Opinion
M2023-00249-COA-R3-CV
04-26-2024
BRIAN COBLENTZ ET AL. v. TRACTOR SUPPLY COMPANY
William Bliss Hicky and Sarah Michelle Ferraro, Nashville, Tennessee, and Morgan Juliana Hartgrove, Franklin, Tennessee, for the appellants, Brian Coblentz and Cayce Coblentz. Richard Colten Jones and Marshall T. Cook, Hendersonville, Tennessee, for the appellee, Tractor Supply Company.
Session January 4, 2024
Appeal from the Circuit Court for Lincoln County No. 2013-CV-85 M. Wyatt Burk, Judge
A sales representative for a product vendor was injured while in a Tractor Supply store performing his job. The sales representative received workers' compensation benefits from his employer, a hardware product company, and then proceeded with a tort case against Tractor Supply. We agree with the trial court's conclusion that Tractor Supply was the sales representative's statutory employer within the meaning of Tenn. Code Ann. § 50-6-113(a) and, therefore, his recovery from his employer was his exclusive remedy. Therefore, we affirm the trial court's grant of summary judgment in favor of Tractor Supply.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed
William Bliss Hicky and Sarah Michelle Ferraro, Nashville, Tennessee, and Morgan Juliana Hartgrove, Franklin, Tennessee, for the appellants, Brian Coblentz and Cayce Coblentz.
Richard Colten Jones and Marshall T. Cook, Hendersonville, Tennessee, for the appellee, Tractor Supply Company.
ANDY D. BENNETT, J., delivered the opinion of the Court, in which FRANK G. CLEMENT, JR., P.J., M.S., joined, and JEFFREY USMAN, J., filed a separate dissenting opinion.
OPINION
ANDY D. BENNETT, JUDGE
FACTUAL AND PROCEDURAL BACKGROUND
Brian Coblentz worked as an outside sales representative for Stanley National Hardware ("Stanley National" or "National"). The job required him to visit various hardware stores, including Tractor Supply stores, in his region every four to six weeks. At each hardware store, Mr. Coblentz took inventory of the Stanley National merchandise and wrote orders for needed items. On August 29, 2012, Mr. Coblentz visited Tractor Supply's store in Fayetteville, Tennessee. Mr. Coblentz was injured when a 12-foot steel barn door track fell out of the Stanley National display and struck him on the head.
Mr. Coblentz and his wife ("Plaintiffs") filed a personal injury suit against Tractor Supply Company on August 12, 2013, asserting that Tractor Supply "was negligent and created an unreasonably dangerous and unsafe condition by failing to either properly install and/or maintain its display rack as well as properly stock its merchandise." The complaint also alleged that Tractor Supply "failed to adhere to proper safety procedures" and "failed to implement and/or enforce reasonable policies calculated to prevent its invitees from suffering injury." Further, according to the complaint, Tractor Supply was negligent in failing to warn Mr. Coblentz of the danger presented by the steel track display and failing to inspect the area where he was injured. In its answer, Tractor Supply raised the defense that Mr. Coblenz was injured while in the course and scope of his employment and that his exclusive remedy was under the workers' compensation statutes.
The parties agreed to stay discovery until Mr. Coblentz's workers' compensation case against Stanley National had concluded. The workers' compensation case was settled in February 2020, and the parties proceeded with discovery. In May 2022, Plaintiffs were permitted to file an amended complaint, which contained all of the allegations of the original complaint and added allegations that Tractor Supply's actions were wanton, willful, and/or reckless.
In October 2022, Tractor Supply filed a motion for summary judgment asserting that Plaintiffs' claim was barred by the exclusive remedy provision of the workers' compensation act and that Plaintiffs could not establish a prima facie case of negligence. Tractor Supply's submissions in support of its motion included excerpts from the depositions of Mr. Coblentz; excerpts from the deposition of Tractor Supply employee Brian Spears; excerpts from the depositions of former Tractor Supply employees Jody Boaz and Leah Holcomb; and a Vendor Agreement executed by Tractor Supply and Stanley National. Plaintiffs responded in opposition to Tractor Supply's motion for summary judgment and filed supporting exhibits, including an affidavit of Mr. Coblentz as well as excerpts from the depositions of Mr. Coblentz, Ms. Boaz, Ms. Holcomb, and Mr. Spears.
The trial court heard the motion for summary judgment on November 21, 2022. On January 26, 2023, the trial court entered an order granting Tractor Supply's motion. The court determined that Tractor Supply was a principal contractor within the meaning of Tenn. Code Ann. § 50-6-113 and immune from tort liability for Mr. Coblentz's injury. Further, the court found that Mr. Coblentz could not establish a prima facie case for negligence under Tennessee premises liability law. Plaintiffs appealed.
Plaintiffs present the following issues for our consideration: (1) whether the trial court erred in relying on inadmissible evidence in ruling on the motion for summary judgment; (2) whether the trial court erred in finding that there were no issues of material fact in dispute; (3) whether the trial court erred in determining that Tractor Supply was the principal contractor for purposes of the workers' compensation act; (4) whether the trial court erred in granting summary judgment to Tractor Supply on the premises liability claim.
