             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                       IN AND FOR NEW CASTLE COUNTY


SHAWANA LAYNE (f/k/a Shawna Singleton)             )
as Guardian Ad Litem and Next Friend to            )
FRANK LAYNE, JR.,                                  )
                                                   )      C.A. No. N12C-12-057 EMD
       Plaintiff,                                  )
                                                   )
       v.                                          )
                                                   )
GAVILON GRAIN, LLC, et. al.,                       )
                                                   )
                                                   )
       Defendants.                                 )


                                   Submitted: June 29, 2015
                                    Decided: July 10, 2015


                              Upon Consideration of the
    Motion for Summary Judgment of Defendants, Gavilon Grain LLC and Hector Cabrera
                                      GRANTED

Jeffrey M. Gentilotti, Esquire, David A. Denham, Esquire, Bifferato and Gentilotti LLC,
Newark, Delaware, Attorneys for Plaintiff Shawana Layne (f/k/a Shawna Singleton) as guardian
ad litem and next friend to Frank Layne, Jr.

Robert G. Devine, Esquire, Michael W. Horner, Esquire, Rochelle L. Gumapac, Esquire, White
and Williams LLP, Wilmington, Delaware, Attorneys for Defendants Gavilon Grain, LLC and
Hector Cabrera.

DAVIS, J.

                    I.   INTRODUCTION AND PROCEDURAL HISTORY

       This is a negligence action brought by Plaintiff Shawana Layne (f/k/a Shawna Singleton)

as guardian ad litem and next friend to Frank Layne, Jr. This matter arises from a November 10,

2011, work place accident which caused injury to Mr. Layne and Defendant, Jair “Hector”

Cabrera. The accident took place at a facility operated by Defendant Gavilon Grain LLC
(“Gavilon”). Access Labor Services, Inc. (“Access”) had assigned Mr. Layne as a general

laborer to Gavilon’s facility. Several lawsuits arose from that accident, including the instant

action wherein Mr. Layne 1 filed suit against several parties, including Gavilon, Mr. Cabrera,

MSP Equipment Rentals, Inc., (“MSP”) and Terex Corporation which was subsequently

substituted with Genie Industries, Inc. (“Genie”).

        As to Gavilon, Mr. Layne claims that he was an employee of Access, and makes claims

of negligence, agency and respondeat superior, and negligent entrustment. With respect to Mr.

Cabrera, Mr. Layne claims that Mr. Cabrera, while acting as an agent, servant and/or employee

of Gavilon, operated equipment in a negligent, careless and reckless manner. In addition to

general and special damages, Mr. Layne also seeks punitive damages.

        On September 19, 2014, Gavilon filed the Motion for Summary Judgment of Defendants,

Gavilon Grain LLC and Hector Cabrera (the “Motion”). On October 3, 2014, Mr. Layne filed

the Plaintiff’s Response to Defendants Gavilon Grain LLC and Jair Cabrera’s Motion for

Summary Judgment and Plaintiff’s Cross Motion for Summary Judgment.

        On October 3, 2014, defendant Genie filed Defendant Genie Industries, Inc.’s Response

in Opposition to the Motion for Summary Judgment of Defendants Gavilon Grain LLC and Jair

Cabrera. Also on October 3, 2014, MSP filed its Defendant MSP Equipment Rental, Inc.’s

Response to Motion for Summary Judgment of Defendants Gavilon Grain, LLC and Hector

Cabrera.

        On October 17, 2014, Gavilon and Mr. Cabrera filed the Reply Brief of Defendants

Gavilon Grain LLC and Hector Cabrera to the Opposition of Plaintiff Shawna Layne, as

guardian ad litem and next friend to Frank Layne Jr. to their Motion for Summary Judgment.


1
  For purposes of this Opinion, the Court will use Mr. Layne as the plaintiff. The Court understands that Ms. Layne
is bringing this negligence action against the various defendants as guardian ad litem and next friend.

                                                         2
The same day Gavilon and Mr. Cabrera also filed the Reply of Defendants Gavilon Grain LLC

and Hector Cabrera to the Opposition of Defendant Genie Industries, Inc. to their Motion for

Summary Judgment and the Reply Brief of Defendants Gavilon Grain LLC and Hector Cabrera

to the Opposition of Defendant MSP Equipment Rental, Inc. to their Motion for Summary

Judgment.

