JOHN E. OTT, Chief Magistrate Judge.
This is a personal injury case, filed after Plaintiff James Robinson fell from a platform on which he was working and sustained physical injuries. (Doc. 1-1 ¶¶ 14-15, 17-18).
Federal Rule of Civil Procedure 12(b)(6) authorizes a motion to dismiss all or some of the claims in a complaint on the ground that its allegations fail to state a claim upon which relief can be granted. That provision is read, in turn, in light of Federal Rule of Civil Procedure 8(a)(2) which requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests," Conley v. Gibson, 355 U.S. 41, 47 (1957). The court is required to accept the well-pled factual allegations of the complaint as true and give the plaintiff the benefit of all reasonable factual inferences. See Hazewood v. Foundation Financial Group, LLC, 551 F.3d 1223, 1224 (11th Cir. 2008). However, "courts `are not bound to accept as true a legal conclusion couched as a factual allegation.'" Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) ("Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions."). Nor is it proper to assume that the plaintiff can prove facts it has not alleged or that the defendants have violated the law in ways that have not been alleged. Twombly, 550 U.S. at 563 n.8 (citing Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 526 (1983)).
Plaintiff alleges he fell several feet from an elevated work platform at a CEMEX facility and suffered severe injuries as a result. (Doc. 1-1 ¶ 15). The platform "was constructed[,] operated and maintained by the Defendants." (Id. ¶ 19). The platform where Robinson was working did not have "proper guards or devices . . . to prevent the Plaintiff or any other person from suffering a fall . . ." and causing injuries. (Id. ¶ 17). Defendant Martin was the supervisor or project manager for CEMEX when Plaintiff fell from the platform. (Id. ¶ 12). Robinson contends both Defendants had "an obligation to properly guard the platform and to have guardrails and other protective guarding systems or devices to prevent" a fall from the platform. (Id. ¶¶ 15-16). They also had, according to the complaint, an "obligation and duty" to provide Robinson with a safe place to work. (Id.). Robinson contends both Defendants breached their duties "by [their] negligence and wantonness which caused the serious permanent injuries to the Plaintiff." (Id.).
At the time of the accident, Robinson "was working as an employee of a temporary agency Labor Finders." (Id. ¶ 8). Robinson "never considered himself an employee of CEMEX" and "was told on numerous occasions by CEMEX personnel that he was not an employee of CEMEX." (Id. ¶¶ 9, 10). He was, however, "performing a function of Defendant CEMEX as a result of his contract of employment with Labor Finders" when he fell from the platform. (Id. ¶ 14). Additionally, Robinson alleges "[a]t all times wherein Plaintiff was the employee of Labor Finders who contracted with CEMEX for the contract labor of the Plaintiff." (Id. ¶ 20).
On July 27, 2018, Plaintiff filed a complaint in the Circuit Court of Jefferson County, Alabama, against CEMEX and Randy Martin, as well as fictitious defendants.
CEMEX argues that Plaintiff's claims against it are barred by the Alabama Workers' Compensation Act because it was a "special employer" of Plaintiff. (Doc. 3 at 4-11). "Alabama law, like that of other states, stipulates that when an employee covered by the [Alabama Workers' Compensation] Act suffers from an injury in an on-the-job accident, benefits under the Act are the exclusive remedy available against the employer." Tweedy v. Tennessee Valley Authority, 882 F.2d 477, 479 (11th Cir. 1989) (citing Steagall v. Sloss-Sheffield Steel & Iron Co., 205 Ala. 100, 101, 87 So. 787, 788 (1920); Ala. Code § 25-5-53 (1975)). Specifically, the Alabama Workers' Compensation Act includes an exclusive remedy provision, which provides that no employer "shall be held civilly liable for personal injury . . . to the employer's employee . . . whose injury . . . is due to an accident . . . which. . . originates in the employment." Ala. Code § 25-5-53 (1975). Alabama law is well established that this "exclusive remedy provision extends to `special employers,' which have been described as `individuals or businesses who, for practical purposes, may be considered primary or co-employers of the injured employee.'" Gaut v. Medrano, 630 So.2d 362, 364 (Ala. 1993) (quoting Rhodes v. Alabama Power Co., 599 So.2d 27, 28 (Ala. 1992)).
The Alabama Supreme Court has adopted the following test to determine whether an employer qualifies as a "special employer":
Terry v. Read Steel Products, 430 So.2d 862, 865 (Ala. 1983) (internal quotations and citation omitted). The second and third prongs of this test are not in dispute. In response to the motions to dismiss, Plaintiff "concede[d] that [CEMEX] had the right to control the details of the work and that the work being done was essentially that of [CEMEX]." (Doc. 27 at 4). The first prong, whether Plaintiff made a contract of hire with CEMEX, remains at issue. It also is "the most important criterion to be scrutinized." Hicks v. Alabama Power Co., 623 So.2d 1050, 1053 (Ala. 1993). CEMEX does not argue that Plaintiff entered into an express contract of hire with it. The sole question for the court, therefore, is whether an implied contract of hire existed between Plaintiff and CEMEX. If an implied contract of hire existed between Plaintiff and CEMEX, then CEMEX was Plaintiff's "special employer" and the exclusive-remedy provisions of the Workers' Compensation Act extend to CEMEX. See Ex Parte Tenax Corp., 228 So.3d 387, 393 (Ala. 2017).