STANDARD OF REVIEW
We review a trial court's summary judgment determination de novo, with no presumption of correctness. Rye v. Women's Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015). This means that "we make a fresh determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil Procedure have been satisfied." Id. We "must view the evidence in the light most favorable to the nonmoving party and must draw all reasonable inferences in that party's favor." Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002); see also Acute Care Holdings, LLC v. Houston Cnty., No. M2018-01534-COA-R3-CV, 2019 WL 2337434, at *4 (Tenn. Ct. App. June 3, 2019).
ANALYSIS
I. Evidentiary issue
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." TENN. R. CIV. P. 56.04. When a party moves for summary judgment but does not have the burden of proof at trial, the moving party must submit evidence either "affirmatively negating an essential element of the nonmoving party's claim" or "demonstrating that the nonmoving party's evidence at the summary judgment stage is insufficient to establish the nonmoving party's claim or defense." Rye, 477 S.W.3d at 264. A party moving for summary judgment must present facts to the court through sworn testimony and/or authenticated documents, which must be admissible at trial in order to be considered by the trial court. Summers v. Cherokee Child. &Fam. Servs., Inc., 112 S.W.3d 486, 510 (Tenn. Ct. App. 2002) (citing Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). If the nonmoving party fails to make a timely objection, however, "[u]ncertified or otherwise inadmissible material may be considered" by the court. Id.
Plaintiffs assert on appeal that the trial court erred in relying upon a 2009 Vendor Agreement between Tractor Supply and Stanley National because it was "unauthenticated and contained inadmissible hearsay." Tractor Supply argues that the Vendor Agreement was not necessary to the trial court's determination as to whether Tractor Supply was a statutory employer. Tractor Supply attached the Vendor Agreement as Exhibit J to its statement of undisputed material facts ("Defendant's Statement") in support of paragraph 36, which states:
National provided products to [Tractor Supply] in accordance with the Vendor Agreement executed by National and [Tractor Supply] on or around October 7, 2009 and the Hardware Program Addendum executed by the parties on or around December 13, 2012. (Vendor Agreement and Hardware Program Addendum attached hereto collectively as Exhibit J).
In their response to Defendant's Statement, Plaintiffs objected to paragraph 36 as follows:
Plaintiff objects to this statement of material fact in that it is not supported by a specific citation to the record as required by T.R.C.P. 56.03. As such, this statement is in violation of T.R.C.P. 56.03 and no response is therefore needed. To the extent a response is necessary, Mr. Coblentz testified that he does not recall ever seeing this document prior to his deposition and that he disagreed with responsibilities outlined in it based on what he had been told to maintain. (Ex. 2: Depo. of B. Coblentz ¶ 63:11-16, 66:19-24). It is further disputed as to the relevance of the Hardware Program Addendum as it was executed four (4) months after the underlying incident.
Plaintiffs' response to Defendant's Statement does not include an objection that the Vendor Agreement was not admissible under Tenn. R. Evid. 901. In its response in opposition to Tractor Supply's motion for summary judgment, Plaintiffs did not include an argument that the Vendor Agreement was inadmissible. Thus, the trial court's order granting summary judgment did not address this evidentiary issue.
Therefore, we have concluded that Plaintiffs waived this evidentiary objection because they did not raise it below. See Summers, 112 S.W.3d at 510 ("Uncertified or otherwise inadmissible material may be considered if not challenged, and the objection must be timely or it will be deemed to have been waived.").
As to Plaintiffs' second issue, regarding whether the trial court erred in concluding there were no material facts in dispute, the Plaintiffs have not identified in their argument any factual disputes relating to the issue of whether Tractor Supply was a statutory employer. As discussed below, we have determined that the statutory employer issue is determinative. Therefore, we need not consider the second issue.
See, e.g., Fisher v. Halliburton, 667 F.3d 602, 615 (5th Cir. 2012) (describing Larson's "[a]s a leading workers' compensation treatise"); Brittingham v. St. Michael's Rectory, 788 A.2d 519, 523 (Del. 2002) (characterizing Larson's as "the leading authoritative treatise on the subject"); Howard Univ. Hosp. v. D.C. Dep't of Emp't Servs., 267 A.3d 1068, 1073 (D.C. 2022) (indicating that Larson's is "[t]he leading treatise in this area"); Kawakami v. City & Cnty. of Honolulu Bd. of Water Supply, 100 Haw. 285, 289, 59 P.3d 920, 924 (2002) (stating of Larson's that it is "the leading treatise on worker's compensation"); Sharp v. Thomas Bros. Plumbing, 510 P.3d 1136, 1147 (Idaho 2022) (noting of Larson's that it is "a leading treatise in the field of workers' compensation"); Smith v. Goodyear Tire & Rubber Co., 636 N.W.2d 884, 888 (Neb. Ct. App. 2001) (stating of Larson's that it is "the leading treatise in the area"); Gore v. Myrtle/Mueller, 653 S.E.2d 400, 407 (2007) (describing Larson's as "a leading treatise").
