Uninsured Employers’ Fund v. Tyson Farms, Inc., et al. Case No. 1057, September Term, 2018 Opinion by J. Wright

WORKERS’ COMPENSATION – NATURE AND GROUNDS OF EMPLOYER’S LIABILITY – IN GENERAL – In a case where a party is employed by a landowner to manage his property, the landowner’s status as an employer may be coextensive with another person or entity, if such person or entity exercises an appropriate degree of control over the party. Relevant to the determination of co-employment is the degree of control exercised by the landowner over the employee relative to that of the other person or entity. Where, as here, a landowner exercises minimal control over an employee, and a separate person or entity maintains substantial control over the day-to-day functions of that employee, that other person or entity may be properly determined to be a co- employer, and consequently falls subject to the level of legal responsibility commensurate with that designation. Circuit Court for Worcester County Case No. 23-C-16-0233

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1057

September Term, 2018 ______________________________________

UNINSURED EMPLOYERS’ FUND

v.

TYSON FARMS, INC., et al. ______________________________________

*Wright, Gould, Harrell, Glenn T., Jr., (Senior Judge, Specially Assigned)

JJ. ______________________________________

Opinion by Wright, J. Dissenting Opinion by Gould, J. ______________________________________

Filed: November 22, 2019

*Wright, J., now retired, participated in the hearing and conference of this case while an active member of the Court; after being recalled Pursuant to Maryland Uniform Electronic Legal Materials Act pursuant to Maryland Constitution, Article IV, (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Section 3A, he also participated in the decision 2019-11-22 11:16-05:00 and adoption of this Opinion.

Suzanne C. Johnson, Clerk On April 15, 2014, Mauro Jimenez Garcia suffered an “occupational disease

disablement” to his lungs, arising out of his work raising chickens on a farm owned by

Dai K. Nguyen. The chickens on Mr. Nguyen’s farm were raised for, and owned by,

Tyson Farms, Inc. (“Tyson”), appellee. Mr. Garcia filed a claim against Mr. Nguyen

under the Workers’ Compensation Act1 on June 27, 2014. The Uninsured Employers’

Fund (“UEF”),2 appellant, was made a party to the claim when it became clear that Mr.

Nguyen did not possess workers’ compensation insurance. Mr. Garcia and UEF then

impleaded Tyson into the claim.

After a hearing on March 3, 2016, the Workers’ Compensation Commission

(“Commission”) declared that Mr. Garcia’s injuries arose out of the course of his

employment, and that both Mr. Nguyen and Tyson were co-employers of Mr. Garcia at

the time of his injuries. Tyson appealed the Commission’s decision to the Circuit Court

for Worcester County.

A two-day jury trial took place on June 19 and 20, 2018; the sole issue for the jury

was whether Tyson was a co-employer of Mr. Garcia. After the presentation of evidence,

UEF and Tyson made motions for judgment. The circuit court denied both motions. The

jury, after being instructed in the applicable law (without objection), returned a verdict

1 The Workers’ Compensation Act is contained in Md. Code (1991, 2016 Repl. Vol.), Labor & Employment Article (“LE”) §§ 9-101 to 9-1201. 2 The purpose of the UEF, “pursuant to [LE] § 9-1002 of the [Workers’ Compensation] Act, is . . . benevolent and remedial, that being to protect injured workers whose employers failed, either willfully or negligently, to carry workers’ compensation insurance for them.” W.M. Schlosser Co. v. Uninsured Employers’ Fund,

, 210-11 (2010) (quotations and citations omitted). finding that Tyson was not a co-employer at the time of Mr. Garcia’s injuries. UEF

challenged the circuit court’s ruling on its motion for judgment and presents a single

question for our review, which we have reworded as follows:3

1. Did the circuit court err in denying UEF’s motion for judgment?

For the reasons presented below, we answer this question in the affirmative and

reverse the circuit court’s judgment.

BACKGROUND

The Farm & Mr. Garcia’s Hiring

Tyson, the largest chicken producer in the country, does not own a single chicken

farm. Rather, the company contracts with individual farmers to raise its chickens; the

farmers own and operate the farms, while chickens are raised by the farmer according to

Tyson’s guidelines and best practices.

