IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

SHAWANA LAYNE (f/k/a Shawna Singleton) ) 

as Guardian Ad Litem and Next Friend to )

FRANK LAYNE, JR., )

) C.A. No. N12C-12-057 EMD

Plaintiff, )

)

v. )

)

GAVILON GRAIN, LLC, et. al., )

)

)

Defendants. )

Submitted: June 29, 2015

Decided: July 10, 2015

Upon Consideration of the

Motion for Summary Judgment of Defendants, Gavilon Grain LLC and Hector Cabrera

GRANTED

Jeffrey M. Gentilotti, Esquire, David A. Denham, Esquire, Bifferato and Gentilotti LLC, 

Newark, Delaware, Attorneys for Plaintiff Shawana Layne (f/k/a Shawna Singleton) as guardian 

ad litem and next friend to Frank Layne, Jr.

Robert G. Devine, Esquire, Michael W. Horner, Esquire, Rochelle L. Gumapac, Esquire, White 

and Williams LLP, Wilmington, Delaware, Attorneys for Defendants Gavilon Grain, LLC and 

Hector Cabrera.

DAVIS, J.

I. INTRODUCTION AND PROCEDURAL HISTORY

This is a negligence action brought by Plaintiff Shawana Layne (f/k/a Shawna Singleton) 

as guardian ad litem and next friend to Frank Layne, Jr. This matter arises from a November 10, 

2011, work place accident which caused injury to Mr. Layne and Defendant, Jair “Hector” 

Cabrera. The accident took place at a facility operated by Defendant Gavilon Grain LLC 
2

(“Gavilon”). Access Labor Services, Inc. (“Access”) had assigned Mr. Layne as a general 

laborer to Gavilon’s facility. Several lawsuits arose from that accident, including the instant 

action wherein Mr. Layne1 filed suit against several parties, including Gavilon, Mr. Cabrera, 

MSP Equipment Rentals, Inc., (“MSP”) and Terex Corporation which was subsequently 

substituted with Genie Industries, Inc. (“Genie”).

As to Gavilon, Mr. Layne claims that he was an employee of Access, and makes claims 

of negligence, agency and respondeat superior, and negligent entrustment. With respect to Mr. 

Cabrera, Mr. Layne claims that Mr. Cabrera, while acting as an agent, servant and/or employee 

of Gavilon, operated equipment in a negligent, careless and reckless manner. In addition to 

general and special damages, Mr. Layne also seeks punitive damages. 

On September 19, 2014, Gavilon filed the Motion for Summary Judgment of Defendants, 

Gavilon Grain LLC and Hector Cabrera (the “Motion”). On October 3, 2014, Mr. Layne filed 

the Plaintiff’s Response to Defendants Gavilon Grain LLC and Jair Cabrera’s Motion for 

Summary Judgment and Plaintiff’s Cross Motion for Summary Judgment. 

On October 3, 2014, defendant Genie filed Defendant Genie Industries, Inc.’s Response 

in Opposition to the Motion for Summary Judgment of Defendants Gavilon Grain LLC and Jair 

Cabrera. Also on October 3, 2014, MSP filed its Defendant MSP Equipment Rental, Inc.’s 

Response to Motion for Summary Judgment of Defendants Gavilon Grain, LLC and Hector 

Cabrera. 

On October 17, 2014, Gavilon and Mr. Cabrera filed the Reply Brief of Defendants 

Gavilon Grain LLC and Hector Cabrera to the Opposition of Plaintiff Shawna Layne, as 

guardian ad litem and next friend to Frank Layne Jr. to their Motion for Summary Judgment. 

 1 For purposes of this Opinion, the Court will use Mr. Layne as the plaintiff. The Court understands that Ms. Layne 

is bringing this negligence action against the various defendants as guardian ad litem and next friend.
3

The same day Gavilon and Mr. Cabrera also filed the Reply of Defendants Gavilon Grain LLC 

and Hector Cabrera to the Opposition of Defendant Genie Industries, Inc. to their Motion for 

Summary Judgment and the Reply Brief of Defendants Gavilon Grain LLC and Hector Cabrera 

to the Opposition of Defendant MSP Equipment Rental, Inc. to their Motion for Summary 

Judgment. 

