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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. John Buckley v. American Fast Freight, Inc. and Matthew S. Carroll (6/21/2019) sp-7380

John Buckley v. American Fast Freight, Inc. and Matthew S. Carroll (6/21/2019) sp-7380

        Notice:   This op inion  is subj ect  to correction bef ore p ublication  in  the PA CIFI C REPORTER.  

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        303 K Street, Anchorage, Alaska 99501, p hone  (907)  264-0608, f ax  (907)  264-0878, email 

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                THE SUPREME COURT OF THE STATE OF ALASKA 



JOHN BUCKLEY,                                  ) 

                                               )  Supreme Court No. S-16693 

                       Appellant,              ) 

                                               )  Superior Court No. 3AN-13-10647 CI 

        v.                                     ) 

                                               )  O P I N I O N 

AMERICAN FAST FREIGHT, INC.                    ) 

and MATTHEW S. CARROLL,                        )  No. 7380 - June 2 1, 2019 

                                               ) 

                       Appellees.              ) 

                                               ) 



               Appeal from the Superior Court of the State of Alaska, Third 

               Judicial District, Anchorage, Erin B. Marston, Judge. 



               Appearances:  Michael Cohn, Weidner & Associates, APC, 

               Anchorage, for Appellant.  Susan Orlansky, Reeves Amodio 

               LLC,   and  Eric   Sanders,  Law   Office   of  Eric   Sanders, 

               Anchorage, for Appellees. 



               Before:  Bolger, Chief Justice, Winfree,  Stowers, Maassen, 

               and Carney, Justices. 



               BOLGER, Chief Justice. 



I.      INTRODUCTION 



               A worker for a temporary employment service was injured while working 



for a shipping company.  At the time of injury he was performing a task prohibited by 



the contract between the temporary employment service and the shipping  company.  The 



injury resulted in loss of the worker's hand and part of his arm.  After getting workers' 


----------------------- Page 2-----------------------

compensation benefits from the temporary employment service, the worker brought a 



negligence action against the shipping company and one shipping company employee.  



The superior court decided on cross-motions for summary judgment that the exclusive 

liability provision of the Alaska Workers' Compensation Act (Act)1 barred the action.  



We reverse the grant of summary judgment because material issues of fact preclude it. 



II.    FACTS AND PROCEEDINGS 



              John  Buckley  started  working  for  Labor  Ready,  Inc.,  a  temporary 



employment service, in 2009.  According to Buckley, workers would go to the Labor 



Ready office in the morning for assignments, and "there would be some days that [they] 



would  be  sent  out  and  some  days  when  there  would  be  no  work."    Workers  with 



assignments  were  given  a  "ticket"  that  they  presented  to  the  company  using  Labor 



Ready's services.  Labor Ready employees could get "repeat" tickets when a contracting 



employer wanted Labor Ready to send those employees again, but Labor Ready did not 



always  honor  such  requests.    Labor  Ready  workers  had  to  get  approval  from  Labor 



Ready to work for a specific customer even if the customer and the worker both wanted 



the worker to continue to work for that customer.  



               The  "conditions  of   service"  on  the  ticket  prohibited  Labor  Ready 



employees from engaging in specified activities without Labor Ready's "prior written 



consent."   For purposes  of  this  case,  the  important restriction was  that  Labor  Ready 



workers  were  not  allowed  "to  operate  dangerous  machinery,  mobile  equipment  or 



vehicles."  Labor Ready paid the worker and provided workers' compensation coverage.  



The customer was required to determine whether Labor Ready's workers were qualified 



for the particular work  assignment  "during the  first two hours  of work"  and  "inform 



Labor Ready of any changes in work assignment."  The contract provided that Labor 



       1      AS 23.30.001-.400. 



                                             -2-                                          7380 


----------------------- Page 3-----------------------

Ready's  employees were  "under  Customer's  supervision,  direction  and  control"  and 



required the customer to provide safety equipment, information, and briefing to Labor 



Ready's employees.  The contract did not specifically provide that a customer could fire 



a worker supplied by Labor Ready.  



               Labor  Ready's  workers  did  not  have  to  report  for  work  every  day;  as 



Buckley put it, it was "up to you to go."  He testified that Labor Ready employees could 



call beforehand to let Labor Ready know they would not be there, but if employees did 



not,  Labor  Ready  "didn't  really  care"  and  would  "put  somebody  else"  on  the j ob.  



Buckley, for example, did not work for several weeks in 2011 because he was helping 



care for his mother.  



               During the time he worked for Labor Ready, Buckley reported to Labor 



Ready's office in the morning and picked up a ticket with his j ob assignment.  Buckley 



prided himself on being a good worker and testified that Labor Ready at times sent him 



to  work  for  new  clients  to  impress  the  clients  even  if  another  client  had  requested 



Buckley for those days.  In late 2011 Labor Ready at times assigned Buckley to work at 



American  Fast Freight  as  a  general  laborer; he worked  17 non-consecutive  days  for 



American Fast Freight during the six weeks preceding the accident underlying this case.  



               Buckley enj oyed his work with American Fast Freight; "the goal was that 



[Buckley]  wanted  to  go  to  work  as  an  employee  of  American  Fast  Freight  .  .  .  and 



American Fast Freight was hoping to hire [him]."  But Buckley also testified that Labor 



Ready had sent him to work elsewhere, even when American Fast Freight had requested 



him.  When he worked for American Fast Freight his job mainly involved loading and 



unloading freight.  On any given day he might work in the warehouse or be assigned to 



a particular truck to accompany the driver for deliveries.  During the time Buckley was 



assigned  to  American  Fast  Freight  he  got  to  know  some  of  the  drivers  and  had 



                                               -3-                                            7380 


----------------------- Page 4-----------------------

established relationships with some of them.  Buckley indicated he could refuse to work 



with a truck driver there and that he had done so.  