II. Statutory employee
Next, we turn to the issue of whether the trial court erred in concluding that Tractor Supply was a statutory employer for purposes of the workers' compensation act.
Under Tennessee's Workers' Compensation Law ("the Act"), Tenn. Code Ann. §§ 50-6-101-50-6-921, "'an employee injured in an accident while in the course and scope of employment is generally limited to recovering workers' compensation benefits from the employer.'" Fayette Janitorial Servs. v. Kellogg USA, Inc., No. W2011-01759-COA-R3-CV, 2013 WL 428647, at *3 (Tenn. Ct. App. Feb. 4, 2013) (quoting Murray v. Goodyear Tire &Rubber Co., 46 S.W.3d 171, 175 (Tenn. 2001) (emphasis added)). With respect to "injuries sustained by employees of subcontractors," however, the Act extends workers' compensation liability under certain circumstances. Id. Tennessee Code Annotated section 50-6-113(a) provides:
A principal contractor, intermediate contractor or subcontractor shall be liable for compensation to any employee injured while in the employ of any of the subcontractors of the principal contractor, intermediate contractor or subcontractor and engaged upon the subject matter of the contract to the same extent as the immediate employer.
Under this provision, the "statutory employer rule," "the principal contractor 'is secondarily liable for workers' compensation, and thus pays workers' compensation only if the immediate employer cannot do so.'" Fayette Janitorial, 2013 WL 428647, at *3 (quoting Joseph H. King, Jr., The Exclusiveness of an Employee's Workers' Compensation Remedy Against His Employer, 55 TENN. L. REV. 405, 429 (1988)).
Our Supreme Court has explained the purpose behind the statutory employer rule:
The statute is intended to ensure that all workers will receive compensation when they are injured in the course of their employment. Stratton [v. Un. Inter-Mountain Tel. Co.], 695 S.W.2d [947,] 951 [(Tenn. 1985)]. Section 50-6-113 extends liability from the employer that does not have workers' compensation insurance to an intermediate or principal contractor that does have coverage, which "prevents employers from contracting out normal work simply to avoid liability for workers' compensation." Id. In addition, this encourages employers to hire responsible, insured subcontractors. Posey v. Union Carbide Corp., 705 F.2d 833, 835 (6th Cir. 1983).Lindsey v. Trinity Commc'ns, Inc., 275 S.W.3d 411, 420 (Tenn. 2009). In exchange for its exposure to liability under the Act, the principal contractor gains immunity from tort liability. Fayette Janitorial, 2013 WL 428647, at *4. Pursuant to Tenn. Code Ann. § 50-6-108(a), the exclusive remedy provision of the Act, "The rights and remedies granted to an employee subject to this chapter . . . shall exclude all other rights and remedies of the employee, the employee's personal representative, dependents or next of kin, at common law or otherwise, on account of the injury or death." Moreover, the statutory employer's tort immunity applies even if the statutory employer was never required to pay workers' compensation benefits to the worker. Fayette Janitorial, 2013 WL 428647, at *4. The statutory employer rule "'will often give the statutory employer the best of both worlds'"- that is, the statutory employer usually will not be required to pay workers' compensation benefits (because the subcontractors will be insured) and is protected from tort claims by subcontractors' employees. Id. at *5 (quoting King, 55 TENN. LAW REV. at 429-30).
In order to be a principal contractor (or statutory employer) under Tenn. Code Ann. § 50-6-113, a company must satisfy one of three tests established by our Supreme Court:
Generally, a company is considered a principal contractor if: (1) the company undertakes work for an entity other than itself; (2) the company retains the right of control over the conduct of the work and the subcontractor's employees; or (3) "the work being performed by a subcontractor's employees is part of the regular business of the company or is the same type of work usually performed by the company's employees." Murray v. Goodyear Tire &Rubber Co., 46 S.W.3d 171, 176 (Tenn. 2001); Stratton, 695 S.W.2d at 951-52.Lindsey, 275 S.W.3d at 421. The parties in the present case do not dispute that the first two tests are not applicable here. The trial court concluded that Tractor Supply met the third test, and the propriety of that ruling is the issue we must address here. Was the work performed by Stanley National's employee part of Tractor Supply's regular business or the same type of work usually performed by the Tractor Supply's employees?