Plaintiff argues that "[t]here is no substantial evidence that CEMEX had an implied contract with [him] and, to the contrary, [he] testified via [a]ffidavit that he had no implied contract with CEMEX."
The Alabama Supreme Court considers a number of factors to be significant in the analysis of whether a worker impliedly consented to a contract of hire. In particular, Alabama courts consider (1) whether the general employer is, in reality, acting as a labor broker or a temporary employment agency for the special employer, see Hicks, 623 So. 2d at 1055 (finding a question of fact existed as to whether the defendant was a special employer); Key v. Maytag Corp., 671 So.2d 96, 100 ("a special employer-employee relationship exists when the general employer is an employment agency or employment service which furnishes employees under contract. . . ."); (2) whether the special employer provided the workers' compensation insurance, Gaut, 630 So. 2d at 363, 368 (holding that alleged special employer, which did not provide the employee's workers' compensation insurance, was not entitled to a summary judgment); Pinson v. Alabama Power Co., 557 So.2d 1236, 1237 (Ala. 1990); and (3) "whether the employment with the borrowing employer was of such duration that the employee could be reasonably presumed to have evaluated and acquiesced in the risks of his employment" G.UB.MK Constructors v. Garner, 44 So.3d 479, 487 (Ala. 2010) (quoting Gaut, 630 So. 2d at 367); see also Rast Constr., Inc. v. Peters, 689 So.2d 781, 784 (Ala. 1996)). The main focus is on what the employee intended in providing services for the alleged special employer. See Garner, 44 So. 3d at 487; Tenax, 228 So. 3d at 392. A worker employed by a general employer that is "unambiguously [a] temporary employment placement agenc[y] . . . necessarily agrees to a contract of hire with the special employer." Garner, 44 So. 3d at 488.
The allegations in the complaint clearly establish that Plaintiff entered into an implied contract for hire with CEMEX. Specifically, the complaint provides that Plaintiff "was working as an employee of a temporary agency Labor Finders" at the time of the incident. (Doc. 1-1 ¶ 8). It also alleges Plaintiff "was performing work assignments at CEMEX as a result of the contract between CEMEX and Labor Finders" and "as a result of his contract of employment with Labor Finders." (Id. ¶¶ 4, 14). Additionally, the complaint alleges Plaintiff provided contract labor to CEMEX. (Id. ¶ 20) ("At all times wherein Plaintiff was the employee of Labor Finders who contracted with CEMEX for the contract labor of Plaintiff.").
Alabama courts repeatedly have found that a special employer-employee relationship exists under such circumstances. See Hicks, 623 So. 2d at 1054-55; Marlow v. Mid-South Tool Co., 535 So.2d 120 (Ala. 1988); Bechtel v. Crown Central Petroleum Corp., 495 So.2d 1052 (Ala. 1986); Pettaway v. Mobile Paint Mfg. Co., 467 So.2d 228 (Ala. 1985); Terry, 430 So. 2d at 865. In Hicks, the Alabama Supreme Court expounded on its previous holdings concerning the existence of a special employer-employee relationship when the general employer is an employment agency or service. It specifically found that in the just mentioned cases — Terry, Pettaway, Marlow and Betcthel — each employee had an implied contract with the special employer:
Hicks, 623 So. 2d at 1054.
Based on the foregoing, the court finds that the allegations contained in the complaint clearly establish that Plaintiff was a worker employed by a general employer that was unambiguously a temporary employment agency. See Garner, 44 So. 3d at 488. As such, Plaintiff necessarily agreed to an implied contract of hire with CEMEX. The court, therefore, concludes the allegations in the complaint establish that CEMEX was a "special employer" and it is entitled to the same protections under the Alabama Workers' Compensation Act as the general employer. CEMEX's motion to dismiss is due to be granted.
The compliant also states the same claims for negligence, wantonness and subsequent negligence against Martin as it does against CEMEX. Martin was an employee of CEMEX at the time of the accidence. (Doc. 1-1 ¶¶ 11, 12). Because the court concludes that Plaintiff had an implied contract with CEMEX, Martin and Plaintiff were both employees of CEMEX for purposes of the motion to dismiss.
As stated above, the Alabama Workers' Compensation Act is "the exclusive remedy when an employee is injured in an accident proximately resulting from, and that occurred while the employee was engaged in, the actual performance of the duties of his or her employment." Ex parte Shelby County Health Care Auth., 850 So.2d 332, 338 (Ala. 2002). As related to co-employees, the Act provides for recovery for actions from "willful conduct"
Plaintiff's complaint does not allege any claims based on willful conduct. Rather, the claims asserted against Martin are for negligence and wantonness and subsequent negligence. (Doc. 1-1 ¶¶ 24-27). Additionally, the complaint does not allege any facts that could potentially constitute willful conduct within the meaning of Alabama Code § 25-5-11. As such, Plaintiff's claims against Martin are due to be dismissed.
Based on the foregoing, both motions to dismiss are due to be granted. A separate order will be entered.