Alyce Couch v. United States , 694 F.3d 852 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1107
A LYCE C OUCH, independent administrator of
the estate of Billy Couch, deceased,
Plaintiff-Appellant,
v.
U NITED S TATES OF A MERICA,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 1:11-cv-02536—George M. Marovich, Judge.
A RGUED JUNE 7, 2012—D ECIDED S EPTEMBER 5, 2012
Before M ANION, K ANNE, and H AMILTON, Circuit Judges.
H AMILTON, Circuit Judge. This case presents a recurring
issue under the Federal Tort Claims Act and Illinois
law, and one that has divided federal district courts in
Illinois. The question is whether a driver employed by
a private trucking company with a “Highway Contract
Route” or “HCR” contract with the U.S. Postal Service
is also a “borrowed employee” of the Postal Service for
2 No. 12-1107
purposes of the Federal Tort Claims Act and the Illinois
Workers Compensation Act (IWCA). We conclude that
the answer is no. The private trucking company does not
merely “lend employees” to the Postal Service but
provides mail transportation and delivery services. The
company trains, equips, pays, and supervises its own
employees using its own equipment to provide these
services. We therefore reverse the district court’s grant
of judgment for the government in this case. Our
decision is consistent with decisions in many cases in
which injured persons have sued the Postal Service for
injuries caused by the negligence of HCR drivers. In
those cases the Postal Service has successfully argued
that the HCR drivers are independent contractors
rather than borrowed employees for whose negligence
the Postal Service could be held liable.
I. Factual and Procedural Background
The relevant facts are undisputed. In 2008, Billy Couch
was employed as a truck driver by B&B Trucking, a
private company that has HCR contracts with the
Postal Service. While Couch was making a delivery to a
Postal Service facility in Elk Grove, Illinois, a U.S. Postal
Service employee ran over his foot with a forklift. Two
years later, Couch died, allegedly as a result of complica-
tions from the injury. For purposes of this appeal, we
must assume that the Postal Service employee was negli-
gent and that the negligence caused Couch’s injury
and later death.
B&B Trucking provided its drivers with workers’ com-
pensation insurance, which covered Couch’s medical
No. 12-1107 3
expenses. After her husband died, plaintiff Alyce Couch
brought this action against the United States under the
Federal Tort Claims Act (FTCA), which provides a cause
of action for personal injuries negligently caused by
federal employees acting within the scope of their em-
ployment. 28 U.S.C. § 1346(b)(1). Under the FTCA, the
United States is liable to the same extent as a private
entity under the law of the state where the allegedly
tortious act occurred — in this case, Illinois. 28 U.S.C.
§ 2674.
Without addressing the merits, the United States moved
for summary judgment on the theory that Couch was a
“borrowed employee” whom the Postal Service had
borrowed from B&B Trucking. If he was a borrowed
employee of the Postal Service, then workers’ compensa-
tion would provide Couch’s only remedy against both
the borrowing and lending employers, and the tort case
would have to be dismissed. For reasons we detail
below, the borrowed employee question here turns on
the nature and terms of the HCR contract between
the Postal Service and B&B Trucking.
Through HCR contracts, the Postal Service has
outsourced to private companies certain mail delivery
services that were once performed by its own employ-
ees. B&B Trucking is one such HCR contractor. B&B
Trucking also works for FedEx and other private
carriers, but it derives at least 90 percent of its revenue
from its contracts with the Postal Service.
B&B Trucking owns its own delivery trucks for local,
regional, and long-haul mail transportation. It also
4 No. 12-1107
screens, hires, trains, supervises, and pays its own drivers
to transport mail between Postal Service facilities.
B&B Trucking also employs dispatchers, custodians,
mechanics, and administrative staff, but the vast
majority of its 275 employees are drivers. Under an
HCR contract, B&B Trucking drivers need not wear
uniforms, but they must display a badge that identifies
them as a “Non Postal Service Contractor Employee.”
