into it despite the nd appearance before this court generally and circuit judge short specifically in this matter it's ultimately a simple court case in which it could best rian was struck and killed by a vehicle  and although i'm not in the habit of quoting dissenting opinions as i was contemplating what to say to your honor's this morning your employee someone who's not a vehicle it's a vehicle not vehicle collision here although not my habit of quoting dissenting opinions as i was contemplating what to say to your honor's that hasn't been extensively briefed i was struck by all things by the dissenting opinion of justice stevens in anderson vs liberty lobby one phrase in it where he expressed a concern about what the then new rule might give rise to about the idea of what his quote was honor i wish he was that simple but when you look into the record of what was happening at the facility malott was hired at a different time he was on a different shift he was actually spent most of his time up until i believe it was a few weeks before this incident on what they call the man left line which was a type of crane that was not operated by someone sitting in a cab it was operated by a remote sometimes called a cherry picker the way in which these different companies  were operating at the facility is not at all clear certainly all of the parties involved were receiving checks that said grow but at the end of the year receiving w two statements with employer identification numbers for mad to walk well we know from the record though that in two thousand and thirteen there was a change in in who the paying agent was we know the chargeback system and all of that how the corporation and the subsidiaries worked that out so we're aware of all of that that but how does that change let's talk about the functions test right to that group how to function it made these hydraulic cranes you know talk has overwriting of other businesses it makes refrigerators for food services it makes  aren't you saying the minute talks would go their name in her copyright that because of those the appearance of those three things on the documents that that by necessity suggest that manna talks functions included designing manufacturing and selling of cranes in that what you're arguing it's more than that judge it's more than that their own words in their papers are we as a matter walked design sense but it was documentation which they were claiming control over all of these entities one of which was grove judge the words grove us l l c don't appear anywhere in those documents that they don't appear anywhere in employees and described how the safety tiriel were created by groove employees how a group supervisor this is through their testimony manage what occurred at the sa issue is that although they were all receiving checks that said grove there w to use said manitowoc now that change didn't happen until after they received notice of this claim and that's brief that link but the every person who comes on to the facilities issue to man themselves indicate that they are manitowoc if they apply to manitowoc location a jury should be entitled to look at the document and listen to the testimony if they believe the testimony then certainly that my client will not win the bunch who is the vice president for man to a company initiated the process to terminate mr mellot in this particular case we are involved on that level but he suggested that that occurred they were not actually did testimony judge was that he initiated the investigation and then mr bryan smith who was the head of the human resources for man to walk america has made the decision to terminate mr mellon after operative pleading now is the amended complaint whether what whether it was the reason for the decision to change it is interesting but not responsive to what i think judge friends are wrestling with is that very representation  and the evidence that we found from mr grimm boy suggested that he was a man to walk a boy which is why i sought and received permission to amend the complaint but even if both parties are deemed to be growth that doesn't  because judge were specifically dealt with a case of similar nature involving a parent in subsidiary in cunningham versus tutor perini building that particular case dealt statutory employer issue that's not present here but these two entities are parents of severe and you correctly held that the burden of proof is the ordinary elements of negligence now in that case you found that the non immune entity would not be liable to mr conning him because there was no evidence of safety policies and procedures in place from that entity at that location and you may face a similar challenge if our court were to decide that the man talk is not the employer because your alternative theory of liability as i understand it as it relates to manitowoc is not that's correct and if you're going to proceed as you know from our prior peer carpio's opinion in this very case it has to show sort of direct participation and you're going to need that point in the record where is there direct participate evidence of direct participation that led to the incident that led to the unfortunate and has that evidence judges both in manitowoc policies and procedures and also in the expert reports that were produced and i see that i've instructed you if i could if  the best argument on that is that they were running the facility of the duty i guess i should add a duty other than the typical duty that a parent would to police of subsidy or they were running the facility they were it's like issuing the policies both safety and the manner in which the work was to be performed and that those policies were insufficient and if they weren't properly enforced based on the expert testimony that we provided if we were to agree with you that grievously was man have what you how you can prove negligence you just said that all the negligence evidence that