowed servant is a skilled employee requiring a certain expertise to perform the work, it is less likely that the alleged borrowed servant is under control of the party seeking to assert immunity,” DiNubile wrote. “Mr. Stout’s function was to operate the front end loader and the machine in question, if necessary. “It was undisputed that he was skilled for these functions. Under these circumstances, it is more likely that when performing these duties he would be subject to the control of his employer.” DiNubile concluded that the fact that Stout was skilled and paid by Pennsbury, coupled with the fact that the companies were seemingly interrelated, yet separate and distinct in function, could not allow Morrisville to successfully assert immunity. DiNubile also denied several other issues in Morrisville’s post-trial motions, dealing with witness and jury instruction issues. Myers & Liero attorney Steven Liero represented Morrisville Supply Inc. Philadelphia attorneys Frank Brunella and Mark Syken represented Stout.

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