As a St. Louis personal injury attorney, I frequently hear of cases involving injuries to construction workers. Construction is one of the most dangerous occupations, because it involves heavy machinery, heights and sometimes electricity or dangerous chemicals. As with anyone injured at work, construction workers may not sue their own employers because they have the right to collect workers’ compensation. However, if a third party was responsible for the injury, workers are free to sue that person instead. In Bovier v. Simon Crane Service, the Eastern Division of the Missouri Court of Appeals ruled that a genuine issue existed as to whether Simon Crane was a co-employee of Jason Bovier because both worked for Whittaker Builders Inc., and thus kept Bovier’s lawsuit alive.
Bovier was a carpenter for Whittaker in 2005, when Whittaker hired Simon Crane to hoist materials to the top of a home being built in a St. Charles subdivision. As one of the home’s gables was lifted, it struck and injured Bovier. Bovier eventually sued Simon Crane and the crane’s operator, John Simon. Simon Crane moved for summary judgment, arguing that Simon was a “borrowed servant” of Whittaker. This means Simon Crane (and by extension, Simon) was a temporary employee of Whittaker, under contract, with Whittaker controlling the work. This would make Simon Crane and Bovier co-employees, and thus the liability would pass to Whittaker. And because Bovier’s exclusive remedy for injuries caused by his employer was workers’ compensation, it argued, the case should be dismissed. The trial court agreed and dismissed the case.
Bovier appealed, arguing that summary judgment was inappropriate because there were genuine issues of material fact to consider about whether John Simon was a borrowed servant of Whittaker. The Missouri Court of Appeals agreed. To prove that an entity is a borrowed servant, that entity must prove 1) consent to work for the employer, 2) actual entry into the work pursuant to an express or implied contract and 3) the power of the employer to control the details of the work. It found that there was a genuine dispute over whether Whittaker controlled Simon Crane. Simon’s own testimony was contradictory about how much Whittaker controlled his work. Simon Crane did a lot of business for Whittaker at the time and Whittaker told him how and where to lift the gables, but Simon testified that he decided how to do the work asked of him, and could have refused to lift something if he felt it was unsafe. Thus, there was a genuine fact issue, the court found, and the court should consider the issue in more detail before dismissing the case.
As the caselaw in this opinion shows, this is a common defense in cases involving workers with more than one loyalty. In particular, construction sites frequently have several companies doing business at any one time, creating potential liability from more than one defendant if an accident happens. As a result, in my experience as a Missouri personal injury lawyer, construction accidents often get complicated as the parties work out their legal relationships. For an injured plaintiff like Bovier, this is important because workers’ compensation is not guaranteed and frequently not enough to adequately replace wages. As a southern Illinois head injury attorney, I explore all of the legal avenues available to my clients so I can get them the best possible financial recovery.
If you or someone you love suffered a serious injury because of someone else’s negligence, you have the right to hold them legally and financially responsible. For a free consultation, call Carey, Danis & Lowe today at 1-877-678-3400 or send us a message through our website.
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