The Postal Service does not train or manage the
contractor employees in any way, but it does conduct
background checks, and the HCR contract bars B&B
Trucking from employing “any individual who . . . lack[s]
sufficient ability to perform properly the required
duties, [is] not a reliable and trustworthy person of good
moral character,” or is “barred by law or Postal Service
regulations from performing such duties.” B&B Trucking
conducts a two- to three-day mandatory general
training program for its drivers. Drivers communicate
via their onboard truck computers with B&B Trucking’s
dispatcher, who in turn radios the Postal Service
when necessary. The Postal Service requires contractor
drivers to have cell phones in case the Postal Service or
the driver needs to “initiate two-way communica-
tions” directly.
When bidding for an HCR contract, B&B Trucking
provides an estimate of the number of employees it
would require and the associated costs of the transporta-
tion services. Once the contract is performed, the Postal
Service reimburses B&B Trucking for those costs. The
contract at issue in this case was labeled one “For mail
service,” with the “type of service” described as “Trans-
No. 12-1107 5
portation.” The contract did not specify the number of
B&B Trucking drivers required to perform, only the
number and types of vehicles. About 60 percent of the
estimated cost was allocated to wages and employee
benefits. These labor costs included a line-item
estimate for workers’ compensation insurance, which B&B
Trucking purchased and for which the Postal Service
reimbursed it.
As required under the IWCA, B&B Trucking’s workers’
compensation insurance paid Couch’s medical bills.
After Couch died, his widow filed this action against
the United States for negligence, seeking damages that
included pain and suffering, lost wages, and loss of
consortium. After answering, the United States moved
for summary judgment on the ground that workers’
compensation provided the exclusive remedy available
for the decedent’s on-the-job injuries because the Postal
Service was his borrowing employer for the purposes
of the IWCA.
The district court relied on our decisions in Luna v.
United States, 454 F.3d 631 (7th Cir. 2006), and Belluomini
v. United States, 64 F.3d 299 (7th Cir. 1995), and framed
the key issue as follows: whether the Postal Service was
a borrowing employer depended on whether B&B was a
“loaning employer” under the IWCA, and that question
turned on whether “a substantial part of” B&B’s “business
is . . . furnishing employees to do jobs for govern-
mental and private” employers. Couch v. United States,
No. 11 C 2536, 2011 WL 6318943, at *4-5 (N.D. Ill. Dec. 14,
2011). The district court said yes, reasoning that because
its drivers perform work typically done by the Postal
6 No. 12-1107
Service itself (namely, delivering mail), B&B Trucking
“furnished” its employees to do the work of the Postal
Service and other employers. The district court acknowl-
edged its disagreement with Jorden v. United States, Nos. 09
C 6814 & 10 C 3144, 2011 WL 4808165 (N.D. Ill. Oct. 11,
2011), a parallel case in which Judge Feinerman con-
cluded that the United States was not a borrowing em-
ployer under the IWCA because HCR contractors
provide mail delivery services rather than lend employees
for the Postal Service’s use. This appeal followed.
II. Discussion
We review the entry of summary judgment de novo,
construing all facts and drawing all inferences in the
light reasonably most favorable to the non-moving party,
who in this case is Mrs. Couch. See Miller v. Herman,
600 F.3d 726, 733 (7th Cir. 2010). Summary judgment
is appropriate where the evidence before the court indi-
cates “that there is no genuine issue as to any material
fact” and that the moving party is entitled to judgment
as a matter of law. Id.; see Fed. R. Civ. P. 56(c).
A. The Federal Tort Claims Act and Workers’ Compensation
The FTCA is a limited waiver of the United States’
sovereign immunity. Dolan v. U.S. Postal Service, 546
U.S. 481, 484 (2006). It is the exclusive remedy for any
tort claim resulting from the negligence of a government
employee acting within the scope of employment. See 28
U.S.C. § 2679(b)(1). The key provision of the FTCA
No. 12-1107 7
specifies that “the United States shall be liable . . . to tort
claims in the same manner and to the same extent as
a private individual under like circumstances.” 28 U.S.C.