The Court held a hearing on the motions and cross motions on March 16, 2015. All 

parties appeared and presented arguments in support of their respective positions. Moreover, the 

parties seemed to agree that the issue of whether Mr. Layne was a “borrowed servant” or not was 

ripe for adjudication by the Court. After the hearing, the Court reserved its decision.

Subsequently, on May 29, 2015, Mr. Layne’s counsel completed a second deposition of 

James Engler, the facility manager for Gavilon. After the deposition, Mr. Layne immediately 

requested that the Court refrain from issuing any formal ruling on the pending dispositive 

motions so that the parties could supplement the record. The Court held a hearing on June 22, 

2015, and granted the parties leave to file supplemental briefing. On June 25, 2015, Mr. Layne 

filed the Supplemental Brief in Support of Plaintiff's Response to Defendants Gavilon Grain 

LLC and Jair Cabrera's Motion for Summary Judgment and Cross Motion for Summary 

Judgment. On June 29, 2014, Gavilon filed the Reply Brief of Defendants Gavilon Grain LLC 

and Hector Cabrera to the Supplemental Opposition Brief of Plaintiff Shawna Layne, as guardian 

ad litem and next friend to Frank Layne Jr. to their Motion for Summary Judgment.

The Court has reviewed all the pleadings in this matter, as well as the deposition

transcripts of Mr. Layne, Access employee Dennis Yetman, and Mr. Engler’s two depositions. 

For the reasons set forth below, the Motion for Summary Judgment of Defendants, Gavilon 

Grain LLC and Hector Cabrera is GRANTED.
4

II. FACTUAL BACKGROUND

On August 31, 2009, Mr. Layne completed a Pre-Applicant Job Questionnaire and an 

Employment Application with Access.2

 As part of the Employment Application, Mr. Layne also 

completed a W4 form and executed the Substance Abuse Policy.3

 Access has the power to 

terminate an employee if it finds a violation of the Substance Abuse Policy.

4

 All Access 

employees must complete and execute Access’ Policies and Procedures checklist. Paragraph 6 

of that checklist provides: “I understand that I am an employee of this staffing company and only 

this staffing company...”5

 An Access employee is required to report any absence or late arrivals

at work to Access.6

Mr. Layne was interviewed by Access, hired, and subsequently placed as a general 

laborer with Gavilon. Access did not expect general laborers to ride on boom lifts, and expected 

Gavilon and Mr. Layne to contact Access before it directed a general laborer onto a boom lift.7 

This is supported by the Client Safety Partnership Letter executed between Gavilon and Access 

which stated “Our employees will only work on jobs for which they have been assigned and 

trained. Any variance must be reported to our office before work begins.”8

The Contract between Access and Gavilon has the following clauses:

ACCESS LABOR SERVICES takes care of our worker’s Federal, 

Delaware State & Delaware Local taxes, as well as FICA, 

Unemployment, Worker’s Comp. and General Liability Insurance. 

We bill you weekly and payment is due net ten days from the date 

of the invoice. 

 2 Exhibit 2, Dennis Yetman Deposition, March 25, 2014 (“Yetman Dep.”). 3 Id. 4 Yetman Dep. 18:5-21. 5 Exhibit 2, Yetman Dep. 6 Yetman Dep. 23:7-18. 7 Id. 120:2-15. 8 Exhibit 3, Yetman Dep.
5

...

Terms and Conditions

2 ... Client also agrees not to authorize employee to operate or 

drive a motorized vehicle or operate any machinery without prior 

written approval from ACCESS LABOR SERVICE. ACCESS 

LABOR SERVICE will not be responsible for any loss arising 

from those practices.

3. ... Any employee placed with your company by ACCESS 

LABOR SERVICE is an employee of ACCESS LABOR 

SERVICE and may not be hired by client within one year of the 

last day worked for ACCESS LABOR ...9

In conformity with the contract, Access maintains worker’s compensation insurance for 

its employees, as well as unemployment insurance, FICA, and general liability insurance.10 

Access deducts taxes from the compensation it pays to its employees.11

Access charged Gavilon $17 per hour for general laborers.12 Mr. Layne was a general 

laborer.13 Gavilon paid for his services, and Access would pay Mr. Layne directly.14 Access 

would appear at the Gavilon facility approximately once per month to observe Mr. Layne and 

other Access workers assigned to the facility.15

After being hired by Access, Access provided Mr. Layne with some training in the form 

of a basic safety course consisting of a safety video and test.16 Question number 8 on the safety 

test asks “If your supervisor asks you to handle chemicals or equipment you have not been 

trained to use, you should ...” Mr. Layne selected option (b) which read “tell your supervisor 

that you have not been trained to handle the chemicals or operate the equipment.”17 Mr.

