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Dirksing v. Blue Chip Architectural Products11/7/1994
argues that if appellees "are going to play a pea-in-shell game with the three corporations[,] only one corporation may at any one time be the `employer' of John Dirksing." Therefore, appellant contends, the remaining corporations would not be immune from liability under the workers' compensation statutes in a negligence suit. We find this assignment of error to be well taken, although not precisely for the reason advanced by appellant.
Despite the trial court's decision denying appellant's motion to compel, he did conduct some discovery on the corporate workings of Welling, BCAP, and BCE. The record shows that Keith Smith is the president and sole shareholder of Waltek. He originally worked for Welling, in which he was a minority shareholder. Keith Smith later formed a corporation to acquire Welling's assets, then changed Welling's name to Waltek. Keith Smith is also the vice president and sole shareholder of BCAP. He is the assistant, treasurer of BCE in which Waltek owns forty percent of the shares. Further, Keith Smith made and received personal loans to and from the corporations.
Waltek is in the exterior wall manufacturing and contracting business. In the late 1980s, Smith formed BCA-P because he saw a need to establish a manufacturing entity separate from the contracting entity. BCAP and BCE are used to do the actual field work for projects in which Waltek is involved. BCE was the union shop, used in union jobs, and BCAP was the nonunion shop. Although Keith Smith is not involved in the daily operation of BCAP or BCE, Waltek and BCE share office space. BCAP has a separate address which is their "shop" where tools and equipment are kept.
Robert Sanders is the vice president and safety director of Waltek. He is the president and treasurer of BCAP and the treasurer of BCE. He was also the treasurer and vice president of WCI Acquisitions. He originally worked for Welling as a controller. Robert Sanders stated that his duties were basically the same with all three corporations. He also stated that he is paid by Waltek, not BCAP, even though he is BCAP's president and that no white collar employees are paid by BCAP. He indicated that there were "informal loans" between the corporations and that Welling's safety policy covered all three corporations.
Carol Smith (no relation to Keith Smith) previously worked for Welling and is now the controller for Waltek. She does accounting for Waltek, BCAP, and BCE and is the secretary for the three corporations. However, Carol Smith was unsure what offices she held in the corporations. Carol Smith testified she became an officer at Keith Smith's request and, though she signed the corporate minutes, she could not recall attending any corporate meetings.
Monk, Dirksing's supervisor, was an employee of BCE, "loaned out" to BCAP for the Champion Paper job . Estes, a union fabricator working on the roof the day of the accident, was unsure of the company for whom he worked, although he knew his paychecks did not come from Waltek. Estes indicated that he had driven a truck with BCAP on the side to BCE jobs. Even Brant Smith, Keith Smith's son, was not entirely sure of the company for which he worked.
Accordingly, we conclude that reasonable minds could differ as to whether the corporations had a separate existence. Therefore, the jury could properly find that some or all of the corporations are alter egos of the shareholders, and the trial court erred in granting summary judgment in favor of Welling and BCE.
However, appellant's argument regarding the effect of such a decision by the jury is erroneous. When a corporation is found to be the alter ego of the shareholders, the corporate forms are dis
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