In concluding that Tractor Supply was a statutory employer under the third test, the trial court stated, in part:
In the instant case, Plaintiff was injured when he was engaged upon the subject matter of the contract between his employer and [Tractor Supply]; that is, he was checking inventory of the product, servicing the National display and [aisle] for [Tractor Supply], and cleaning and straightening the National display. Plaintiff said he had a monthly call cycle of several visits to various [Tractor Supply] stores every month, and every [Tractor Supply] store in his call cycle had a barn door track display for which he performed inventory checks. Based on these undisputed facts, there is no question that Plaintiff's work activities at [Tractor Supply] were continuous in nature and were part of [Tractor Supply's] regular business. Part of Plaintiff's job was to tidy-up the National displays at [Tractor Supply], pick up trash in the display, etc., and that type of work is a routine and inherent part of carrying on any enterprise. Moreover, the work Plaintiff performed was the type of work that was also typically performed by [Tractor Supply's] employees, such as inspecting the displays, making sure displays were properly stocked (product volume/numbers), and keeping them organized and clean. The regular practice of [Tractor Supply] is to receive product, place it in the
displays, and ensure that sufficient levels of product are in the shelves in order to sell products to the end user (customers). These functions are the type of project that needed to be done on a continual basis. Without the servicing and replenishment of shelves, no product would be available for sale to the end user. The facts presented by [Tractor Supply] demonstrate that the work performed during Mr. Coblentz's call cycle was done on a regular and continual basis, and it was of vital importance to [Tractor Supply's] ongoing business operation to sell products, particularly National products. The Court acknowledges that not all [Tractor Supply] employees' duties were identical to that of Mr. Coblentz; however, there is no question of fact that the [sic] some of the work Plaintiff performed at [Tractor Supply] stores was part of the regular business of [Tractor Supply] and was the same type of work usually performed by [Tractor Supply's] employees, such as inspecting the displays, making sure displays were properly stocked, and keeping them organized and clean. Under the "regular business" prong of the statutory employer analysis, it is not essential to have [Tractor Supply's] employees working alongside National employees doing the same work.
As the trial court noted, "[a] company may be deemed a statutory employer under one prong of the [third] test, even if it does not meet the other." See Lindsey, 275 S.W.3d at 422 (holding that the work performed by the subcontractor's employees was not a regular part of the company's business, but concluding that the company was a principal contractor because the work performed was the same type usually performed by the company's employees).
A. Part of Tractor Supply's regular business
Statutory employers have been described as "'those who get part of their regular work done by the employees of a subcontractor.'" Fayette Janitorial, 2013 WL 428647, at *6 (quoting Brown v. Canterbury Corp., 844 S.W.2d 134, 136 (Tenn. 1992)). For this prong of the third test, the question is whether the work being performed by Stanley National employees is part of the regular business of Tractor Supply. See Lindsey, 275 S.W.3d at 421. Our Supreme Court has stated that, "Whether work is a regular part of the business of any entity is a fact-specific inquiry, relative to the size and scope of the business." Id. at 422. Some of the factors a court may consider include "the frequency with which the type of work is carried out," "the company's capacity to perform the work," and "whether the work is inherent or necessary in the carrying on of the business." Dotson v. Bowater, No. 1:08-cv-191, 2009 WL 3584325, at *8 (E.D. Tenn. Oct. 26, 2009).
It is undisputed that Mr. Coblentz visited Tractor Supply's Fayetteville store approximately once every four to six weeks. In the interim period between his visits, the products he ordered would arrive in the store and be stocked by Tractor Supply employees. Plaintiffs' argument here is that this frequency "does not rise to the level of frequency contemplated by Tennessee courts when determining whether work is a regular part of a business." They provide no support for this statement. We consider the frequency of Mr. Coblentz's visits to be consistent with the type of services he performed at the Tractor Supply Store and one indicator that the services were part of Tractor Supply's regular business.
Plaintiffs further assert that Tractor Supply's employees did not have the capacity to perform the work Mr. Coblentz performed because his work was more specialized. They specifically argue that Tractor Supply's employees "cannot travel from store to store to inspect Stanley National displays or draft purchase order[s] and input them into Stanley National's system." Once again, Plaintiffs cite no caselaw to support this reasoning, and, as discussed below, we find it to be overly narrow and inconsistent with precedent. See Fayette Janitorial, 2013 WL 428647, at *7 (rejecting the plaintiffs' "narrow interpretation of 'regular business' [as] not supported by Tennessee caselaw").
In Dotson v. Bowater, 2009 WL 3584325, at *8, the federal district court decision in which this factor-the company's capacity to perform the work-was identified, the court cited the Tennessee Supreme Court's opinion in Lindsey. The relevant facts in Lindsey were that Trinity Communications, Inc., a cable television provider, contracted with Broadband Specialists, Inc. to install a cable system in Marion County, Tennessee. Lindsey, 275 S.W.3d at 415. Broadband subcontracted with HFC Services to perform work on the project, and HFC hired Mr. Lindsey to splice cable. Id. The trial court ruled that Mr. Lindsey was a statutory employee of Trinity. Id. at 416. The Tennessee Supreme Court disagreed.