In 2009, Mr. Garcia was hired to work at a chicken farm where Tyson’s chickens

were being raised. The farm was owned by Terry Ung at the time. When Mr. Garcia was

first hired, he performed routine maintenance, such as removing dead chickens, cutting

the grass, and changing the lights. When Mr. Ung became ill toward the end of 2009,

3 UEF presented its question to the Court as follows:

1. Was it error for the circuit court to deny the UEF’s motion for judgment when the uncontroverted evidence established [that] Tyson exerted sufficient control over Mr. Garcia’s performance of his job to make Tyson Mr. Garcia’s employer as a matter of law?

2 Mr. Garcia began managing the farm. Upon Mr. Ung’s death at the end of 2009, his

wife, Lee Ung, became the owner of the farm.

Because Mrs. Ung was unfamiliar with raising chickens, Tyson representatives

taught Mr. Garcia how to operate the farm. During this period, Tyson employees came to

the farm between two and four times a week “to teach Mr. Garcia how to maintain the

farm and raise the chickens.” According to Mr. Garcia, “[the Tyson’s employees] taught

[him] everything. They showed [him] how the system worked, how to check the water

levels, the feeding, temperature, fans, how [all of the systems] would work properly,

[and] how to turn them on and off automatically.” In addition to assuming day-to-day

responsibility for the chickens, Mr. Garcia also began residing at the farm after Mr. Ung

passed away, as Tyson required someone to be present 24 hours a day, 7 days a week, to

ensure proper operation of the farm.

Mrs. Ung sold the farm to Dai K. Nguyen in 2013. Mr. Nguyen, who lived and

worked in northern Virginia, did not know how to operate a chicken farm either and

purchased the farm as an investment. Thus, Mr. Nguyen contracted with Tyson to raise

its chickens on the farm in June of 2013 as an “absentee owner.” Tyson will generally

contract with an absentee owner if someone is on the farm 24 hours a day, 7 days a week,

to respond to any emergencies that may arise with the chickens. Based on Mr. Nguyen’s

status, “Tyson and Mr. Nguyen agreed that the contract would only be approved if [Mr.

Nguyen] agreed to keep Mr. Garcia on as the resident manager of the farm.”

Broiler Production Contract

3 Mr. Nguyen and Tyson entered into a “Broiler Production Contract”4 (“the

Contract”). Under the Contract, Tyson was required to:

(1) “[R]etain title and ownership to chickens, feed, and medication[,] . . . [and] determine the amount, type, frequency, and time of delivery to and pick-up from [Mr. Nguyen] of chickens, feed, and medication[;]”5

(2) “[P]rovide veterinary services and technical advice” to assist in raising the chickens; and

(3) “[C]omply with all applicable federal, state, and local statutes, rules, regulations, and ordinances in performance of [the] Contract.”

In return, Mr. Nguyen was obligated to:

(1) “[F]urnish labor, materials, and utilities necessary for” raising the chickens and, when necessary, “seek [Tyson’s] technical advice[;]”

(2) “[M]aintain biosecure housing for [Tyson’s] chickens, feed, and medication[;]”

(3) “[I]mplement [Tyson’s] recommended best animal management practices, including recommendations regarding lighting, brooding, watering, ventilation, and bedding[;]” and

(4) “[C]omply with all applicable federal, state, and local statutes, rules, regulations, and ordinances in performance of [the] Contract[.]”

The Contract also gave Tyson the unilateral right to terminate the relationship

upon default by Mr. Nguyen. Under the termination clause, a “default” occurs upon:

Failure to comply with any provision of [the] Contract, including but not limited to compliance with all applicable environmental and litter

4 Tyson refers to the chickens that are raised for meat as “broilers.” The term does not refer to the manner in which the chickens are cooked. 5 During the duration of the Contract, signs bearing the Tyson logo were placed at the farm. A Tyson employee testified at trial that the signs were there (1) so that delivery drivers would “be able to find the locations,” and (2) to alert others that the farm was a “biosecure environment.”

4 management laws, rules, regulations, and ordinances, and all requirements and programs contained in the attached Schedules.6

In the event of a default, Tyson had the right to “take immediate possession of

[their] chickens, feed, and medication without further notice[.]” Tyson was further

permitted to “utilize [Mr. Nguyen’s facilities] . . . to complete the production of [the

chickens] at [Mr. Nguyen’s] expense.”