       The Court held a hearing on the motions and cross motions on March 16, 2015. All

parties appeared and presented arguments in support of their respective positions. Moreover, the

parties seemed to agree that the issue of whether Mr. Layne was a “borrowed servant” or not was

ripe for adjudication by the Court. After the hearing, the Court reserved its decision.

       Subsequently, on May 29, 2015, Mr. Layne’s counsel completed a second deposition of

James Engler, the facility manager for Gavilon. After the deposition, Mr. Layne immediately

requested that the Court refrain from issuing any formal ruling on the pending dispositive

motions so that the parties could supplement the record. The Court held a hearing on June 22,

2015, and granted the parties leave to file supplemental briefing. On June 25, 2015, Mr. Layne

filed the Supplemental Brief in Support of Plaintiff's Response to Defendants Gavilon Grain

LLC and Jair Cabrera's Motion for Summary Judgment and Cross Motion for Summary

Judgment. On June 29, 2014, Gavilon filed the Reply Brief of Defendants Gavilon Grain LLC

and Hector Cabrera to the Supplemental Opposition Brief of Plaintiff Shawna Layne, as guardian

ad litem and next friend to Frank Layne Jr. to their Motion for Summary Judgment.

       The Court has reviewed all the pleadings in this matter, as well as the deposition

transcripts of Mr. Layne, Access employee Dennis Yetman, and Mr. Engler’s two depositions.

For the reasons set forth below, the Motion for Summary Judgment of Defendants, Gavilon

Grain LLC and Hector Cabrera is GRANTED.



                                                 3
                                II.     FACTUAL BACKGROUND

        On August 31, 2009, Mr. Layne completed a Pre-Applicant Job Questionnaire and an

Employment Application with Access. 2 As part of the Employment Application, Mr. Layne also

completed a W4 form and executed the Substance Abuse Policy. 3 Access has the power to

terminate an employee if it finds a violation of the Substance Abuse Policy. 4 All Access

employees must complete and execute Access’ Policies and Procedures checklist. Paragraph 6

of that checklist provides: “I understand that I am an employee of this staffing company and only

this staffing company…” 5 An Access employee is required to report any absence or late arrivals

at work to Access. 6

        Mr. Layne was interviewed by Access, hired, and subsequently placed as a general

laborer with Gavilon. Access did not expect general laborers to ride on boom lifts, and expected

Gavilon and Mr. Layne to contact Access before it directed a general laborer onto a boom lift. 7

This is supported by the Client Safety Partnership Letter executed between Gavilon and Access

which stated “Our employees will only work on jobs for which they have been assigned and

trained. Any variance must be reported to our office before work begins.” 8

        The Contract between Access and Gavilon has the following clauses:

                ACCESS LABOR SERVICES takes care of our worker’s Federal,
                Delaware State & Delaware Local taxes, as well as FICA,
                Unemployment, Worker’s Comp. and General Liability Insurance.
                We bill you weekly and payment is due net ten days from the date
                of the invoice.


2
  Exhibit 2, Dennis Yetman Deposition, March 25, 2014 (“Yetman Dep.”).
3
  Id.
4
  Yetman Dep. 18:5-21.
5
  Exhibit 2, Yetman Dep.
6
  Yetman Dep. 23:7-18.
7
  Id. 120:2-15.
8
  Exhibit 3, Yetman Dep.

                                                      4
                 …
                 Terms and Conditions
                 2 … Client also agrees not to authorize employee to operate or
                 drive a motorized vehicle or operate any machinery without prior
                 written approval from ACCESS LABOR SERVICE. ACCESS
                 LABOR SERVICE will not be responsible for any loss arising
                 from those practices.
                 3. … Any employee placed with your company by ACCESS
                 LABOR SERVICE is an employee of ACCESS LABOR
                 SERVICE and may not be hired by client within one year of the
                 last day worked for ACCESS LABOR … 9
        In conformity with the contract, Access maintains worker’s compensation insurance for

its employees, as well as unemployment insurance, FICA, and general liability insurance. 10

