JOAN STEPHENS, ET AL.
HOME DEPOT U.S.A., INC., ET AL.
Session September 22, 2016
Appeal from the Circuit Court for Williamson County No.
2014-78 Michael Binkley, Judge
case arises out of a workplace injury. The injured worker and
her husband filed this lawsuit asserting various causes of
action against numerous defendants. The trial court dismissed
one of the defendants upon finding that the defendant was
entitled to workers' compensation immunity. The trial
court certified its order of dismissal as final pursuant to
Tennessee Rule of Civil Procedure 54.02. Plaintiffs appeal,
claiming that the defendant waived the affirmative defense of
workers' compensation immunity, that the trial court
applied the wrong standard for a motion to dismiss, and that
the particular claims asserted are not barred by the
exclusive remedy provision of the workers' compensation
law. We affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed and Remanded
Constance F. Mann, Franklin, Tennessee, for the appellants,
Joan Stephens and Doug Stephens.
Richard E. Spicer and Lance William Thompson, Nashville,
Tennessee, for the appellee, Bayer CropScience, LP.
Brandon O. Gibson, J., delivered the opinion of the court, in
which J. Steven Stafford, P.J., W.S., and W. Neal McBrayer,
BRANDON O. GIBSON, JUDGE
Facts & Procedural History
2013, Joan Stephens was employed by a temporary staffing
company called Belcan Corporation
("Belcan"). She was hired by Belcan to work in Home
Depot stores in a "Weekend Warrior" program, in
which she would assist Home Depot customers with pesticides
and other products manufactured by Bayer CropScience, LP.
Belcan had a contract with Bayer CropScience whereby Belcan
contractually agreed to provide safety training to employees
such as Mrs. Stephens. Belcan provided Mrs. Stephens with a
job description requiring her to refill the product shelves
at the beginning and end of her shift. On April 13, 2013,
Mrs. Stephens fell from a ten-foot ladder while attempting to
retrieve a box of Bayer CropScience product from an upper
February 19, 2014, Mrs. Stephens and her husband instituted
this lawsuit in the circuit court for Williamson County,
seeking to recover for her injuries. The procedural history
of the case is convoluted. The original complaint named only
one defendant --Home Depot U.S.A., Inc. d/b/a Home Depot.
Plaintiffs' complaint acknowledged that Mrs. Stephens was
not a Home Depot employee and that she was hired by Belcan,
the staffing agency, to help Home Depot customers with
"Bayer products." Still, Plaintiffs alleged that
Home Depot should have either trained Mrs. Stephens regarding
the safe use of ladders or instructed her not to use its
ladders. On June 13, 2014, Plaintiffs filed a petition for
joinder and "First Amended Complaint" seeking to
add Bayer Corporation as a party defendant. On July 17, 2014,
Plaintiffs filed another petition for joinder and a
"Petition for Leave to file Supplemental Pleadings"
seeking leave to file another amended complaint to add Bayer
CropScience as a party. On August 27, 2014, the trial court
entered an "Order of Joinder of Party Defendant"
permitting Plaintiffs to join Bayer Corporation and Bayer
CropScience as party defendants in the lawsuit.
October 3, 2014, Plaintiffs filed a "Motion for Leave to
File Supplemental Pleadings" and a "Second Amended
Complaint." Although the caption listed Home Depot as
the only defendant, the complaint itself stated that it was
amended to add Bayer CropScience as a party defendant. On
October 17, 2014, the trial court deferred ruling on the
motion for leave to amend the pleadings. Before the matter
was resolved, and without leave of court, on November 25,
2014, Plaintiffs filed a "Third Amended Complaint."
The trial court had previously entered a scheduling order
setting December 1, 2014, as the deadline for filing motions
to amend the pleadings. On December 18, 2014, the Defendants
jointly filed a motion to strike Plaintiffs' third
amended complaint on the basis that they had not received
leave of court or consent of the Defendants to file either
the third or the second amended complaint. The trial court
granted this motion and struck the third amended complaint
from the record, but it also granted Plaintiffs' request
for leave to file another amended complaint to replace all
January 26, 2015, Plaintiffs filed an "Amended
Complaint, " which stated that it was "meant to
fully replace the prior complaints in this matter."
Bayer CropScience was one of the named defendants. Like the
original complaint, the Amended Complaint alleged that Mrs.
Stephens was employed by a temporary staffing agency, Belcan,
to help Home Depot customers with products manufactured by
Bayer CropScience. The Amended Complaint alleged that Mrs.
