Actor Sues Multiple Employers After Taking The Hot Seat!

July 1, 2003

Kenneth H. Moreno and Ian Fusselman successfully moved for summary judgment in a special employment case involving a stand-in actor who was injured on the set of a television production. Plaintiff was involved in the filming of a special effect scene when he unknowingly sat on a towel that was wet with liquid nitrogen. Plaintiff suffered chemical burns to his buttocks and upper thighs.

Murchison & Cumming represented the production company responsible for the show and the special effects coordinator responsible for the subject effect. As an administrative convenience, the production company out-sourced all payroll related tasks to a third-party payroll service. The payroll service was designated as the "Employer of Record" and was responsible for processing payroll, withholding taxes, compulsory federal and state reports, and maintaining workers' compensation insurance.

Plaintiff filed suit against the production company under the theory that the payroll company was his employer for workers' compensation purposes and the production company was a viable third-party defendant. A Motion for Summary Judgment was filed on behalf of the production company on the ground that the exclusive remedy provisions of the worker's compensation system, under the Special Employment Doctrine, limited Plaintiff's rights of recovery. This doctrine establishes that, under certain situations, an employee can have two employers for the purposes of worker's compensation. The primary issue in establishing the special employee relationship is whether the "special employer" has the right to control the details of the employee's work. Although the existence of the special employment relationship is normally a jury issue, the Court can make the determination as a matter of law if the evidence and reasonable inferences drawn from the evidence do not conflict and allow only one conclusion.

In the Motion for Summary Judgment, it was established that the payroll company was not involved in any way in hiring or supervising the production's employees. Instead, it was proven that the production company had the right to control, and did in fact control, the details of Plaintiff's work. In opposition, Plaintiff contended that every employee on the set had a third-party payroll company designated as their "Employer of Record" and argued that there was a triable issue of fact as to who was actually responsible for the actions of each person on the set.

The trial court granted summary judgment in favor of the defense, precluding Plaintiff from proceeding with a civil action against the production company, leaving Plaintiff to his remedies available under the workers compensation system.