[Cite as Cowan v. Interdyne Corp., 2013-Ohio-642.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               ALLEN COUNTY



ROSEMARY COWAN, EXECUTOR
OF THE ESTATE OF WINFRED COWAN,

        PLAINTIFF-APPELLANT,
        -and-                                            CASE NO. 1-12-26

ROSEMARY COWAN,

        PLAINTIFF-APPELLANT,

        v.                                               OPINION

INTERDYNE CORP., ET AL.,

        DEFENDANTS-APPELLEES.



                  Appeal from Allen County Common Pleas Court
                           Trial Court No. CV 2012 0163

                                     Judgment Affirmed

                          Date of Decision: February 25, 2013




APPEARANCES:

        Brian J. Vennekotter for Appellant, Rosemary Cowan

        William E. Clark for Appellee, Interdyne Corp.
Case No. 1-12-26


PRESTON, P.J.

        {¶1} Plaintiffs-appellants, Rosemary Cowan as the Executor of the Estate

of Winfred Cowan, and Rosemary Cowan, filed an appeal of the Allen County

Court of Common Pleas’ judgment granting defendants-appellees, Interdyne

Corporation and the Bureau of Workers’ Compensation, summary judgment.

Appellants argue the trial court erred when it granted appellees’ motion for

summary judgment because the record creates a genuine issue of material fact in

dispute. For the reasons that follow, we affirm.

        {¶2} On February 27, 2012, Winfred and Rosemary Cowan filed a

complaint against Interdyne and the BWC alleging that Interdyne had negligently

exposed Winfred to chemicals and materials that caused his restrictive pulmonary

defect.1 (Doc. No. 1). The Cowans sought damages in excess of $25,000 to

recover for Rosemary’s loss of consortium with her husband and Winfred’s

medical expenses. (Id.).

        {¶3} The BWC filed its answer on April 9, 2012. (Doc. No. 6). Interdyne

filed its answer on April 30, 2012. (Doc. No. 7).




1
  The Cowans included the BWC as a party to this action because, according to the Cowans’ complaint and
the BWC’s answer, the BWC has paid some of Winfred’s medical expenses. (Doc. No. 1); (Doc. No. 6).
Consequently, the Cowans and the BWC assert that the BWC has a right of subrogation in this matter.
(Id.); (Id.).

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Case No. 1-12-26


        {¶4} On April 30, 2012, Interdyne filed a motion for summary judgment.

(Doc. No. 8). Interdyne argued that R.C. 4123.74 grants it immunity from the

Cowans’ claims. (Id.).

        {¶5} On May 25, 2012, the Cowans filed their motion in response. (Doc.

No. 10). The Cowans argued Patrick Staffing, a temporary placement agency, was

Winfred’s employer so R.C. 4123.74 did not apply to Interdyne. (Id.).

        {¶6} On June 4, 2012, the trial court filed its judgment entry granting

Interdyne summary judgment. (Doc. No. 11). The trial court found that Interdyne

was Winfred’s employer within the meaning of R.C. 4123.74 because it controlled

his day-to-day tasks in the workplace. (Id.).

        {¶7} On June 20, 2012, the Cowans filed a notice of appeal.2 (Doc. No.

12). Appellants now raise one assignment of error for our review.

                                    Assignment of Error

        The trial court committed a reversible error by granting
        summary judgment in favor of Interdyne when there is a
        genuine issue of material fact whether the loaned servant
        doctrine applied.

        {¶8} In their sole assignment of error, appellants argue Winfred was an

employee of Patrick Staffing and not Interdyne. Appellants contend that Winfred

was assigned to work at Interdyne through Patrick Staffing. Appellants argue that

pursuant to Interdyne’s contract with Patrick Staffing, Patrick Staffing retained the
2
 Pursuant to App.R. 29(A), this Court substituted Rosemary Cowan, Executor of the Estate of Winfred
Cowan, for Winfred as a party to this action due to Winfred’s recent death.

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right to direct and control Winfred, so Patrick Staffing was Winfred’s sole

employer.

       {¶9} We review a decision to grant summary judgment de novo. Doe v.

Shaffer, 90 Ohio St.3d 388, 390 (2000). Summary judgment is proper where there

is no genuine issue of material fact, the moving party is entitled to judgment as a

matter of law, reasonable minds can reach but one conclusion when viewing the

evidence in favor of the non-moving party, and the conclusion is adverse to the

non-moving party. Civ.R. 56(C); State ex rel. Cassels v. Dayton City School Dist.

Bd. of Edn., 69 Ohio St.3d 217, 219 (1994).