                 On  December  22,  2011,  Labor  Ready  assigned  Buckley  to  work  at 



American Fast Freight.  A driver, Denny Hawkins, told Buckley to come with him to 



deliver freight in the Wasilla area.  Buckley grabbed "[his] stuff" - his "stuff" included 



a box knife, warm clothes, and an extra pair of gloves - and went out to Wasilla with 



Hawkins.  After they completed their deliveries, Hawkins told Buckley he would treat 



him to lunch.  Hawkins told American Fast Freight's dispatcher that he and Buckley 



were headed to lunch.  According to Buckley, Hawkins got a call on his cell phone from 



another driver, Matthew Carroll, asking Hawkins for assistance, and Hawkins agreed to 



                                                     2 

help him without informing the dispatcher.   Carroll's tractor-trailer was stuck in a snow 



                                                                                                           3 

berm near the Frontiersman newspaper office in Wasilla, and he was unable to move it.   



Instead of going to lunch, Hawkins and Buckley headed to Carroll's truck.  



                 Hawkins unhitched his trailer and drove his truck so it was facing Carroll's 



truck; he then attached a tow chain to the trucks.  In the meantime Buckley began to dig 



out the stuck wheel, first using his hands and then a shovel, but Carroll's truck remained 



stuck.    The  precise  sequence  of  events  that  followed  is  difficult  to  discern  because 



         2       The  sequence  of  phone  calls  was  disputed  by  the  participants  in  this 



accident, as was American Fast Freight's knowledge of Carroll's problem.  This case is 

unusual in that the superior court granted summary judgment to American Fast Freight 

on both  its motion  for  summary judgment  and  Buckley's  cross-motion  for  summary 

judgment.  See note 9, inf ra.  We review all facts in the light most favorable to Buckley 

as the non-prevailing party on both motions.  See Rockstad v. Erikson,  113 P.3d  12 15, 

 1222 n.19 (Alaska 2005) ("Reviewing a grant of summary judgment, this court views all 

facts in the light most favorable to the non-p revailing p arty , not the non-moving party."  

(emphasis in original) (citing Ellis v. City of  Valdez, 686 P.2d 700, 702 (Alaska 1984))). 



         3       A diagram made by Hawkins shortly after the accident indicates that the 



rear driver-side drive wheel of Carroll's tractor was stuck. 



                                                    -4-                                                 7380 


----------------------- Page 5-----------------------

witnesses gave inconsistent accounts at different times, but someone decided to use tire 



chains to try to gain traction.  American Fast Freight drivers sometimes laid tire chains 



out on the ground, rather than put them around the tire, to improve traction when a truck 



was stuck on snow or ice:  Buckley said he had seen other American Fast Freight drivers 



do so and had assisted them in the past; Carroll said he too had previously used chains 



this way and had seen others do it; and Hawkins also indicated he had done this before.  



Two company officials reported during the subsequent accident investigation that drivers 



used  chains  this  way  at  times,  and  company  officials  indicated  that  American  Fast 



Freight was aware of the practice - one official said he had himself used chains this way 



as an American Fast Freight driver.  



              Buckley laid a tire chain in front of the wheel and used hand and verbal 



signals to let the drivers know when he was clear of the truck.  Carroll then tried to move 



the truck to engage the chain and get traction.  The method was not successful, and in 



fact the wheel's spinning caused the tire chain to shoot out the back.  The three men used 



the same approach four times with no success.  Buckley then thought of laying a second 



chain behind the wheel, because he "noticed [Carroll] was rocking back a little bit."  He 



asked Carroll where another chain was and got a second chain from one of the trucks so 



there would be a chain both in front of and behind the stuck wheel.  



               The accident happened on the fifth attempt to move the truck.  The drivers 



reported being focused on their trucks because they were concerned about a collision if 



Carroll got traction.  According to Buckley, he was in the process of positioning the 



second tire  chain behind the  stuck wheel when  Carroll  gunned the truck  engine; the 



wheel turned and caught the tire chain Buckley was adjusting, pulling his arm under the 



wheel.  Buckley later said he had not given Carroll "any signal or indication . . . to move 



the  vehicle."    Hawkins  noticed  something  amiss,  got  out  of  his  truck,  ran  toward 



Buckley,  and told  Carroll to  "put it in gear  and  spin it" because Buckley's hand was 



                                             -5-                                          7380 


----------------------- Page 6-----------------------

trapped.  Hawkins went to the Frontiersman's office to get help.  Buckley's arm was 



sliced just below the elbow and, in every practical sense, severed - the two parts of his 



arm  remained  barely  attached.    Buckley  was  also  bleeding  heavily.    Frontiersman 



employees and the two drivers assisted Buckley.  One Frontiersman employee used his 



belt as a tourniquet to staunch the bleeding until emergency medical personnel arrived; 



Buckley credited him with saving his life.  Buckley had multiple surgeries, and according 



to American Fast Freight, his right arm was amputated above the elbow.  He received 



workers' compensation benefits, presumably from Labor Ready given the terms of the 



contract between Labor Ready and American Fast Freight.  



               The Alaska Department of Labor & Workforce Development, Division of 



Labor  Standards  &  Safety,  Occupational  Safety  &  Health  (AKOSH)  conducted  an 



investigation  that  ultimately  led  to  a  $5,600  fine  against  American  Fast  Freight.  



American  Fast  Freight  indicated  that  Buckley  should  not  have been  engaged  in  any 



activities related to freeing the truck and said "that for  [the] future,  [the] company has 



specifically prohibited temporary employees from being involved with tire chain up and 



stuck  vehicles."    According  to  AKOSH,  the  workers'  actions  during  the  incident 



reflected a number of violations of company policy.  



               In November 2013 Buckley sued American Fast Freight, Carroll, and John 



Does 1-5 for negligence.  American Fast Freight and Carroll answered, denying liability 



and raising the exclusive liability provision of the Act, AS 23.30.055, as a defense.  No 



one j oined Labor Ready.  



