Barge. Henry C-5.1, P 16. Kuehne Chemical, however, did not exercise control over Henry's work for Kearny Barge. Id., P 29. In fact, "no one employed by [Kuehne Chemical] had the qualifications necessary to direct Henry with regard to the specific operations of the CYNTHIA M, that is, with regard to its loading and unloading." Id., P 30. After being assigned to work for Kearny Barge, Henry received his training from Woods. Henry C-5, PP 11-16; Woods C-12, P 15. Henry received no instructions regarding the operation or the loading and unloading of the CYNTHIA M from any Kuehne Chemical employee. Henry C-5.1 PP 23, 29. Woods, a Kearny Barge employee, was the only one who supervised Henry with regard to the specific operations of the CYNTHIA M including the loading and unloading of the barge. Id., P 28. Kearny Barge, not Kuehne Chemical, exercised control over Henry with regard to his work on the Cynthia M. See Capps, 784 F.2d at 617.
In Capps, Capps's employer assigned him to work at defendant Baroid's facility and a Baroid employee supervised and directed Capps in the performance of his work. 784 F.2d at 616. Capps' general employer gave him no instructions concerning the specific work he was to perform at Baroid. Id. at 617. The Fifth Circuit affirmed the district court's decision that Capps was a borrowed employee, agreeing with the district court's conclusion that Baroid "controlled" Capps, for the purposes of the borrowed employee analysis. Id. ; contra Standard Oil, 212 U.S. at 256 (Winchman remained under the control of the defendant, his employer, who furnished work to a stevedore where the "work was done by the defendant, for a price, as its own work, by and through its own instrumentalities and servant, under its control.").
As indicated, Woods controlled Henry in the performance of his work aboard the Cynthia M. Kearny Barge, therefore, through Woods, exercised control over Henry and the work he performed for Kearny Barge.
2. Whose Work Did Henry Perform?
Henry tended to the CYNTHIA M and his work included loading and unloading the barge. Henry C-5.1, P 26; Woods C-12.1, P 13. Henry performed essentially the same work as Woods who was a Kearny Barge employee. Woods C-12.1, P 32. As indicated, Kearny Barge uses its barges, including the CYNTHIA M, to deliver raw chemicals, such as caustic soda, to Kuehne Chemical's facility. Goetzel C-1A, P 7. On the day of the Casualty, Henry tended to the CYNTHIA M on its return voyage from the anchorage at Staten Island to the Kuehne Chemical dock, Henry C-5, P 30; once at the Kuehne Chemical Dock, he prepared the vessel for unloading. Id., P 36. The work Henry performed, relevant to this action, was the work of Kearny Barge.
3. Was there an agreement or understanding between Kearny Barge and Kuehne Chemical?
"Although a formal agreement between the two employers is not considered indispensable to the borrowed-servant relationship, the very terms 'borrowed' and 'loaned' connote some type of agreement, understanding, or meeting of the minds between the borrower and the lender." Ruiz, 413 F.2d at 313. Kearny Barge and Kuehne Chemical determined Kearny Barge needed someone to replace Woods on occasions when he was ill or otherwise unavailable. Goetzel C-2A, P 25; Woods C-12.1 P 20. Kuehne Chemical provided Henry for these purposes. Goetzel C-2A, P 26; Woods C-12.1, P 22. Henry, although an employee of Kuehne Chemical, worked on the Cynthia M for approximately five months prior to the Casualty. Henry C-5.1, P 18. During this period, although Kuehne Chemical continued to pay Henry's salary, Kearny Barge reimbursed Kuehne Chemical for Henry's services. Goetzel C-1A, P 17. Accordingly, some type of agreement, understanding or meeting of the minds existed between Kearny Barge and Kuehne Chemical regarding Henry's services.
4. Did Henry Acquiesce to the Employment Arrangement?
As indicated, Henry worked on the Cynthia M for approximately five months prior to the Casualty. In fact, at the time of trial, Henry continued to work on the Cynthia M. Henry C-5.1, P 18. Henry, moreover, testified he was aware of the arrangement. Id., P 16. This is sufficient to infer that Henry acquiesced to the employment arrangement. See Brown, 984 F.2d at 676 (one month of work and awareness on the part of employee of employment arrangement constituted acquiescence); Capps, 784 F.2d at 616 (one day was sufficient).