Access deducts taxes from the compensation it pays to its employees. 11

        Access charged Gavilon $17 per hour for general laborers. 12 Mr. Layne was a general

laborer. 13 Gavilon paid for his services, and Access would pay Mr. Layne directly. 14 Access

would appear at the Gavilon facility approximately once per month to observe Mr. Layne and

other Access workers assigned to the facility. 15

        After being hired by Access, Access provided Mr. Layne with some training in the form

of a basic safety course consisting of a safety video and test. 16 Question number 8 on the safety

test asks “If your supervisor asks you to handle chemicals or equipment you have not been

trained to use, you should …” Mr. Layne selected option (b) which read “tell your supervisor

that you have not been trained to handle the chemicals or operate the equipment.” 17 Mr.


9
  Id.
10
   Yetman Dep. 16:22-17:12.
11
   Id. 17:6-8.
12
   Id. 31:8.
13
   Id. 31:17-18.
14
   Id. 48:6-13.
15
   Frank Layne Jr. Deposition 37:2-8 (“Layne Dep.”).
16
   Yetman Dep. 22:11-14.
17
   Exhibit 2, Yetman Dep.

                                                       5
Yetman, an office manager for Access, testified at his deposition that, for safety reasons, Access

did not want its employees to perform something that they were not trained to handle. 18 Mr.

Yetman stated that under such a circumstance the client “would call and say, can you send a

certified person, and we’d renegotiate a contract or a rate.” 19 It was Access’ understanding that

under the contract documents with Gavilon, Access had the power to prohibit Gavilon from

using an employee in an unauthorized way. 20

        Mr. Engler met and interviewed Mr. Layne on the first day that Mr. Layne was assigned

by Access to Gavilon. 21 As noted above, Mr. Engler was Gavilon’s facility manager. Mr.

Engler conducted an interview and obtained information regarding Mr. Layne’s background and

skill set to ensure that Mr. Layne could perform the tasks that would be assigned. 22 Mr. Layne’s

interview was the same interview that Gavilon would have conducted of someone who was

considered for full time employment. 23 Mr. Layne also completed an employment application

with Gavilon. 24 The purpose of the application was for Gavilon to receive general information

regarding Mr. Layne. 25 The application was suitable for Gavilon to eventually consider Mr.

Layne for permanent employment with Gavilon. 26 However, Mr. Layne’s application did not

consist of the same forms that a full-time employee would fill out. 27

        During Mr. Layne’s course of employment at the Gavilon facility, Gavilon directed Mr.

Layne as to when he would work, when to take lunch, and when to take breaks. 28 Mr. Engler, as


18
   Yetman Dep. 26:8-13.
19
   Id. 26:17-27:1.
20
   Id. 27:15-20.
21
   James C. Engler Deposition, June 4, 2014, 137:8-138:3 (“Engler Dep.”).
22
   Engler Dep. 31:18-32:4, 137:8-138:3.
23
   Id. 32:5-23.
24
   Id. 28:18-22; Exhibit 4, Engler Dep.
25
   Engler Dep. 28:23-29:2.
26
   Id. 29:3-10.
27
   Id. 29:14-19.
28
   Layne Dep. 38:2-39:14, 42:9-14, 85:6-86:3.

                                                        6
well as other senior Gavilon employees, directed Mr. Layne on what work to perform each day,

and if need be, instructed Mr. Layne on how to perform the work. 29 Gavilon directly supervised

Layne’s day-to-day activities at the Gavilon facility. 30 Gavilon had the authority to discipline,

fire or discharge Mr. Layne from his work at the Gavilon facility. 31 Gavilon had the authority to

direct Mr. Layne to comply with all necessary work procedures and safety requirements for any

particular work task Gavilon assigned to Mr. Layne. 32 Gavilon supplied Mr. Layne with all the

necessary tools and equipment to perform his daily work activities. 33 Gavilon also provided or

otherwise made available all necessary safety equipment and devices for Mr. Layne’s assigned

work tasks. 34

        Gavilon also decided when and if Mr. Layne would work overtime. 35 Mr. Layne had to

contact Access when he worked overtime so that Access’ records would be updated for that day,

as Access charged more for employee overtime. However, Gavilon was the entity that decided

whether Mr. Layne would work overtime.