               The parties  filed  cross-motions  for  summary judgment.   American Fast 



Freight argued that it met all three tests for a  special employer relationship  set out in 



                                             -6-                                          7380 


----------------------- Page 7-----------------------

                                          4 

Anderson v. Tuboscop e Vetco, Inc.  and that Buckley's suit was barred by AS 23.30.055 



                5 

on that basis.   Buckley's cross-motion sought to bring his case under Estate of  Milos v. 

Quality Asp halt Paving, Inc.,6 where we reversed  a  summary judgment  on  exclusive 



remedy grounds because a material issue of fact remained about the "work-relatedness" 



of the injury, i.e. whether it arose out of and in the course of employment.  



                Pertinent to the  question  of  a  special employment relationship, Buckley 



argued  that  (1)  no  contract  existed  between  himself  and  American  Fast  Freight; 



(2) Tuboscop e was factually distinguishable from his case for various reasons, including 



that he reported to Labor Ready rather than American Fast Freight; and (3) the special 



employment  doctrine  did  not  apply  to  his  case  because  Labor  Ready  continued  to 



exercise  control  over  its  employees'  duties through  its  customer  contract.  And with 



respect to his own cross-motion for  summary judgment, Buckley contended that as a 



matter of law the injury did not arise out of and in the course of the employment because 



(1) he was  on  an unpaid  lunch break when the  accident happened;  (2) using the tire 



chains as the workers did amounted to operating dangerous machinery, a violation of the 



contract between Labor Ready and American Fast Freight; (3) Hawkins's and Carroll's 



actions violated company policy; and (4) he had personal motives for participating in the 



activity.  Buckley supported his assertion about operating dangerous machinery with a 



mechanical engineer's expert opinion.  



        4        9 P.3d  1013 (Alaska 2000). 



        5       For Buckley's lawsuit to be barred under AS 23.30.055, American Fast 



Freight must have been his employer and the injury must have arisen out of and in the 

course of the employment.  See AS 23.30.010(a), .045, .055. 



        6        145 P.3d 533 (Alaska 2006). 



                                                   -7-                                                7380 


----------------------- Page 8-----------------------

                 In  opposition  to  Buckley's  motion,  American  Fast  Freight  said  that  for 



purposes   of   summary  judgment,   it  would   assume   several   facts,   including   the 



following:  Carroll and Hawkins violated employer rules; "letting Buckley handle tire 



chains . . . violated the contract between Labor Ready and [American Fast Freight]"; and 



Buckley  and Hawkins were  on  an unpaid lunch break  at the time they went to  assist 



Carroll.  It argued that even if those facts were true, Buckley's lawsuit was still barred 



by the exclusive remedy provision.  



                 The superior court granted summary judgment to American Fast Freight, 



deciding it was shielded by the exclusive liability provision of the Act.  The superior 



                                                                   7 

court first considered the three-part test in Tuboscop e,  deciding as a matter of law that 



(1) Buckley had an implied employment contract with American Fast Freight; (2) his 



work was done exclusively for the benefit of American Fast Freight; and (3) American 



Fast Freight had the right to supervise Buckley.  From these findings the court concluded 



that  American  Fast  Freight  was  Buckley's  employer  and  was,  in  addition  to  Labor 



Ready, liable for workers' compensation benefits for the accident.  



                 The court then turned to whether Buckley's injuries arose out of and in the 



course of his employment with American Fast Freight and decided as a matter of law that 



                                                                     8 

they did.  Applying factors discussed in Estate of  Milos,  the court decided that Buckley 



being on an unpaid lunch break was immaterial because of the "strong nexus between 



Buckley's action and his employment with [American Fast Freight]."  It also decided that 



Buckley's injury was "reasonably foreseeable from his employment" because "[a] truck 



getting  stuck  in  the  snow  is  not  an  uncommon  occurrence  in  Alaska"  and  "it  was 



        7        Tuboscop e  Vetco, Inc., 9 P.3d at  1017. 



        8        145 P.3d at 537-4 1. 



                                                    -8-                                                 7380 


----------------------- Page 9-----------------------

common practice for nearby  [American Fast Freight] employees to be called to assist 



other drivers."  



                The court decided that the following facts were immaterial to the question 



of work-relatedness:  ( 1) Buckley's activity was outside his job duties; (2) the activity 



was prohibited by the contract between American Fast Freight and Labor Ready; and 



(3) American Fast Freight admitted to AKOSH that Buckley was injured performing a 



task "outside the scope of his duties."  The superior court granted summary judgment to 



American Fast Freight based on the exclusive remedy provision and denied summary 



                          9 

judgment to Buckley,  dismissing the case and entering final judgment against Buckley.  



Buckley appeals. 



III.    STANDARD OF REVIEW 

                We review a grant of summary judgment de novo.10  "Summary judgment 



is  proper  if  there  is  no  genuine  factual  dispute  and  the  moving  party  is  entitled  to 

judgment as a matter of law."11  "[A] party seeking summary judgment has the initial 



burden  of proving, through  admissible  evidence, that there  are no  disputed  issues  of 

material fact and that the moving party is entitled to judgment as a matter of law."12  If 



the moving party makes that showing, "the burden shifts to the non-moving party 'to set 



        9       The superior court wrote that it granted American Fast Freight's summary 



judgment motion and denied Buckley's cross-motion.  But the court in fact also granted 

summary judgment to American Fast Freight on the issue presented in Buckley's cross- 

motion for summary judgment, whether the injury arose out of and in the course of the 

employment.  Rather than proceeding to trial on the issue raised in Buckley's motion - 

the more common result of denial of summary judgment - the court dismissed the case 

and ordered American Fast Freight to file a proposed final judgment.  