 9 Id.

10 Yetman Dep. 16:22-17:12. 11 Id. 17:6-8. 12 Id. 31:8. 13 Id. 31:17-18. 14 Id. 48:6-13. 15 Frank Layne Jr. Deposition 37:2-8 (“Layne Dep.”). 16 Yetman Dep. 22:11-14. 17 Exhibit 2, Yetman Dep.
6

Yetman, an office manager for Access, testified at his deposition that, for safety reasons, Access 

did not want its employees to perform something that they were not trained to handle.18 Mr. 

Yetman stated that under such a circumstance the client “would call and say, can you send a 

certified person, and we’d renegotiate a contract or a rate.”19 It was Access’ understanding that 

under the contract documents with Gavilon, Access had the power to prohibit Gavilon from 

using an employee in an unauthorized way.20

Mr. Engler met and interviewed Mr. Layne on the first day that Mr. Layne was assigned 

by Access to Gavilon.21 As noted above, Mr. Engler was Gavilon’s facility manager. Mr. 

Engler conducted an interview and obtained information regarding Mr. Layne’s background and 

skill set to ensure that Mr. Layne could perform the tasks that would be assigned.22 Mr. Layne’s 

interview was the same interview that Gavilon would have conducted of someone who was 

considered for full time employment.23 Mr. Layne also completed an employment application 

with Gavilon.24 The purpose of the application was for Gavilon to receive general information 

regarding Mr. Layne.25 The application was suitable for Gavilon to eventually consider Mr. 

Layne for permanent employment with Gavilon.26 However, Mr. Layne’s application did not 

consist of the same forms that a full-time employee would fill out.27

During Mr. Layne’s course of employment at the Gavilon facility, Gavilon directed Mr. 

Layne as to when he would work, when to take lunch, and when to take breaks.28 Mr. Engler, as 

 18 Yetman Dep. 26:8-13. 19 Id. 26:17-27:1. 20 Id. 27:15-20. 21 James C. Engler Deposition, June 4, 2014, 137:8-138:3 (“Engler Dep.”). 22 Engler Dep. 31:18-32:4, 137:8-138:3. 23 Id. 32:5-23. 24 Id. 28:18-22; Exhibit 4, Engler Dep. 25 Engler Dep. 28:23-29:2. 26 Id. 29:3-10. 27 Id. 29:14-19. 28 Layne Dep. 38:2-39:14, 42:9-14, 85:6-86:3. 
7

well as other senior Gavilon employees, directed Mr. Layne on what work to perform each day, 

and if need be, instructed Mr. Layne on how to perform the work.29 Gavilon directly supervised 

Layne’s day-to-day activities at the Gavilon facility.30 Gavilon had the authority to discipline, 

fire or discharge Mr. Layne from his work at the Gavilon facility.31 Gavilon had the authority to 

direct Mr. Layne to comply with all necessary work procedures and safety requirements for any 

particular work task Gavilon assigned to Mr. Layne.32 Gavilon supplied Mr. Layne with all the 

necessary tools and equipment to perform his daily work activities.33 Gavilon also provided or 

otherwise made available all necessary safety equipment and devices for Mr. Layne’s assigned 

work tasks.34 

Gavilon also decided when and if Mr. Layne would work overtime.35 Mr. Layne had to 

contact Access when he worked overtime so that Access’ records would be updated for that day, 

as Access charged more for employee overtime. However, Gavilon was the entity that decided 

whether Mr. Layne would work overtime.