The Contract also included various addenda that set out how chickens were to be

raised on the farm. As an example, one 18-page document titled “Broiler Growing

Guide,” gave detailed instructions for raising a flock of chickens. These instructions

began at the stage of preparing the facilities for a new flock through the chickens’ seven-

week life cycle, giving specific instructions on how to manage the flock’s temperature,

ventilation, water, food, and light exposure for each week. The guide also included

requirements for the operation of various equipment and procedures involved in raising

the chickens. According to Ronald Watkins, a Senior Manager of Live Production at

Tyson, if failure to comply with “programs [such as those in the Broiler Growing Guide]

leads to animal welfare issues or poor performance,” such a failure could result in the

termination of the Contract.

Tyson’s Oversight of the Farm

Tyson engaged in a continual oversight process to verify that the farm was being

operated in compliance with the Contract. To ensure that conditions were adequate for

6 In addition to the above, the Contract contained three other scenarios that give rise to a default. As those scenarios are not relevant to this case, they will not be discussed here. 5 chickens to be placed on the farm, Tyson employees completed a 25-item “Broiler

Placement Checklist” before each flock of chickens was placed. The checklist was

reviewed with Mr. Garcia, as he was the “resident manager of the farm.”

Tyson also had the right to visit the farm during the lifecycle of each flock of

chickens to “evaluate animal [health] and welfare, and [to] provide any technical advice

based on the current conditions of the farm[.]” Tyson employees visited the farm one to

three times a week to assess the chickens’ well-being. During these visits, Tyson

employees completed a series of forms and checklists to evaluate the flock’s quality of

life. The “Flock Visitation Summary,” for example, was completed at least weekly

throughout the flock’s life cycle and included various metrics to evaluate the chickens’

feed, water, temperature, ventilation, and lighting. As Mr. Garcia lived and worked on

the farm 24 hours a day, 7 days a week, Tyson would speak directly to him if anything

needed to be adjusted. Mr. Garcia then carried out any necessary adjustments throughout

the flock’s lifecycle.

Mr. Garcia’s Injury and Subsequent Litigation

Mr. Garcia was found to be occupationally disabled on April 15, 2014; he suffered

from hypersensitivity pneumonitis and interstitial disease. On June 27, 2014, Mr. Garcia

filed a claim against Mr. Nguyen under the Workers’ Compensation Act. After it became

clear that Mr. Nguyen did not have Workers’ Compensation insurance, UEF was added

as a party. Mr. Garcia and UEF then impleaded Tyson into the claim.

A hearing before the Commission took place on March 3, 2016. As Mr. Garcia

states in his brief, “[t]here [was] no dispute that Mr. Nguyen was an employer of Mr.

6 Garcia at the time of [Mr. Garcia’s] date of disablement for his occupational disease.”

Rather, the key issue was whether Tyson was also an employer of Mr. Garcia at the time

he became disabled. After the hearing, the Commission declared: (1) that Mr. Garcia’s

occupational disease “[arose] out of and in the course of employment;” (2) that “[Mr.]

Nguyen . . . and Tyson . . . were co-employers at the time of the aforesaid occupational

disease[;]” and (3) that Mr. Nguyen and Tyson were liable to Mr. Garcia for his injuries.

Tyson appealed the Commission’s findings to the circuit court on March 26, 2016,

and challenged the Commission’s determination that it was a co-employer of Mr. Garcia.

After all the evidence was presented in the two-day jury trial that followed, both the UEF

and Tyson made motions for judgment on the issue of Tyson’s status as a co-employer.

The circuit court rejected both motions and sent the matter to the jury; the jury returned a

verdict that Tyson was not a co-employer of Mr. Garcia at the time he sustained his

injuries. UEF subsequently filed this appeal.

STANDARD OF REVIEW

Any party “aggrieved by a decision of the [Workers’ Compensation] Commission”

may seek judicial review of that decision in the circuit court. Md. Code (1991, 2016

Repl. Vol.), Labor & Employment Article (“LE”) § 9-737. On appeal to the circuit court,

the “decision of the Commission is presumed to be prima facie correct[,] . . . and the

party challenging the decision has the burden of proof.” LE § 9-745(b). “On a motion of

any party . . . , the court shall submit to a jury any question of fact involved in the case.”