       {¶10} Material facts are those facts “that might affect the outcome of the

suit under the governing law.” Turner v. Turner, 67 Ohio St.3d 337, 340 (1993),

citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Whether a

genuine issue exists is answered by the following inquiry: [d]oes the evidence

present ‘a sufficient disagreement to require submission to a jury’ or is it ‘so one-

sided that one party must prevail as a matter of law[?]’” Turner at 340, citing

Liberty Lobby, Inc., at 251-252.

       {¶11} Summary judgment should be granted with caution, resolving all

doubts in favor of the nonmoving party. Osborne v. Lyles, 63 Ohio St.3d 326, 333

(1992). “The purpose of summary judgment is not to try issues of fact, but is




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rather to determine whether triable issues of fact exist.” Lakota Loc. Schools Dist.

Bd. of Edn. v. Brickner, 108 Ohio App.3d 637, 643 (6th Dist.1996).

      {¶12} Interdyne argues that it is immune from claims for common law

negligence damages pursuant to R.C. 4123.74. R.C. 4123.74 provides:

      Employers who comply with section 4123.35 of the Revised Code

      shall not be liable to respond in damages at common law or by

      statute for any injury, or occupational disease, or bodily condition,

      received or contracted by any employee in the course of or arising

      out of his employment, or for any death resulting from such injury,

      occupational disease, or bodily condition occurring during the period

      covered by such premium so paid into the state insurance fund, or

      during the interval the employer is a self-insuring employer, whether

      or not such injury, occupational disease, bodily condition, or death is

      compensable under this chapter.

Interdyne contends that based on the loaned servant doctrine, it is an employer

within the meaning of R.C. 4123.74 and consequently immune from appellants’

claims.

      {¶13} The Supreme Court of Ohio addressed this issue in Daniels v.

MacGregor, 2 Ohio St.2d 89 (1965). In Daniels, the plaintiff was employed by

Manpower, Inc., a company that provided temporary workers to individuals and


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Case No. 1-12-26


companies.    Id. at 89.       Manpower sent the plaintiff to work for MacGregor

Company, one of Manpower’s customers, where he was injured while installing a

light fixture. Id. at 89-91.

       {¶14} The pleadings, affidavits, a deposition, and a stipulation revealed that

Manpower’s employees received instructions from the customer regarding what

tasks the individual should perform and how to perform those tasks. Id. at 89-90.

Manpower retained the right to hire and discharge its employees, and the right to

determine which employees were assigned to which customers. Id. Manpower

also reserved the right to remove its employees from one customer and place them

with another, even during the course of a work day. Id. at 90.

       {¶15} Manpower’s customers paid a fixed hourly rate for the work

performed by Manpower’s employees.              Id.   The customers did not pay

Manpower’s employees directly; rather, Manpower paid all of the wages, taxes,

and workers’ compensation premiums for its employees. Id.

       {¶16} Thus, the issue before the Court was whether MacGregor was the

plaintiff’s employer for the purposes of the immunity provisions of R.C. 4123.74.

The Court determined that MacGregor was the plaintiff’s employer at the time of

the injury, holding that where:

       an employer employs an employee with the understanding that the

       employee is to be paid only by the employer and at a certain hourly


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Case No. 1-12-26


       rate to work for a customer of the employer and where it is

       understood that customer is to have the right to control the manner

       or means of performing the work, such employee in doing that work

       is an employee of the customer within the meaning of the

       Workmen’s Compensation Act; and, where the customer has

       complied with the provisions of the Workmen’s Compensation Act,

       he will not be liable to respond in damages for any injury received

       by such employee in the course of or arising out of that work for

       such customer.

Id. at 92.

       {¶17} This Court has previously recognized that, “for purposes of workers’

compensation immunity, an employee may have dual employment status.” Below

v. Dollar General Corp., 3d Dist. No. 9-05-08, 2005-Ohio-4752, ¶ 15. Whether a

loaned servant is a customer’s employee depends on who had the right to manage

the manner or means of day-to-day control over the employee, not who was

responsible for administrative human resources matters.      Cottrill v. Thermo

Electron North America, LLC, 4th Dist. No. 09CA34, 2010-Ohio-2238, ¶ 24. In

determining who had the right to control the manner or means of doing the work,

this Court has considered several factors including, but not limited to, “who

controls the details and quality of the work; who controls the hours worked; who


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Case No. 1-12-26


selects the materials, tools, and personnel used; who selects the routes; the length

of employment; the type of business; the method of payment; and any pertinent

agreements or contracts.” Below at ¶ 24, citing Bostic v. Connor, 37 Ohio St.3d

144, 146 (1988).