Gavilon provided both written and on-the-job training to Mr. Layne at the time of his 

hire. Mr. Layne completed the following Gavilon-designed and presented training programs: (i) 

General Awareness level 1; (ii) General Awareness level 2; (iii) restricted access; (iv) hot work; 

(v) bin entry and (vi) lockout/tagout training.36 Mr. Layne’s training with Gavilon consisted of 

classroom instruction, written materials, and a video presentation which was followed by written 

question and answer tests.37

 29 Id. 42:18-43:8, 58:12-14; 86:12-87:3; 99:23-100:2. 30 Engler Dep. 96:14-97:5; 138:4-6; Yetman Dep. 84:2-85:5. 31 Yetman Dep. 87:7-19; Engler Dep. 161:7-11. 32 Yetman Dep. 106:16-107:13; Engler Dep. 158:9-160:16. 33 Engler Dep. 65:2-5; Layne Dep. 60:12-20 70:18-71:12. 34 Engler Dep. 162:11-163:20. 35 Layne Dep. 38:2-39:14, 42:9-14, 85:6-86:3. 36 Engler Dep. 86:4-87:7 142:8-152:22. 37 Id. 87:11-23; 142:8-152:22
8

Mr. Layne had been working at the Gavilon facility for approximately three months 

before the accident occurred.38 At the time of the accident, Mr. Engler directed Mr. Layne to 

assist Mr. Cabrera with a welding and maintenance task. Gavilon supplied all the tools, safety 

devices, the articulating boom lift (occupied by Mr. Layne and Mr. Cabrera), the welding 

equipment and the safety lanyards.

39

On the day of the accident, Mr. Engler had the authority to direct how Mr. Layne did his 

job, what tools to use, and whether or not Mr. Layne should be on a boom lift.40 This was the 

same authority that Mr. Engler exercised over Mr. Layne since Mr. Layne began his work at the 

Gavilon facility. Mr. Engler’s authority over Mr. Layne was so complete that Mr. Engler could 

direct Mr. Layne on which side of the silos to work, and whether to use a wrench or a socket 

wrench to remove bolts during the work.41 Mr. Engler could also tell Mr. Layne and Mr. 

Cabrera exactly how to pass the materials from the basket of the lift onto the catwalk.42

Mr. Engler had the same authority over Mr. Cabrera, an employee of Gavilon.43 The 

morning of the accident, Mr. Engler specifically told Mr. Layne and Mr. Cabrera at the toolbox 

meeting that Mr. Layne would be Mr. Cabrera’s helper, and that Mr. Layne would be subject to 

Mr. Cabrera’s direction.44 Mr. Cabrera could direct Mr. Layne’s activities within the scope of 

the project.45

 38 Id. 83:10-16

39 Id. 127:11-128:8, 161:24-163:20, 167:14-168:19. 40 James C. Engler Deposition Vol. 2, May 29, 2015, 522:14-23 (“Engler Dep. 2”). 41 Id. 526:3-11, 527:20-24 42 Id. 528:5-9. 43 Id. 523:12-17. 44 Id. 524:3-24. 45 Id.
9

The accident occurred when a Genie S-85 articulating boom lift occupied by Mr. Layne 

and Mr. Cabrera tipped over causing injuries to both Mr. Layne and Mr. Cabrera.46 Due to the 

accident, Mr. Layne sustained severe physical injuries, which have left him permanently 

cognitively and physically disabled. 

After the accident, Access personnel completed and filed the First Report of 

Occupational Injury.47 Mr. Layne applied for and received worker’s compensation benefits from 

Plaintiff through the worker’s compensation insurance placed by Access. Gavilon contends that, 

in part, it funded this worker’s compensation insurance.

III. PARTIES’ CONTENTIONS

Gavilon and Mr. Cabrera contend that Mr. Layne is a special employee of Gavilon. As a 

special employee of Gavilon, Gavilon and Mr. Cabrera argue that Mr. Layne’s claims against 

Gavilon and Mr. Cabrera, as well as the punitive damages claim, are barred by the exclusive 

remedy provision of Delaware’s Workers’ Compensation Act (the “Act”). Gavilon and Mr. 

Cabrera also contend that the exclusive remedy provision of the Act bars the cross-claims of codefendants Genie and MSP.

Mr. Layne, Genie and MSP make substantially the same arguments in opposing the 

Motion. Mr. Layne, Genie and MSP all contend that Mr. Layne was an employee of Access and, 

therefore, the parties can proceed against Gavilon on various negligence and indemnification 

claims. For example, Mr. Layne contends that he was never a Gavilon employee and as such his 

claims are not barred by the exclusive remedy provision of the Act. Genie contends that Mr. 