        Gavilon provided both written and on-the-job training to Mr. Layne at the time of his

hire. Mr. Layne completed the following Gavilon-designed and presented training programs: (i)

General Awareness level 1; (ii) General Awareness level 2; (iii) restricted access; (iv) hot work;

(v) bin entry and (vi) lockout/tagout training. 36 Mr. Layne’s training with Gavilon consisted of

classroom instruction, written materials, and a video presentation which was followed by written

question and answer tests. 37


29
   Id. 42:18-43:8, 58:12-14; 86:12-87:3; 99:23-100:2.
30
   Engler Dep. 96:14-97:5; 138:4-6; Yetman Dep. 84:2-85:5.
31
   Yetman Dep. 87:7-19; Engler Dep. 161:7-11.
32
   Yetman Dep. 106:16-107:13; Engler Dep. 158:9-160:16.
33
   Engler Dep. 65:2-5; Layne Dep. 60:12-20 70:18-71:12.
34
   Engler Dep. 162:11-163:20.
35
   Layne Dep. 38:2-39:14, 42:9-14, 85:6-86:3.
36
   Engler Dep. 86:4-87:7 142:8-152:22.
37
   Id. 87:11-23; 142:8-152:22

                                                       7
        Mr. Layne had been working at the Gavilon facility for approximately three months

before the accident occurred. 38 At the time of the accident, Mr. Engler directed Mr. Layne to

assist Mr. Cabrera with a welding and maintenance task. Gavilon supplied all the tools, safety

devices, the articulating boom lift (occupied by Mr. Layne and Mr. Cabrera), the welding

equipment and the safety lanyards. 39

        On the day of the accident, Mr. Engler had the authority to direct how Mr. Layne did his

job, what tools to use, and whether or not Mr. Layne should be on a boom lift. 40 This was the

same authority that Mr. Engler exercised over Mr. Layne since Mr. Layne began his work at the

Gavilon facility. Mr. Engler’s authority over Mr. Layne was so complete that Mr. Engler could

direct Mr. Layne on which side of the silos to work, and whether to use a wrench or a socket

wrench to remove bolts during the work. 41 Mr. Engler could also tell Mr. Layne and Mr.

Cabrera exactly how to pass the materials from the basket of the lift onto the catwalk. 42

         Mr. Engler had the same authority over Mr. Cabrera, an employee of Gavilon. 43 The

morning of the accident, Mr. Engler specifically told Mr. Layne and Mr. Cabrera at the toolbox

meeting that Mr. Layne would be Mr. Cabrera’s helper, and that Mr. Layne would be subject to

Mr. Cabrera’s direction. 44 Mr. Cabrera could direct Mr. Layne’s activities within the scope of

the project. 45




38
   Id. 83:10-16
39
   Id. 127:11-128:8, 161:24-163:20, 167:14-168:19.
40
   James C. Engler Deposition Vol. 2, May 29, 2015, 522:14-23 (“Engler Dep. 2”).
41
   Id. 526:3-11, 527:20-24
42
   Id. 528:5-9.
43
   Id. 523:12-17.
44
   Id. 524:3-24.
45
   Id.

                                                       8
           The accident occurred when a Genie S-85 articulating boom lift occupied by Mr. Layne

and Mr. Cabrera tipped over causing injuries to both Mr. Layne and Mr. Cabrera. 46 Due to the

accident, Mr. Layne sustained severe physical injuries, which have left him permanently

cognitively and physically disabled.

           After the accident, Access personnel completed and filed the First Report of

Occupational Injury. 47 Mr. Layne applied for and received worker’s compensation benefits from

Plaintiff through the worker’s compensation insurance placed by Access. Gavilon contends that,

in part, it funded this worker’s compensation insurance.

                                  III.   PARTIES’ CONTENTIONS

           Gavilon and Mr. Cabrera contend that Mr. Layne is a special employee of Gavilon. As a

special employee of Gavilon, Gavilon and Mr. Cabrera argue that Mr. Layne’s claims against

Gavilon and Mr. Cabrera, as well as the punitive damages claim, are barred by the exclusive

remedy provision of Delaware’s Workers’ Compensation Act (the “Act”). Gavilon and Mr.

Cabrera also contend that the exclusive remedy provision of the Act bars the cross-claims of co-

defendants Genie and MSP.

