[Cite as Mills v. Enviro-Tank Clean, Inc., 2014-Ohio-3866.]


STATE OF OHIO                     )                           IN THE COURT OF APPEALS
                                  )ss:                        NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE                   )

HOBERT J. MILLS                                               C.A. No.   13CA0040

        Appellant

        v.                                                    APPEAL FROM JUDGMENT
                                                              ENTERED IN THE
ENVIRO-TANK CLEAN, INC.                                       COURT OF COMMON PLEAS
                                                              COUNTY OF WAYNE, OHIO
        Appellee                                              CASE No.   13-CV-0095

                                 DECISION AND JOURNAL ENTRY

Dated: September 8, 2014



        BELFANCE, Presiding Judge.

        {¶1}     Plaintiff-Appellant, Hobert Mills, appeals from the judgment of the Wayne

County Court of Common Pleas, awarding summary judgment to Defendant-Appellee, Enviro-

Tank Clean, Inc. (“Enviro-Tank”). This Court reverses.

                                                      I.

        {¶2}     PGF Limited Partnership, dba Staffing Partners (“Staffing Partners”) is a

temporary staffing agency that supplies other entities with workers. Mr. Mills was one of

Staffing Partners’ workers. At some point in 2008, Staffing Partners assigned Mr. Mills to work

at Enviro-Tank,1 a centralized waste treatment facility. While Staffing Partners was responsible

for paying and insuring Mr. Mills, Enviro-Tank trained him, set his hours, provided him with a

uniform and equipment, and assigned his job duties. Enviro-Tank eventually trained Mr. Mills



1
 Mr. Mills was actually assigned to Enviroclean Services, a division of Enviro-Tank. For ease
of analysis, we refer to the two entities solely by the name of the parent entity, which is the entity
Mr. Mills brought suit against.
                                                 2


to work as a water plant operator; a job that required him to fill a frac tank with wastewater and

treat it with sulfuric acid. On December 20, 2010, Mr. Mills was injured when he fell from a

ladder he had climbed in order to check the water level inside the frac tank. Mr. Mills received

workers’ compensation benefits as a result of his injuries.

       {¶3}    Subsequently, Mr. Mills brought suit against Enviro-Tank, alleging that his

injuries were the result of its negligence.2 The suit also named the Ohio Bureau of Workers’

Compensation (“the BWC”) as a defendant in the event that it intended to assert its subrogation

rights against Enviro-Tank. However, the BWC asked the trial court to designate it as a party

plaintiff instead, as it had allowed Mr. Mills’ claim and its interests were aligned with his own.

The court granted the motion, and the BWC filed its own complaint, seeking to recover the

amounts it had expended and would be expending on Mr. Mills’ behalf as a result of allowing his

workers’ compensation claim.

       {¶4}    Enviro-Tank answered both complaints and later filed a motion for summary

judgment. In its motion, Enviro-Tank asserted that it was immune from suit because Mr. Mills

was, in actuality, its employee and he had been compensated for his workplace injury through

workers’ compensation, his exclusive remedy. Mr. Mills filed a brief in opposition, and Enviro-

Tank filed a reply brief. The trial court determined that Mr. Mills was acting as Enviro-Tank’s

employee at the time of his injury and granted Enviro-Tank’s motion.

       {¶5}    Mr. Mills now appeals from the court’s judgment and raises one assignment of

error for our review.




2
 Mr. Mills also sought to hold Enviro-Tank liable under an employer intentional tort theory. He
concedes, however, that this appeal only concerns the negligence aspect of his lawsuit. As such,
we limit our discussion to his claim for negligence.
                                               3


                                               II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AS A MATTER OF LAW BY GRANTING
       SUMMARY JUDGMENT TO ENVIRO ON THE ISSUE OF WHETHER MR.
       MILLS WAS AN EMPLOYEE OF ENVIRO FOR PURPOSES OF
       STATUTORY IMMUNITY FOR NEGLIGENCE UNDER OHIO’S WORKERS’
       COMPENSATION LAWS.

       {¶6}   In his sole assignment of error, Mr. Mills argues that the trial court erred by

granting Enviro-Tank’s motion for summary judgment. Specifically, he argues that the court

erred when it determined that, at the time of his injury, he was acting as Enviro-Tank’s

employee. For the reasons outlined below, we agree that the trial court erred by granting Enviro-

Tank’s motion for summary judgment in this matter.

