Ex parte Tenax Corporation and Tenax Manufacturing Alabama, LLC
Tenax Corporation; Tenax Manufacturing Alabama, LLC; Onin Staffing, LLC; and Tenax SPA (Italy) In re: John Dees
Circuit Court, CV-15-900036
PETITION FOR WRIT OF MANDAMUS
Corporation ("Tenax") and Tenax Manufacturing
Alabama, LLC ("Tenax Alabama"), petition this Court
for a writ of mandamus directing the Conecuh Circuit Court to
enter a summary judgment in their favor in John Dees's
tort action against them. Tenax and Tenax Alabama contend
that they are immune from Dees's tort claims under the
exclusive-remedy provisions of the Alabama Workers'
Compensation Act, § 25-5-1 et seq., Ala. Code 1975.
Additionally, Tenax Alabama contends that it is entitled to a
summary judgment because it was not a legal entity when Dees
was injured. We grant the petition and issue the writ.
and Procedural History
owns a plant in Evergreen that makes plastic netting and
other plastic products. Dees worked at the plant for about
six months in 2010 and again for about two months in 2013.
Dees went back to work at the plant in July 2014, but, at the
direction of the plant's general manager, Dees had
applied to Onin Staffing, LLC ("Onin"), for the job
at the Tenax plant. On January 14, 2015, while operating a
machine, Dees suffered significant injuries to his left arm.
December 2015, Dees sued Tenax, Tenax Alabama, Tenax SPA
(Italy) (a foreign corporation doing business in Conecuh
County),  Onin, and fictitiously named defendants
claiming that, while he was operating a machine at the plant
as instructed and according to proper procedures, he was
injured as a result of the alleged defective condition of the
machine. Dees sought workers' compensation benefits from
Onin, and he sought damages under the Alabama Extended
Manufacturer's Liability Doctrine ("AEMLD") and
for negligence and wantonness from the other defendants. In
their answer, Tenax and Tenax Alabama asserted the immunity
defense under the Alabama Workers' Compensation Act and
then moved for a summary judgment on that same ground. Tenax
Alabama also claimed that it was entitled to a summary
judgment because it did not exist as a legal entity at the
time of Dees's injury on January 14, 2015.
to Dees's complaint, in January 2015 he was employed by
Onin and, at the time of his injury, "was acting within
the line and scope of his job duties and responsibilities
with Defendant Onin." However, Dees testified in
deposition that in January 2015 his understanding was that he
was employed by Tenax and that Onin was a "temp
agency." Dees further testified that "if I fill out
an application [asking for the name of my employer], I
don't put Onin Staffing, I put Tenax." According to
Dees, Tenax trained him, supervised him, took any necessary
disciplinary actions against him, and controlled his work.
Dees also submitted his work hours to his supervisor at
Tenax, and Dees received and signed for a Tenax employee
handbook. Onin never placed Dees in any job other than the
job at the Tenax plant.
Owens, the general manager for the Tenax plant, testified
that Tenax had a relationship with Onin whereby Onin supplied
Tenax with temporary labor. To pay the workers supplied by
Onin, Tenax would write Onin a check, and Onin in turn would
withhold appropriate taxes and other items and issue a check
to the workers. In 2014, Dees, who had worked for Tenax as a
permanent employee on two previous occasions, approached
Owens and asked for a job. Owens agreed to hire Dees but
instructed him to go to Onin to "process it through,
" which Dees did. During this third stint with Tenax,
Dees worked full-time, but he was on probationary status and
did not receive benefits from Tenax. During his third stint,
Dees was fired by Tenax in September 2014, but he was rehired
about a month later. When Dees was injured, Tenax prepared an
accident report. Owens testified that he considered Dees
"to be a Tenax employee like any other Tenax worker in
the Evergreen plant" at the time he was injured.
Mrachkovskiy, Onin's director of safety and risk
management, testified in deposition that Onin is a
"temporary agency" that provides workers and that
Onin "broker[s] the relationship between a worker and
[Onin's] client, or the business providing employment to
the worker, " much like "Manpower or Labor Finders
and other temporary agencies." According to
Mrachkovskiy, Onin charges a business an hourly rate,
"say, $15 an hour. The worker may get $10, and the
remaining $5 goes to for [sic] like workers' compensation
premiums, general liability premiums, health insurance, et
cetera." Mrachkovskiy testified that Onin performs
"ministerial duties, " such as "paying the
worker, taking out for workers' comp, taking out general
liability insurance, taking out for health insurance, "
and withholding taxes. Onin also conducts criminal background
checks and drug screenings. According to Onin's
"proposal for staffing services" between Onin and
"As the employer, Onin Staffing assumes all of the
responsibility for personnel administration. These
responsibilities include the withholding of taxes, payment of
wages, employer contributions for FICA, Federal and State
Unemployment taxes, and providing insurance for occupational
injuries, and general liability insurance coverage up to $1,
000, 000 per incident, $2, 000, 000 aggregate."
did not provide any training to Dees other than showing him a
short video concerning general safety, which is shown to all
workers supplied by Onin. According to Mrachkovskiy's
deposition testimony, at some point Dees signed a document
that stated, in part: "I understand that I am an
employee of Onin Staffing. Only Onin Staffing or I can
terminate my employment. I also understand that I have
exactly one (1) business day to report back to Onin Staffing
for further job assessment and that potential unemployment
benefits may be denied to [me] for failure to do so."
Under Onin's policies concerning injuries sustained by
their employees in the workplace, employees were required to
report any work-related injury to their field supervisor
immediately and to Onin before the end of the shift during
which the employee was injured. Along with Tenax, Onin
investigated Dees's accident. Mrachkovskiy testified that
she considered Dees to be a dual employee of Onin and Tenax.
undisputed that Tenax and Tenax Alabama merged in December
2014. Tenax was the successor entity, and Tenax Alabama
ceased to exist as a legal entity before Dees was injured.
conducting a hearing and reviewing the cases upon which the
parties relied, the trial court denied Tenax and Tenax
Alabama's motion for a summary judgment.
the claims against Tenax Alabama, it is undisputed that Tenax
Alabama was not a legal entity at the time Dees was injured.
In his answer to the mandamus petition, Dees "concedes
that the trial court should have granted Defendant Tenax
Manufacturing Alabama, LLC's Motion for Summary Judgment.
This issue was uncontested at the trial court level by
Plaintiff Dees." Dees's ...