           Mr. Layne, Genie and MSP make substantially the same arguments in opposing the

Motion. Mr. Layne, Genie and MSP all contend that Mr. Layne was an employee of Access and,

therefore, the parties can proceed against Gavilon on various negligence and indemnification

claims. For example, Mr. Layne contends that he was never a Gavilon employee and as such his

claims are not barred by the exclusive remedy provision of the Act. Genie contends that Mr.

Layne was an employee of Access, and not an employee of Gavilon. Lastly, MSP contends that,

because Mr. Layne was an employee of Access, the exclusive remedy provision of the Act does


46
     Plaintiff’s Complaint, ¶9.
47
     Yetman Dep. 6:7-16.

                                                   9
not apply to bar Mr. Layne’s tort claims against Gavilon and Mr. Cabrera, or MSP’s cross-claims

against Gavilon and Mr. Cabrera.

                                   IV.      STANDARD OF REVIEW

         The standard of review on a motion for summary judgment is well-settled. The Court’s

principal function when considering a motion for summary judgment is to examine the record to

determine whether genuine issues of material fact exist, “but not to decide such issues.” 48

Summary judgment will be granted if, after viewing the record in a light most favorable to a non-

moving party, no genuine issues of material fact exist and the moving party is entitled to

judgment as a matter of law. 49 If, however, the record reveals that material facts are in dispute,

or if the factual record has not been developed thoroughly enough to allow the Court to apply the

law to the factual record, then summary judgment will not be granted. 50 The moving party bears

the initial burden of demonstrating that the undisputed facts support his claims or defenses. 51 If

the motion is properly supported, then the burden shifts to the non-moving party to demonstrate

that there are material issues of fact for the resolution by the ultimate fact-finder. 52

                                          V.       DISCUSSION

A.       Mr. Layne was a special employee of Gavilon.

         The issues before the Court turn on whether or not Mr. Layne was a special employee, or

a borrowed servant, of Gavilon. The common law borrowed servant doctrine focuses on the

relationship between an employer and an employee. “The general rule is that an employee, with


48
   Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del. 1992) (internal citations omitted); Oliver B. Cannon
& Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del. Super. Ct. 1973).
49
   Id.
50
   Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962). See also Cook v. City of Harrington, 1990 WL 35244 at
*3 (Del. Super. Ct. Feb. 22, 1990) (citing Ebersole, 180 A.2d at 467) (“Summary judgment will not be granted
under any circumstances when the record indicates … that it is desirable to inquire more thoroughly into the facts in
order to clarify the application of law to the circumstances.”).
51
   Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970) (citing Ebersole, 180 A.2d at 470).
52
   See Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 1995).

                                                         10
his consent, may be loaned by his general employer to another to perform specific services, and

that, in the course of and for the purpose of performing such services, he may become the

employee of the specific employer rather than the employee of the general employer.

Accordingly, a loaned employee may become the specific employer's employee while at the

same time remaining, generally speaking, the employee of the employer who loans his

services.” 53

        In Lester C. Newtown Trucking Co. v. Neal, 54 the Delaware Supreme Court set out a four

part test that the courts should apply when determining whether a worker is an “employee” under

the Act: (1) who hired the employee; (2) who may discharge the employee; (3) who pays the

employee’s wages; and (4) who has the power to control the conduct of the employee when he is

performing the particular job in question. 55 In Porter v. Pathfinder Services, Inc., the Delaware

Supreme Court subsequently used this test when determining that the Act barred the negligence

claims of an employee – hired and paid by a placement agency but working for another

temporary employer – against his temporary employer. 56

        As to the first element of the test, both Access and Gavilon hired Mr. Layne. Mr. Layne

completed a Pre-Application Job Questionnaire, an Employment Application and a W4 for

Access. Mr. Layne also completed an employment application with Gavilon. Mr. Layne was

interviewed by both Access and Gavilon. Mr. Engler, who interviewed Mr. Layne, testified that

Mr. Layne’s interview with Gavilon was no different than what a full-time employee would have

received.




53
   Volair Contractors, Inc. v. AmQuip Corp., 829 A.2d 130, 134 (Del. 2003)
54
   Lester C. Newtown Trucking Co. v. Neal, 204 A.2d 393 (Del. 1964).
55
   Id. at 395.
56
   Porter v. Pathfinder Serv., Inc., 683 A.2d 40, 42 (Del. 1996).

