For example, a surgeon cannot tell another doctor who is a qualified specialist how to practice his specialty, so he is not responsible for the actions of a board-certified anesthesiologist. However, if the anesthesiologist is a resident (physician in training), the surgeon must teach and supervise him, and the resident becomes his borrowed servant during the operation. However, the surgeon is only responsible for what the anesthesiologist does under his supervision. The hospital that pays the resident`s salary is responsible for what they do when the surgeon is not around. An anesthesiologist is neither a doctor nor a trainee, so the surgeon should supervise everything the nurse`s anesthesiologist does. He is the surgeon`s borrowed servant as long as he works on his patient, and the surgeon is responsible for everything an anesthesiologist does with his patient, whether he is present or not. There are two generally accepted criteria for determining whether a contractor will be a “special employer” under the borrowed servant rule, both of which are based on the concept of control. The first verification is whether the contractor obtains a contractual right to control both the work and the manner in which the “borrowed servant” performs the work. These rights are often created by standard language on the back of a rental agreement, service contract, day pass, confirmation or other document.
In most cases, the addressee of the document does not know that he has obtained an express contractual right of control and is not informed of it. Contractors may nevertheless become a “special employer” because of this standard wording, even if the term “borrowed servant” is not mentioned in the document and even if the contractor never exercises effective control over the “borrowed servant”. Hutco argued that it was representative of any negligence on the part of Andino. Hutco argued in an urgent application that the hired employee doctrine applies, according to which a company such as TBB, which is not the nominal employer or payroll of a negligent employee, may nevertheless become its “borrowed” employer for vicarious liability purposes. The magistrate dismissed Hutco`s application and, in his appeal to the district judge, Hutco asserted that the judge had misapplied the doctrine of borrowed servants as used in the various contexts of the Longshore and Harbor Workers` Compensation Act (LHWCA). Hutco argued in this case that the issue was whether Hutco should be held liable for the crimes of an employee who had injured another person, while the LHWCA issue was whether an injured employee was the hired employee of a company, which led to immunity from tort under the workers` compensation system of that Act. Unless the standard forms used by the “general employer” have been amended, the contractor as the “special employer” remains in the pocket for claims and losses caused by the “borrowed employee”. Bodily injury claims of the “borrowed servant” are subject to the contractor`s compensation policy, which impacts the contractor`s security clearance and increases premiums. Third-party claims for personal injury and property damage are subject to the GL policy of the contractual partner, subject to the deductible and premium increases. However, the most costly property damage to the work itself (including the impact on the schedule) is most often covered by the contractor due to exclusions from coverage of the work and products under the contractor`s GL policy. Learning the rule can be a very expensive lesson! The Court then concluded that the difference lies in the fact that the “control” factor is the most important in the context of vicarious liability, but is less emphasized for the LHWCA.
The court argued that this is appropriate because vicarious liability is a matter of representation – a company is accountable to others for the conduct of its representatives – and the agency largely revolves around control. In addition, due to the context of responsibility, this control investigation also largely focuses on when responsibility arises. On the other hand, whether an injured worker is a worker borrowed for the purposes of a workers` compensation plan such as the LHWCA depends on the general employment relationship over a longer period of time. Finally, the third factor to consider in determining whether the employee remains an employee of the general employer is a factor relating to who had the authority to control the details of the employee`s work. If the regular employer continues to control the day-to-day details of the employee`s work, it would mean that this doctrine of the borrowed servant would not apply. The Court then considered the difference in the way the doctrine of the borrowed servant is applied in these two contexts. The court first noted that, in both cases, a court assesses the following nine factors, which are found in Ruiz v. Shell Oil Co., 413 F.2d 310, 312-13 (5th Cir. 1969): (1) who has control over the employee and the work he performs, beyond mere suggestion of details or cooperation; (2) whose work is performed by the employee; (3) if there is an agreement, understanding or agreement between the nominal employer and the borrowing employer; (4) whether the employee has accepted the new work situation; 5. whether the original employer has terminated its relationship with the employee; (6) who provided the tools and the place of performance of the employee; (7) if the worker`s new employment was spread over a longer period; 8.
whether the nominal employer or borrower had the right to terminate the employee; and (9) whether the nominal employer or borrower was required to pay the employee. Since most contractors are unaware of the “borrowed servant rule” and have no reason to believe that such archaic laws are still in place, many do not change these standard forms and assume that “general employer” insurance coverage is sufficient. As soon as the “borrowed servant” enters the project, the contractor becomes his “special employer” who is primarily responsible for all acts of negligence and omissions he commits, often without recourse to the recruitment agency or equipment rental that provides the “borrowed servant”. Most of the risks and liabilities arising from the borrowed servants rule arise from temporary work or equipment rental, where it is common for contractors to control the employees of a third party to some extent. Standard forms used by recruitment agencies and equipment lenders recognize this practice and almost always give the contractor the right to control the work to be done by the so-called “borrowed servant.” At the same time, these standard forms rarely, if ever, compensate the contractor for the negligence of the “leasing agent” or make the contractor additional insurance under the “general employer`s” comprehensive general liability (GL) insurance. A second criterion is whether the entrepreneur actually exercises direct control over the “borrowed servant”. In this case, the obligation arises from the contractor`s conduct in controlling both the work and the manner in which (i.e. where, when, how) the “borrowed servant” performs the work. Unlike the first criterion, the contractor does not need a contract to become a “special employer”, but it is sufficient to exercise control over the “borrowed employee”. Entrepreneurs often become “special employers” under the two criteria of the “borrowed servant rule” by granting them a contractual right of control and exercising effective control over the “borrowed servant.” Setting the three conditions is not easy, but it can be made a little easier if companies that lend their employees from time to time understand the legal concepts.
Of the three elements, the first factor is essential. Derogatis v. Fawcett Mem`l Hosp., 892 So. 2d 1079, 1081 (Fla. 2d DCA 2004) (citing Horn v. Tandem Health Care of Fla., Inc., 862 So. 2d 938, 940 (Fla. 2d DCA 2004)); Pepperidge Farm, Inc. v. Booher, 446 So. 2d 1132, 1132 (Fla.
4th DCA 1984), approved by Booher v. Pepperidge Farm, Inc., 468 So. 2d 985, 985-86 (Fla. 1985). The other two factors are considered circumstantial evidence of such a contract. Biggins v. Fantasma Prods., 943 So. 2d 952, 957 (fla.
4th DCA 2006). A classic example of a “borrowed servant” is the situation where a contractor rents a crane or excavator and the equipment lessor makes its employees available to operate the equipment. Under the “borrowed servant rule,” the contractor generally becomes a “special employer,” the operator a “borrowed servant,” and the equipment lender the “general employer.” Once it is determined to be a “special employer”, the contractor is often primarily liable for any bodily injury or property damage caused by the crane operator`s negligence, including injuries to the operator and damage to the crane or excavator itself! The figure below will provide a better understanding of the type of liability for which some employers are liable under the Borrowing Staff Rule. Chris owns a fumigation shop, one of his clients asked him to help fumigate his apartment one day.