Stephens was hired at the direction and for the direct
benefit of Bayer CropScience when she was hired to sell its
products. Plaintiffs claimed that Bayer CropScience simply
"used a temporary staffing company to hire [her]."
Still, Plaintiffs alleged that Bayer CropScience was
responsible for training and overseeing Mrs. Stephens in the
sale of the products and had a duty to properly train her.
Plaintiffs alleged that Bayer CropScience was negligent in
failing to properly train, warn, and supervise Mrs. Stephens.
They also alleged that Bayer CropScience breached a contract
existing between it and Home Depot by failing to make Mrs.
Stephens aware of safety standards, and she sought to recover
as a third party beneficiary of that contract.
February 13, 2015, Bayer CropScience filed its answer to the
Amended Complaint, which was the first answer filed by Bayer
CropScience in this matter. Bayer CropScience admitted that
Mrs. Stephens was employed by Belcan and that her duties
included assisting Home Depot customers with Bayer
CropScience products. Bayer CropScience alleged that Mrs.
Stephens was not employed by Bayer CropScience, and
therefore, it had no obligation to provide safety training or
instruct her regarding how to complete her job duties. Bayer
CropScience denied that its agent was responsible for
training or overseeing her in the sale of its products.
motions for summary judgment and partial summary judgment
were filed by the parties. In the context of these summary
judgment motions, Bayer CropScience maintained that it was
not in charge of providing safety training to Mrs. Stephens
because she was employed by Belcan, not Bayer CropScience.
Bayer CropScience asserted that Belcan, her employer, should
have provided Mrs. Stephens with safety training. In a
response to a motion for summary judgment filed by Home
Depot, on October 6, 2015, Plaintiffs acknowledged that
"Belcan provided workers compensation benefits" for
Mrs. Stephens's injuries and "accept[ed] the
injury." On October 9, 2015, a new law firm entered a
notice of appearance on behalf of Bayer CropScience.
hearing on the various motions for summary judgment was held
on October 29, 2015. Relevant to this appeal, the trial court
denied a motion for summary judgment filed by Bayer
CropScience and also denied a counter-motion for summary
judgment filed by Plaintiffs. The trial court's order
resolving the motions for summary judgment was entered
December 8, 2015.
December 10, 2015, Bayer CropScience filed a motion to extend
the scheduling order and to continue the trial along with a
motion to amend its answer. Bayer CropScience sought to add
an additional affirmative defense asserting that
Plaintiffs' claims against it were barred by the
exclusive remedy provision of Tennessee's workers'
compensation law. Specifically, Bayer CropScience claimed
that Plaintiffs' claims were barred by the "loaned
servant" doctrine, pursuant to which Bayer CropScience
would be considered a "statutory employer" or
"borrowing employer" of Mrs. Stephens and therefore
immune from common law liability. Bayer CropScience
acknowledged that the existing scheduling order established
December 1, 2014, as the deadline for amendments to the
pleadings. However, the motion noted that Bayer
CropScience's current counsel had just recently appeared
in the case as of October 2015. The motion also noted that
the scheduling order required the parties to attempt to
resolve the case through mediation by August 2015 and no such
mediation had occurred. Bayer CropScience cited Tennessee
Rule of Civil Procedure 15 and asserted that justice would be
served by permitting it to assert the exclusive remedy
defense and having the defense addressed through a
dispositive motion. Bayer CropScience claimed that its
request was offered in good faith. It argued that Plaintiffs
would not be prejudiced by the amendment because Bayer
CropScience had maintained throughout the proceedings that
Belcan was the direct or actual employer of Mrs. Stephens and
that Bayer CropScience contracted with Belcan for the
services of Mrs. Stephens in order for her to promote Bayer
CropScience products. Bayer CropScience asserted that its
position on these issues was not changing and that it would
be prejudiced if the amendment was not allowed.
filed a response in opposition to Bayer CropScience's
motion to amend its answer. Plaintiffs noted that
workers' compensation immunity is an affirmative defense
listed in Tennessee Rule of Civil Procedure 8.03 and argued
that it was waived when not asserted in the original answer
filed by Bayer CropScience. Plaintiffs also argued that the
motion to amend should be denied because of Bayer
CropScience's delay in asserting the defense and
opportunity to raise it in earlier pleadings and motions.