judge fisher asked you about demonstrate manito up issued the policies were in the facility if we were to conclude manito it was the employer hers i'll get right to that point the questions you ask counsel for plaintiff and the evidence that he thinks preclude precluded summary judgment is because the word manage walk appear on certain documents if that's all we had in this case perhaps perhaps they might be able to overcome a summary judgment but facts were put on to the record explaining those documents important for shoes that would point who give me on who employed who actually was involved and the firing and that is not accurate and the testimony mr smith who is the human resources director actually testified that when you asked him to investigate the accident but he said it was his choice to terminate mr mallett upon the advice of counsel and with the approval of the operation on the face present of operation of her what did not was not in any way in the firing of mo correct your honor but it for why would they have an interested in having  investigated because their parent company and they are concerned about what goes on with their subsidiaries and i didn't didn't mr smith have to report back to them his findings and and confer with them about his proposed recommendation of terminations he did not say he c your honor there are two different people and he could not remember which one i'm so i'm not sure but they were they had an office at shady grove which is where mr smith also had an office at talk about mr smith mr smith worked at doesn't the fact that he described himself as working at different locations and having responsible different places suggest that he wasn't working for growth but was working for me in a toeic and as a result it was manna toeic through him that led to distant decision on terminations that's a good question mr smith has to fight when he originally was employed and hired he was only for grow us l l c and then after a few years they also asked him to take on these additional positions he didn't give up the people involved in this incident yes he did have another possession for manage walk when he would go out to the different places but in this case there's nothing it says what one person can't have separate roles your honor the record evidence would demonstrate who was his was testimony about how that happened why it changed there was a rd party administrator and you know counsel for a plaintiff if they thought that was suspicious or what have you could have taken the deposition of any of those people  we that managed to walk was the employer and that meant the group would not be the employer for purposes sued but you would have some and they would probably go to trial the gale here on workers compensation immunity because they are the employer now under the dual capacity doctor and because they were the employer i know sometimes if someone's for instance is employed by say  h if they're working there at the time then workers compensation applies if they're visiting their injured then it wouldn't but that's not in this case i think that they have experts and of course we have a position to will ably be able to distinguish the position of his quiet in that set of circumstances but i guess i'm a little bit surprised by your answer that you would concede that corporations they are separate just perfect instance we at swap cannot take advantage of the workers compensation and unity of growth that was actually found on the st appeal that you know they did there's no intermingling that would only be under an alter ego theory your honor which is not present in this case thank you have controlled the manner in which these people did their work which includes safety policies and procedures then they went after grove for negligence there would be no duty or because the group did not control the manner in which these workers worked at the facility i don't i'm not sure what the plaintiff is attempting to do it's certainly not reversed piercing or appears to the corporate brand with kind of an end around type situation where he's trying to get to grove because all the evidence all the facts point to grow as the entity in control and the entity that had the duty to provide  refuted were contested every fact that's the appears in this case is you know we're saying that it's in the light most favorable to the appellant and none of those facts none of the facts with the grove employed growth employee said they were a group employees where the grove employees said that all pot safety policies and procedures were implemented and and designed by group so the jury had a chance to decide whether they had their understanding is corroborated in some way because one could look at all these documents the operating manuals who to call if you're unhappy with the hydraulic crane you buy the safety materials all  paychecks and the administrative functions of the manito our company as the parent would ministry of functions including payments they issued paychecks but all those paychecks any money expended by the man a tow or company was then charged back account reconciliation back to the subsidiary but why why when  fact because none of those five because there certainly genuine well they they certainly not material because branding him logos and an insurance company not materialised who pays you i mean well well it's really not because there was no evidence presented my opponent to contest the fact that growth actually paid everybody because of the account we conciliation charge but now that is so i think that's not what you're saying is there's no evidence that's been presented by groove to dispute that there was a charge back to grove and no there is there is likewise there's no evidence to know there is because the testimony and affidavits d of the people who were deposed laid that all out that this is the way the court and this is the way most large corporations are