Refocusing with replies

Van Swol v. ISG Burns Harbor, LLC – The issue in this appeal is whether the ISG steel-mill was a co-employer of Darryl Van Swol, thus preventing him under the jurisdictional bar of the Worker’s Compensation Act from suing ISG for negligence in connection to an accident at its plant. The trial court dismissed the action after it determined that Darryl was a co-employee. Our appellate brief detailed the facts showing no employment relationship under the seven factor balancing test set forth in Hale v. Kemp, 579 N.E.2d 63, 67 (Ind. 1991).

On reply, rather than simply responding to ISG’s arguments as to each of the factors, we added perspective by focusing on the contractual documents under which Darryl’s services were provided by his employer, Tranco Industrial Services, Inc., to ISG. Those documents showed Darryl being treated as a commodity by ISG, not an employee. In August, the appellate court reversed the trial court. Since then, the Indiana Supreme Court has granted transfer, which means it will decide the case.

The start of our reply argument in the intermediate appellate court follows:

ISG consistently disclaimed any responsibility for Darryl Van Swol as an employee. In the order documents that resulted in Darryl working a single graveyard shift as a substitute switchman, ISG stated that Tranco was to supply “supervision, labor, equipment to perform switchmens [sic] duties” at its blast furnace. (App. 47, 49) ISG’s requisition and purchase order were the only documents describing the work to be performed that shift. (App. 37) Darryl was not identified by name. Rather, the order forms speak of the “requested quantity” and the “unit cost” and of the “generic” service Tranco, as the “supplier,” was to provide ISG. Tranco’s “service” was just that — the provision of supervision, labor, equipment” to perform a function that ISG’s own employees were unavailable to perform. On the requisition form, Tranco’s service came under the heading “Item” and “Item Type.” On the purchase form,the “service” came under the category for “Part Number/Description”. The “Delivery Area” to which Tranco was to provide its service was “Yards & Transportation Door 0014. (App. 49) These, indeed, were forms, but they were forms that reflected reality. To ISG, Darryl was no more than an unidentified commodity or a service provided by Tranco.

Darryl’s injury during the shift did not change his status with the steelmaker. ISG did not bother to investigate the accident. It left that job to Tranco. (App. 39) ISG did not prepare an incident report. It only does that for its own employees. (App. 35c) Tranco prepared the report. (App. 35b) ISG did not provide medical treatment to Darryl. (App. 40) It did not advise him to see a doctor. Tranco did that. (App. 64)

ISG structured its role so that it would not bear the responsibility of an employer: It did not pay Darryl; it did not cover him with worker’s compensation insurance; it did not provide him with health insurance, or other benefits. (App. 37) Its requisition and purchase order made clear that Tranco, not ISG, was responsible for supervising Darryl’s work as a switchman, and equipping him for the job.

Only after Darryl sought compensation beyond the inadequate payments afforded by worker’s compensation did ISG claim to be Darryl’s co-employer. In doing so, its purpose remained the same: avoidance of responsibility to Darryl. As a supposed “co-employer,” ISG would remain unaccountable for the injuries its negligence had caused. Worker’s compensation would be the only recovery Darryl could hope to obtain, and ISG did not provide such insurance coverage for him. (App. 37)