Layne was an employee of Access, and not an employee of Gavilon. Lastly, MSP contends that, 

because Mr. Layne was an employee of Access, the exclusive remedy provision of the Act does 

 46 Plaintiff’s Complaint, ¶9. 47 Yetman Dep. 6:7-16. 
10

not apply to bar Mr. Layne’s tort claims against Gavilon and Mr. Cabrera, or MSP’s cross-claims 

against Gavilon and Mr. Cabrera.

IV. STANDARD OF REVIEW

The standard of review on a motion for summary judgment is well-settled. The Court’s 

principal function when considering a motion for summary judgment is to examine the record to 

determine whether genuine issues of material fact exist, “but not to decide such issues.”48

Summary judgment will be granted if, after viewing the record in a light most favorable to a nonmoving party, no genuine issues of material fact exist and the moving party is entitled to 

judgment as a matter of law.49 If, however, the record reveals that material facts are in dispute, 

or if the factual record has not been developed thoroughly enough to allow the Court to apply the 

law to the factual record, then summary judgment will not be granted.50 The moving party bears 

the initial burden of demonstrating that the undisputed facts support his claims or defenses.51 If 

the motion is properly supported, then the burden shifts to the non-moving party to demonstrate 

that there are material issues of fact for the resolution by the ultimate fact-finder.52

V. DISCUSSION

A. Mr. Layne was a special employee of Gavilon.

The issues before the Court turn on whether or not Mr. Layne was a special employee, or 

a borrowed servant, of Gavilon. The common law borrowed servant doctrine focuses on the 

relationship between an employer and an employee. “The general rule is that an employee, with 

 48 Merrill v. Crothall-American Inc., 606 A.2d 96, 99-100 (Del. 1992) (internal citations omitted); Oliver B. Cannon 

& Sons, Inc. v. Dorr-Oliver, Inc., 312 A.2d 322, 325 (Del. Super. Ct. 1973). 

49 Id. 50 Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962). See also Cook v. City of Harrington, 1990 WL 35244 at 

*3 (Del. Super. Ct. Feb. 22, 1990) (citing Ebersole, 180 A.2d at 467) (“Summary judgment will not be granted 

under any circumstances when the record indicates ... that it is desirable to inquire more thoroughly into the facts in 

order to clarify the application of law to the circumstances.”).

51 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970) (citing Ebersole, 180 A.2d at 470). 52 See Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 1995). 
11

his consent, may be loaned by his general employer to another to perform specific services, and 

that, in the course of and for the purpose of performing such services, he may become the 

employee of the specific employer rather than the employee of the general employer. 

Accordingly, a loaned employee may become the specific employer's employee while at the 

same time remaining, generally speaking, the employee of the employer who loans his 

services.”53

In Lester C. Newtown Trucking Co. v. Neal,

54 the Delaware Supreme Court set out a four 

part test that the courts should apply when determining whether a worker is an “employee” under 

the Act: (1) who hired the employee; (2) who may discharge the employee; (3) who pays the 

employee’s wages; and (4) who has the power to control the conduct of the employee when he is 

performing the particular job in question.55 In Porter v. Pathfinder Services, Inc., the Delaware 

Supreme Court subsequently used this test when determining that the Act barred the negligence 

claims of an employee – hired and paid by a placement agency but working for another 

temporary employer – against his temporary employer.56

As to the first element of the test, both Access and Gavilon hired Mr. Layne. Mr. Layne 

completed a Pre-Application Job Questionnaire, an Employment Application and a W4 for 

Access. Mr. Layne also completed an employment application with Gavilon. Mr. Layne was 

interviewed by both Access and Gavilon. Mr. Engler, who interviewed Mr. Layne, testified that 

Mr. Layne’s interview with Gavilon was no different than what a full-time employee would have 

received. 

 53 Volair Contractors, Inc. v. AmQuip Corp., 829 A.2d 130, 134 (Del. 2003) 54 Lester C. Newtown Trucking Co. v. Neal, 204 A.2d 393 (Del. 1964). 55 Id. at 395. 56 Porter v. Pathfinder Serv., Inc., 683 A.2d 40, 42 (Del. 1996).
12

As to element two, both Access and Gavilon could discharge Mr. Layne. Access 

reserved the right to terminate Mr. Layne, and, for example, made this fact clear in the Substance 

Abuse Policy. Gavilon, however, retained the power to discipline, fire or discharge Mr. Layne 

from his work at the Gavilon facility. 

