Caps & Immunities
developer becoming a principal contractor by contracting for the sale of the home to a prospective purchaser. Although a contract to sell the home to a purchaser had been entered into by the time of the injury in Para, the Court of Appeals in dicta extended its decision to state that principal contractor status would have existed even if the particular lot and home on which the injury occurred had not yet been sold.39
Te
Court of Appeals stated that a land owner/developer would be considered a “statutory employer” where the owner/ developer entered into a contract with a subcontractor to do construction work on houses and lots that the parties clearly anticipate would be sold to third parties, if at the time of injury there are one or more other contracts between the developer and third parties for sale of other lots under the subcontract.40 In Lathroum v. Potomac Elec. Power Co.,41
the Court
of Appeals ruled that Potomac Electric Power Company (PEPCO) was not the “statutory employer” of an injured employee of a company hired by PEPCO to provide miscellaneous labor services on several of PEPCO’s facilities and, as such, could not avail itself of the immunity afforded by the “exclusive remedy” provision of the Act. Te Court of Appeals rejected the argument that a principal contract existed in the form of PEPCO’s contracts to provide electricity to its customers and found that PEPCO, as a public utility, owes a “statutory duty” to “the public” “to provide [a] regulated commodity,”
electricity.42 Te Court’s response to the
creative effort to find a “principal contract” in the provision of electricity was to note that its “cases make clear that the ‘principal contract’ contemplated by the legislature is one in which a contractor agrees for stated consideration to perform some work or service according to plans, specifications or directions of a third party.”43 Finally, in Henderson v. Dresser Industries, Inc.,44
an
employee of an independent electrical contractor brought suit against a manufacturer of refractory bricks (utilized in fireplaces,
furnaces, kilns, and fireboxes) for work-
related injuries sustained as he was removing wires from electrical terminals at one of the manufacturer’s plants. Te manufacturer argued that it was the “statutory employer” of the injured worker. Te U.S. District Court disagreed, finding that the electrical work performed by the injured employee at the manufacturer’s plant did not factor into the manufacturer’s final product and was therefore not “part of the business, occupation or trade” of the manufacturer. As such, the manufacturer could not assert immunity as the employee’s “statutory employer.”45
39 Id. at 339 Md. at 256-257, 661 A.2d at 745-746. 40 Id. 41 309 Md. 445, 524 A.2d 1228 (1987). 42 Id. at 451-452, 524 A.2d at 1231-1232. 43 Id. 44 674 F. Supp. 519 (D. Md. 1987) 45 Id. at 521.
however
Te Henderson Court in issuing its decision, noted that the cases
involving statutory employment
immunity of principal contractors “yield no crystalline rule of decision. Indeed, this is an area of the law in which attempts at general formulations tend to blur rather than aid analysis. Te fact patterns vary so greatly from case to case that it is impossible to assert any pure governing principle.”46
Can An Employee Have Two Actual Employers, Both of Whom Would Share Statutory Immunity?
Under certain circumstances an injured employee is
considered to have “joint” or “dual” employment between two employers, both of whom would be immune from personal injury lawsuits. One example is the situation in which a worker is placed by a temporary agency on the job site of its customer and the worker is thereafter injured by negligence on the part of the customer’s employees. Even though paid by the temporary agency and covered by the agency’s workers’ compensation insurance, since the worker is actually controlled by the customer, he is deemed to be an employee of the customer.47
An attempt to pursue a third party suit against
46 Id. 47 Whitehead v. Safway Steel Products, Inc., 304 Md. 67, 497 A.2d 803 (1985).
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