§ 2674; United States v. Muniz, 374 U.S. 150, 153 (1963). In
Illinois, where the Postal Service’s alleged negligence
occurred, “the IWCA is the exclusive remedy for
workers injured on the job; covered employers cannot
be sued for accidental workplace injuries.” Luna, 454
F.3d at 634. This rule reflects the policy trade-off at
the heart of workers’ compensation: employees recover
modest compensation for workplace injuries regardless
of fault; employers are spared the risk of larger damages
verdicts; and the costs of litigation should be reduced.
See Lawrence M. Friedman & Jack Ladinsky, Social
Change and the Law of Industrial Accidents, 67 Colum. L.
Rev. 50, 69-72 (1967).
The IWCA addresses the possibility that an employee
might have more than one employer, such as when an
employment agency or staffing service hires employees
and then contracts with other companies who need tempo-
rary workers. When a covered employer “borrows”
such an employee from a covered “loaning” employer
and the employee is injured, both employers are responsi-
ble for providing workers’ compensation benefits. 820
ILCS 305/1(a)(4). Absent a contrary agreement, the bor-
rowing and lending employers are jointly and severally
liable to the injured employee, id., but as between the
two, the borrowing employer is primarily liable and the
loaning employer is secondarily liable. Chicago’s Finest
Workers Co. v. Indus. Comm’n, 335 N.E.2d 434, 437 (Ill.
1975). In such cases of borrowed employees, both employ-
8 No. 12-1107
ers enjoy immunity from tort liability. See Luna, 454 F.3d
at 634; Belluomini, 64 F.3d at 302, citing O’Loughlin v.
ServiceMaster Co., 576 N.E.2d 196, 201 (Ill. App. 1991).
Whether an injured worker is a borrowed employee
is “generally a question of fact,” A. J. Johnson Paving Co. v.
Indus. Comm’n, 412 N.E.2d 477, 481 (Ill. 1980), but
“when the unrebutted evidence is capable of only one
interpretation,” a court “must make the determination as
a matter of law.” Kawaguchi v. Gainer, 835 N.E.2d 435,
445 (Ill. App. 2005).
B. Borrowed Employment under the IWCA
1. The Common Law “Control” Test
Drawing on decisions of the Illinois courts, this court
has articulated two separate tests for identifying a bor-
rowed employment relationship for purposes of the
IWCA. One test is based on common law principles of
the borrowed servant doctrine and respondeat superior,
and focuses on the degree of control exercised by the
putative borrowing employer. See Belluomini, 64 F.3d at
302; A. J. Johnson Paving, 412 N.E.2d at 480; cf. Charles v.
Barrett, 135 N.E. 199, 200 (N.Y. 1922) (Cardozo, J.) (“Neither
the contract nor its performance shows a change of control so
radical as to disturb that duty or its incidence. . . . The rule
now is that, as long as the employee is furthering the
business of his general employer by the service rendered
to another, there will be no inference of a new relation
unless command has been surrendered, and no inference of
its surrender from the mere fact of its division.”) (em-
No. 12-1107 9
phases added) (citations omitted); see generally J. Dennis
Hynes, Chaos and the Law of Borrowed Servant: An
Argument for Consistency, 14 J.L. & Com. 1, 8-18 (1994);
Note, Borrowed Servants and the Theory of Enterprise
Liability, 76 Yale L.J. 807, 808-13 (1967). In applying the
common law test, the Illinois Supreme Court has deemed
“the most dominant circumstance in identifying the
employer of a loaned employee to be the right to control
the manner in which the work is to be done.” A. J. Johnson
Paving, 412 N.E.2d at 480. As a matter of sound policy, it
makes sense to hold the employer in control of the condi-
tions of employment primarily liable regardless of fault
because the borrowing employer is now in the best position
to avoid the risk of workplace accidents. See Note, Bor-
rowed Servants and the Theory of Enterprise Liability, 76 Yale
L.J. at 808-13; see generally Guido Calabresi, The Costs of
Accidents (1970). In applying the common law control
test, Illinois courts consider “the character of the super-
vision of the work done, the manner of direction of
the employee, the right to discharge, the manner of
hiring, and the mode of payment.” Chaney v. Yetter Mfg.