LE § 9-745(d). This Court has explained the standard for reviewing a circuit court’s

decision on a motion for judgment as follows:

7 Pursuant to Md. Rule 2-519(a), a party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party, and in a jury trial at the close of all of the evidence. The moving party shall state with particularity all reasons why the motion should be granted. The trial judge must consider the evidence, including the inferences reasonably and logically drawn therefrom, in the light most favorable to the party against whom the motion is made. If there is any evidence, no matter how slight, legally sufficient to generate a jury question, the motion must be denied.

We review a trial court’s grant of a motion for judgment under the same analysis used by the trial court. In other words, we assume the truth of all credible evidence on the issue, and all fairly debatable inferences therefrom, in the light most favorable to the party against whom the motion is made.

Barrett v. Nwaba,

(2005) (emphasis in original) (cleaned up).7

DISCUSSION

The sole issue on appeal is whether the circuit court erred in rejecting UEF’s

motion for judgment. In Whitehead v. Safway Steel Products, Inc.,

(1985), the Court of Appeals explained the process for “distinguishing questions of law

from matters of fact in the employment field.” It stated that “whenever evidence in a

labor case is disputed, and differing inferences from the evidence are possible, a jury

must determine the underlying employment issues.”

(emphasis in original). On the

other hand, “where the evidence on an issue is uncontradicted, ordinarily a court may

7 The Court of Appeals recently explained the recent increase in use of “cleaned up” as a parenthetical. The parenthetical “signals that the current author has sought to improve readability by removing extraneous, non-substantive clutter (such as brackets, quotations marks, ellipses, footnote signals, internal citations, or made un-bracketed changes to capitalization) without altering the substance of the quotation.” Lopez v. State,

, 195 n.13 (2018).

8 decide the issue as one of law.” Id.8 Furthermore, “[i]t is well established that ‘where the

essential terms and manner of employment are undisputed, the issue as to the relation

between the parties and the nature of the employment is one for the [c]ourt.’” Elms v.

Renewal by Andersen,

(2014) (quoting McElroy Truck Lines, Inc. v.

Pohopek,

, 585 n.6 (2003)).

Bearing those standards in mind, our task is to determine whether the evidence

related to Tyson’s status as a co-employer was disputed and gave rise to “differing

inferences” or whether the evidence was “uncontradicted.” If the former is the case, then

the circuit court properly denied UEF’s motion for judgment and sent the question to the

jury; if the latter is true, then the court erred in failing to treat the issue as a matter of law.

UEF contends that “the inescapable conclusion is that [Mr.] Garcia submitted to

[Tyson’s] control in the course of employment and [that] therefore Tyson was his

employer for these purposes as a matter of law.” To support their argument, UEF points

to Tyson’s: (1) training of Mr. Garcia; (2) sending a representative to review farm

operations one to three times a week; (3) informing “Mr. Garcia of the tasks that needed

to be done[;]” and (4) having the right to take control of its chickens and terminate the

contract upon failure to comply with the conditions in the Contract.

In response, Tyson avers that its “minimal contact” with Mr. Garcia did not

establish an “employment” relationship. Tyson specifically argues that Mr. Nguyen, the

8 In Whitehead,

, the Court went on to explain that “[w]hile the trial court should take some pains to ensure that conflicting inferences are not possible on the presented evidence, something more than conjecture of a party is necessary to establish that ‘conflicting inferences’ are possible in a given case.” (cleaned up). 9 owner of the farm, was an independent contractor for Tyson, and that “[t]he fact that

Tyson had the right to inspect its flock . . . does not mean that they were in ‘control’ of

[Mr. Nguyen’s] employee,” such that an employment relationship can be said to have

existed. Tyson further supports its argument by noting the ability of Mr. Nguyen alone to

hire, pay, and terminate Mr. Garcia, as well as the right to terminate the contract at will.