Trinity argued that "the contract work was not part of its regular business and the work performed by Broadband and HFC differed from the work usually performed by Trinity." Id. at 421-22. Although Trinity admitted that new system construction was part of its business, the company asserted that such work was "not a regular part of its business." Id. at 422. Trinity's president testified that the company hired out its new cable construction projects. Id. The following summary and analysis from the court's decision is instructive:
For this project, Trinity prepared the maps for the site showing where the cable was to be hung and spliced, and Broadband was to "build the entire job." According to Hunter, Trinity's employees do not work on new system construction. At the time of its contract with Broadband, Trinity had only two employees, both of whom were inexperienced and incapable of handling the construction of a new system.
We conclude that the evidence preponderates against the trial court's finding that the work performed by Lindsey was a regular part of Trinity's business. Whether work is a regular part of the business of any entity is a
fact-specific inquiry, relative to the size and scope of the business. Construction or repair that is routine activity for a large business, which normally expects to perform the work with its own employed staff, may be a nonrecurring and extraordinary undertaking for a small business. 4-70 LARSON'S WORKERS' COMPENSATION LAW § 70.06(3) (2008). While new system construction may be a regular part of the business of "a cable company" in some instances, Trinity's small size and limited number of employees did not allow this type of work to be a regular part of its business. See Goodyear, 46 S.W.3d at 177 (holding that a painting job was not a regular part of the business because it was more extensive and specialized than a regular maintenance project).Lindsey, 275 S.W.3d at 422. Thus, in Lindsey, the small size of the company (which had only two employees) meant that it was not able to perform the work of constructing new cable systems as a routine activity. Tractor Supply is a large company with a much greater capacity than the company at issue in Lindsey.
Plaintiffs cite Murray v. Goodyear, 46 S.W.3d at 172, and argue that Tractor Supply subcontracted out the inventorying and ordering of Stanley National products and that there is no evidence that Tractor Supply employees could draft Stanley National purchase orders and input them into Stanley National's system. In Murray, the Goodyear tire manufacturing company hired the plaintiff's employer to paint overhead ducts in its plant, and the plaintiff was injured while painting the ducts. Murray, 46 S.W.3d at 172. The Supreme Court reversed the trial court's finding that Goodyear was the plaintiff's statutory employer. Id. at 172. Although Goodyear employees sometimes performed minor maintenance tasks, including painting, "Goodyear considered this project of painting the overhead duct work in the rafters of the plant a 'specialized' project involving 'special paint and special equipment [and] techniques.'" Id. The Court concluded that the duct painting project "could hardly be classified as a regular part of the employer's regular work, as the evidence presented at trial demonstrates that it could only be completed at certain times, such as when the plant was not in operation" and that there was no evidence "that cleaning and painting overhead ducts some eighteen to twenty feet above the ground is the type of project that needs to be done on a continual basis." Id. at 176.
Contrary to Plaintiffs' position, there is no evidence that the work he performed is specialized. There is no factual dispute regarding the type of work carried out by Stanley National outside sales representatives, including Mr. Coblentz. In his deposition, Mr. Coblentz gave the following description of his job responsibilities:
I would say service and inventory control. Inventory, as far as if it's sold out, we write an order to replace it. Service, as far as if product specifically, as an example, I guess I should say, if there were a carded product hanging on a hook and it doesn't belong on that hook, I would move said card product
to the correct hook so--, and then if there's trash on the bins on the bottom of the [Stanley National] display, I would clean up the trash. And if there's any product that doesn't belong in the display, I would remove it from our display and put it in a basket for a catch-all so the store personnel could restock it in an appropriate area.
At least part of the work performed by Mr. Coblentz-including inspecting the displays, making sure they were properly stocked, and keeping the area organized and clean-was the same type of work performed by Tractor Supply's employees with respect to other merchandise and displays in the store, and sometimes with respect to Stanley National's products. Based upon the undisputed facts, we cannot agree that Tractor Supply lacked the capacity to perform many of the tasks done by Mr. Coblentz.
As to the third factor, whether the work is inherent or necessary in the carrying on of the business, Plaintiffs argue that drafting purchase orders for Stanley National products and putting orders into the Stanley National system is not an inherent and necessary part of Tractor Supply's business. We again reject Plaintiffs' narrow definition of the work at issue here. The tasks provided by Mr. Coblentz, including ordering products and servicing the product displays, are vital to a retail hardware business; otherwise, there are no products on the shelves to sell. Furthermore, we note that Tractor Supply's Vendor Agreement with Stanley National states that all purchase orders must be completed on forms supplied by Tractor Supply.
Based upon the relevant undisputed facts, we agree with the trial court's conclusion that the work performed by Mr. Coblentz was part of Tractor Supply's regular business and that, therefore, Tractor Supply was his statutory employer.
B. Type of work usually performed by Tractor Supply's employees
Because we have determined that Mr. Coblenz's work satisfied the first prong of the third test, we need not consider the second prong in detail. Plaintiffs' arguments regarding the second prong are essentially the same as for the first prong. Plaintiffs emphasize the absence of evidence that Tractor Supply employees "are even capable of drafting purchase orders and entering those into Stanley National's system." We, again, reject Plaintiffs' narrow definition of the type of work Mr. Coblentz performed. We agree with the trial court's conclusion that at least "some of the work Plaintiff performed at TSC stores was . . . the same type of work usually performed by [Tractor Supply] employees."