Co., 734 N.E.2d 1028, 1031 (Ill. App. 2000). In this case, both
parties agree that the Postal Service was not a borrowing
employer under the common law test because it did not
exercise control over the manner of Couch’s or his fellow
B&B Trucking drivers’ work. We turn to the second test.
2. The Belluomini Test
The second test incorporates language from the
IWCA itself. The statute does not define “borrowing
10 No. 12-1107
employer” but it provides a non-exclusive definition
of “loaning employer”:
An employer whose business or enterprise or a sub-
stantial part thereof consists of hiring, procuring
or furnishing employees to or for other employers
operating under and subject to the provisions of this
Act for the performance of the work of such other
employers and who pays such employees their salary
or wages notwithstanding that they are doing the
work of such other employers shall be deemed a
loaning employer within the meaning and provisions
of this Section.
820 ILCS 305/1(a)(4). In Belluomini, 64 F.3d at 302, we
reasoned that the customer of a lending employer
is necessarily a borrowing employer, relying on the
Illinois Supreme Court’s decision in Chicago’s Finest
Workers Co. v. Indus. Comm’n, 335 N.E.2d 434, 436 (1975).1
1
The main issue in Chicago’s Finest Workers was how to appor-
tion liability for workers’ compensation between a borrowing
employer and a lending employer, not how to identify a
borrowed employment relationship under the IWCA. In that
case, the existence of a borrowed employment situation was
obvious: Chicago’s Finest Workers was a “temp agency” that
supplied construction workers to a construction contractor
named Cozzi. Presented with a quintessential borrowed
employment situation, the state supreme court easily rejected
Cozzi’s argument that he was not a borrowing employer
under the common law control test, noting that the “evidence
clearly establishes the contrary.” 335 N.E.2d at 436. It then
(continued...)
No. 12-1107 11
We extrapolated from the statutory language a three-
part test for identifying a borrowing employer: ”(1) a
substantial portion of the alleged loaning employer’s
business must consist of furnishing employees to do
the work of other employers; (2) the loaning employer
must pay the employee’s wages even though that em-
ployee is working for another employer; and (3) the
borrowing employer must be operating under the Act.” 64
F.3d at 302; accord Luna, 454 F.3d at 637. The parties
agree that the second and third factors are present here.
They dispute the first factor, whether B&B Trucking
is in the business of “furnishing employees to do the
work of other employers.”
Neither Luna nor Belluomini faced the problem we
have here, which is how to distinguish a “loaning em-
ployer” from many other contractors who provide
services to government agencies. In Belluomini, the con-
tractor supplied Court Security Officers who were
directed and controlled by the U.S. Marshals Service,
and the contractor agreed that it simply provided em-
ployees rather than a service. 64 F.3d at 302-03. In Luna,
the plaintiff worked for a contractor we described as
(...continued)
noted, almost as an aside, that the Chicago’s Finest Workers
agency also met the IWCA’s description of a loaning employer
at 820 ILCS 305/1(a)(4). Id. The court did not identify the
loaning employer language in paragraph (a)(4) as a separate
and independent test for identifying a borrowing employer,
though that is how we read the opinion in Belluomini. See 64
F.3d at 302.
12 No. 12-1107
“in the business of supplying employees to govern-
mental agencies.” 454 F.3d at 633.
For two reasons, we conclude that B&B Trucking
is not a “loaning employer” under the terms of the HCR
contract and the IWCA. First, B&B Trucking does
not “furnish” its employees to anyone else. Second,
its employees are not “doing the work of other em-
ployers” — they are doing the work of B&B Trucking. In
common parlance, to “furnish” means to “provide or
supply.” See Webster’s Third New International Dictionary
923 (1993). B&B Trucking is not providing or supplying
its drivers to any other employer. It hires drivers and
other employees to fulfill its service contract with
the Postal Service to transport mail.