The Court of Appeals has established five criteria “[t]o determine whether the

employer-employee relationship exists[.]” Mackall v. Zayre Corp.,

(1982). Those factors include: “(1) the power to select and hire the employee, (2) the

payment of wages, (3) the power to discharge, (4) the power to control the employee’s

conduct, and (5) whether the work is part of the regular business of the employer.”

The Court of Appeals explained the relationship between the factors as follows:

Of the five factors, the factor of control stands out as the most important. We have said, for example, that whether the employer has the right to control and direct the employee in the performance of the work and in the manner in which the work is to be done is the ‘decisive,” or ‘controlling’ test. We have also recognized, in speaking to the interrelationship of the factors, that standing alone, none of these indicia, excepting . . . the factor of control, seems controlling in the determination as to whether such a relationship exists. Thus, for our purposes, ‘decisive,’ besides ‘controlling,’ means ‘conclusive,’ ‘determinative,’ and ‘definitive.’ This view is consistent with that expressed in other jurisdictions, where control has been variously described as ‘the most vital factor,’ ‘the most important factor,’ ‘the most significant factor in all cases,’ ‘the most stressed element,’ ‘the final test,’ and ‘the crucial test,’ when determining whether the employer/employee relationship exists.

Whitehead,

(first emphasis added) (cleaned up).

Here, Tyson’s control over Mr. Garcia’s work was more than sufficient to

establish an employment relationship as a matter of law. Specifically, as a condition of

10 its contract with Mr. Nguyen, Tyson required that Mr. Garcia remain on the farm 24

hours a day, 7 days a week, to manage its operation. In the contract itself, Tyson’s 18-

page Broiler Growing Guide detailed instructions and requirements for how to raise the

chickens at each stage of their life cycle. This Guide included detailed instructions on

how Mr. Garcia should adjust various factors such as the chickens’ food intake, light

exposure, and ventilation, on a weekly, if not daily, basis.

Further, Tyson’s employees taught Mr. Garcia everything he needed to know

about raising the chickens, including how to operate the various systems involved in the

process. Tyson’s employees inspected the farm before every new flock of chickens was

delivered, came to the farm one to three times a week to evaluate how Mr. Garcia was

raising the chickens, and subsequently informed Mr. Garcia of the tasks that he needed to

complete to improve his performance. Importantly, Tyson held the unilateral ability to

terminate its relationship with Mr. Nguyen if Mr. Garcia did not comply with the

requirements in the Contract or those given to him by Tyson employees. Finally, Tyson

posted its own signage at the farm, provided the feed that Mr. Garcia was to give to the

chickens, contracted for the treatment of litter, and provided veterinary services to the

chickens that were placed on the farm. Taken in sum, Tyson’s extensive involvement in,

and control over, Mr. Garcia’s day-to-day operation of the farm gave rise to an

employment relationship as a matter of law.

Tyson asserts that the other four factors in the test for determining whether an

employment relationship exists “weigh heavily in favor of the conclusion that [it] is not

an ‘employer.’” Even assuming arguendo that this is the case, our conclusion does not

11 change. As we explained above, the factor of control “stands out as the most

important[,]” and is the only factor that is “‘decisive’ or ‘controlling.’” Whitehead,

.

The fact that Mr. Garcia was also an employee of Mr. Nguyen at the time he was

injured does not alter our conclusion that Tyson was a co-employer. In Whitehead,

, the Court of Appeals explained that “[a] worker may simultaneously be the

employee of two employers.” See also Mackall,

(“This Court has

repeatedly recognized that, under certain circumstances, a person performing a given

function simultaneously may be the employee of two employers.”). This was exactly the

case here, where Mr. Garcia was an employee of both Mr. Nguyen and Tyson at the time

of his injuries.

Comparing this case to Marcus v. Eastern Agricultural Association, Inc.,

(1960), provides additional support for our holding. In Marcus, appellant, an

experienced chicken farmer, raised eggs for appellee, a company in the business of

“producing and selling eggs, and in raising laying chickens.” Marcus v. Eastern

Agricultural Association, Inc.,

(1959). At the time appellant was

injured, he was typically raising about 7,500 to 8,000 chicks at a time for the appellee.

Under the agreement, appellee provided feed for the chicks, instructed appellant on

how to feed the chicks, advised appellant on the provision of medication, and called in a

veterinarian when required.

