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Summers v. Noll/NorWesCo, LLC

United States District Court, W.D. Washington, Tacoma

May 29, 2015




THIS MATTER is before the Court on Defendant Noll/NorWesCo’s Motion for Summary Judgment [Dkt. #12]. Opti Staffing Group, a temporary staffing firm, hired Plaintiff Summers as a temporary worker. Opti hired Summers as a “temp-to-hire” candidate: she did not want to remain a temporary worker, but instead hoped to turn a temporary assignment into a permanent, full time job with an Opti client. Defendant NorWesCo, a sheet metal manufacturer in Fife, Washington, was an Opti client. Opti specializes in “temp to hire” assignments.

NorWesCo engaged Opti to locate, screen and provide qualified temporary workers. NorWesCo’s agreement with Opti provided that NorWesCo would supervise the workers, and provide safety equipment and training. NorWesCo would control and verify the workers’ hours. NorWesCo paid Opti the workers’ wages, as well as an “upcharge, ” which covered required industrial insurance premiums, other costs, and a profit. Opti paid its workers directly.

Through Opti, Summers obtained a temporary placement at NorWesCo. She reported each day directly to NorWesCo, not to Opti, and NorWesCo provided all training, direction, tools, equipment, and supervision of her work. Opti was not on site and had no control over Summers’ day to day work. On her third day at NorWesCo, Summers was injured.

She sued NorWesCo for negligence. NorWesCo asserts employer’s immunity under the Washington Industrial Insurance Act. See RCW 51.04.010. It argues that under the familiar and well-established two-pronged test-the employer’s control over the employee, and mutual consent to an employment relationship-Summers was NorWesCo’s “employee” as a matter of law. Summers claims that she did not consent to an employment relationship with NorWesCo, and that she was not a NorWesCo employee as a matter of law. She claims she considered herself an Opti employee. Accordingly, she claims, the workers’ compensation bar does not preclude her negligence claim against NorWesCo.

Though Summers does not entirely concede the point, it is clear that NorWesCo had the requisite control over Summers’ job performance to make her its employee. Opti exercised no meaningful control over her, at all. Instead, the issue is whether NorWesCo can meet its burden of establishing Summers’ consent to an employment relationship as a matter of law, where Summers claims subjectively that she did not so consent.

A. Summary Judgment Standard

Summary judgment is appropriate when, viewing the facts in the light most favorable to the nonmoving party, there is no genuine issue of material fact which would preclude summary judgment as a matter of law. Once the moving party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to present, by affidavits, depositions, answers to interrogatories, or admissions on file, “specific facts showing that there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). “The mere existence of a scintilla of evidence in support of the non-moving party’s position is not sufficient.” Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Factual disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In other words, “summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable [fact finder] could return a [decision] in its favor.” Triton Energy, 68 F.3d at 1220. Both parties seek a legal determination on the fundamentally factual question of Summers’ status as an employee.

B. NorWesCo must prove Summers’ consent to an employment relationship.

For purposes of workmen’s compensation, an employment relationship exists only when: (1) the employer has the right to control the servant’s physical conduct in the performance of his duties, and (2) there is consent by the employee to this relationship. Novenson v. Spokane Fabricating and Culvert Co., 588 P.2d 1174 (1979). The employer carries the burden of demonstrating that the worker consented to an employment[1] relationship:

[W]hile an employer may “loan” an employee to another, the borrowing employer will not become an “employer” for purposes of RCW Title 51 unless a mutual agreement exists between the loaned servant or “borrowed employee” and the borrowing employer. The burden of avoiding liability on the basis of the loaned servant doctrine is on the person claiming it, the party attempting to gain the benefits of statutory immunity from common law suit.

Rideau v. Cort Furniture Rental, 39 P.3d 1006, 1007 (Wash. App. 2002) (bold emphasis added). They even agree on the universe of relevant authority on the subject, though they disagree about how to apply those authorities to the facts of this case.

NorWesCo argues that, despite Summers’ claim that she never consented to an employment relationship with it, the facts support that conclusion as a matter of law. It argues that Summers admits she wanted and planned to become a full time NorWesCo employee, and emphasizes that she reported directly to NorWesCo each day. It argues that, in her deposition, she conceded that she consented to at least a temporary employment relationship, and any disclaimer of that consent now is not admissible to avoid summary judgment. It claims that these facts distinguish this case from Washington cases holding that the worker’s consent to an employment relationship is a factual issue to be determined at trial. Here, it claims, the facts and their effect are not disputed.

In Novenson, the Washington Supreme Court held that consent[2] is a factual question. The temporary worker there (Novenson) reported daily to the temp agency (Kelly), and then to the client (Spokane Culvert). Spokane Culvert paid Kelly, and Kelly paid Novenson. Like Opti in this case, Kelly paid its temporary workers’ industrial insurance premiums[3]-a fact that the Supreme Court held was of “no ...

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