How do we know the HCR contract is a service con-
tract? First, it is labeled a contract for “mail service.” That
helps. Second, the contract refers to B&B Trucking as the
Postal Service’s “supplier,” and not as a supplier
of employees or drivers but rather as a supplier of
the “service” of “transportation.” Third, B&B Trucking
is required to supply certain numbers and types of vehi-
cles, but not a certain number and type of drivers. Fourth,
the contract states that “Driver uniforms are not required,”
and that “Suppliers who require their drivers to wear
uniforms may include the cost only in the general overhead
line.” Fifth, the contract requires B&B Trucking drivers to
wear a badge labeled “Non Postal Service Contractor
Employee.”
At a more fundamental level, we ask what the Postal
Service is paying B&B Trucking to do. The answer
No. 12-1107 13
is not merely to furnish a number of skilled drivers to
show up at Postal Service facilities and do what they
are told. The answer is that B&B Trucking must actually
deliver mail from one place to another, safely and on
time. If B&B Trucking and its employees do not pro-
vide those services, B&B Trucking does not get paid.
In sum, the contract terms indicate that it is one to
provide transportation services rather than drivers, that
B&B Trucking may perform those services using
however many drivers it wishes, and that the
Postal Service disclaims those drivers as its own. B&B
Trucking does not supply employees, it provides services.
The second reason B&B Trucking is not a loaning em-
ployer under the IWCA is that its drivers do not
perform the work of the Postal Service, except in the very
general sense that it is work the Postal Service hired
their employer to do. A business or government agency
may contract with other companies to provide a variety
of services that could be done by in-house employees
or that could be contracted out, such as catering meals,
painting, management consulting, legal representation,
or security or custodial services.
Let’s focus on a contract for legal representation of a
business or agency that employs its own in-house at-
torneys, but decides to hire an outside law firm
(not a legal temporary employment agency) to handle
certain types of cases or transactions. Like the Postal
Service in this case, the business or agency could have
its own lawyer-employees do the work instead. No one
would suggest, though, that the law firm is merely
14 No. 12-1107
“furnishing employees” to its client or that the em-
ployees of the law firm assigned to the client are also
employees of the client. The same reasoning
would apply to the management consultants, the security
service, the catering service, the custodial service, or
many others, and it applies to B&B Trucking’s mail trans-
portation service for the Postal Service. To perform
those services, B&B Trucking’s drivers are trained by
B&B, use B&B trucks, communicate with B&B dis-
patchers, are supervised by B&B management, and per-
form the tasks that B&B requires for so long and for
such compensation as B&B determines. These drivers
are quite clearly doing the work of B&B Trucking
in providing services to the Postal Service.
This reasoning should be familiar to the Postal Service.
Drivers transporting mail under HCR contracts and
other similar contracts cause accidents from time to
time. When victims of such accidents sue the Postal
Service under the FTCA, the Postal Service uses this same
reasoning to show that these drivers are not its own
employees but independent contractors for whom it
bears no legal responsibility. See, e.g., Hines v. United
States, 60 F.3d 1442, 1446 (9th Cir. 1995) (affirming sum-
mary judgment for United States in FTCA action
against Postal Service for negligence of driver operating
under mail transportation services contract; transport
company was independent contractor), abrogated on
other grounds by United States v. Olson, 546 U.S. 43 (2005);
Norton v. Murphy, 661 F.2d 882, 885 (10th Cir. 1981) (same);
Tunder v. United States, 522 F.2d 913, 915 (10th Cir. 1975)
(same); Fisher v. United States, 356 F.2d 706, 708 (6th Cir.