       {¶7}   This Court reviews an award of summary judgment de novo. Grafton v. Ohio

Edison Co., 77 Ohio St.3d 102, 105 (1996). “We apply the same standard as the trial court,

viewing the facts in the case in the light most favorable to the non-moving party and resolving

any doubt in favor of the non-moving party.” Garner v. Robart, 9th Dist. Summit No. 25427,

2011-Ohio-1519, ¶ 8. Pursuant to Civ.R. 56(C), summary judgment is appropriate when:

       (1) No genuine issue as to any material fact remains to be litigated; (2) the
       moving party is entitled to judgment as a matter of law; and (3) it appears from
       the evidence that reasonable minds can come to but one conclusion, and viewing
       such evidence most strongly in favor of the party against whom the motion for
       summary judgment is made, that conclusion is adverse to that party.

Temple v. Wean United, Inc., 50 Ohio St.2d 317, 327 (1977). To succeed on a summary

judgment motion, the movant bears the initial burden of demonstrating that there are no genuine

issues of material fact concerning an essential element of the opponent’s case. Dresher v. Burt,

75 Ohio St.3d 280, 292 (1996). If the movant satisfies this burden, the nonmoving party “‘must
                                                  4


set forth specific facts showing that there is a genuine issue for trial.’” Id. at 293, quoting Civ.R.

56(E).

         {¶8}   Ohio’s Workers’ Compensation statute provides that employers who are in full

compliance with their obligation to pay workers’ compensation premiums “shall not be liable to

respond in damages * * * for any injury * * * received or contracted by any employee in the

course of or arising out of his employment * * *.” R.C. 4123.74. In seeking summary judgment

under R.C. 4123.74, Enviro-Tank had to demonstrate the absence of a dispute of material fact

that: (1) Mr. Mills was its employee, (2) his injury arose out of the course and scope of his

employment with Enviro-Tank, and (3) Enviro-Tank was in full compliance with its workers’

compensation premiums.

         {¶9}   In this appeal, Mr. Mills’ sole challenge to the trial court’s award of summary

judgment is his assertion that the trial court erred when it determined that he was Enviro-Tank’s

employee. While we question whether Enviro-Tank produced any evidence that it was in full

compliance with its workers’ compensation premiums, Mr. Mills has not presented us with that

question on appeal. His only argument is that he was not Enviro-Tank’s employee. Thus, we

limit our review accordingly.

         {¶10} R.C. 4123.01 defines an employee as

         every person in the service of any person, firm, or private corporation, including
         any public service corporation, that (i) employs one or more persons regularly in
         the same business or in or about the same establishment under any contract of
         hire, express or implied, oral or written, including aliens and minors, household
         workers who earn one hundred sixty dollars or more in cash in any calendar
         quarter from a single household and casual workers who earn one hundred sixty
         dollars or more in cash in any calendar quarter from a single employer, or (ii) is
         bound by any such contract of hire or by any other written contract, to pay into
         the state insurance fund the premiums provided by this chapter.

R.C. 4123.01(A)(1)(b).
                                                5


       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 rate to work
       for a customer of the employer and where it is understood that 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 * * *.

Daniels v. MacGregor Co., 2 Ohio St.2d 89 (1965), syllabus. Thus, in determining whether a

temporary worker is actually an employee of his or her temporary agency’s customer, the key

inquiry is who had the right to control the employee. Daniels at 93-94. Accord Campbell v.

Cent. Terminal Warehouse, 56 Ohio St.2d 173, 175 (1978).

       The determination of who has the right to control must be made by examining the
       individual facts of each case. The factors to be considered include, but are
       certainly not limited to, such indicia as who controls the details and quality of the
       work; who controls the hours worked; who selects the materials, tools and
       personnel used; who selects the routes travelled; the length of employment; the
       type of business; the method of payment; and any pertinent agreements or
       contracts.

Bostic v. Connor, 37 Ohio St.3d 144, 146 (1988).

