thank you your honor may please the court my name is marc sonic with me today is mr matt overland mr overland was instrumental in the preparation of the brief and i'd like to acknowledge his contribution at this time plaintiff thomas is a citizen of indiana burnham trucking says that it's incorporated in delaware yes thomas has asserted throughout this litigation  only one employee located in indiana that would mean that burnham trucking expressible place of business is in indiana and we therefore don't have complete diversity of citizenship burn trackings brief asserts but does not explain the assertion that the principal place of business is in illinois and i have some difficulty with that where do you think its principal place of business is and why business of a company with only one employee is in a place holder than the location of that employee i certainly look forward to hearing a response that if we turn back to the merits  i would say that the again the district court care falls into two categories one is that the court concluded there was no duty because the contract placed all responsibility for safety on p that it concluded that thomas was the borrowed servant of vernon the st issue really breaks down into two components or at least the air breaks down into two components the st is the court concluded that again all responsibility was in the oversight for the drivers and was with p t o and that was based on the terms of the contract but that is not what the country is when we look at safety the issues of safety on the country provides that burnam bears ultimate responsibility for compliance with the centrally federal and state safety regulations and then it goes further  p t o from the same responsibilities it says that p t o under the department of transportation in interstate commerce commission regulations has no duty for no legal responsibility for driver's compliance with those certainly i think the term responsibility in each of those provisions of the contract is synonymous with the concept of duty and so ready while the district court concluded just looking at the contract that the duty lied with o if we do look just at the contract there is language from which a jury could conclude that duty lied with burning and there certainly in that context when the co makes that decision as to what duty whether there is a duty the court should have examined those provisions and concluded that that duty under the contract lived with p t o but even if that is tr even if the district court is true in its conclusion that the contract provides that the duty for safety lies with p t o the contract is not the final determine or of whether there is a duty n p t the mortgage consultant case draws what i think is a very important distinction between contracts or claims that are based in contract and claims that are based in tort if in fact this was a contract based claim the district courts analysis may have been correct but as we looking at the complaint and as we know from the allegations this is a tort claim and under the mortgage consultants c indiana supreme court noted that when it is a tort or statutory claim the inquiry does not end with the contract it goes on to look at other factors the contract being what one factor that the co consider in assessing whether there was or was not a duty and then how far that duty goes and the other factors that let me come back i was a little surprised what you said about jurisdiction your brief affirmatively asserts that burnham's principal place of business is in illinois while you're on it is the basis for that assertion the testimony of their employees or their the testimony of their people we have no independent there's every lawyer if you told me on your feet you genuinely believe their principal place of business in indiana you had an ethical duty to tell that us not hide it until or of business is in illinois period and now you tell me at oral argument you don't believe what you represented to the court that's a serious problem well it's certainly not my intent in any way to misrepresent my position to the court i think the issue of jurisdiction we've certainly brought up in our doctoring statement in the court asked for supplemental supplemental docketing statement to be filed on behalf of the defendant or the a happily that was done and those representations have been made which are simply there so for me there is simply a contested issue as to whether where they are located if your brain doesn't say that's a contested issue well your honor and then that is my or i'm not being as clear in th brief as i needed to be on that particular point but returning now to simply the issue of the contract again the contract is not determinative in the issue of tort cases and the other factors that the court should have examined in that context are the factors that are listed in the hale case and in that particular case the court the in the ever supreme court with seven factors as to whether the borrowed servant or required employee or loan servant doctrine would apply and if the court had analyzed those it is clear that there was a question of fact as to whether mr bishop mr jackson and mr wharton were the that indirect ability to remove employees is tantamount to the right of discharge and i would suggest that in fact when we look at the indirect right of discharge there is was evidence on each one of them from which the court could have concluded that effect there was a genuine issue of material fact as to whether there were not employees on the last point about the court in the district court level concluded that there mr thomas was a in fact a borrowed servant of burnham's that was never argued in the district court and there is evidence that mr thomas was not borrowed servant of burden but even if there was that was a determination that the jury should have been permitted to make and was certainly not appropriate for summary judgment of take the remaining thirty seconds  good morning your honour's early afternoon may please the court my name is katherine miler i represent britain trucking in this matter judge easterbrook i understand we want to immediately turn to your questions about a subject matter jurisdiction and i have to apologize to the court for not having brought certain of the documents from the record with me but in response to the court's question about the principal place of business and whether or not vernon trucking was a resident and citizen of indiana at the relevant time the  and that is you know that was the problem this began in state court that's correct it has to investors from illinois but that's not relevant it would be relevant if it were a limited liability company but it's a corporation and so we need to know if it's a principal place of business daws it have any employees you know in order and it short yeah you know in order and i apologize to the court and your honor i certainly appreciate the offer that's a legal question that needs to be resolved separately from birds because words didn't deal with that rich corporation and got employees all over the world but so far as anything in these papers  say trucking has employees and only one state and that's indian and i appreciate and will certainly plan to file a supplemental brief pursuant to the court's instructions on on dates for that but if i could just add one thing to that your honor that is  officer so the president the secretary and the treasurer not the vice president as murchison who is the lone employee in indiana was the vice president but the remaining officers are identified at that location at oneself dearborn that's important here and certainly we will address that further in supplemental briefing because there were specific decisions being made about burnham trucking both in terms of scope what exactly burnham trucking will be used for and i don't know ready where it is what i know is that we need more information to know where it is right if it's got a person called the president that's probably an employee even if he gets no salary but we