        10      Estate of  Milos,  145 P.3d at 536. 



        11      Mitchell v. Teck Cominco Alaska Inc.,  193 P.3d 751, 757 (Alaska 2008). 



        12      Id. at 760 n.25. 



                                                  -9-                                               7380 


----------------------- Page 10-----------------------

forth specific facts showing that he could produce evidence reasonably tending to dispute 



or contradict the movant's evidence and thus demonstrate that a material issue of fact 

exists.' "13  "[A] material fact is one upon which resolution of an issue turns."14  "The 



standard for finding a genuine issue of fact at summary judgment is lenient."15  Whether 



a person  is  an  employee  for purposes  of the Workers'  Compensation Act  is  a mixed 

question of law and fact.16  



IV.    DISCUSSION 



       A.     Material  Factual  Disputes  Precluded  Summary  Judgment  On  The 

               Special Employment Relationship. 



               The  superior  court granted American Fast Freight's  summary judgment 



motion, deciding as a matter of law that American Fast Freight was Buckley's special 

employer under the test we adopted in Anderson v. Tuboscop e Vetco, Inc.17  In that case 



we adopted a three-part test for special employment relationships from Larson's treatise 



on workers' compensation: 



              When  a  general  employer  lends  an  employee  to  a  special 

               employer,    the   special  employer     becomes     liable  for 

              workmen's compensation only if: 



                      (a) the employee has made a contract of hire, express 

               or implied, with the special employer; 



       13      Christensen v. Alaska Sales & Serv., Inc., 335 P.3d 514, 517 (Alaska 2014) 



(quoting State, Dep 't of  Highways v. Green, 586 P.2d 595, 606 n.32 (Alaska  1978)). 



       14     Id. at 519. 



       15     Estate of  Milos,  145 P.3d at 537. 



       16     Nickels v. Nap olilli, 29 P.3d 242, 247 (Alaska 2001). 



       17      9 P.3d  1013,  1017 (Alaska 2000). 



                                             -10-                                         7380 


----------------------- Page 11-----------------------

                       (b)  the  work  being  done  is  essentially  that  of  the 

               special employer; and  



                       (c)  the  special  employer has  the right  to  control the 

               details of the work.[18] 



When these  conditions  are  satisfied  in relation to both the  general  employer  and the 

special employer, then both employers are liable for workers' compensation.19 



               Although  Tuboscop e  is  our  most  recent  decision  about  the  special 



employment relationship, we acknowledged in Tuboscop e that we had applied parts of 

the special employment doctrine in prior cases.20  In Cluff  v. NANA-Marriott, we stated 



that   "the   requirements   for   finding   an   employment   relationship        for   workers' 



compensation purposes between a lent employee and a special employer are stricter than 



the  standards  for  finding  an  employment  relationship  between  an  employee  and  an 

employer where there is only one employer."21   



               Determining whether an implied employment contract was formed involves 

"considering all the factors in light of the surrounding circumstances."22  "An implied 



employment contract is formed by a relation resulting from 'the manifestation of consent 



by one party to another that the other shall act on his behalf and subj ect to his control, 

and consent by the other so to act.' "23  In the special employment context, we have also 



       18      Id. (quoting 3 ARTHUR LARSON & LEX K. LARSON, LARSON 'S WORKERS' 



COMPENSATION LAW  48.00, at 8-434 (1997)).  



       19      Id. 



       20      Id. 



       21      892 P.2d  164,  168 (Alaska  1995). 



       22      Childs v. Kalgin Island Lodge, 779 P.2d 310, 314 (Alaska  1989). 



       23      Id. (quoting 9 W. JAEGER, WILLISTON ON CONTRACTS  1012, at 4-5 (3d ed. 



                                                                                    (continued...) 



                                               -11-                                            7380 


----------------------- Page 12-----------------------

noted Larson's "great emphasis on the importance of a contract for hire with a special 

employer"24 because in a special employment relationship, the employee "loses the right 



to  sue  the  special  employer  at  common  law  for  negligence;  and  .  .  .  the  courts have 



usually been vigilant in insisting upon a showing of a deliberate and informed consent 

by the employee before employment relation will be held a bar to common-law suit."25 



               The parties here disagree about the existence of an implied contract of hire 

between Buckley and American Fast Freight.26  Buckley has consistently argued that his 



employment relationship with American Fast Freight is different from the employment 



relationship described in Tuboscop e  and that no special employment relationship existed 



between  himself  and  American  Fast  Freight.    In  contrast  American  Fast  Freight  has 



argued that its relationship with Buckley falls squarely within the framework set out in 



Tuboscop e.  



        23      (...continued) 



 1967)). 



        24      Cluff , 892 P.2d at  172. 



        25     Id.   (quoting     1B   ARTHUR      LARSON,      THE    LAW     OF   WORKMEN 'S 



COMPENSATION   48.11 to 48.12, at 8-440 (1992)). 



        26     We disagree with American Fast Freight's contention that "Buckley waived 



the  right  to  claim  on  appeal  that  there  were  disputed  facts."    Buckley  argued  that 

Tuboscop e was factually distinguishable from his case because, among other reasons, 

Buckley did not report directly to American Fast Freight.  He also contended that the 

special employment doctrine should not apply to his case.  Whether these arguments are 

viewed as a dispute about material facts or the legal conclusions to be drawn from the 

facts, we consider the point adequately preserved.  Furthermore the party moving for 

summary judgment must provide sufficient admissible evidence to establish its right to 

judgment as a matter of law; it is only when the moving party makes this showing that 

the nonmoving party must provide evidence to show a factual dispute.  See Christensen 

v. Alaska Sales & Serv., Inc., 335 P.3d 514, 517 (Alaska 2014). 