As to the third element, Gavilon paid Mr. Layne through Access. Access charged 

Gavilon $17 per hour for Mr. Layne’s services, and more if Mr. Layne worked overtime. The 

fact that Gavilon paid Access for Mr. Layne’s work, instead of Mr. Layne directly is not 

dispositive of the four part test. 

Porter, mentioned above, is most helpful here.57 In Porter, the defendant paid the 

placement agency and not the plaintiff for the plaintiff’s services.58 The defendant paid 1.34 

times the plaintiff’s hourly rate.59 These facts did not preclude the Supreme Court from 

affirming the Superior Court’s decision that the plaintiff was a special employee of the 

defendant. Indeed, the Supreme Court noted that the hourly rate was used to cover the plaintiff’s 

salary and mandatory employment charges such as worker’s compensation. 

In this case, Gavilon paid Access 1.7 times Mr. Layne’s hourly rate. The contract 

between Access and Gavilon states that Access

...takes care of our worker’s Federal, Delaware State & Delaware Local taxes, as 

well as FICA, Unemployment, Worker’s Comp. and General Liability Insurance. 

We bill you weekly and payment is due net ten days from the date of the 

invoice.60 

The plain reading of the contract shows that the surcharge goes towards Access’ fee and 

mandatory employment charges including worker’s compensation for Mr. Layne. 

 57 Id. 58 Id. 59 Id. 60 Exhibit 3, Yetman Dep.
13

Finally, as to the fourth element, Gavilon had control over Mr. Layne. In a worker’s 

compensation analysis, “[t]he greatest weight is given to the issue of control.”61 Gavilon 

directed Mr. Layne when to work, when to take lunch, and when to take breaks. Gavilon 

controlled how Mr. Layne did his work, as shown by the extensive training that it provided Mr. 

Layne. Gavilon also decided if Mr. Layne would work overtime. Access was not present at the 

facility, and only visited the facility approximately once a month. Gavilon determined each day 

which type of work Mr. Layne would be doing, and provided all the necessary tools and 

equipment. On the day of the accident, Mr. Engler told Mr. Layne at the toolbox meeting that 

Mr. Layne would be completing a welding and maintenance task under the supervision of 

Gavilon employee Mr. Cabrera. Mr. Cabrera then supervised and directed Mr. Layne in the 

completion of the task at the time of the accident. Clearly, it was Gavilon which had control 

over Mr. Layne’s work at the facility on a day to day basis, including on the day of the accident.

Mr. Layne states several times in his motion papers that Mr. Layne had the power to 

refuse to get on the boom lift, because that exceeded the task expected of a general laborer, and 

that Gavilon was forbidden by the clauses of the contract to assign a general laborer to such a 

skilled task. Mr. Layne contends that since Mr. Layne was working on a task which was outside 

of the contract, Gavilon did not have control over Mr. Layne for that particular task. In the 

supplemental briefing, Mr. Layne contends that whether Mr. Layne or Mr. Cabrera was 

operating the lift at the time of the accident creates a significant issue of fact for the jury.62 

 61 Porter, 683 A.2d at 42. 62 Mr. Layne discusses, at length, in the supplemental briefing that Mr. Layne’s work on the boom lift exceeded the 

scope of work designated under the contract between Access and Gavilon. That fact would not be determinative of 

whether Mr. Layne is a borrowed servant/employee of Gavilon. As the Restatement (Second) of Agency states:

Comment: 

 d. Where servant obeys temporary employer. The servant may depart from the service of the general 

employer as to a given act either in accordance with the agreement between the general employer and the 

other, or in spite of it. The fact that he obeys the requests of the temporary employer as to the act does not 
14

This is simply not the case. Whether it was Mr. Layne or Mr. Cabrera at the controls of 

the lift, it is clear from the records that Gavilon through its two employees, Mr. Engler and Mr. 

Cabrera directed the completion of the task, provided the supervision and the tools for the task. 