need to know so that we can make this judgment  where was the corporate headquarters understood your honor so we will certainly do that and we will include both answers to the court's specific questions on the information about the documents that were fired filed as indiana  reports i'm happy to answer additional questions from the court on this point otherwise i'll turn to the substance of what will be better off with paper later very good thank you honor turning to the substance of the plaintiff's argument the district court's ruling should be affirmed burning trucking was entitled to s contract with burnham trucking burnam trucking provided certain equipment or in a mirror or should have known that the equipment provided to mr thomas was somehow inadequate were defective and part of trucking was allegedly negligent in failing to exercise reasonable care the problem with those claims here is that as mr thomas admits in his complaint he was an employee of a different company p t o and p t o had a contract as an independent contractor with burnham trucking that contract describes the specific rights and obligations and duties exchanged by those two entities under any and under indiana law this is hale versus our donnelly not hail the case that discusses borrowed servant dr underhill versus r r donnelly the indiana courts have made clear a principal is not liable for the alleged negligence of an independent contractor so on that basis alone setting aside the further analysis the plaintiff raises on that basis burnham trucking is not responsible for the injury suffered by a p t o employee unless there is an exception to that rule which applies there are certain exceptions that are described one of which concerns the contractual obligations between those parties the contract in this case between p t o and burnham identifies no obligation which would create duty owed by burnam trucking under either general common law principles in indiana or under the borrowed servant doctrine more specifically the district court correcting analyzed to those questions and looking specifically at the language of the contract it's clear that p t o and burnham agreed p t o would employ any person employed by t e o piskies me by p t o would be deemed soley p t o s employee that is pacific language in the contract and also that the relationship between p t o and burnham shall quote in no event be construed to be that of principle an agent master and servant or employer and employee furthermore pursuant to the contract p t o agreed that it would quote have the sole responsibility for all aspects of the employment relationship including but not limited to hiring supervising or excuse me represented p t o p t o witnesses in this case testified that they acted in accordance with that contract their conduct was completely consistent with that that p t o was responsible for hiring employees for discipline and employees for providing them with safety training and for providing them with the equipment they were required to use in the course of their employment it was entirely consistent with that contract and with that in mind there also could have been no liability no duty flowing from p t o to burnham trucking through the borrowed servant doctrine the borrowing servant doctrine walks through seven different seven different  categories seven different points to evaluate that are considered whether or not there could be some sort of an a relationship a duty that flows to the other employer and they're not satisfied here plaintiff counsel mention them all run through them very quickly the right to discharge an employee here the testimony is clear that although burnham truckin could make an observation about an employee ultimately p t o hired all employees and that included walking  employment application process and through the process of testing employees these were truck drivers they had to demonstrate that they were capable of driving the machinery at issue here and also that p t o was responsible for making employment decisions if they wanted to terminate employee even though burnam trucking may have some sort of a comment ability to comment on that firm trucking did not make those decisions p t o did there's no dispute about mode of payment p t o paid its employees there's no question here the supplies tools and equipment were all supplied by p t o p t o s director of safety made decisions about what materials to supply burnham paid for the that equipment but made no decisions about what to order the parties believe about their relationship as demonstrated through the language of the contract and there has been no disagreement from any of the p t o employees about the context of that agreement or whether or not it was complied with who complained controls the means and methods in this case the testimony was clear means and methods of p t on please doing their jobs was controlled by p t o management the district or properly evaluated all of that and determined that based on these factors there always looking at this is everything is already completed if you have workers compensation in whatever injury and medical it cetera is covered and that's the reason they have worker's compensation because he  from the negligence issue you know that we're still arguing about who employed him and maybe nobody paid those things i don't know none of that as as i understand it none of that is that issue your honor that is typically the context of a borrowed servant d claim is determining who's responsible for workers compensation payments that's not the claim here the plaintiff as best i can tell now certainly cleanness counsel will speak to this i don't know that the plaintiff has ever filed a claim under workers supplemental briefing but i'm a little concerned about how much it's going to help us based on the assertions that have been made so far so i understand that you claim that the principal current i just concern that we're have not been served sort of well here on this issue and we've spent time on merits which may or may not have been time well spent but just what kind of  i believe it's the secretary of seen any and i apologize if that's that that the business licensing and to team i also intend to discuss with my client if i can obtain an affidavit from my client regarding employment that's exactly what you were speaking to judge easterbrook i want to be able to identify i can tell the court right now the names of the individuals who are identified as burnham trucking xp principles they're listed on burnham trucking square brick application but i want to be able to what is your exist that i certainly misspoke my purpose in explaining that you judge flom was simply to state in response to what's on their website i don't know that burnham trucking has a website at this point because it is an active and i will certainly rock it  supposed to be brought and prosecuted in the name of the real party in interest and the to be clear the change in status occurred in the middle of this litigation i absolutely understand what you're saying judges and there should have been a motion to substitute the real  and i will certainly i will certainly see to address that question in january of seventeen berman change of status would be india and the secretary of state right that's correct yes your honor in which we lay out what we believe to be the basis for the contention that indian it is the location for burnham as to the comments about the contract the problem with the contract is what was written was not what was done it says that the fields responsible for hiring but in fact burnham influence those decisions and directed those decisions it says p t o directive the employees there's evidence of this merkerson gave them assignments including developing the very safety program terminations they directed the termination of employees and they paid for the equipment so the point being what is written is not what was done in there creates the issue of fact that should have precluded some rico if you think thanks to all counsel cases taken