No. 12-1107 15
1966) (per curiam) (same); Lerma v. United States,
716 F. Supp. 1294, 1297 (N.D. Cal. 1988) (same); Duncan
v. United States, 562 F. Supp. 96, 100 (E.D. La. 1983) (same);
Thomas v. United States, 204 F. Supp. 896, 899 (D. Vt. 1962)
(same); cf. Kwitek v. U.S. Postal Service, 694 F. Supp. 2d 219,
224-25 (W.D.N.Y. 2010) (in FTCA negligence action
brought by HCR contractor’s employee against Postal
Service, holding that the FTCA independent contractor
exception did not bar claim because plaintiff alleged
negligence by Postal Service employees, and denying
government’s motion to dismiss).
As the government would have it, though, HCR
drivers are independent contractors when they injure other
people but borrowed employees when Postal Service
employees injure them, at least in Illinois. This “heads-I-
win, tails-you-lose” approach is both unfair and doc-
trinally incoherent. If the drivers are independent con-
tractors, they cannot be borrowed employees — at least
not at common law — because they are not under the
Postal Service’s control. See, e.g., Logue v. United States,
412 U.S. 521, 527-28 (1973) (“the critical factor in
making this [independent contractor] determination is
the authority of the principal to control the detailed
physical performance of the contractor”); Belluomini,
64 F.3d at 304 (“The determination of whether a rela-
tionship is that of an independent contractor or em-
ployer/employee is fact-dependent. Among the factors
which we consider are the manner of hiring, the right
to discharge, the degree of supervision, and most im-
portantly, the right to control and direct the work done.”)
(citation omitted); see also Restatement (Second) of
16 No. 12-1107
Agency, § 220(2) (“In determining whether one acting
for another is a servant or an independent contractor,
the following matters of fact, among others, are considered:
(a) the extent of control which, by the agreement, the
master may exercise over the details of the work. . . .”).
The only reason the Postal Service’s position in this case
is even colorable, of course, is that unlike the common-
law control test, under the Belluomini test the borrowing
employer need not exercise full common law control
over the borrowed employee so long as the loaning em-
ployer is in the business of “furnishing employees” to
other employers.
Under our precedents applying Illinois law, however,
this phrase — “furnishing employees to do the work of
other employers” — does not apply to a contractor that
is responsible for providing a service with employees
under its own control. In Belluomini itself, we con-
cluded that the U.S. Marshals Service was the borrowing
employer of a Court Security Officer (CSO) who was killed
in the line of duty. The Marshals Service “hired” the
contractor (called GSSC) that hired the CSO “to supply
[CSOs] to assist in the protection of the federal judiciary,”
and we said the contractor was in the business of “supply-
ing security personnel to the government.” 64 F.3d at 302,
303. In rejecting the plaintiff’s independent contractor
argument, we emphasized the degree of control exercised
by the Marshals Service over the day-to-day work of the
CSOs:
[I]t is the Marshals Service which has the responsi-
bility for determining how security is provided in
No. 12-1107 17
the federal building. This includes the authority to
assign duties and stations to individual CSOs. Al-
though GSSC provides a “Lead CSO” for on-site
supervision, that officer essentially functions as a
liaison between the CSOs and the Marshals Service.
The Marshals Service trains and deputizes new
CSOs and provides them with their badges and their
weapons. GSSC cannot reduce or increase the num-
ber of CSOs on site without the Marshals Service’s
approval. The Marshals Service also retains the author-
ity to discharge CSOs. These factors combine to under-
mine any claim that GSSC and the Marshals
Service had a principal/independent contractor rela-
tionship.
Id. at 304. Belluomini thus determined that CSOs were not
independent contractors because the Marshals Service
controlled so much of their daily work. That degree of
control distinguished the furnishing of employees from
the businesses of many other government contractors
who provide services, and whose employees are not
“borrowed employees.”