                                                       11
        As to element two, both Access and Gavilon could discharge Mr. Layne. Access

reserved the right to terminate Mr. Layne, and, for example, made this fact clear in the Substance

Abuse Policy. Gavilon, however, retained the power to discipline, fire or discharge Mr. Layne

from his work at the Gavilon facility.

        As to the third element, Gavilon paid Mr. Layne through Access. Access charged

Gavilon $17 per hour for Mr. Layne’s services, and more if Mr. Layne worked overtime. The

fact that Gavilon paid Access for Mr. Layne’s work, instead of Mr. Layne directly is not

dispositive of the four part test.

        Porter, mentioned above, is most helpful here. 57 In Porter, the defendant paid the

placement agency and not the plaintiff for the plaintiff’s services. 58 The defendant paid 1.34

times the plaintiff’s hourly rate. 59 These facts did not preclude the Supreme Court from

affirming the Superior Court’s decision that the plaintiff was a special employee of the

defendant. Indeed, the Supreme Court noted that the hourly rate was used to cover the plaintiff’s

salary and mandatory employment charges such as worker’s compensation.

        In this case, Gavilon paid Access 1.7 times Mr. Layne’s hourly rate. The contract

between Access and Gavilon states that Access

        …takes care of our worker’s Federal, Delaware State & Delaware Local taxes, as
        well as FICA, Unemployment, Worker’s Comp. and General Liability Insurance.
        We bill you weekly and payment is due net ten days from the date of the
        invoice. 60

The plain reading of the contract shows that the surcharge goes towards Access’ fee and

mandatory employment charges including worker’s compensation for Mr. Layne.



57
   Id.
58
   Id.
59
   Id.
60
   Exhibit 3, Yetman Dep.

                                                12
         Finally, as to the fourth element, Gavilon had control over Mr. Layne. In a worker’s

compensation analysis, “[t]he greatest weight is given to the issue of control.” 61 Gavilon

directed Mr. Layne when to work, when to take lunch, and when to take breaks. Gavilon

controlled how Mr. Layne did his work, as shown by the extensive training that it provided Mr.

Layne. Gavilon also decided if Mr. Layne would work overtime. Access was not present at the

facility, and only visited the facility approximately once a month. Gavilon determined each day

which type of work Mr. Layne would be doing, and provided all the necessary tools and

equipment. On the day of the accident, Mr. Engler told Mr. Layne at the toolbox meeting that

Mr. Layne would be completing a welding and maintenance task under the supervision of

Gavilon employee Mr. Cabrera. Mr. Cabrera then supervised and directed Mr. Layne in the

completion of the task at the time of the accident. Clearly, it was Gavilon which had control

over Mr. Layne’s work at the facility on a day to day basis, including on the day of the accident.

         Mr. Layne states several times in his motion papers that Mr. Layne had the power to

refuse to get on the boom lift, because that exceeded the task expected of a general laborer, and

that Gavilon was forbidden by the clauses of the contract to assign a general laborer to such a

skilled task. Mr. Layne contends that since Mr. Layne was working on a task which was outside

of the contract, Gavilon did not have control over Mr. Layne for that particular task. In the

supplemental briefing, Mr. Layne contends that whether Mr. Layne or Mr. Cabrera was

operating the lift at the time of the accident creates a significant issue of fact for the jury. 62


61
  Porter, 683 A.2d at 42.
62
  Mr. Layne discusses, at length, in the supplemental briefing that Mr. Layne’s work on the boom lift exceeded the
scope of work designated under the contract between Access and Gavilon. That fact would not be determinative of
whether Mr. Layne is a borrowed servant/employee of Gavilon. As the Restatement (Second) of Agency states:

     Comment:
       d. Where servant obeys temporary employer. The servant may depart from the service of the general
     employer as to a given act either in accordance with the agreement between the general employer and the
     other, or in spite of it. The fact that he obeys the requests of the temporary employer as to the act does not

                                                           13
         This is simply not the case. Whether it was Mr. Layne or Mr. Cabrera at the controls of

the lift, it is clear from the records that Gavilon through its two employees, Mr. Engler and Mr.