                                               -12-                                            7380 


----------------------- Page 13-----------------------

                 Tuboscop e  involved two  companies,  Tuboscope Vetco,  Inc. and  Olsten 



Staffing  Services,  that  had  "a  continuing  contract  agreement  for  Olsten  to  provide 



temporary  employees to  Tuboscope,"  including  a  category of  employees  called  PTP 

("personnel  transfer  plan")  employees.27    "Tuboscope  recruited,  hired,  placed,  and 



directly  and  exclusively  supervised  PTP  employees;  Olsten  provided  the  payroll 

administration, benefits, and workers' compensation coverage for PTP employees."28  



A  PTP  employee  was  injured  while  working  for  Tuboscope;  he  received  workers' 

compensation benefits from Olsten and later sued Tuboscope.29  After adopting the three- 



part  test  from  Larson's  treatise,  we  applied  it  to  the  facts  of  the  case  and  held  that 



                                      30 

Tuboscope met all of the tests. 



                 We stated, "If the temporary employer hires, trains, employs, directs, and 



reserves the right to terminate the temporary employee, and the labor broker merely acts 



in the capacity of a payroll and benefits administrator, an employment contract exists 

between  the  temporary  employer  and  the  temporary  employee."31    We  noted  in  our 



discussion that "[t]he contract between Olsten and Tuboscope regarding PTP employees 



effectively provided that Tuboscope would interview, hire, train, and employ the PTP 

employees."32   



        27       Anderson v. Tuboscop e  Vetco, Inc., 9 P.3d  1013,  1015 (Alaska 2000). 



        28       Id. 



        29       Id. at  1016. 



        30       Id. at  1017-19. 



        31       Id. at  1018. 



        32       Id. 



                                                    -13-                                                 7380 


----------------------- Page 14-----------------------

                The  written  contract  between  Labor  Ready  and  American  Fast  Freight 



lacked several of these provisions, and the only additional pieces of evidence American 



Fast  Freight  submitted  to  the  superior  court  were  portions  of  Buckley's  deposition 



testimony, a copy of the work ticket from the day Buckley was injured, a copy of the 



"Conditions of Service" in its contract with Labor Ready, and copies of some invoices 



from  Labor  Ready  to  American  Fast  Freight,  showing  that  Buckley  had  worked  at 



American Fast Freight on November 2 1.  



                Unlike  the  worker  in  Tuboscop e,  Buckley  did  not  "interview[]  directly 



with"  American  Fast  Freight,  and  no  evidence  shows  that  American  Fast  Freight 



                 33 

recruited him.    The uncontested facts showed that while American Fast Freight may 



have  requested  Buckley  as  a  worker,  as  the  superior  court  noted,  Labor  Ready  was 



evidently not obligated to comply with the request and provide Buckley as a worker to 



American Fast Freight.  Buckley testified that Labor Ready had sent him to work for 



                                                                                                        34 

other clients of Labor Ready, even when American Fast Freight had requested him.                            



Buckley's testimony does not establish that American Fast Freight could hire him as that 

term is generally understood,35 nor does any testimony or other evidence indicate that 



American Fast Freight had discretion to refuse workers Labor Ready sent to them under 



the contract except where it determined within the first two hours of work that a sent 



worker was not qualified.  



        33      See  id.  at   1015,  1018  (noting  that  injured  worker  "was  recruited, 



interviewed, and placed in his position by Tuboscope"). 



        34      Buckley raised this issue in the superior court, arguing in his opposition to 



summary judgment that he "did not report directly to  [American Fast Freight] . . . and 

was still subj ect to assignment to other entities that contracted with Labor Ready."  



        35      "Hire" means "[t]o engage the labor or services of another for wages or 



other payment."  Hire, BLACK 'S LAW DICTIONARY (10th ed. 2014). 



                                                  -14-                                                7380 


----------------------- Page 15-----------------------

                Neither  the  contract  nor  Buckley's  testimony  clearly  indicates  that 



                                                                                       36 

American Fast Freight retained the right to  fire Labor Ready workers.                     The written 



contract between Labor Ready and its clients required the client to determine within the 



first two hours of a day whether a worker was qualified to perform the contracted work 



but  was  otherwise  silent  about  American  Fast  Freight's  ability  to  fire  Labor  Ready 



employees.   The  superior  court  cited  Buckley's  deposition  testimony  to  support  its 



decision  that  American  Fast  Freight  could  fire  Labor  Ready  employees,  but  when 



Buckley was asked directly if, when "Labor Ready guys . . . messed up, they got fired 



on  the  spot,"  Buckley  replied,  "I  don't  really  know  what  happened  to  them"  and 



commented that he was told they were sent home.  



                Buckley's other testimony is equivocal; the only testimony based on his 

direct observation37 indicated that Labor Ready employees "got sent home" after they 



"didn't want to do that kind of work," with Buckley adding, "[T]hey would just leave 



and say, 'The hell with it.'  They wouldn't even take the ticket."  While this may permit 



an  inference that  American  Fast  Freight  could  fire  the  Labor  Ready workers,  it  also 



permits an inference that the Labor Ready employees just left the j ob or that American 



Fast Freight determined the workers were not suitable during the first two hours of work. 



                There  is  also  no  evidence  that  Buckley  specifically  consented  to  the 



formation of an employment relationship with American Fast Freight.  In contrast to the 



        36      "Fire"  means  "[t]o  discharge  or  dismiss  a person  from  employment;  to 



terminate as an employee."  Fire, BLACK 'S LAW DICTIONARY (10th ed. 2014). 



        37      The  superior  court  cited  generally  to  Buckley's  deposition  testimony, 



including testimony about a "rumor," which Buckley could not verify, that some Labor 

Ready employees "got picked up at the j ob site they were on" and sent home.  In this part 

of the deposition, Buckley also repeated statements made to him by a truck driver for 

American Fast Freight.  