More recently, in Luna v. United States, 454 F.3d 631
(7th Cir. 2006), we applied the Belluomini test in a
similar context. Plaintiff Luna worked for a consulting
company called RCI that provided employees to the
Navy to assist with its training courses at the Great
18 No. 12-1107
Lakes Naval Base in Illinois.2 While addressing a large
group of recruits, Luna fell and injured her knee. Id. at
633. She received workers’ compensation benefits
through RCI’s policy in accordance with the IWCA and
then sued the United States for negligence in con-
structing and maintaining the training facility. This
court held that she could not sue under the FTCA. We
determined that “RCI easily satisfies the test for a
loaning employer” because it was “undisputed that
a substantial part of its business involved hiring, pro-
curing, or furnishing employees to do jobs for govern-
mental and private agencies.” Id. at 637. This made
the Navy a borrowing employee under the Belluomini
test, so workers’ compensation was Luna’s exclusive
remedy.
Thus, in both Luna and Belluomini, a private company
provided personnel to work at federal agencies under the
direction of government staff. In Luna, the plaintiff was an
administrative assistant who acted as a liaison between
Navy instructors and Navy recruits. See Luna v. United
States, 2003 WL 21196227, at *5. In Belluomini, the CSOs
2
According to the district court’s opinion, the Navy did not
exercise formal control over RCI employees, but did supervise
their work to some degree and also provided “RCI with
office space and facilities, parking spaces, telephone services,
utilities, office supplies, computer equipment, computer
software, four government vehicles, and other equipment.” Luna
v. United States, No. 00 C 1329, 2003 WL 21196227, at *4 (N.D. Ill.
May 21, 2003).
No. 12-1107 19
assisted the Marshals Service in providing security at
federal courthouses. In each case, the government con-
tracted with a private employer for agency support
personnel, and the agency integrated the contractor’s
employees into its own operations. See Luna, 2003 WL
21196227, at *6 (“Naval personnel did have the right to tell
Plaintiff how to do her job. For example, Naval personnel
could order Plaintiff to change her work location, tell
her to use different procedures in carrying out her
duties, or instruct her to give students different infor-
mation.”) (record citation omitted); see also Belluomini,
64 F.3d at 304 (“[I]t is the Marshals Service which
has the responsibility for determining how security
is provided in the federal building. This includes the
authority to assign duties and stations to individual
CSOs.”).
Here, by contrast, B&B Trucking contracted with the
Post Office to provide not employees but a discrete
service. B&B managed its own operation, deployed its
own equipment, and trained, coordinated, and supervised
its own employees in performing that service. To say
that B&B is in the business of “furnishing employees to
do the work of other employers” would expand that
phrase well beyond both common usage and the
factual bounds envisaged by Belluomini and Luna, and
would open up the possibility that all sorts of service
contracts could be deemed borrowed employment. It
would also unmoor the doctrine of borrowed employ-
ment from its settled common law meaning — a meaning
we presume the Illinois legislature incorporated into
20 No. 12-1107
the IWCA. See Morissette v. United States, 342 U.S. 246,
263 (1952) (“And where Congress borrows terms of art
in which are accumulated the legal tradition and
meaning of centuries of practice, it presumably knows
and adopts the cluster of ideas that were attached to
each borrowed word in the body of learning from which
it was taken and the meaning its use will convey to
the judicial mind unless otherwise instructed. In such
case, absence of contrary direction may be taken as satis-
faction with widely accepted definitions, not as a
departure from them.”). As Judge Feinerman concluded
in a case with materially identical facts, “the sum-
mary judgment record here, viewed with all genuine
factual disputes resolved in [the plaintiff’s favor],
indicates that [the HCR contractor] was in the business
of furnishing inter-post office transportation services,
not employees, to the Postal Service.” Jorden, 2011 WL
4808165, at *3. We agree. The result should be the
same here.
