Originally from:
Workers' Compensation Subrogation In All 50 States - 5th Edition - Hardcover
Workers' Compensation Subrogation In All 50 States - 5th Edition - Electronic
Preview Page
CHAPTER 6
BORROWED SERVANT DOCTRINE
It is not unusual for an employee to be subject to the direction and
control of an entity other than his employer during the work day.
This is especially common in construction situations. In such cases,
many states employ the Borrowed Servant Doctrine, which states
that an employee can become a "borrowed servant" of an entity other
than his employer, for a limited period of time, while that employee
is subject to the "special employer’s" right to control the details of
the employee’s work. Just as each state has its own criteria for
determining whether an employee is subject to the right of another to
control the details of his work, some states provide that a borrowed
servant becomes the employee of the "special employer," which
allows him to then sue his previous employer (general employer) as a
"third party." Still other states employ something known as the "Dual
Employment Doctrine," which states that the employee can be
employed by two employers at the same time, both of which are
protected by the workers’ compensation bar.
To make matters more complicated, the advent of employee
leasing companies, temporary employment agencies and staff leasing
services have complicated the borrowed servant issue. Special
legislation has been enacted in many states which declare both the
leasing company and leasing company’s customer to be joint
employers of the employee under certain circumstances.
§ 6.1 Defense to Third-Party Liability
The Borrowed Servant Doctrine will be familiar to most of you
because of its application to the everyday adjusting and handling of
workers’ compensation claims. In determining whether or not a
carrier is responsible for workers’ compensation benefits, the claims
CHAPTER 6
BORROWED SERVANT DOCTRINE
§ 6.1 Defense to Third-Party Liability
§ 6.2 Consequences of Employee Being a Borrowed Servant
§ 6.3 Equitable Subrogation Contribution among Joint Insurers
§ 6.4 Dual Employers
§ 6.5 Staff Leasing Services and Temporary Employment Agencies
Gary Wickert is an insurance trial lawyer and is regarded as one of the world's leading experts on insurance subrogation. He is the author of several subrogation books and legal treatises and is a national and international speaker and lecturer on subrogation and motivational topics. Mr. Wickert is also a politician in Wisconsin, serving his fourth term as Town Supervisor in the Township of Cedarburg. After 15 years as the youngest managing partner in the history of the 30-lawyer Houston law firm of Hughes, Watters & Askanase, L.L.P., he returned to his native Wisconsin in 1998 and co-founded the firm of Matthiesen, Wickert & Lehrer, S.C. He oversees a National Recovery Program which includes a network of nearly 300 contracted subrogation law firms in all 50 states, Mexico, Canada and the United Kingdom and boasts recoveries of more than $500 million in recoveries and credits for more than 250 insurance companies. Gary Wickert is also a commercial fiction author and his latest political thriller, Dark Redemption (Tudor Publishers), is available on Amazon.com.
Licensed in both Texas and Wisconsin, Mr. Wickert is double board-certified in both personal injury law and civil trial law by the Texas Board of Legal Specialization. He is also nationally certified as a Civil Trial Advocate by the National Board of Trial Advocacy (NBTA), for whom he has both written and graded the product liability questions contained on the NBTA national certification exam taken by trial lawyers around the country. For nearly twenty-five years, he has also served as an expert witness on subrogation and insurance related issues and has been consulted by insurance carriers, lawyers, and legislative bodies from several states. He is a licensed arbitrator and has attended more than 750 mediations in more than 30 different states. He is one of only a few lawyers to have ever represented a client before the United States Supreme Court on a subrogation issue, and was named one of Law & Politics and Milwaukee Super Lawyers magazine's Super Lawyers for 2005, 2006, and 2008. For a complete resume on Gary L. Wickert, see Appendix A-13 of this book.
