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Jones v. Compression Coat Corp. & Paul Laine & Co.11/2/2000
6. Furnishment of Tools and Facility
Clearly, Compression Coat provided the facility, but PLC provided the crane and barge. The affidavits of Wright and Laine assert that Compression Coat provided certain tools and equipment including cables, hooks, a spreader bar, and tag lines. In his deposition, Laine testified that PLC provided the hook but that Compression Coat provided spreader bars, tag lines, and everything else.
7. Length of New Employment
Hanks worked for Compression Coat for about three years, but Laine testified that Hanks also worked at other jobs during that time, although he attested in his affidavit that Hanks was assigned to work exclusively for Compression Coat during that period.
8. Right to Terminate
This requirement is met if the borrowing employer has the authority to terminate the worker's work at the job site in question. Hall, 670 So.2d 543. In his affidavit, Laine attested that Compression Coat enjoyed the right to terminate Hanks' employment with Compression Coat. Wright also attested that Compression Coat had the right to instruct PLC not to send a particular employee to work at its facility. Laine also testified in deposition that if Compression Coat had indicated that it did not like the way Hanks was operating the crane, PLC would have changed operators.
9. Payment of Wages
This factor focuses on who provided the funds used to pay the worker. Id. According to Laine, PLC leases the crane and operator for a certain price per hour and then PLC pays the crane operator out of those funds. Hanks kept track of the number of hours Compression Coat used the crane. He turned those hours in to Compression Coat for verification and then over to PLC. According to Laine, as Hanks was receiving raises, PLC never made a corresponding increase in the charges to Compression Coat. PLC also provided Hanks with a company truck with no restrictions on personal use, hospitalization and automobile insurance, fuel, and a Christmas bonus. We have found no indication that these benefits were derived from funds provided by Compression Coat.
If Hanks is found to have been Compression Coat's borrowed employee, then, at the time of the alleged accident, he was the co-employee of Jones, who himself was a borrowed employee of Compression Coat. If Hanks was Jones' co-employee, then PLC is entitled to tort immunity under the LHWCA. Although the issue of borrowed employee status is a legal one for the court to determine, there are nine factual inquiries underlying this determination. Id. In the instant case, some of the evidence is conflicting. Additionally, some of the factors point toward a finding that Hanks was Compression Coat's borrowed employee while others do not. Thus, we find that summary judgment on this issue was improper due to the genuine issues of material fact in dispute.
DISPOSITION
For the foregoing reasons, we reverse the summary judgment and remand for further proceedings consistent with this opinion. We assess costs of this appeal to PLC.
REVERSED AND REMANDED.
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