It is clear that Gavilon had control over Mr. Layne at the time of the accident. It was Gavilon 

that asked Mr. Layne to undertake work on the boom lift, Gavilon which supervised Mr. Layne, 

and told Mr. Layne how to conduct the task, and Gavilon which provided all the equipment. 

Access was not at the Gavilon facility at that time. 

Mr. Layne relies on Loden v. Getty,

63 to refute that Mr. Layne was a special employee of 

Gavilon. However, in Loden the injured worker was supervised by a foreman of the agency 

which hired him.64 Unlike in this case, where Gavilon supervised and directed all of Mr. 

Layne’s work, in Loden the injured worker received all of his instructions as to which work he 

would perform, and instructions on how to perform his work from the foreman who worked for 

his employment agency.65 The facility where the injured worker worked did not direct his work 

and could not discharge him from employment.66 This case is plainly distinguishable from the 

current matter. 

 

necessarily cause him to be the servant of such employer. If, however, the temporary employer exercises such 

control over the conduct of the employee as would make the employee his servant were it not for his general 

employment, the employee as to such act becomes a servant of the temporary employer. If the employee does 

the very act directed by the temporary employer, the latter is responsible for having directed it, and the first 

employer is responsible as a master if the act is within the scope of his general employment.

RESTATEMENT (SECOND) OF AGENCY § 227, cmt. d (emphasis added). While this comment is discussing theories 

relating to principal/agent and respondeat superior and injury to a third party, the point is that if Gavilon directed 

Mr. Layne to do work outside the scope of the agreement between Access and Gavilon, and Mr. Layne did such 

work then, under the Restatement (Second) of Agency, Mr. Layne would be deemed the employee of Gavilon and 

not Access.

63Loden v. Getty, 316 A.2d 214 (Del. Super. Ct. 1974). 64 Id. at 216. 65 Id. 66 Id. at 215.
15

Mr. Layne also cites to the transcript of a pre-trial conference in Morton v. Evraz 

Claymont Steel67 where the Court denied a summary judgment motion on a similar worker’s 

compensation issue. The Court has reviewed the transcript of the Morton pre-trial conference, as 

well as the summary judgment motions filed by the parties in Morton. In Morton the Court 

found that there was a factual dispute as to whether or not the injured worker was an employee of 

the facility where he was placed by the employment. The employment agency had supervised 

the injured worker’s work at the facility for months. While the employment agency was not 

supervising him at the time of the accident there had been a long history of supervision from the 

employment agency and not by the facility managers. In the present case, Access has no history 

of supervising Mr. Layne’s work. Access would occasionally visit the Gavilon facility, but 

never directed Mr. Layne as to which work to perform or the manner in which he should perform 

his work. Therefore, unlike in Morton there is no issue of material fact in this case as to which 

party had control over Mr. Layne’s work. 

This is a straightforward case. Gavilon looked to Access for temporary employees. 

Access would provide the temporary employee to Gavilon at a hourly rate greater than the wage 

paid the temporary employee. Access would use the surcharge to cover its fee, the wage paid to 

the temporary employee and mandatory employment charges (FICA, workers compensation 

insurance, etc.). Once the temporary employee was placed at Gavilon, Access had little to no 

supervisory role over the temporary employee. Instead, Gavilon controlled and supervised the 

temporary worker on a daily basis. That is what happened with Mr. Layne, Access and Gavilon. 

Mr. Layne was employed by Access and became a temporary or special employee of Gavilon. 

Mr. Layne reported to Gavilon as instructed by Gavilon, stayed at work as long as Gavilon 

needed him to be there, and did work as directed by Gavilon or its agents. On the day of the 

 67 Morton v. Evraz Claymont Steel, C.A. No. 09C-08-245 JRS (Del. Super. Ct. Dec. 21, 2011). 
16

accident, Gavilon (through Mr. Engler and Mr. Cabrera) exercised control over the work that Mr. 

Layne performed and the way that work was to be performed. The Court finds that the facts here 

demonstrate that Gavilon was in control of Mr. Layne on the date of the accident, and that an 

employee-employer relationship existed between Gavilon and Mr. Layne. On that basis, the 

Court holds that the Act provides the sole remedy for Mr. Layne against Gavilon.68

B. Mr. Layne’s claims against Gavilon and Mr. Cabrera are barred by the Exclusive 

Remedy of the Act.