structured the parent company does the administrative duties their name quite possibly and most likely appears on the paycheck but the money the actual money is charged back with a count reconciliation to the subsidiary group was charged back so any money that was paid to any of these workers at the shady grove facility was charged back to grow that's just the way that system works and  that way as a district court with a functional analysis test that was announced that mohinder judge schwartz right that doesn't even come in if the functional analysis test is conclusive then there is no in dishy of control who what growth here's gross function this is from plaintiff's amended complaint paragraph fifty four at all times relevant here to groban gauged in the design and factor distribution of a diversified line of lifting solutions including mobile telescope creams common specifically designed known as the grow grow mobile wheel mounted i call a crane the control and under functional analysis step it up doesn't even come into play here i mean if it's recommended and we had to parry company and that recommendation carried out you know you don't believe that there is actual control over what occurs in groups property no i don't believe that's control recommendation by them you know which may or may not be followed by grove group is a separate legal entity all the subsidiaries are separate legal entities the way corporate law works is that the parent has certain duties responsibilities the subsidiaries do all separate and all the stink in a legal sense i mean ask you the question in question as m environment a shady grove by putting his name and logo on the work safety documents no that's just low point branding marketing all the grove employees that were deposed that were asked got issued those j s a's minute walks a logo was on them but that's all it was on their logo d i had started to ask you about functions that rove provided and you said quoting back to the complaint does in a corporate structure like this and that's what did it matter talk did not produce any product they did not design any product they did not manufacture any prop they were they were acting as a typical design manufacture absolutely they were both somebody in the customer acceptance center and grow in a facility that is owned by grow and grow as a legal and he had control over those one final question just should understand the picture it is your answer to the fact that managed to walk near designed manufactured or sold d the crane i hope not use all my five minutes by service will answer any questions that your honour's have i do want to address the question that was raised about manage to walk owning the facility and to get there your honour's have to look because the answers were not forthcoming  this covering the case but if you look at the actual filings for the s c c were there reporting manufacturing and office space own ingenuity growth over the years that number changes it increases and that corroborates in corresponds with testimony about manitowoc building additions at the facility if that if if the idea is well that numbers just representing groves interests in the land land is a fixed quantity the square footage of the land as the square footage of the facilities that are making the grains you know it's one of those it looks like a duck and it sounds like a duck it's probably a duck not that we understand it a little bit better because this is nothing to do with actual navy factures this was an accident that occurred when somebody driving or operating a crane unfortunately resulted in a worker's death it was part of the manufacturing process judging it was actually being done pursuant to a manufacturing work instruction that was easy because they were testing common place or proper but the underlying issue is that the money is all managed walks it's all men and who walks money and may be attributed to grow or another subsidiary by an accounting function or a target back but the actual process of the money is it's manitowoc money and that's what's being paid to these people now it may make their accounting simpler to use these fictional charge backs but in undertaking to be the benefit it's simpler accounting they're exposing for everything that happens at every subst property not as judge i would hope that the parent would be acting as an administrative hub with bank accounts that were owned and operated and controlled by the individual sups controlling the other subs bank accounts paying to and from those accounts rather than from the centralized parent account and issuing an iou were you or me back out of our main account but and that's how it was done here is mad walks money did something gets paper grow manitowoc back that's not what happens now to walk pays the bill and on their ledger they say gross you owe us this expense evidence that says that there was no money move because i remember seeing a document that like had certain working hard back on it as if you're going to have to pay us back and that's what it says and that's what it sounds like but if you look at the deposition testimony of mr claiborne who's their witness he says the money never moves no money moves and that's in the record judge and i didn't address it the st time around but it's still an issue in the case with the question of walk concerning matt who walks deemed admission by claiming to be the employer in the workers compensation case is this was addressed in the reply brief the proper procedures were filed followed to make any so there they can still be disclaim responsibility of the worker's compensation law by statute drugs they're not only days after filing the notice of temporary compensation payable they waited almost two years to unilaterally file an amended notice temporary compensation payable the process factually change it requires a petition and hearing which now almost six years later they haven't undertaken to