Cabrera directed the completion of the task, provided the supervision and the tools for the task.

It is clear that Gavilon had control over Mr. Layne at the time of the accident. It was Gavilon

that asked Mr. Layne to undertake work on the boom lift, Gavilon which supervised Mr. Layne,

and told Mr. Layne how to conduct the task, and Gavilon which provided all the equipment.

Access was not at the Gavilon facility at that time.

         Mr. Layne relies on Loden v. Getty, 63 to refute that Mr. Layne was a special employee of

Gavilon. However, in Loden the injured worker was supervised by a foreman of the agency

which hired him. 64 Unlike in this case, where Gavilon supervised and directed all of Mr.

Layne’s work, in Loden the injured worker received all of his instructions as to which work he

would perform, and instructions on how to perform his work from the foreman who worked for

his employment agency. 65 The facility where the injured worker worked did not direct his work

and could not discharge him from employment. 66 This case is plainly distinguishable from the

current matter.




    necessarily cause him to be the servant of such employer. If, however, the temporary employer exercises such
    control over the conduct of the employee as would make the employee his servant were it not for his general
    employment, the employee as to such act becomes a servant of the temporary employer. If the employee does
    the very act directed by the temporary employer, the latter is responsible for having directed it, and the first
    employer is responsible as a master if the act is within the scope of his general employment.

RESTATEMENT (SECOND) OF AGENCY § 227, cmt. d (emphasis added). While this comment is discussing theories
relating to principal/agent and respondeat superior and injury to a third party, the point is that if Gavilon directed
Mr. Layne to do work outside the scope of the agreement between Access and Gavilon, and Mr. Layne did such
work then, under the Restatement (Second) of Agency, Mr. Layne would be deemed the employee of Gavilon and
not Access.
63
   Loden v. Getty, 316 A.2d 214 (Del. Super. Ct. 1974).
64
   Id. at 216.
65
   Id.
66
   Id. at 215.

                                                          14
           Mr. Layne also cites to the transcript of a pre-trial conference in Morton v. Evraz

Claymont Steel 67 where the Court denied a summary judgment motion on a similar worker’s

compensation issue. The Court has reviewed the transcript of the Morton pre-trial conference, as

well as the summary judgment motions filed by the parties in Morton. In Morton the Court

found that there was a factual dispute as to whether or not the injured worker was an employee of

the facility where he was placed by the employment. The employment agency had supervised

the injured worker’s work at the facility for months. While the employment agency was not

supervising him at the time of the accident there had been a long history of supervision from the

employment agency and not by the facility managers. In the present case, Access has no history

of supervising Mr. Layne’s work. Access would occasionally visit the Gavilon facility, but

never directed Mr. Layne as to which work to perform or the manner in which he should perform

his work. Therefore, unlike in Morton there is no issue of material fact in this case as to which

party had control over Mr. Layne’s work.

           This is a straightforward case. Gavilon looked to Access for temporary employees.

Access would provide the temporary employee to Gavilon at a hourly rate greater than the wage

paid the temporary employee. Access would use the surcharge to cover its fee, the wage paid to

the temporary employee and mandatory employment charges (FICA, workers compensation

insurance, etc.). Once the temporary employee was placed at Gavilon, Access had little to no

supervisory role over the temporary employee. Instead, Gavilon controlled and supervised the

temporary worker on a daily basis. That is what happened with Mr. Layne, Access and Gavilon.

Mr. Layne was employed by Access and became a temporary or special employee of Gavilon.

Mr. Layne reported to Gavilon as instructed by Gavilon, stayed at work as long as Gavilon

needed him to be there, and did work as directed by Gavilon or its agents. On the day of the
67
     Morton v. Evraz Claymont Steel, C.A. No. 09C-08-245 JRS (Del. Super. Ct. Dec. 21, 2011).

                                                        15
accident, Gavilon (through Mr. Engler and Mr. Cabrera) exercised control over the work that Mr.

