Temporary Worker Status Discussed

In this appeal to the Court of Appeals of Tennessee, the court had to determine whether an injured worker was an employee or a temporary worker within the meaning of a commercial general liability policy. This case is Lafayette Insurance Company v. Roberts, 22013 WL 3961173.

 

Roberts and his wife owned a commercial building. They engaged Burns to assist with recoating the roof of the building. Burns fell from the roof and suffered serious injuries. Burns filed a lawsuit against the Roberts and in his lawsuit, Burns alleged that he was an employee of the Roberts, working at the direction of Roberts. Burns alleged that he sustained his injuries during the course of employment and that Roberts failed to provide him with a safe working environment.

 

Roberts turned the lawsuit over to his insurer, Lafayette Insurance Company. The insurer provided a defense under a reservation of rights, and then filed a declaratory judgment action seeking a declaration that it had no duty to defend or indemnify the Roberts. The trial court granted summary judgment to Burns and denied the insurer's motion. This appeal followed.

 

The Court of Appeals of Tennessee stated that a central issue in this action was whether Burns alleged damages that are within the risk covered by the general liability policy that Lafayette issued to the Roberts. The court noted that the policy did not provide coverage for bodily injury to employees, but did apply to injuries to temporary workers. Burns alleged that he was an employee but there were no facts alleged in the complaint that indicated whether Burns met the definition of a temporary worker. As a result, the court stated that it was not definitively clear whether the claims would be covered. And so, the insurer had a duty to defend until it established that the claims were not covered.

 

The insurer argued that Burns testified that he was hired by Roberts and that he was not provided to the Roberts by any type of temporary staffing agency or employment agency. Thus, the insurer said, Burns did not meet the definition of temporary worker since he was hired directly by the insured and was not furnished to the insured by some third party. Burns argued that the word “furnish” in the definition of temporary worker does not require the involvement of a third party and that it was permissible for the Roberts to furnish themselves with a temporary worker under the terms of the policy.

 

The court said that the definition of temporary worker required the involvement of some third party that furnishes the temporary worker to the insured. The court noted that the temporary worker definition at issue in this case has been construed on numerous occasions by courts in many jurisdictions and the vast majority have concluded that the phrase “who is furnished to you” in the definition requires third party involvement.

 

In conclusion, the appeals court found that the policy does not provide coverage for the claims asserted by Burns and the insurer had no duty to defend or indemnify the Roberts for any damages that may be awarded against them. The decision of the trial court was reversed and judgment entered in favor of the insurer.

 

Editor's Note: The Tennessee Court of Appeals cited many rulings from different jurisdictions on the issue of whether a temporary worker has to be “furnished to the insured by a third party” in order for the definition of temporary worker to be met. The majority of courts do conclude that the definition requires third party involvement. In this instance, the insureds hired Burns directly with no third party involvement and so, Burns was not seen as a temporary worker as defined in the policy. This ruling left the insured with no coverage.