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Dirksing v. Blue Chip Architectural Products11/7/1994
hat BCE is not responsible for any negligence Monk might have committed. Appellant argues that the determination whether someone is a "loaned servant" and who had the right to control that servant are questions of fact for the jury. We find this assignment of error is not well taken.
"When one party loans his servant to another for a particular employment in the business and under the direction of the latter, the servant, for anything done in that employment, must be regarded as the servant of the party to whom he is loaned, although he remains the general servant of the party who loaned him." Halkias v. Wilkoff (1943), 141 Ohio St. 139, 25 O.O. 257, 47 N.E.2d 199, paragraph four of the syllabus, overruled on other grounds in Helmick v. Republic-Franklin Ins. Co. (1988), 39 Ohio St.3d 71, 529 N.E.2d 464.
"` n determining whether, in respect of a particular act, a servant, in the general employment of one person, who has been loaned for the time being to another is the servant of the original employer or the person to whom he has been loaned, the test is whether in the particular service which he is engaged to perform, the servant continues liable to the direction and control of his general employer or becomes subject to that of the person to whom he is lent,--whether the latter is in control as proprietor so that he can at any time stop or continue the work and determine the way in which it is to be done, with reference not only to the result reached but to the method of reaching it.'" (Citations omitted.) Halkias, supra, at 152, 25 O.O. at 262, 47 N.E.2d at 205, quoting 35 American Jurisprudence 970, Section 541.
In finding that Monk was a loaned servant, the trial court stated:
"In this case, Mike Monk worked primarily for BCE, but was loaned out to BCAP on non-union jobs. He performed the same work for both companies, which was general field superintendence. * * * BCE did not have a contract to perform work on the Champion project and received no benefit from Monk working on the project. Although Monk was the senior person on the job site that day for BCAP, it would be unreasonable to believe that he was still working for BCE simply because he was not under the direct direction of someone who had a more senior position than Monk had. Therefore the Court finds that reasonable minds could only find that Monk was a `loaned servant' working for BCAP on the Champion project and BCE is not responsible for any negligence Monk might have committed while working on the Champion site."
We agree with the trial court's analysis. Appellant cites three cases for the proposition that the loaned servant issue cannot be decided on summary judgment, none of which support that argument. When there is no issue of material fact, the question whether an individual is a borrowed servant can be decided as a matter of law. See Mulford v. Columbus & S. Ohio Elec. Co. (Jan. 12, 1994), Athens App. No. CA-1548, unreported, 1994 WL 11426; Cornelius v. B.G. Danis Co., Inc. (Nov. 14, 1990), Hamilton App. No. C-890500, unreported, 1990 WL 177187; Carpenter v. Shape Form, Inc. (Jan. 16, 1990), Madison App. No. CA89-07-010, unreported, 1990 WL 2336. Accordingly, appellant's sixth assignment of error is overruled.
The concept that a corporation is a legal entity, separate and apart from the natural persons who compose it, is a legal fiction designed to facilitate the transacting of business. However, when the corporate form is used to subvert the intent and policy of this fiction, it may be disregarded. Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos., Inc. (1993), 67 Ohio St.3d 274, 287, 617 N.E.2d 1075, 1085; Ohio Bur. of Work
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