One of appellee’s employees would visit “on an average

of once a month” to review conditions on the farm.

12 In reversing the Superior Court’s Appellate Division judgment that there was not

an employer-employee relationship, the New Jersey Supreme Court adopted the

reasoning in Judge Conford’s dissenting opinion from the decision below. Marcus,

. Judge Conford explained that the control test was not the “dispositive factor”

where the nature of the work “require[d] little supervision over details” and where the

appellant was “so experienced that instructions concerning such details would be

superfluous.” Marcus,

. In other words, because the “day-by-day

performance of [appellant’s] work” was “dictated by the requirements of the work” and

“left little room for variation or discretion,” the Court would have to go beyond the

control test to determine whether appellant was employed by appellee.

.

Judge Conford focused on the purpose of workers’ compensation legislation and

analyzed “the extent of the economic dependence of the worker upon the business he

serves and the relationship of the nature of his work to the operation of that business.”

. Judge Conford concluded that appellant was an employee deserving of

protection under the [Workers’] Compensation Act. The New Jersey Supreme Court

adopted that conclusion as its holding. Marcus,

.

Here, the level of control that Tyson had over Mr. Garcia far exceeded the level of

control that the appellee in Marcus had over the appellant. Not only were Mr. Garcia’s

day-to-day activities “dictated by the requirements of the work,” see Marcus,

, but they were also “dictated” by the specific requirements that Tyson

relayed to him through the contract with Mr. Nguyen and through its constant inspections

and visits. While the facts in Marcus forced Judge Conford to look beyond control to

13 determine whether the appellant was an employee of the appellee, the circumstances here

allow us to conclude that based on the level of control that Tyson had over how and when

Mr. Garcia completed his work, Tyson was a co-employer of Mr. Garcia.

In the face of what we consider overwhelming support for our conclusion in this

case, we turn to the other arguments Tyson made to suggest that it was not a co-employer

of Mr. Garcia. Specifically, Tyson relies on North Chesapeake Beach Land & Imp. Co.

v. Cochran,

(1929), to support its argument that it should not be held liable

for merely “supervising” its independent contractor to ensure compliance with the

contract. Despite Tyson’s attempt to argue the contrary, Cochran supports our holding

that Tyson was a co-employer of Mr. Garcia at the time he was injured.

In Cochran,

, appellant entered into a contract to drive piles for

appellee and was severely injured while performing the task. The key issue on appeal

was whether appellant was an “employee” of appellee for the purposes of workers’

compensation liability.

. While completing the job, appellant received

intermittent feedback, as well as a request to alter the construction plans, from the

president of the company.

. At trial, the sixth prayer instructed the jury that

“if they found ‘that . . . [the president of the company] retained control and supervision of

the work, then these facts tend to show that [appellant] was . . . an employee.”

.

In concluding that such a jury instruction should not have been given, the Court of

Appeals stated that:

[T]he mere fact that the employer reserves a right to supervise or inspect the work during its performance does not make the contractor a mere servant, where the mode and means of performance are within control of

14 such contractor. The right of the employer to go upon the premises and see that the work is being done according to the specifications of the contract does not affect the relations of the parties so as to constitute the employee a mere servant. If the contract provides that the work shall be done ‘under the direction’ and subject to the approval of the employer, a closer question is presented[.]

(emphasis added).

Applying the reasoning from Cochran here, we conclude that Tyson’s relationship

with Mr. Garcia went well beyond “mere supervision.” Far from allowing Mr. Garcia to

control the “mode and means of [the] performance” of his responsibilities, Cochran,

, Tyson was intimately involved in nearly every aspect of the work that Mr.

Garcia did at the farm, providing Mr. Garcia with specific instructions on how and when

to perform certain tasks and to dictate specifically those responsibilities. Though we

agree with Tyson’s general proposition that mere supervision is insufficient to establish

an employment relationship, the company’s conduct here went well beyond that modest

level of interaction. As such, applying Cochran to this case supports the conclusion that

Tyson was a co-employer of Mr. Garcia at the time of his injuries.

As a final point, we will address Tyson’s attempt to distinguish this case from

In Whitehead, appellant was a temporary worker supplied to appellee

by a temporary help agency.

