Alyce Couch v. United States

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.

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