       {¶18} In the present case, the trial court granted summary judgment in

favor of Interdyne based on the pleadings, an affidavit by William Bresson, who is

an operations supervisor with Interdyne, an affidavit by Winfred, and the contract

between Interdyne and Patrick Staffing. (Doc. No. 11). In his affidavit, Bresson

testified that as an operations supervisor, he is familiar with Interdyne’s day-to-

day activities, “as well as its method and manner of supervision, direction, and

control of all regular and leased employees.” (Doc. No. 8). Bresson testified that

Winfred was an Interdyne employee from June 1, 2004 to January 1, 2005, and

was leased from Patrick Staffing from January 19, 2005 to April 16, 2010. (Id.).

Bresson testified that Interdyne was in compliance with all Ohio Workers’

Compensation requirements and that Interdyne acted according to the terms of its

contract with Patrick Staffing. (Id.). Bresson further testified that Interdyne’s

“method and manner of supervision, direction, and control was the same with

respect to Winifred (sic) Cowan as it was with its regular employees.” (Id.).

      {¶19} In his affidavit, Winfred testified that he has been employed with

Patrick Staffing from 2004 or 2005 through 2010, and that he was assigned to


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Case No. 1-12-26


work for Interdyne during that time. (Doc. No. 10). Winfred testified that he

applied for the position through Patrick Staffing, that Patrick Staffing provided

him with his paycheck, took out his taxes, and notified him that he was no longer

assigned to Interdyne. (Id.).

       {¶20} The contract between Interdyne and Patrick Staffing details their

respective rights and responsibilities. (Doc. No. 8). Section 7 of the contract is

titled “Administration/Management” and provides that Patrick Staffing “is

responsible for employment matters such as payment for all Federal, State and

local employment taxes.” (Id.). Subsection (j) states:

       Client agrees that, since it controls the work-site and scheduling and

       supervision of Covered Employees, and exercises the day-to-day

       direction and control over Covered Employees, Client will

       determine, verify and accurately report to [Patrick Staffing]:

       (i)   The total number of hours worked by all Covered Employees

       and their exempt and non-exempt status; and

       (ii) The total remuneration due each Covered Employee for every

       payroll * * *.

(Id.). Section 9 of the contract is titled “Covered Employee On-Site Supervision.”

(Id.). The provision states:




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         Client will designate on-site Supervisors. These on-site Supervisors

         shall determine and be responsible for all procedures to be followed

         by employees regarding the time, manner and performance of their

         duties. If determined to be necessary, [Patrick Staffing] reserves the

         right of direction and control over management of safety and hazard

         control affecting its Employees, including: responsibility for

         performing inspections of client equipment and premises; the

         promulgation of safety policies; and the management of workers

         compensation claims, claims filing and related procedures.

(Id.).

         {¶21} After reviewing the record, we find that the present case is similar to

Daniels.     The contract between Interdyne and Patrick Staffing specifically

provides for Interdyne to exercise “day-to-day direction and control” over

Winfred. (Id.). The contract also requires Interdyne to designate supervisors who

would “be responsible for all procedures to be followed by employees regarding

the time, manner and performance of their duties.” (Id.). Thus, it was Interdyne,

and not Patrick Staffing, that exercised day-to-day control over Winfred and

determined how he would perform his tasks.

         {¶22} This construction of the contract is supported by the affidavits by

Bresson and Winfred. Bresson testified that Interdyne supervised Winfred like


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Case No. 1-12-26


any other employee. (Id.). Bresson also testified that Interdyne acted according to

its contract with Patrick Staffing, which required Interdyne to have “day-to-day

direction and control” over Winfred. (Id.). Winfred testified that Patrick Staffing

performed administrative and human resources services related to his employment,

such as providing him with his paycheck, deducting his taxes, and notifying him

when he was no longer assigned to Interdyne. (Doc. No. 10). Notably, Winfred

did not make any statements demonstrating that Patrick Staffing exercised day-to-

day control over his work activities. (Id.).

       {¶23} Appellants argue that pursuant to Interdyne’s contract with Patrick

Staffing, Patrick Staffing reserved:

       the right of direction and control over management of safety and

       hazard control affecting its Employees, including: responsibility for

       performing inspections of client equipment and premises; the

       promulgation of safety policies; and the management of workers

       compensation claims, claims filing and related procedures.