. When appellant was injured on the job,

he filed a workers’ compensation claim against the agency, and a negligence suit against

the appellee.

. At trial, the circuit court granted appellee’s motion for judgment

notwithstanding the verdict, thereby declaring that “[appellant] was [appellee’s]

15 employee and that his exclusive remedy was under the [W]orkmens’ [C]ompensation

laws.”

. Appellant appealed the judgment to this Court.

In holding that the appellant was appellee’s employee at the time he was injured,

this Court explained that:

[Appellee] had the right to instruct [appellant] on the tasks to be performed, had the power to reassign him to a different job within the plant, and supervised and directed his actions and rate of work. [Appellee] could have discharged the employee from its premises if [appellant’s] work was unsatisfactory.

Id.. at 81-82.

Tyson relies on this language, and argues that the appellee in Whitehead claimed

that appellant was its employee, to suggest that this case should come to a different

outcome than in Whitehead. We do not agree. Most importantly, there is simply nothing

in Whitehead to suggest that only a specific set of circumstances must be present to find

sufficient control for an employment relationship. Despite any factual differences that

may exist between this case and Whitehead, we have concluded that here, Tyson

exercised extensive control over Mr. Garcia’s work at the farm, such that Mr. Garcia was

an employee of Tyson for workers’ compensation purposes.

Even comparing the facts of this case to those in Whitehead, as Tyson would have

us do, does not alter our conclusion. As was the case in Whitehead, Tyson directed Mr.

Garcia’s tasks at the farm, and it had the power to instruct Mr. Garcia to alter his

performance in doing those tasks to be in compliance with Tyson’s requirements.

Though Tyson did not have the express authority to discharge Mr. Garcia, it had the

power to terminate its contract with Mr. Nguyen if Mr. Garcia was not in compliance

16 with Tyson’s requirements. And as Mr. Nguyen testified at trial, if the contract had been

terminated, he would not have been able to keep Mr. Garcia as an employee. Finally,

though the appellee in Whitehead argued that the appellant was its employee, while

Tyson now argues the opposite as to Mr. Garcia, that has no bearing on the outcome of

this case. It is only the circumstances of the relationship that determine the outcome, and

those circumstances demonstrate that Mr. Garcia was an employee of Tyson’s at the time

he suffered his disability.

CONCLUSION

At the end of the two-day jury trial, both Tyson and Mr. Garcia moved for

judgment, thereby signaling their common understanding that Tyson’s status as a co-

employer should be decided as a matter of law. As the evidence here demonstrates that

“differing inferences” from the evidence are not possible, see Whitehead,

,

we agree with the parties’ common understanding that there was no material factual

dispute and that the outcome depended solely on the application of the law to the

undisputed facts. Thus, because Tyson was a co-employer of Mr. Garcia at the time he

was injured, we further hold that the circuit court erred in not granting UEF’s motion for

judgment and reverse the judgment of the circuit court.

JUDGMENT OF THE CIRCUIT COURT FOR WORCESTER COUNTY REVERSED; COSTS TO BE PAID BY APPELLEE.

17 REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1057

September Term, 2018 ______________________________________

UNINSURED EMPLOYERS’ FUND

v.

TYSON FARMS, INC., et al.

______________________________________

*Wright, Gould, Harrell, Glenn T., Jr., (Senior Judge, Specially Assigned)

JJ. _____________________________________

Dissenting Opinion by Gould, J. _________________________________

Filed: November 22, 2019

*Wright, J., now retired, participated in the hearing and conference of this case while an active member of the Court; after being recalled pursuant to Maryland Constitution, Article IV, Section 3A, he also participated in the decision and adoption of this Opinion. I respectfully dissent. In my view, there are sufficient facts in the record to allow

a reasonable jury to determine, as it in fact did here, that Tyson was not Mr. Garcia’s co-

employer.

As the majority notes, the governing legal principles come from the Court of

Appeals’ decision in Whitehead v. Safway Steel Prod., Inc.,

(1985). In

Whitehead, the Court explained the standard for determining whether a party’s status as

an employer may be determined as a matter of law:

First, the decisions of this Court make clear that whenever evidence in a labor case is disputed, and differing inferences from the evidence are possible, a jury must determine the underlying employment issues. Both of the cases which the parties cite for our perusal support this point.