       {¶11} In his deposition, Mr. Mills testified that he worked at Enviro-Tank for about two

and a half years and was interviewed by an Enviro-Tank supervisor before he started working

there. Mr. Mills began as a janitor, but other Enviro-Tank employees later trained him to

perform maintenance and, eventually, to act as a water plant operator. Mr. Mills agreed that he

wore an Enviro-Tank uniform while working and that Enviro-Tank provided him with any

equipment, including safety equipment, he might need. He also agreed that his Enviro-Tank

supervisor set his work schedule, assigned his work duties, handled his requests for time off, and

had the authority to discipline him. Further, he agreed that he reported daily to his Enviro-Tank

supervisor and worked under the direction and control of Enviro-Tank management, rather than

anyone from Staffing Partners. Mr. Mills testified that, before the day of his accident, he had

climbed the frac tank ladder every day for two and a half years without incident. He testified
                                                6


that he learned the process of filling the frac tank and climbing its ladder to check its fullness

from the other Enviro-Tank employees who had trained him.

       {¶12} In his deposition, Rishi Bhanot testified that he was the operations manager at

Enviro-Tank and Mr. Mills’ supervisor. He was not sure what percentage of the staff at the

centralized waste treatment facility were workers from temporary agencies, but stated that he

“would say * * * half just to throw it out there.” Mr. Bhanot testified that Mr. Mills received his

paychecks from Staffing Partners, “but to me he was our employee.” He specified that Enviro-

Tank “instructed Mr. Mills when to come to work, what time, what hours he would be doing,

what he would be doing, how to do things. He wore a uniform. We treated him just like

everyone else. He received vacation, sick time.”

       {¶13} Mr. Bhanot acknowledged that he had signed a Safety Partnership Agreement

with Staffing Partners on January 5, 2010, approximately 11 months prior to Mr. Mills’ injury.

Pursuant to the agreement, workers from Staffing Partners were “not permitted to climb

structures of any kind, including * * * ladders * * *, higher than six (6) feet above the floor,

without the written permission of Staffing Partners.” Mr. Bhanot did not dispute that the ladder

from which Mr. Mills fell was approximately 10 to 12 feet high. According to Mr. Bhanot,

however, Staffing Partners had given Enviro-Tank permission to have workers climb its ladders.

He could not recall whether the permission was in writing.

       {¶14} The Temporary Staffing Service Agreement between Enviro-Tank and Staffing

Partners provides that Staffing Partners

       agrees to assume full responsibility for paying the Employees, withholding and
       transmitting payroll taxes, making unemployment contributions, and responding
       to claims for unemployment and workers’ compensation proceedings involving
       Employees. Employees will not be treated as employees of [Enviro-Tank] for
       STAFFING PARTNERS purposes of holidays, vacations, disability, insurance,
       pensions or other employee benefits offered or provided by [Enviro-Tank].
                                                7


The contract further provides that Staffing Partners will invoice Enviro-Tank on a weekly basis

for the services of its workers. Pursuant to the contract, Enviro-Tank “acknowledge[d] that all

personnel sent by STAFFING PARTNERS [were] employees of STAFFING PARTNERS.” It

also agreed not to “permit or cause [employees] to perform any work activities other than those

specifically set forth in STAFFING PARTNERS’ Order Form.”

         {¶15} Mr. Mills argues that the trial court erred by granting Enviro-Tank’s motion for

summary judgment because, at the time he was injured, he was “contractually * * * outside of

the employer-employee relationship.” Mr. Mills argues that Enviro-Tank did not have the right

to control him when he climbed the frac tank ladder because Enviro-Tank had agreed, by way of

the Safety Partnership Agreement, that it would not have workers climb any ladders over the

height of six feet without the written permission of Staffing Partners. Enviro-Tank counters that

the testimony of Mr. Bhanot established that Enviro-Tank had obtained Staffing Partners’

permission. It further counters that, even if Staffing Partners did not give its permission, the

single clause in the safety agreement was not sufficient evidence to rebut the “overwhelming

evidence that [Enviro-Tank] had the right to control the manner and means of [Mr. Mills’]

work.”

         {¶16} Enviro-Tank presented evidence that it trained Mr. Mills, provided him with

equipment and a uniform, set his hours, assigned his job duties, and supervised him on a day-to-

day basis. Mr. Mills conceded that he reported daily to his Enviro-Tank supervisor and worked

under the direction and control of Enviro-Tank management, rather than anyone from Staffing

Partners. Thus, Enviro-Tank set forth evidence that it had the right to control Mr. Mills such that

he was its employee at the time of his injury. See Bostic, 37 Ohio St.3d at 146; Daniels, 2 Ohio

St.2d at 94-95. See also Thomas v. Reserves Network, 9th Dist. Lorain No. 10CA009886, 2011-
                                                 8


Ohio-5857, ¶ 22. The burden then shifted to Mr. Mills to point to evidence showing a genuine

issue of material fact for trial. See Dresher, 75 Ohio St.3d at 293, quoting Civ.R. 56(E).

