Widow’s Claim Against Postal Service Revived

     (CN) – The U.S. Postal Service may be liable for a truck driver who died from forklift injuries, the 7th Circuit ruled, refusing to label the man as a “borrowed employee.”
     Billy Couch was making a 2008 delivery to the USPS facility in Elk Grove, Ill., when a postal service employee ran over his foot with a forklift. Couch died two years later, allegedly as the result of his injuries.
     Couch’s employer, B&B Trucking, covered medical expenses through its workers’ compensation insurance. After Couch’s death, widow Alyce Couch sued the government under the Federal Tort Claims Act.
     A federal judge in Chicago granted the U.S. government summary judgment after agreeing with the USPS that workers’ compensation was the only remedy available to Crouch as a “borrowed” employee.
     Key to that decision, the judge noted that B&B Trucking garnered 90 percent of its revenue from Postal Service contracts.
     Despite this factor, the 7th Circuit reversed Wednesday.
     “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,” Judge David Hamilton wrote for a three-member panel.
     It is difficult to distinguish a “loaning employer” from many other contractors that provide goods and services to the government, the court held. The panel disagreed that B&B is not a “loaning employer” because it does not furnish employees outside of the USPS.
     B&B “employees are not ‘doing the work of other employers’ – they are doing the work of B&B Trucking,” Hamilton wrote. “In common parlance, to ‘furnish’ means to ‘provide or supply.’ 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.”
     Like many other government contractors, B&B also trains its employees, uses its own trucks and dispatch service, and employs its own managers to supervise employees.
     “This reasoning should be familiar to the Postal Service,” Hamilton wrote. “Drivers transporting mail under [USPS] 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.” (Emphasis in original.)
     “As the government would have it, though, [contract] drivers are independent contractors when they injure other people but borrowed employees when Postal Service employees injure them, at least in Illinois,” he added. “This ‘heads-I-win, tails-you-lose’ approach is both unfair and doctrinally incoherent. If the drivers are independent contractors, they cannot be borrowed employees – at least not at common law – because they are not under the Postal Service’s control.”

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