They also argued that Bayer CropScience waived its exclusive
remedy defense by insisting throughout the proceedings that
Mrs. Stephens was not its "employee" and that it
was not her "employer." Plaintiffs alleged a
purposeful dilatory motive and claimed that they would be
prejudiced by the amendment.
motions to extend the scheduling order and to amend the
answer were heard on December 14, 2015. The trial court found
that "good and just cause" was set forth in the
motions and concluded that justice required allowing Bayer
CropScience to amend its answer. Accordingly, the trial court
set aside the scheduling order to permit amendment of the
answer. The trial date was moved from January 2016
to August 2016.
CropScience filed an amended answer to the Amended Complaint
on January 4, 2016. Just as in the original answer, Bayer
CropScience admitted that Mrs. Stephens was employed by
Belcan as part of the Weekend Warrior program and that her
duties included assisting Home Depot customers with Bayer
CropScience products. Bayer CropScience again asserted that
Mrs. Stephens "was not employed by Bayer
CropScience" and therefore it did not have an obligation
to provide safety training for her or inform her regarding
how to complete her job duties. However, Bayer CropScience
also asserted, as an affirmative defense, that
Plaintiffs' claims were barred by the exclusive remedy
provision of Tennessee's workers' compensation law
under the loaned servant doctrine.
on December 18, 2015, Plaintiffs had filed a motion for leave
to file yet another amended complaint in order to add Belcan
as an additional party defendant. On January 6, 2016, an
agreed order was entered granting Plaintiffs leave to amend
its existing Amended Complaint filed January 26, 2015. On
January 8, 2016, Plaintiffs filed a "Second Amended
Complaint to Add Belcan Tech Services." This Second
Amended Complaint incorporated every claim made in the
existing Amended Complaint but also added a claim for breach
of contract against Belcan. Bayer CropScience filed another
answer to the amendment, again raising the affirmative
defense of workers' compensation immunity pursuant to the
loaned servant doctrine. This answer alleged that Mrs.
Stephens "was not directly employed by Bayer
CropScience" and that she was "directly employed by
Belcan, " but Bayer CropScience asserted that it was
nevertheless her "statutory employer" or
"borrowing employer" for purposes of the
workers' compensation law.
January 27, 2016, Bayer CropScience filed a motion to dismiss
for failure to state a claim pursuant to Tennessee Rule of
Civil Procedure 12.02(6), claiming workers' compensation
immunity. Bayer CropScience argued that it was clear from the
face of the amended complaint that Bayer CropScience was a
borrowing employer of Mrs. Stephens. It noted the
complaint's allegation that Mrs. Stephens was hired by
Belcan, a temporary staffing company used by Bayer
CropScience, to work in the Weekend Warrior program and
promote Bayer CropScience products. It also noted that the
complaint alleged the existence of a contract between Belcan
and Bayer CropScience. Specifically, the complaint alleged
that Belcan is a company in the business of staffing, and
Bayer CropScience entered into a contract with Belcan whereby
Belcan administered the employment of Mrs. Stephens. The
complaint alleged that an agent of Bayer CropScience was
responsible for training and overseeing Plaintiff. Bayer
CropScience also noted the complaint's allegation that
Mrs. Stephens "was hired at the direction, and for the
direct benefit of Bayer CropScience." According to Bayer
CropScience, these facts conclusively established that it was
a statutory employer or borrowing employer of Mrs. Stephens
for purposes of the workers' compensation law, and
therefore, the claims asserted by Mrs. Stephens in this
lawsuit were barred.
filed a response to the motion to dismiss, again arguing, as
they previously did in response to the motion to amend the
answer, that Bayer CropScience waived its right to rely on
workers' compensation immunity by failing to raise the
affirmative defense in its original answer or otherwise
asserting it earlier in the litigation and instead arguing
that it was not the employer of Mrs. Stephens. However,
Plaintiffs did not respond to the substantive merits of the
issue involving workers' compensation immunity.
February 26, 2016, the trial court entered an order granting
Bayer CropScience's motion to dismiss. Construing the
amended complaint liberally, presuming all of its factual
allegations to be true, and giving Plaintiffs the benefit of
all reasonable inferences, the trial court concluded that the
complaint failed to state a claim upon which relief could be
granted. Specifically, the trial court found that Bayer
CropScience was immune from the claims asserted by Plaintiffs
pursuant to the exclusive remedy provision of Tennessee's
workers' compensation law. Therefore, the trial court
dismissed Bayer CropScience from the case and certified its
order of dismissal as final pursuant to Tennessee Rule of
Civil Procedure 54.02. Plaintiffs timely filed a notice of