Second, where the evidence on an issue is uncontradicted, ordinarily a court may decide the issue as one of law. While the trial court should take some pains to ensure that conflicting inferences are not possible on the presented evidence, something more than conjecture of a party is necessary to establish that “conflicting inferences” are possible in a given case. At the very least, a party must point to evidence in the case that control of a given function is vested in more than one person.

(emphasis in original) (internal citations omitted) (cleaned up).1

The majority opinion does not discuss Great Atl. & Pac. Tea Co. v. Imbraguglio,

(1997), where the Court of Appeals applied the principles enunciated in

Whitehead. There, the trial court determined at the summary judgment stage that, as a

1 The root of my disagreement with the majority is, I believe, found in our respective interpretations of this passage from Whitehead. It appears that the majority sees “differing inferences” and “uncontradicted evidence” as mutually exclusive, and if the evidence is uncontradicted, the issue is one of law for the court to decide. In my view, the evidence may be both uncontradicted and susceptible to differing inferences, in which case the issue should go to the jury. As explained below, this is one such case. 1 matter of law, the parent and sister companies of the plaintiff’s direct employer were co-

employers. Relying on Whitehead, the Court of Appeals disagreed with the trial court

and explained the demarcation between issues of fact or law:

Ordinarily, the existence of the employer/employee relationship is a question reserved for the fact finder. Mackall v. Zayre Corp.,

,

(1982). When, however, the existence of the relationship is undisputed, or the evidence on the issue is uncontroverted, unless conflicting inferences can be drawn from that evidence, the trial court is entitled to treat the matter as a question of law. Whitehead v. Safway Steel Products,

,

(1985). Imbraguglio,

(emphasis added).2 Based on these principles, the Court

held:

There is no evidence from which the trial court could have concluded, as a matter of law, that (1) [the parent or sister corporation] possessed the power to select and hire the decedent, or that (2) someone other than [the direct employer] paid his wages, (3) had the power to discharge him, or (4) had the power to control his conduct. See Whitehead,

,

. At best, the record evidence cuts both ways.

Id. at 593.

In my view, based on the evidence before the jury, the instant case more closely

aligns with Imbraguglio than with Whitehead. For example, Tyson’s representative

testified at trial that: (1) Tyson did not select or hire Mr. Garcia; (2) Mr. Nguyen, not

Tyson, set and paid Mr. Garcia’s wages; (3) Tyson had no ability to fire Mr. Garcia; (4)

2 Further, the Court in Imbraguglio stated, again relying on Whitehead: “Because of the increasing complexity of the employer/employee relationship, we believe that in multi- party cases, the employer/employee relationship will most often be a question of fact, not of law.”

n.13.

2 Tyson had no ability to set Mr. Garcia’s work hours; and (5) Tyson would communicate

with Mr. Nguyen about changes in practices for raising chickens.

In addition, Mr. Nguyen testified that: (1) he authorized Mr. Garcia to act on Mr.

Nguyen’s behalf in running the farm, from which a jury could reasonably have concluded

that Tyson’s interactions with Mr. Garcia were in Mr. Garcia’s capacity as Mr. Nguyen’s

agent, not as Tyson’s employee; (2) it was Mr. Nguyen’s obligation to take care of his

employees and service the contract with Tyson; (3) only Mr. Nguyen had the power to

terminate Mr. Garcia’s employment; and (4) Mr. Nguyen had the contractual ability to

terminate his grower contract with Tyson and enter into a contract with another poultry

company, suggesting that Mr. Nguyen, rather than Tyson, had ultimate control over

whether Mr. Garcia continued to have a job raising chickens.

The Court of Appeals in Imbraguglio reminded us not to “confuse control of the

workplace with control of the worker.”

. With that in mind, in my view

the evidence in this case allowed for the reasonable inference that, notwithstanding the

specificity in Tyson’s contractually-required procedures and practices for raising

chickens, Tyson did not have the requisite control over Mr. Garcia to be considered his

employer. At a minimum, as the Court of Appeals found in Imbraguglio, the evidence

“cut both ways.”

. I would, therefore, affirm the judgment of the circuit court.

3