We noted in Luna that several decisions of the Illinois
Appellate Court have determined that “there is no
separate statutory test for a borrowing employer under
the IWCA, and that the issue of borrowed employment
is a question of fact to be resolved solely by application
of the multi-factor ‘control test.’ ” Luna, 454 F.3d at 636,
citing Lanphier v. Gilster-Mary Lee Corp., 765 N.E.2d
493, 495-96 (Ill. App. 2002); Chaney, 734 N.E.2d at 1032;
Crespo v. Weber Stephen Prods. Co., 656 N.E.2d 154, 156
(Ill. App. 1995). This may have been an understatement:
at least a dozen other decisions of the Illinois Appellate
No. 12-1107 21
Court have treated the common law right-to-control
inquiry as the only relevant one under the IWCA,
without hinting at a separate test based on the definition
of loaning employer found in 820 ILCS 305/1(a)(4).
See, e.g., Prodanic v. Grossinger City Autocorp, Inc., ___
N.E.2d ___, 2012 WL 2947894, at *8 (Ill. App. 2012);
Kawaguchi, 835 N.E.2d at 442-43; Palomar v. Metro. Sanitary
Dist. of Greater Chicago, 587 N.E.2d 1067, 1072 (Ill.
App. 1992). Most of these courts relied on the
Illinois Supreme Court’s two most recent decisions on
point, both of which indicate that the common law
control test is the exclusive standard of borrowed em-
ployment for the purposes of the IWCA. See A. J. Johnson
Paving Co. v. Indus. Comm’n, 412 N.E.2d 477, 480 (Ill. 1980)
(“An employee in the general employment of one
person may be loaned to another for the performance
of special work and become the employee of the person
to whom he is loaned, while performing the special
service. Whether such a transfer of employment occurs
depends on whether the special or borrowing employer
has the right to control the employee with respect to
the work performed.”); Saldana v. Wirtz Cartage Co., 385
N.E.2d 664, 668 (Ill. 1978) (“The main criterion for deter-
mining when a worker becomes a loaned employee
is whether the special employer has control of the em-
ployee’s services.”). Although these decisions came
after Chicago’s Finest Workers, we did not consider them
in either Belluomini or Luna. Moreover, no reported deci-
sion of an Illinois state court has ever cited Belluomini
or Luna. We have located just two reported cases
22 No. 12-1107
that endorse anything resembling the Belluomini test,
and neither is good authority on this point of law.3
We need not reconsider the Belluomini test today,
for neither Belluomini nor Luna suggested that the
statutory definition of loaning employer might in-
clude government contractors like B&B Trucking that
provide services rather than employees. As these cases
show, the statutory definition of a loaning employer
is most useful to ensure that temporary employment
agencies and similar businesses are recognized as em-
ployers under the IWCA: “An employer whose business
or enterprise or a substantial part thereof consists of
hiring, procuring or furnishing employees to or for
other employers operating under and subject to the
provisions of this Act for the performance of the work of
such other employers and who pays such employees their
salary or wages notwithstanding that they are doing the
work of such other employers . . . .” 820 ILCS 305/1(a)(4).
This definition does not sweep so broadly as to reach
outside contractors like B&B Trucking who provide
services to their customers using the contractors’ own
3
The first case, Wasielewski v. Havi Corp., 544 N.E.2d 116, 117
(Ill. App. 1989), was expressly overruled on precisely these
grounds. See Lanphier, 765 N.E.2d at 496. The second case, Evans
v. Abbott Prods., Inc., 502 N.E.2d 341, 343 (Ill. App. 1986),
assumed in dicta that such a test existed, but the same
appellate district has rejected its assumption in later cases.
See, e.g., Prodanic, ___ N.E.2d at __, 2012 WL 2947894, at *8
(“section 1(a)(4) does not define a borrowing employer”).
No. 12-1107 23
employees under the direction and control of the con-
tractors’ management and using their own equipment.
Conclusion
B&B Trucking did not meet the statutory definition of
a loaning employer, so Mr. Couch was not a borrowed
employee of the Postal Service when he was hurt.
The judgment of the District Court is R EVERSED and
the case is R EMANDED for proceedings consistent with
this opinion.
9-5-12