                                                  -15-                                                7380 


----------------------- Page 16-----------------------

worker  in  Tuboscop e, who was recruited  and  interviewed by the  special  employer,38 



Buckley was merely sent to provide general labor to American Fast Freight and did not 



consistently work for that company.  Although Buckley wanted to be hired permanently 



by  American  Fast  Freight,  nothing  in  the  record  shows  Buckley  understood  that  by 



working on assignment as a general laborer for Labor Ready, he was an employee of 



American Fast Freight at the time of his injury. 



               In  short,  viewed  in  the  light  most  favorable  to  Buckley  and  making 



reasonable  inferences  in his  favor, the  evidence  in the record  does not  establish  as  a 



matter  of  law that Buckley had  an  implied  employment  contract with American Fast 



Freight.  We therefore reverse the grant of summary judgment on the special employment 



relationship. 



       B.      Material  Factual  Disputes  Precluded  Summary  Judgment  On  The 

               Question Whether  Buckley's  Injury  Happened  In  The  Course  And 

               Scope Of Employment. 



               Buckley filed a cross-motion for summary judgment, arguing that the injury 



did not occur in the course and scope of his employment with American Fast Freight.  



Based in part on factual concessions American Fast Freight made for purposes of the 

summary judgment motion only,39 the superior court decided as a matter of law that the 



injury  arose  in  the  course  and  scope  of  Buckley's  employment  with  American  Fast 



Freight.  



       38      Tuboscop e  Vetco, Inc., 9 P.3d at  1015. 



       39      For purposes of summary judgment only, American Fast Freight conceded 



the  following:    Buckley's  injuries  resulted  in  part  from  negligence  on  the  part  of 

American Fast Freight and its employees; Carroll and Hawkins violated company rules 

when they tried to free the truck on their own and when they allowed Buckley to help; 

allowing Buckley to use tire chains violated the contract between American Fast Freight 

and Labor Ready because it involved operating dangerous equipment; and Buckley and 

Hawkins were on an unpaid lunch break at the time of the accident.  



                                              -16-                                          7380 


----------------------- Page 17-----------------------

                 Buckley argues that under Estate of  Milos v. Quality Asp halt Paving, Inc.40 



there is a material factual dispute about whether the accident happened in the course and 



scope of employment.  He points to the following facts to support his argument:  (1) he 



was on an unpaid lunch break; (2) he was motivated to help his friends (the other truck 



drivers); and (3) because the workers were violating company policy and the conditions 



of service agreement between Labor Ready and American Fast Freight at the time of the 



accident, their actions should not be considered to be in the course of their employment.  



                 American Fast Freight maintains that it met the summary judgment standard 



and there is no material factual dispute.  It contends that Buckley's "clock status," i.e. 



whether he was on or off shift, was irrelevant because other factual circumstances tied 



his activities at the time of the accident to work with American Fast Freight:  the accident 



occurred in the middle of the work shift, on a lunch break, and at a location that should 



be considered a j ob site because of the nature of the work.  American Fast Freight argues 



that  the  activity  Buckley  engaged  in  was  work-related,  not  purely  personal,  and 



benefitted American Fast Freight.  It also asserts that the activity that caused the accident 



was reasonably foreseeable.   



                 The  parties  agree  Estate  of   Milos  governs  this  case.    In  that  case  we 



reversed  a  summary judgment  determining that  an  employee's death  occurred  in the 



                                              41 

course and scope of his employment.    We considered the definition of "arising out of 

and in the course of employment" in AS 23.30.39542 and also identified the following 



        40       145 P.3d 533 (Alaska 2006). 



        41      Id. at 54 1. 



        42       In relevant part, AS 23.30.395(2) defines "arising out of and in the course 



of employment" as including "activities performed at the direction or under the control 

of the employer; and employer-sanctioned activities at employer-provided facilities; but 

                                                                                           (continued...) 



                                                   -17-                                                 7380 


----------------------- Page 18-----------------------

factors  from  our precedent  as being relevant to work-relatedness:   (1)  "whether  'the 



accidental   injury   or   death   is   connected   with   any   of   the   incidents   of   one's 

employment' ";43 (2) "whether the employee's activity is 'reasonably contemplated and 



foreseeable by the employment situation' ";44 and (3) "whether the activity benefits the 



employer in some way."45  



               Although our discussion in Estate of  Milos focused on the employee's clock 



status at the time of the accident, we also considered the nexus between the activity that 

caused his death and his work.46  The accident in Estate of  Milos happened at a work site 



when an employee rode an employer-owned ATV to the top of a gravel pile underneath 

a live power line; his head  contacted the power line,  and he was  electrocuted.47  The 



parties in Estate of  Milos principally disputed whether the possibility that the worker was 

"off-shift"  at  the  time  of  the  accident  precluded  summary  judgment.48    But  three 



supervisors testified that the employee's use of the ATV was unauthorized - including 



one who said he would have fired the employee for using it - so we also discussed the 



       42      (...continued) 



excludes . . . activities of a personal nature away from employer-provided facilities." 



       43      Estate of  Milos, 145 P.3d at 538 (quoting M-K Rivers v. Schleif man, 599 



P.2d  132,  134-35 (Alaska  1979)). 



       44      Id. (quoting M-K Rivers, 599 P.2d at  136). 



       45      Id.  (citing Luth  v. Rogers  & Babler  Constr.  Co.,  507  P.2d  761  (Alaska 



1973)). 