The Act provides that recovery under the Act is the exclusive remedy available to 

employees injured when acting in the course and scope of their employment. The Act states that 

“[e]very employer and employee ... shall be bound by this chapter respectively to pay and to 

accept compensation for personal injuries or death by accident arising out of and in the course of 

employment, regardless of the question of negligence and to the exclusion of all other rights and 

remedies.”69 The Act also excludes co-employees from the category of persons who may be 

sued by an injured employee, and thus bars common law negligence suits against co-employees 

by fellow employees or by subrogated employees in connection with compensable injuries.

70

Mr. Layne makes claims of negligence, agency and respondeat superior, and negligent 

entrustment against Gavilon, and claims that Mr. Cabrera, while acting as an agent, servant 

and/or employee of Gavilon, operated equipment in a negligent, careless and reckless manner. 

As Mr. Layne was a special employee of Gavilon, the Act provides the sole remedy for Mr. 

Layne’s compensation for the injuries he suffered. 

 68 See Porter, 683 A.2d at 42; see also Six Flags Over Georgia v. Hill, 276 S.E.2d 572, 574 (Ga. 1981) (concern is 

not over whether special employer always had control over special employee but, rather, whether special employer 

had complete control and direction only for the occasion at issue); RESTATEMENT (SECOND) OF AGENCY § 227 cmt. 

a. 

69 19 Del. Code §2304. 70 Grabowski v. Mangler, 956 A.2d 1217, 1220 (Del. 2008).
17

Moreover, the Act is the sole remedy for Mr. Layne despite his claim of recklessness 

against Mr. Cabrera. “The overwhelming weight of authority is that the common law liability of 

the employer cannot be stretched to include accidental injuries caused by the gross, wanton, 

wilful, deliberate, intentional, reckless, culpable, or malicious negligence, breach of statute, or 

other misconduct short of genuine intentional injury.”71 Nothing short of a specific intent to 

injure the employee falls outside the scope of the Act.72 Absent such specific intent, the 

employee is foreclosed from maintaining a tort action against a co-employee.73 There is no 

evidence in this case that Mr. Cabrera acted with any intent to injure. As such, even the 

recklessness claims against Mr. Cabrera are barred by the exclusive remedy provision of the Act. 

C. Mr. Layne’s claims for punitive damages are barred by the exclusive remedy of the 

Act.

Mr. Layne’s punitive damages claims are barred by the exclusive remedy of the Act, as 

such, Mr. Layne cannot receive any award of punitive damages for these claims. Moreover, an 

award of punitive damages cannot be made unless the plaintiff also receives compensatory 

damages, which Mr. Layne is plainly not eligible to receive.

74 

D. The cross-claims of co-defendants Genie and MSP

In their Answer and Amended Answer to Mr. Layne’s Complaint, Genie and MSP assert

cross-claims against Gavilon and Mr. Cabrera for contribution and indemnification. Where an 

employer has paid compensation benefits to an employee, the Act precludes imposition of joint 

tort liability upon the employer.75 Section 2304 of the Act provides that payment of 

 71 Houston v. Bechtel Assocs. Prof'l Corp., D.C., 522 F. Supp. 1094, 1096 (D.D.C. 1981) (citing 2A Larson, 

Workmen's Compensation Law, s 68.13 at 13-5 and cases cited n.11 (1976)); see also Eddy v. Virgin Islands Water 

and Power Auth., 369 F.3d 277, 234 (3d Cir. 2004). 72 Id. 73 Id. 74 Stephenson v. Capano Dev., Inc., 462 A.2d 1069, 1077 (Del. 1983). 75 Precision Air, Inc. v. Standard Chlorine of Del., Inc., 654 A.2d 403 (Del. 1995). 
18

compensation to an injured employee of his representatives is exclusive and precludes the 

assertion of any other remedies against an employer.76

IV. CONCLUSION

For the foregoing reasons the Motion for Summary Judgment of Defendants, Gavilon 

Grain LLC and Hector Cabrera is GRANTED.

IT IS SO ORDERED.

/s/ Eric M. Davis

Eric M. Davis

Judge 

 76 Diamond State Telephone Co. v. Univ. of Del, 269 A.2d 52, 55-56 (Del. 1970).