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Wilcox v. Basehore

Supreme Court of Washington, En Banc

February 9, 2017

DEAN WILCOX, Petitioner,

          WIGGINS, J.

         Dean Wilcox fell 50 feet through an open catwalk hatch onto a concrete floor. Having sustained severe injuries, he sued the on-site safety planner, Steven Basehore, for negligent planning causing the fall; Wilcox also named the safety planner's employer, Bartlett Services, Inc. (Bartlett), and an intermediary company, ELR Consulting, Inc. (ELR), in respondeat superior. Before trial, the court granted ELR judgment as a matter of law. At trial, the court instructed the jury on the borrowed servant doctrine, an extension of respondeat superior. Wilcox appealed both decisions. The Court of Appeals, in a published decision, affirmed. Wilcox v. Basehore, 189 Wn.App. 63, 356 P.3d 736 (2015).

         We also affirm. We hold that the borrowed servant doctrine is properly a question for the jury where complete control is a disputed fact. Whether the servant is loaned through an intermediary does not preclude application of the doctrine. We decline to consider the implications of Wilcox's indemnification argument because it was raised as a jury instruction challenge for the first time on appeal. We further hold that judgment as a matter of law was properly granted in favor of ELR because no reasonable jury could find that ELR had a right to control Basehore's conduct.


         I. Factual History

         This case stems from a workplace injury and the dismantling of a nuclear facility. The United States Department of Energy's (DOE) Hanford site in southeastern Washington produced nuclear weaponry (specifically plutonium) from 1943 until its closure in 1987.[1] The site itself is vast, covering 586 square miles, and is further surrounded by the Hanford Reach National Monument-land long used to buffer the site's toxic emissions.[2] After decades of plutonium production, the toxic waste clean-up efforts have been similarly substantial: since 1989, thousands of workers have been involved as facilities are "deactivated, decommissioned, decontaminated, and demolished."[3]

         Washington Closure Hanford LLC (WCH) was a "prime contractor" involved in this cleanup. As demolition work involves many short-term and specialized tasks, WCH used many temporary workers, acquired through "staff augmentation" partners. This case specifically concerns the demolition of "Building 336" at the Hanford site. Wilcox, a millwright, was one of WCH's permanent employees. Basehore, a professional work control planner, was hired as an independent contractor.

         A. Work Control Planning

         Work control planners help ensure on-site safety by compiling "work packages." These work packages guide on-site work procedures by noting the tasks to be done, detailing their proper sequence, and, critically, identifying potential hazards.[4] Work packages are developed by teams of workers, specialists, and engineers;[5] the work control planner then collects information from the entire work team and puts it in a comprehensive work document.

         Here, Basehore was one of approximately six people involved in preparing the work package for Building 336 and the only person who was not a WCH employee.[6]The person with comprehensive oversight of the work package was a WCH manager.

         B. The Subcontractors

         Basehore's employer, Bartlett, is a Massachusetts corporation providing short-term professional and technical staff to federal government contractors. Bartlett frequently provided WCH with temporary, specialized workers. After confirming Basehore's suitability and availability, WCH contracted with a third company, ELR, which in turn procured Basehore's services.

         ELR acted as an intermediary between WCH and Bartlett, according to ELR, "only to trigger" extra federal payments for WCH. ELR qualifies, for purposes of federal government contracts, as a service-disabled veteran-owned small business. According to ELR, WCH's contract with the DOE required that three percent of subcontracting dollars go to service-disabled veteran-owned small businesses, or else WCH would forgo an additional $9 million payment. ELR received a relatively small payment in exchange for acting, according to ELR's counsel, as a "conduit."[7]

         C. Two-Step Contracting

         With ELR as an intermediary, the parties then used a two-step contracting process. Basehore's services were conveyed from Bartlett to ELR by means of one contract (ELR-Bartlett Contract). Ex. 222 at BSI-1. Then Basehore's services were conveyed from ELR to WCH by a second contract (WCH-ELR Contract). Ex. 34 at ELR 000462. By tunneling Basehore's services through ELR, WCH counted the contract in its tally of subcontracts with service-disabled veteran-owned small businesses.[8]

         Both contracts characterized Basehore as an independent contractor. Ex. 222 at BSI-1; ex. 34 at ELR 000466. The ELR-Bartlett Contract, while not signed by WCH, was created "in support of" WCH. Ex. 222 at BSI-1. The contract established a maximum payment value "for this work from WCH, " id., and incorporated by reference exhibits A ("General Conditions") and B ("Special Conditions") of the WCH-ELR Contract, id. at BSI-2.

         The WCH-ELR Contract includes both general and special conditions, with the special taking precedence over the general. Ex. 34 at ELR 000466 ("Order of Precedence"). General condition (GC) 19 is a comprehensive indemnification provision. Id. at ELR 000470. Most relevant is GC 2, which provided that ELR would "maintain[] complete control over its employees and all of its lower-tier suppliers and subcontractors, " which included Basehore. Id. at ELR 000466.

         However, the contract's special conditions characterize the situation differently: special condition (SC) 13 designates Kim Koegler of WCH as the party with "ultimate authority over the technical aspects" of Basehore's work.[9] Id. at ELR 000486. These technical aspects included preparation of the work package, which Wilcox alleges was negligently prepared.

         D. The Accident

         The parties agree as to the subsequent unfolding of events: On July 1, 2009, Wilcox was among those working on a catwalk in Building 336, preparing it for demolition. The work package guiding that day's work was developed by Basehore. During his inspection of Building 336, Basehore had failed to realize that the catwalk was accessed via a hatch that lacked protective guard chains. While Wilcox was still working, some other workers descended; they left the access hatch open with the expectation that the remaining workers would soon follow. Before Wilcox could also descend, he and another worker were asked to finish an additional task. While doing so, Wilcox stepped through the open catwalk hatch, falling 50 feet to the concrete floor below.

         Wilcox survived the fall, sustaining serious injuries to his legs and spine. Wilcox alleges that Basehore's negligent development of the work package and safety protocols led to his fall and resulting injuries.

         II. Procedural History

         Wilcox filed suit against Basehore, Bartlett, and ELR for negligence. Wilcox later voluntarily dismissed Basehore from the suit. The remaining parties filed cross motions for summary judgment, which were denied. ELR later filed a second motion for summary judgment, which was also denied. At the close of evidence, ELR brought a CR 50 motion for judgment as a matter of law, which was granted. The remaining claims against Bartlett proceeded to trial.

         At trial, Wilcox strongly disputed the jury instructions proposed by Bartlett and ELR. Two instructions in particular, instruction 12 and instruction 13, directed the jury to consider the "borrowed servant doctrine." These instructions were as follows:

[I]f... the defendant proves that Steve Basehore was a borrowed servant of Washington Closure Hanford, your verdict should be for the defendant.
Under the borrowed servant doctrine, a worker in the general employ and pay of one employer may be loaned to another. If an employer meets its burden of proving by a preponderance of the evidence that the worker is a "borrowing servant" that employer is not liable for the worker's negligence.
In order for a person to be a "borrowed servant", the general employer must surrender, and the borrowing employer must assume, exclusive supervision and control over the worker. Exclusive control for all purposes is not required. Rather, the question is whether the borrowing employer has exclusive ...

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