Court of Appeals Finds for Truck Driver Who Was Not Borrowed Employee; Couch v. U.S.

The Seventh Circuit Court of Appeals has found in favor of a truck driver, Billy Couch, employed by B&B Trucking, a U.S. Postal Service contractor that sued the government under the Federal Tort Claims Act (FTCA) for injuries he suffered. The court considered whether the postal service was immune under the Illinois Workers’ Compensation Act as a “borrowing employer.”

However, since this case was a federal matter, the federal courts have applied an alternate definition of “loaning employer.” Belluomini v. United States, 64 F.3d 299 (7th Cir. 1995), and Luna v. United States, 454 F.3d 631 (7th Cir. 2006).

In this case, Couch’s employer was a contractor engaged by the U.S. Postal Service, hauling mail to postal facilities. Couch was delivering a truckload of mail to an Elk Grove Village, Ill., facility. A federal employee allegedly ran over Couch’s foot with a forklift and injuring him. Couch died two years later from lingering complications stemming from that injury.

In the lawsuit filed in federal court, the government moved to dismiss, claiming immunity. The district court judge agreed, finding that the federal government had the benefit of the Illinois Workers’ Compensation Act immunity under the Belluomini’s alternative analysis.

The 7th Circuit Court of Appeals, acknowledging the Illinois opinions, used the right-to-control test as the exclusive method for determining whether the defendant qualifies as a borrowing employer. The 7th Circuit went on to state that even if the Belluomini decision is correct, the postal service was not a borrowing employer under the alternative test, because B&B Trucking provided services, not employees, to the agency.

On review, however, the Court of Appeals stated that, “B&B Trucking did not meet the statutory definition of a loaning employer, so Couch was not a borrowed employee of the postal service when he was hurt.”

The court laid out a 3-part test for identifying a borrowing employer:
“(1) A substantial portion of the alleged loaning employer’s business must consist of furnishing employees to do the work of other employers; (2) the loaning employer must pay the employee’s wages, even though that employee is working for another employer; and (3) the borrowing employer must be operating under the (Illinois Workers’ Compensation) Act.”

To compare other cases, in Belluomini, the contractor supplied court security officers who were controlled by the U.S. Marshal’s Service, and the contractor further understood that it simply provided employees and not a service.

In the Luna case, the plaintiff worked for a contractor that was described as in the business of supplying employees to governmental agencies.

In the Couch case, B&B did not “furnish its employees to anyone else.” Its employees are “not doing the work of other employers, they are doing the work of B&B Trucking.” Clearly, B&B hired its own drivers to work for it. It used its employees to drive its trucks to fulfill a service contract it had with the postal service to transport mail. For those and other reasons, the 7th Circuit reversed the district court and returned the case to the trial judge for further proceedings.

Couch v. United States, No. 12-1107 (Sept. 5, 2012).

Kreisman Law Offices has been handling trucking accident cases and auto accidents for individuals and families for more than 36 years in and around Chicago, Cook County and its surrounding areas, including Round Lake Beach, Norwood Park, St. Charles, Bensenville, Western Springs, Geneva, Northbrook, Chicago (Lakeview), Niles, Chicago (Canaryville) and Lincolnwood, Illinois.

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