       {¶17} In opposition to summary judgment, Mr. Mills pointed to the safety agreement

that Mr. Bhanot signed on behalf of Enviro-Tank in January 2010. The plain language of the

safety agreement provided that workers such as Mr. Mills would “not [be] permitted to climb

structures of any kind, including * * * ladders, * * * higher than six (6) feet above the floor,

without the written permission of Staffing Partners.” Although Mr. Bhanot testified that Enviro-

Tank had received Staffing Partners’ permission, he could not recall whether the permission had

been in writing. More importantly, it was never Enviro-Tank’s position that Staffing Partners’

permission was unnecessary. Enviro-Tank’s position was that Staffing Partners had given its

permission. Had Enviro-Tank possessed the absolute right to control the manner and means of

Mr. Mills’ work, it would not have been necessary for it to secure Staffing Partners’ permission

before ordering him to climb the frac tank ladder.

       {¶18} Pertinent agreements and contracts are one factor that a court must consider in

performing a right to control analysis.     Bostic at 146.    Although Enviro-Tank set forth a

significant amount of evidence tending to show that it had the right to control Mr. Mills’ work on

a day-to-day basis, the safety agreement between Enviro-Tank and Staffing Partners constituted

evidence to the contrary. It appears to be the position of Enviro-Tank that Mr. Mills failed to

show that Staffing Partners actually exercised any control over him. The relevant inquiry,

however, is who had the right to exercise control over Mr. Mills. See id. (“The key factual

determination is who had the right to control the manner or means of doing the work.”). See also

Walker v. Lahoski, 9th Dist. Summit No. 19293, 1999 WL 548978, *5-6 (July 28, 1999); Indus.

Comm. of Ohio v. Laird, 126 Ohio St. 617, 619 (1933) (“The ultimate question is not whether the
                                                9


employer actually exercises such control, but whether he has the right to control.”). Because this

appeal stems from an award of summary judgment, we must view the facts in a light most

favorable to Mr. Mills and resolve any doubt in his favor. See Garner, 2011-Ohio-1519, at ¶ 8.

       {¶19} It is undisputed that Mr. Mills fell from a ladder in excess of six feet when he was

injured. Pursuant to the safety agreement that Mr. Bhanot signed on behalf of Enviro-Tank,

Enviro-Tank had to secure the written permission of Staffing Partners before it could order one

of its temporary workers to climb such a ladder. Compare Thomas, 2011-Ohio-5857, at ¶ 26

(safety agreement did not create genuine issue of material fact where it amounted to general

promise between the companies “to work toward a safe environment for all employees”). The

safety agreement constituted a pertinent agreement that tended to show that Staffing Partners

specifically retained the right to control the means and manner of Mr. Mills’ work as detailed in

the agreement. See Bostic, 37 Ohio St.3d at 146. We also would note that the Temporary

Staffing Service Agreement between Staffing Partners and Enviro-Tank (1) classified all workers

sent by Staffing Partners as employees of Staffing Partners, and (2) prohibited Enviro-Tank from

causing workers to “perform any work activities other than those specifically set forth in

STAFFING PARTNERS’ Order Form.” In light of the record before us, we conclude that

summary judgment was improper here. Mr. Mills satisfied his reciprocal Dresher burden by

pointing to evidence that created at least a genuine issue of material fact for trial. See Dresher,

75 Ohio St.3d at 293, quoting Civ.R. 56(E). Thus, Enviro-Tank was not entitled to summary

judgment on the issue of workers’ compensation immunity. Mr. Mills’ sole assignment of error

is sustained.
                                                10


                                                III.

       {¶20} Mr. Mills’ sole assignment of error is sustained. The judgment of the Wayne

County Court of Common Pleas is reversed, and the cause is remanded for further proceedings

consistent with the foregoing opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                       EVE V. BELFANCE
                                                       FOR THE COURT



WHITMORE, J.
MOORE, J
CONCUR.
                                        11



APPEARANCES:

CHARLES A. KENNEDY, Attorney at Law, for Appellant.

KENNETH A. CALDERONE and JOHN R. CHLYSTA, Attorneys at Law, for Appellee.