Plaintiffs also argue on appeal that "the trial court erred in finding that Plaintiff was engaged upon the subject matter of the contract between [Tractor Supply] and Stanley National." Plaintiffs did not make this argument in their response in opposition to Tractor Supply's motion for summary judgment; hence, the trial court did not address this issue in its order. We consider this issue waived. See Duke v. Duke, 563 S.W.3d 885, 898 n.2 (Tenn. Ct. App. 2018) ("'It is well settled that issues not raised at the trial level are considered waived on appeal.'") (quoting Moses v. Dirghangi, 430 S.W.3d 371, 381 (Tenn. Ct. App. 2013)). We further note that, in this section of their appellate brief, Plaintiffs assert that the trial court's order failed to adequately explain the grounds for its decision and failed to assure the parties that the court independently considered their arguments. Based upon the record, were we to consider this argument, it has no merit.
Tennessee Code Annotated section 50-6-112(c) provides as follows:
(c)(1) In the event of a recovery against the third person by the worker, or by those to whom the worker's right of action survives, by judgment, settlement or otherwise, and the employer's maximum liability for workers' compensation under this chapter has been fully or partially paid and discharged, the employer shall have a subrogation lien against the recovery, and the employer may intervene in any action to protect and enforce the lien.
(2) In the event the net recovery by the worker, or by those to whom the worker's right of action survives, exceeds the amount paid by the employer, and the employer has not, at the time, paid and discharged the employer's full maximum liability for workers' compensation under this chapter, the employer shall be entitled to a credit on the employer's future liability, as it accrues, to the extent the net recovery collected exceeds the amount paid by the employer.
(3) In the event the worker, or those to whom the worker's right of action survives, effects a recovery, and collection of that recovery, from the other person, by judgment, settlement or otherwise, without intervention by the employer, the employer shall nevertheless be entitled to a credit on the employer's future liability for workers' compensation, as it accrues under this chapter, to the extent of the net recovery.
Our conclusion that Tractor Supply was Mr. Coblentz's statutory employer pretermits the remaining issues, regarding premises liability.
CONCLUSION
The judgment of the trial court is affirmed. Costs of this appeal are assessed against the appellants, Brian Coblenz and Cayce Coblentz, for which execution may issue if necessary.
JEFFREY USMAN, J., dissenting.
The majority opinion thoughtfully applies existing Tennessee caselaw, concluding that Tractor Supply Company is Mr. Coblentz's statutory employer. This precludes Mr. Coblentz from maintaining his premises liability suit against Tractor Supply due to the exclusive remedy provision of Tennessee's Workers' Compensation Law. My respectful disagreement with the majority's opinion is based upon (1) my view that existing Tennessee caselaw does not appear to have grappled with vendor-vendee relationships when determining statutory employer status, and (2) that the failure to address such circumstances creates an inconsistency with Tennessee's Workers' Compensation Law.
The issue before this court is whether Stanley National is a subcontractor of Tractor Supply. Mr. Coblentz argues that Stanley National is not a subcontractor; therefore, Tractor Supply is not a principal contractor. Tractor Supply insists that it is a principal contractor and that Stanley National is its subcontractor. Reading through the parties' briefing of this matter, it seems as if both sides are trying to push a square peg through a round hole. The reason for the improper fit and the reason it matters that vendor-vendee relationships have not been fully grappled with in Tennessee caselaw become clearer when one considers Larson's on Workers Compensation, a leading treatise in the field.1 Relevant to the circumstances of the present case, Larson's notes that the statutory employer test "presupposes" that the relationship between the injured employee's immediate employer and the company sued in tort is not of a type that falls outside the parameters of a principalsubcontractor relationship and includes as some examples of such excluded relationships "if the relation was that of buyer to vendor, lessee to lessor, or if the claimant was not an employee but an employer, partner, or joint venturer." 10 Larson's Workers' Compensation Law § 111.04[d] (emphasis added). If the presuppositions do not fit the circumstances of a given case, then Larson's states that "the general contractor is of course in no different position from any third party liable to suit." Id. Thus, backstage before one arrives at the primary test for determining subcontractor status, there is, under workers' compensation law in general, a presupposition being made that the purported subcontractor is not a vendor. In this case, the parties agree, however, that is precisely what Stanley National is in relation to Tractor Supply - a product vendor.
Under existing Tennessee caselaw, it is unclear, though, whether vendor status matters. As the majority notes, Tennessee's Workers Compensation Law provides that
[a] principal contractor, intermediate contractor or subcontractor shall be liable for compensation to any employee injured while in the employ of any of the subcontractors of the principal contractor, intermediate contractor or subcontractor and engaged upon the subject matter of the contract to the same extent as the immediate employer.Tenn. Code Ann. § 50-6-113(a). There is, as the majority indicates, a trade-off under Tennessee law for principal contractors, who become secondarily liable for workers' compensation for the employees of their subcontractors and who in turn gain immunity from tort liability. If Stanley National is Tractor Supply's subcontractor, then Tractor Supply benefits in the present case by avoiding being subject to Mr. Coblentz's premises liability claim.