       46      Id. at 539-4 1. 



       47      Id. at 535. 



       48      Id. at 537. 



                                               -18-                                            7380 


----------------------- Page 19-----------------------

impact  of  the  decedent's  unauthorized  use  of  the  ATV  on  the  question  of  work- 

relationship.49  



                 Like  Estate  of   Milos,  this  case  raises  questions  about  clock  status  and 



violations of work rules.  And as in Estate of  Milos, the superior court broadly construed 



our precedent and determined that the work-relatedness of the accident made contested 



                       50 

issues  immaterial.      We  did  not  need  to  decide  in  Estate  of   Milos  whether  the 



unauthorized use of the ATV alone would have taken the accident outside of the Act's 



coverage because we inferred that the estate conceded that "lack of authorization  .  .  . 

alone" would not do so.51  And the employer agreed there was a genuine factual dispute 



about whether it authorized the ATV's use.52 



                 Turning  to  Buckley's  case,  we  agree  with  American  Fast  Freight  that 



Buckley's being on an unpaid lunch break does not determine whether the injury arose 



in the course and scope of employment.  In Estate of  Milos we agreed with the employer 



that   an   arbitrary   line   "making   all   post-shift   accidents   noncompensable"   was 

undesirable.53  And we looked at the "sensible compromise" in Larson's treatise, which 



considers whether the employee's activities that led to the injury are "  'necessary' or 



        49      Id. at 535, 538-40. 



        50       See  id.  at  536  (noting  that  superior  court  determined  estate's  factual 



contentions were immaterial because of strong relationship between employer's actions 

and worker's accident). 



        51      Id. at 538 n.11. 



        52      Id. at 539 n.16. 



        53      Id. at 540. 



                                                   -19-                                                 7380 


----------------------- Page 20-----------------------

'reasonably incidental' to [his] work."54  Under this rule, the conceded fact that Buckley 



was on an unpaid lunch break does not take the accident outside the course and scope of 



employment.  Larson's treatise indicates that lunchtime injuries occurring at a work site 



generally  are  compensable because the  "course  of  employment  should extend to  any 



injury  which  occurred  at  a  point  where  the  employee  was  within  range  of  dangers 

associated with the employment."55  Buckley's work at American Fast Freight on the day 



of the injury necessarily took him outside of the warehouse, so his work site included the 



locations to which he accompanied Hawkins.  The accident happened at such a location, 



so his clock status was largely irrelevant.  



              Buckley's activities at the work site, however, are not so easily classified 



as immaterial to the Act's coverage.  In Estate of  Milos we discussed both the statutory 



definition of "arising out of and in the course of employment" and factors we had applied 



in earlier cases related to this definition when discussing whether there was a "sufficient 

nexus" between the employee's actions and his employment.56  Here the superior court 



looked at the factors from Estate of  Milos but did not separately consider the underlying 



statutory definition.  The factors complement the definition rather than displace it; we 



focused on them in Estate of  Milos because we determined that the statutory definition 



       54     Id.  (quoting  2  ARTHUR  LARSON  &  LEX  LARSON,  LARSON 'S  WORKERS' 



COMPENSATION LAW  2 1.06[1][a] (2005)). 



       55     2 ARTHUR LARSON ET AL., LARSON 'S WORKERS' COMPENSATION LAW 13-1 



(2018);  see  id.    13.01[5],  13.05  (providing  explanation  of  work-relationship  of 

accidents happening on unpaid lunch breaks and reasons for applying same rules to lunch 

breaks as those that apply to time before and after work). 



       56      145 P.3d at 538-39, 54 1 (quoting AS 23.30.395(2)). 



                                            -20-                                         7380 


----------------------- Page 21-----------------------

"provide[d] little guidance" in resolving the question of work-relationship because of a 

permissible inference that the activity had not been sanctioned by the employer.57  



               Under AS 23.30.395(2), "arising out of and in the course of employment" 



includes "activities performed at the direction or under the control of the employer" and 



"employer-sanctioned activities at employer-provided facilities."  We have construed the 



statute broadly, as the superior court noted, but we have never addressed the question 



confronting us here:  does an injury that happens when a worker engages in an expressly 



prohibited activity fall within the statutory definition of "arising out of and in the course 



of employment" as a matter of law?  The superior court decided it was immaterial that 



Buckley's  activities  violated  the  contract between  American  Fast  Freight  and  Labor 



Ready.  It also deemed immaterial American Fast Freight's representations to AKOSH 



investigators both that Buckley's duties were "limited to loading and stacking boxes and 



sweeping [the] floor" and that "no one but [a] driver is allowed to put chains on."  But 



those facts and the reasonable inferences that can be drawn from them are material to the 



question of work-relationship. 



               Our discussion in Estate of  Milos suggests the outcome we reach here.  In 



Estate  of  Milos  the  employer  argued  that  the worker's  death  arose  out  of  and  in  the 



course of his employment as a matter of law, but we questioned whether the employee's 

actions could meet either part of the statutory definition as a matter of law.58  As we said 



there, for an activity to fall within the statutory category of "activities performed at the 



direction or under the control of the employer," "the activity must, at a minimum, be 



        57     Id. at 538-39. 



        58     Id. at 538-39. 



                                               -2 1-                                          7380 


----------------------- Page 22-----------------------

authorized by the  employer."59   Similarly, the  other  statutory  category -  "employer 



sanctioned activities" - presupposes that the employer allowed the activity.  We cannot 



see how an activity that is expressly prohibited can as a matter of law fall within either 



category. 



               The superior court based its decision on its understanding of our precedent.  



But the cases the superior court cited involved work activities that were not expressly 



prohibited even if those activities were not part of the employee's regular j ob duties.  In 



those cases we considered whether the activity the employee engaged in was "reasonably 

contemplated and foreseeable by the employment situation."60  For example, in applying 



the "remote  site" doctrine, we decided that an employee's trip to town to negotiate a 



paycheck was reasonably foreseeable and that an injury that happened while en route 

was thus compensable.61  In  Witmer v. Kellen, a case discussed by the  superior court 



here, we decided that a car trip taken by William Witmer, the owner and sole shareholder 



of a corporation, with an employee of his corporation was work-related as a matter of 

law, despite Witmer's contention that the trip had no business purpose.62  We said that 



Witmer's  "position  as  president  and  sole  shareholder  .  .  .  cannot  be  ignored"  and 



observed  that  he  had  "a  great  deal  of  flexibility  and  discretion  regarding  his  daily 

activities."63  In fact, we noted that as the employer Witmer "presumably ha[d] the sole 



        59     Id. at 539 n.16. 



        60     M-K Rivers v. Schleif man, 599 P.2d  132,  136 (Alaska  1979). 



        61     Id. at  134-36.  



        62     884 P.2d 662, 666-67 (Alaska  1994). 