(Doc. No. 8). Appellants contend that since Patrick Staffing reserved the right to

direct and control the management of safety and hazard issues affecting Winfred,

Interdyne did not have the required day-to-day control over Winfred to be his

employer pursuant to R.C. 4123.74. We find this argument unpersuasive. The

contract’s plain language reserves “the right of direction and control over


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Case No. 1-12-26


management of safety and hazard control,” not the right to control the manner in

which Winfred performs his day-to-day tasks. (Id.). Sections 7(j) and 9 of the

contract allocate those responsibilities to Interdyne.   (Id.). Consequently, we

cannot find that Patrick Staffing was Winfred’s employer to the exclusion of

Interdyne as appellants contend.

       {¶24} Appellants also argue that the present case is similar to a case from

the Tenth District Court of Appeals, Sellers v. Liebert Corp., 10th Dist. No. 05AP-

1200, 2006-Ohio-4111.      In Sellers, the plaintiff was employed by Tailored

Management, a professional employment organization, and assigned to work at

Liebert Corporation. Id. at ¶ 1. The plaintiff was injured while working for

Liebert. Id. The contract between Tailored and Liebert stated, “Tailored retains

all rights of supervision and control of Tailored Associates including, but not

limited to, the hiring and promotion, discipline and discharge, wages and salary

administration, processing of grievances, policing of employee conduct and

appearance, and labor relations.” Id. at ¶ 9. The contract further provided, “[t]he

parties acknowledge and agree that all Tailored Associates shall at all times be

under the supervision and control of Tailored, and shall not be under the direct

control of Client.” Id.

       {¶25} The Tenth District determined that the contract clearly provided that

Tailored retained the rights of supervision and control over its employees. Id. at ¶


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10. The Court decided the case was distinguishable from Daniels because in its

contract, Tailored retained these rights to day-to-day control, which had not

occurred in Daniels. Id. at ¶ 16. Consequently, the Tenth District held that the

trial court’s grant of summary judgment in favor of Liebert was inappropriate. Id.

       {¶26} The present case is distinguishable from Sellers.          Here, Patrick

Staffing did not retain the right to control and supervise its employees. Rather,

Patrick Staffing retained “the right of direction and control over management of

safety and hazard control.” (Doc. No. 8). This control is much more limited than

the control at issue in Sellers. The contract provides ways in which Patrick

Staffing could exercise this right, including “responsibility for performing

inspections of client equipment and premises; the promulgation of safety policies;

and the management of workers compensation claims, claims filing and related

procedures,” none of which involve the day-to-day control over the manner in

which the employees complete their tasks. (Id.). In comparison to this limited

right that Patrick Staffing retained, the contract explicitly states that Interdyne has

day-to-day control over the employees. (Id.). Thus, Sellers does not apply to the

instant case because Patrick Staffing did not reserve the right to day-to-day control

over the employees. Furthermore, appellants have not provided any evidence that

Patrick Staffing ever invoked this contract provision while Winfred worked for

Interdyne.


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       {¶27} In their reply brief, appellants argue that they have not had the

opportunity to determine whether Patrick Staffing used this contract provision

because Interdyne filed its motion for summary judgment with its answer.

Appellants contend they have not had a chance to complete discovery, so it is not

possible to determine whether Patrick Staffing ever acted pursuant to this

provision. However, appellants failed to file a motion requesting a continuance to

complete the necessary discovery prior to filing their response to Interdyne’s

motion for summary judgment and failed to present this argument in their

response. (Doc. No. 10). “A party’s failure to raise an issue in response to an

adverse party’s motion for summary judgment waives that issue for purposes of an

appeal.” Pottorf v. Sell, 3d Dist. No. 17-08-30, 2009-Ohio-2819, ¶ 24, citing

Minster Farmers Coop. Exch. Co. v. Meyer, 3d Dist. No. 17-08-31, 2009-Ohio-

1445, ¶ 22. Therefore, this issue is not properly before this Court.

       {¶28} Even if appellants presented evidence that Patrick Staffing had

invoked its “right of direction and control over management of safety and hazard

control,” we are not persuaded that they would prevail on this issue. (Doc. No. 8).

The evidence demonstrates that Patrick Staffing paid Winfred with the

understanding that Winfred would be working for Interdyne, and that Interdyne

had the right to control the manner and means in which Winfred performed his




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day-to-day tasks.    Consequently, we conclude that Interdyne was Winfred’s

employer for the purposes of the immunity provisions of R.C. 4123.74.

       {¶29} The appellants’ assignment of error is, therefore, overruled.

       {¶30} Having found no error prejudicial to the appellants herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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