This protection against being subject to liability is especially significant because Tennessee Law preserves the rights of workers to seek both workers' compensation from their employers and tort damages from tortfeasors who are not their employers. Under Tennessee Code Annotated section 50-6-112(a),
When the injury or death for which compensation is payable under this chapter was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured worker, or the injured worker's dependents, shall have the right to take compensation under this chapter, and the injured worker, or those to whom the injured worker's right of action survives at law, may pursue the injured worker's or their remedy by proper action in a court of competent jurisdiction against the other person.Tenn. Code Ann. § 50-6-112(a). Relatedly, Tennessee law also provides rights to the employers in connection with their employees' workers' compensation in the event of a recovery against the tortfeasor. Tenn. Code Ann. § 50-6-112(c).2
Perhaps the closest analog to the circumstances of the present case are those cases involving the sale and delivery of goods which have been considered in multiple states in determining statutory employer status. In accord with the understanding set forth in Larson's regarding vendors, the Kansas Supreme Court concluded nearly fifty years ago "that a sale and delivery of merchandise is not . . . a contractual relationship" that converts the selling/delivering business entity into a subcontractor. Bendure v. Great Lakes Pipe Line Co., 433 P.2d 558, 563-64 (1967). The Kansas Supreme Court added that its conclusion that such a relationship does not create a statutory employer status aligned with what it described as the general rule that workers' compensation "does not apply where the transaction between the immediate employer and the person sought to be held liable as his employer is that of purchase and sale." Id. (quoting 99 C.J.S. Workmen's Compensation § 107).
The present version of the Corpus Juris Secundum Workers' Compensation treatise has moved the relevant section and now provides as follows:
The workers' compensation act does not apply where the transaction between the immediate employer and the person sought to be held liable as its employer is that of purchase and sale. Under some statutory provisions, however, when a contract to sell is accompanied by an undertaking by either party to render substantial services in connection with the goods sold, that party is a contractor within the meaning of the compensation act.
A compensation act is likewise not applicable where some other relation, besides that of principal and contractor, exists between the parties.99 C.J.S. Workers' Compensation § 241 (2024).
Judicial decisions interpreting various state workers' compensation statutes before and shortly after the Bendure case are generally in accordance with this understanding. See, e.g., Brothers v. Dierks Lumber &Coal Co., 232 S.W.2d 646, 650 (Ark. 1950) (concluding that contracts relating to the sale of goods do not make "either the buyer or seller, or both, a 'contractor'" within the principal-subcontractor parameters for creating statutory employer status under Arkansas' workers' compensation law); Broussard v. Heebe's Bakery, Inc., 268 So.2d 656, 660 (La. 1972) (quoting 99 C.J.S. Workmen's Compensation § 107) ("The compensation act does not apply where the transaction between the immediate employer and the person sought to be held liable as his employer is that of purchase and sale, or where some other relation besides that of principal and contractor exists between them."); Hooks v. Wayne Cnty. Road Comm'rs, 76 N.W.2d 9, 12 (Mich. 1956) (declining to extend worker's compensation liability based on finding that the injured worker's immediate employer enjoyed "a vendor-purchaser relation" with the board); Heider v. Stoughton, 150 Neb. 741, 744, 35 N.W.2d 814, 815 (1949) ("[T]he defendant got the lumber removed from its yard, but that result naturally would follow from every sale of merchandise, and thus would be of no controlling importance. It cannot be logically concluded that [Nebraska Workers' Compensation Law] should have any application to the relation of a bona fide vendor and vendee.").
See infra n. 3.
Though there are exceptions, this general rule continues to hold decades later. For example, the Oklahoma Supreme Court reasoned as follows:
Humphrey v. Whole Foods Mkt. Rocky Mtn./S.W. L.P., 250 P.3d 706, 710 (Colo.App. 2010).
If we were to expand the term to include the relationship of buyer and seller of a commodity or material, we would violate fundamental rules of construction which require that words have the same meaning as that attributed to them in ordinary and usual parlance. Whatever activities might render someone an independent contractor, acting as a mere vendor is not one of them. We do not believe the Legislature intended § 11 to apply when the relationship between the injured worker's immediate employer and the entity sought to be held liable in tort as a "statutory employer" is that of vendor/vendee.Hammock v. United States, 78 P.3d 93, 97-98 (Okla. 2003) (footnotes omitted). The Idaho Supreme Court similarly adopted "the general rule" that, where the relationship between the employers involves the sale and delivery of goods, the relationship does not qualify as a statutory employer relationship even where some ancillary services are performed. See Kelly v. TRC Fabrication, LLC, 487 P.3d 723, 728-29 (Idaho 2021). In doing so, the Idaho Supreme Court recognized two limited exceptions: "when the contract to sell is accompanied by an undertaking to render substantial services in connection with the goods sold, or where the transaction is a mere device or subterfuge to avoid liability under the state's worker's compensation laws." Id. at 729.
