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Stephens v. Home Depot U.S.A., Inc.

Court of Appeals of Tennessee, Nashville

November 30, 2016

JOAN STEPHENS, ET AL.
v.
HOME DEPOT U.S.A., INC., ET AL.

          Session September 22, 2016

         Direct Appeal from the Circuit Court for Williamson County No. 2014-78 Michael Binkley, Judge

         This 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.

         Tenn. 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, J., joined.

          OPINION

          BRANDON O. GIBSON, JUDGE

         I. Facts & Procedural History

         In 2013, Joan Stephens was employed by a temporary staffing company called Belcan Corporation ("Belcan").[1] 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 shelf.

         On 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.[2] 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.

         On 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 prior complaints.

         On 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.

         On 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.

         Numerous 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.

         A 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.

         On 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.

         Plaintiffs 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.

         The 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.[3] The trial date was moved from January 2016 to August 2016.

         Bayer 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.

         Meanwhile, 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.[4] 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.

         On 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.

         Plaintiffs 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.

         On 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 appeal.

         II.Issues ...


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