        63     Id. at 666. 



                                               -22-                                           7380 


----------------------- Page 23-----------------------

authority to define or control his daily activities."64  In neither case was the employee's 



activity expressly prohibited by contract or otherwise. 



               American  Fast Freight  asks us to  adopt  a  "modern rule"  from Larson's 



treatise on workers' compensation that brings within workers' compensation coverage 



"any activity undertaken in good faith by one employee to assist a co-employee in the 

latter's performance of his work."65  The superior court quoted and applied this rule in 



deciding that Buckley's injury arose out of and in the course of employment as a matter 



of  law.   But  Larson's  treatise  indicates  that when  an  employee undertakes  an  action 



"outside his regular duties [that] is positively prohibited, it will probably be held to be 

outside the course of employment even if designed to advance the employer's work."66  



               American  Fast  Freight  characterizes  Buckley's  activities  as  merely 



"mov[ing] outside his regular j ob duties to assist a co-worker."  But there is a difference 



between performing work outside one's regular duties and engaging in actions that are 



specifically prohibited by an employer.  Larson's treatise provides a number of examples 

and exceptions to the general rule,67 and it distinguishes between violations of rules that 



"define the ultimate  'thing' which the  claimant  is  employed to  do"  and violations  of 



those  that  "describe  the  methods  which  [a  claimant]  may  or  may  not  employ  in 



        64     Id. 



        65     3 LARSON, sup ra note 55,  27.01[1], at 27-2. 



        66     Id.   27.01[4], at 27-6; see also id.   33.01[4][a], at 33-7 (observing that 



modern rule that brings work done outside regular duties within compensation coverage 

"assumes that no prohibition is thereby infringed"). 



        67     Id.  27.01[4], 33.01[4], 33.02[1]. 



                                               -23-                                           7380 


----------------------- Page 24-----------------------

accomplishing that ultimate  'thing.'  "68   Only those  actions  encompassed  in the  first 



category   are   with   any   consistency   considered   outside   the   scope   of   workers' 

compensation.69 



               The distinction Larson's treatise makes is an important one.  American Fast 



Freight argues that the Act "establish[es] a reciprocal relationship between an employer 



and  employee"  and  that  allowing  employers  and  employees  to  avoid  the  Act  "by 



claiming that a term of the employment contract was breached would invite frequent 



litigation," undermining the purposes of the Act.  Deviations from work rules that result 



in injuries may still occur within the course of employment, but the broad rule urged by 



American Fast Freight that completely disregards the extent of the employee's departure 



from his duties is contrary to the statutory definition in AS 23.30.395(2), which requires 



a nexus between the terms of the employment and the activity resulting in the injury. 



               Here American Fast Freight conceded for purposes of summary judgment 



only that the activity leading to Buckley's injury was prohibited by the contract between 



American  Fast  Freight  and  Labor  Ready  because  it  involved  operating  dangerous 



machinery.    Furthermore  American  Fast  Freight's  representations  to  AKOSH  that 



Buckley's j ob duties were "limited to loading and stacking boxes and sweeping  [the] 



floor" and that "no one but [a] driver is allowed to put chains on" permit the inference 



that Buckley's activities were expressly not allowed.  The superior court decided that the 



injury was reasonably foreseeable, but our precedent requires consideration of whether 



       68     Id.  33.02[1], at 33-10; see also Merchant v. Pinkerton 's Inc., 407 N.E.2d 



443,  445  (N.Y.  1980)  (distinguishing between  "rule  defin[ing]  what  the  employee's 

duties are" and one defining "how those duties are to be performed"). 



       69      3 LARSON, sup ra note 55,  33.01[4], at 33-7. 



                                             -24-                                          7380 


----------------------- Page 25-----------------------

                                                                         70 

the activity leading to the injury was reasonably foreseeable.    Thus the question here 



is whether Buckley's participation in laying tire chains was reasonably foreseeable given 



the  prohibition  in  the  contract  and  American  Fast  Freight's  apparent  rule  that  only 



drivers could use chains.  



                We recognize that American Fast Freight might have benefitted from the 



workers' actions had the accident not happened and had they freed Carroll's truck, but 



we  cannot  disregard  an  employer's  interest  in  exercising  some  control  over  its 



employees'  activities.    We  are  unable  to  adopt  a  rule  of  law  that  brings  expressly 



prohibited activities within the statutory definition of "arising out of and in the course 



of employment."  There may be factual situations that could bring this type of action 



within the scope of the Act - Larson's treatise summarizes cases illustrating the fine 

lines courts have drawn between rules about duties and rules about methods71 - and it 



is certainly possible that as a matter of fact Buckley's injury was not a violation of the 



contract or was otherwise sanctioned by his employer.  But because we are reviewing a 



ruling on summary judgment that was granted on conceded facts, we must assume that 



the actions leading to the injury were prohibited.  We hold that such actions are not as 



a matter of law within the Act's scope. 



V.      CONCLUSION 



                We REVERSE the grant of summary judgment to American Fast Freight 



and REMAND the  case to the trial  court  for  further proceedings  consistent with this 



opinion. 



        70      See Estate  of  Milos  v.  Quality Asp halt Paving, Inc.,  145  P.3d  533,  538 



(Alaska 2006); M-K Rivers v. Schleif man, 599 P.2d 132, 136 (Alaska 1979); Marsh v. 

Alaska  Workmen 's Comp . Bd., 584 P.2d  1134,  1136 (Alaska  1978).  



        71      3 LARSON, sup ra note 55,  27.01[4], 33.01[4], 33.02[1]. 



                                                  -25-                                              7380 

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