5. Did Kuehne Chemical Terminate its Relationship with Henry?
This factor does not require a showing that Kuehne Chemical completely severed its employment relationship with Henry. As the Fifth Circuit held in Capps :
We do not believe that this factor requires a lending employer to completely sever his relationship with the employee. Such a requirement would effectively eliminate the borrowed employee doctrine as there could never be two employers. The emphasis when considering this factor should focus on the lending employer's relationship with the employee while the borrowing occurs.
Capps, 784 F.2d at 617-618.
It is sufficient that the lending employer neither exercises control over the employee while he or she works for the borrowing employer nor places restrictions on the borrowing employer with respect to the employment conditions. Capps, 784 F.2d at 617-18. Kuehne Chemical provided Henry to work for Kearny Barge, thereafter, Kuehne Chemical exercised no control over Henry with regard to his work for Kearny Barge.
6. Who Furnished the Tools and Place for Performance of Henry's Work?
Henry worked on the barges of Kearny Barge, including the CYNTHIA M. Goetzel C-1, P 14. Both the "tools" and the "place" for performance were the barges. Because Kearny Barge owned the barges, Kearny Barge provided the means for Henry to perform the work in question.
7. Was the Employment Over a Considerable Length of Time?
As indicated, Henry worked on the Cynthia M for approximately five months prior to the Casualty. Henry, C-5.1 P 18. During these five months, he made six or seven training voyages with John Woods aboard the Cynthia M and made approximately seven round-trip voyages on his own. Tr. at 40; Henry C-5.1, P 32; Woods C-12.1, P 37. Despite the fact his employment was part-time, this period of time is sufficient in length to weigh in favor of borrowed servant status. See Billizon v. Conoco, Inc., 993 F.2d 104, 105 (5th Cir. 1993) (three months full-time employment weighed in favor of borrowed servant status).
8. Who had the right to discharge Henry?
This factor requires an inquiry whether Kearny Barge had the authority to discharge Henry from his work with Kearny Barge, not whether Kearny Barge had the right to fire Henry from his employment with Kuehne Chemical. Capps, 784 F.2d at 618. Despite Woods' testimony that he lacked the authority to fire Henry, Tr. at 6-7, it appears Kearny Barge's officers, including Goetel and Kuhene, had the authority to discharge Henry from his duties as barge worker for Kearny Barge.
9. Who had the obligation to pay Henry?
Kuehne Chemical was obliged to pay Henry, but Kearny Barge reimbursed Kuehne Chemical for Henry's services. Goetzel C-2A, P 35. This arrangement favors a finding that Henry was a "borrowed servant." Capps, 784 F.2d at 618. In Capps, the court found that, while the general employer paid the borrowed employee, the special employer in essence paid the employee's salary because it gave the general employer the funds to cover the salary of the employee. Id.
The facts established at trial indicate Henry was a borrowed servant of Kearny Barge. Henry's work on the CYNTHIA M was for the account of Kearny Barge; the benefit Kuehne Chemical derived from his work was incidental.
WQIS, however, argues even if Henry were held to be a borrowed servant of Kearny Barge, Kuhene Chemical would not be relieved of liability, absent evidence Henry "abandoned his service" to Kuehne Chemical. WQIS Summation at 34. In support of this argument, WQIS quotes comment (b) to section 227 of the Restatement (Second) of Agency which states:
Inference that original service continues. In the absence of evidence to the contrary, there is an inference that the actor remains in his general employee so long as, by the service rendered another, he is performing the business entrusted to him by his general employer. There is no inference that because the general employer has permitted a division of control, he has surrendered it.
WQIS Summation at 34 (quoting Restatement (Second) of Agency § 227, comment (b) (1958)). WQIS also relies for support on Tyson v. Litwin Corp., 826 F.2d 1255 (3d Cir. 1987). WQIS Summation at 33-34; WQIS Reply at 20-21.
In Tyson, the district court had declined to dismiss a claim against a "lending employer" for injuries caused by its borrowed employees' negligence. 826 F.2d at 1259. The Third Circuit observed that for derivative liability to attach, the lending employer must have borne "some responsibility for the conduct of its 'loaned' employees" when they committed their acts of negligence and that "this question is ultimately a jury issue if sufficient evidence is presented." Id. The court concluded:
Although the evidence is far from overwhelming, given our standard of review, the jury could reasonably conclude that the [borrowed employees] were under [the lending employees] control when they negligently installed the drainpipe resulting in [the plaintiff's] injuries to justify the verdict against the [lending employer] as co-employer.