Layne performed and the way that work was to be performed. The Court finds that the facts here

demonstrate that Gavilon was in control of Mr. Layne on the date of the accident, and that an

employee-employer relationship existed between Gavilon and Mr. Layne. On that basis, the

Court holds that the Act provides the sole remedy for Mr. Layne against Gavilon. 68

B.      Mr. Layne’s claims against Gavilon and Mr. Cabrera are barred by the Exclusive
        Remedy of the Act.

        The Act provides that recovery under the Act is the exclusive remedy available to

employees injured when acting in the course and scope of their employment. The Act states that

“[e]very employer and employee … shall be bound by this chapter respectively to pay and to

accept compensation for personal injuries or death by accident arising out of and in the course of

employment, regardless of the question of negligence and to the exclusion of all other rights and

remedies.” 69 The Act also excludes co-employees from the category of persons who may be

sued by an injured employee, and thus bars common law negligence suits against co-employees

by fellow employees or by subrogated employees in connection with compensable injuries. 70

        Mr. Layne makes claims of negligence, agency and respondeat superior, and negligent

entrustment against Gavilon, and claims that Mr. Cabrera, while acting as an agent, servant

and/or employee of Gavilon, operated equipment in a negligent, careless and reckless manner.

As Mr. Layne was a special employee of Gavilon, the Act provides the sole remedy for Mr.

Layne’s compensation for the injuries he suffered.




68
   See Porter, 683 A.2d at 42; see also Six Flags Over Georgia v. Hill, 276 S.E.2d 572, 574 (Ga. 1981) (concern is
not over whether special employer always had control over special employee but, rather, whether special employer
had complete control and direction only for the occasion at issue); RESTATEMENT (SECOND) OF AGENCY § 227 cmt.
a.
69
   19 Del. Code §2304.
70
   Grabowski v. Mangler, 956 A.2d 1217, 1220 (Del. 2008).

                                                        16
        Moreover, the Act is the sole remedy for Mr. Layne despite his claim of recklessness

against Mr. Cabrera. “The overwhelming weight of authority is that the common law liability of

the employer cannot be stretched to include accidental injuries caused by the gross, wanton,

wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or

other misconduct short of genuine intentional injury.” 71 Nothing short of a specific intent to

injure the employee falls outside the scope of the Act. 72 Absent such specific intent, the

employee is foreclosed from maintaining a tort action against a co-employee. 73 There is no

evidence in this case that Mr. Cabrera acted with any intent to injure. As such, even the

recklessness claims against Mr. Cabrera are barred by the exclusive remedy provision of the Act.

C.      Mr. Layne’s claims for punitive damages are barred by the exclusive remedy of the
        Act.
        Mr. Layne’s punitive damages claims are barred by the exclusive remedy of the Act, as

such, Mr. Layne cannot receive any award of punitive damages for these claims. Moreover, an

award of punitive damages cannot be made unless the plaintiff also receives compensatory

damages, which Mr. Layne is plainly not eligible to receive. 74

D.      The cross-claims of co-defendants Genie and MSP

        In their Answer and Amended Answer to Mr. Layne’s Complaint, Genie and MSP assert

cross-claims against Gavilon and Mr. Cabrera for contribution and indemnification. Where an

employer has paid compensation benefits to an employee, the Act precludes imposition of joint

tort liability upon the employer. 75 Section 2304 of the Act provides that payment of



71
   Houston v. Bechtel Assocs. Prof'l Corp., D.C., 522 F. Supp. 1094, 1096 (D.D.C. 1981) (citing 2A Larson,
Workmen's Compensation Law, s 68.13 at 13-5 and cases cited n.11 (1976)); see also Eddy v. Virgin Islands Water
and Power Auth., 369 F.3d 277, 234 (3d Cir. 2004).
72
   Id.
73
   Id.
74
   Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1077 (Del. 1983).
75
   Precision Air, Inc. v. Standard Chlorine of Del., Inc., 654 A.2d 403 (Del. 1995).

                                                      17
compensation to an injured employee of his representatives is exclusive and precludes the

assertion of any other remedies against an employer. 76

                                          IV.      CONCLUSION

           For the foregoing reasons the Motion for Summary Judgment of Defendants, Gavilon

Grain LLC and Hector Cabrera is GRANTED.

           IT IS SO ORDERED.

                                                               /s/ Eric M. Davis
                                                               Eric M. Davis
                                                               Judge




76
     Diamond State Telephone Co. v. Univ. of Del, 269 A.2d 52, 55-56 (Del. 1970).

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