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Jennings v. St. Vincent Hospital and Health Care Center8/17/2005
I.C. ยง 22-3-3-31. Where two employers "so associate themselves together that both are in direct control of the employee and he is made accountable to both, he will be considered an employee of both employers. . . ." GKN, 744 N.E.2d at 402 (citing U.S. Metalsource Corp. v. Simpson, 649 N.E.2d 682, 685 (Ind. Ct. App. 1995)). Determining whether an employer-employee relationship exists and thus whether the exclusivity provision of Indiana Code section 22-3-2-6 applies is ultimately a question of fact. GKN, 744 N.E.2d at 402. In making this determination, the factfinder must weigh a number of factors, none of which is dispositive. Id.
In GKN, a truck driver was employed by a trucking company and assigned to work for a general contractor on a highway project. The court had to determine whether the driver was a co-employee of the trucking company and the general contractor or an employee of the trucking company and an independent contractor of the general contractor. In order to determine this dual-employment issue, our Supreme Court used the factors that have to be weighed against each other as established in Hale v. Kemp, 579 N.E.2d 63, 67 (Ind. 1991): (1) the right to discharge; (2) mode of payment; (3) supplying tools or equipment; (4) belief of the parties in the existence of an employer-employee relationship; (5) control over the means used in the results reached; (6) length of employment; and (7) establishment of the work boundaries. These factors must be weighed against each other as part of a balancing test as opposed to a mathematical formula where the majority wins. GKN, 744 N.E.2d at 402.
II. Burden of Proof
When challenging the trial court's subject matter jurisdiction, the employer bears the burden of establishing the lack of jurisdiction, unless the plaintiff's own complaint demonstrates facts establishing the employment relationship. Id. at 404. Here, Jennings's complaint did not set forth facts that clearly proved the existence of an employer-employee relationship with respect to either St. Vincent. To the contrary, Jennings cited the Agreement's provision stating that Jennings should be considered an employee of StarMed. Appellant's Br. p. 15-16. However, the parties do not dispute that Jennings was an employee of StarMed when he was stuck by the needle, but they do dispute whether he was also a St. Vincent employee. Therefore, we proceed to the seven-factor test established in Hale to determine whether St. Vincent met its burden of proof in demonstrating that the trial court lacked subject matter jurisdiction over Jennings's cause of action against it.
III. Examination of the Factors Established in Hale v. Kemp
1. Right to Discharge
According to the terms of the Agreement, St. Vincent had the right to (1) approve Jennings's assignment to St. Vincent, Appellant's App. p. 116, (2) monitor Jennings's performance of his duties during the assignment, Appellant's App. p. 115-16, and (3) dismiss nurses from an assignment for unsatisfactory performance, Appellant's App. p. 115. St. Vincent only reserved the indirect right to discharge Jennings from his assignment at St. Vincent because St. Vincent could not terminate Jennings's employment with StarMed. But our Supreme Court has recognized such indirect right to discharge, Degussa v. Mullens, 744 N.E.2d 407, 413 (Ind. 2001), and, therefore, this factor weighs in favor of the conclusion that Jennings was a co-employee of St. Vincent and StarMed.
2. Mode of Payment
As set forth in the Agreement, Jennings was paid exclusively by StarMed, where he presented his time sheet. Appellant's App. p. 117, 126. StarMed was also responsible for tax withholdings, worker's c
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