This "substantial services" limitation has roots that reach back to the aforementioned foundational cases. For example, the Kansas Supreme Court stated that "[t]he rule stated is subject to the exception that when the contract to sell is accompanied by an undertaking by either party to render substantial services in connection with the goods sold, that party is a contractor within the meaning of the statute." Bendure, 433 P.2d at 564. Similarily, the Arkansas Supreme Court concluded that "when the contract to sell is accompanied by an undertaking by either party to render substantial services in connection with the goods sold, that party is a 'contractor' within the meaning of the section." Brothers, 232 S.W.2d at 650.
Two South Carolina appellate decisions offer illuminating examples of how courts address such matters: Meyer v. Piggly Wiggly Number 24, 500 S.E.2d 190 (S.C. Ct. App. 1998) and Hancock v. Wal-Mart Stores, Inc., 584 S.E.2d 398 (S.C. Ct. App. 2003). Turning first to Meyer,
[John] Meyer worked as a route salesman for Derst [Baking Company], a wholesale bakery that distributes baked goods. As a route salesman, he delivered the baked goods to major grocery chains, convenience stores, and various fast-food restaurants. In addition to unloading the goods and stocking the shelves, Meyer's responsibilities included keeping the Derst display full and clean, and removing out-of-date and damaged product from the shelves.
Piggly Wiggly is a typical retail grocery store operated for the purpose of selling groceries and other household items to consumers....
On December 7, 1992, Meyer stopped at Piggly Wiggly to make a delivery. He proceeded directly to the Derst display and began to straighten it up.
While walking through the store on his way back to his truck, he slipped and fell. The fall injured his head, shoulders, and lower back. Meyer received workers' compensation benefits from his immediate employer, Derst, and brought this tort action against Piggly Wiggly.Meyer, 500 S.E.2d at 191. In its analysis, the Meyer Court delineated the general parameters of South Carolina's primary test for determining principal-subcontractor contractor status for purposes of being a statutory employer, referencing a test resembling Tennessee's approach. Id. at 192.
Ultimately, the Meyer Court concluded that the framework did not matter, though, because the relationship between Derst Bakery Company and Piggly Wiggly "was one of vendor-vendee" rather than principal-subcontractor and therefore the case was carved out of the general test. Id. at 193. The Court reasoned that
. . . Derst's agreement with Piggly Wiggly was for the sale and delivery of a commodity. Derst was not Piggly Wiggly's subcontractor within the contemplation of that term as used in the statute.... Meyer's work stocking the shelves and maintaining the Derst display was incidental to the primary purpose of the arrangement between Derst and Piggly Wiggly, which was to provide baked goods for retail sale. Because Derst was a vendor rather than a subcontractor, section 42-1-400 does not apply and Meyer, therefore, is not Piggly Wiggly's statutory employee.Id.; aff'd Meyer v. Piggly Wiggly No. 24, Inc., 527 S.E.2d 761 (S.C. 2000).
South Carolina Code Annotated section 42-1-400 (1985) provided as follows:
When any person, in this section and §§ 42-1-420 and 42-1-430 referred to as "owner," undertakes to perform or execute any work which is a part of his trade, business or occupation and contracts with any other person (in this section and §§ 42-1-420 to 42-1450 referred to as "subcontractor") for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any workman employed in the work any compensation under this Title which he would have been liable to pay if the workman had been immediately employed by him.
On the same continuum but at the opposite end of the spectrum is Hancock v. WalMart Stores, Inc. Therein,
584 S.E.2d 398 (S.C. Ct. App. 2003).
Richard Hancock was injured while working for his employer on Wal-Mart's premises. Hancock filed suit in the circuit court, alleging his injuries were the result of Wal-Mart's negligence....
Tru-Wheels, Inc., one of Wal-Mart's vendors, employed Hancock. Tru-Wheels provided Wal-Mart with individuals to assemble and set up Wal- Mart merchandise in the store. Hancock assembled merchandise exclusively for Wal-Mart. On a typical day, Hancock would report to the Wal-Mart manager and receive instructions about which items to assemble. Hancock assembled the items on the Wal-Mart premises and would report any
problems to the applicable Wal-Mart department manager. Hancock was injured when, in the course of assembling riding lawnmowers, a Wal-Mart employee ran over his foot with a forklift.
Hancock filed suit in the circuit court, alleging his injuries were the result of Wal-Mart's negligence. Wal-Mart filed a motion for summary judgment, arguing Hancock was a statutory employee and thus had workers' compensation as his exclusive remedy.Id. at 399. The South Carolina Court of Appeals concluded that this relationship was not truly a vendor-vendee relationship, despite Mr. Hancock invoking Meyer and labeling it as such. Id. at 401. The court instead applied South Carolina's general framework for principal-subcontractor analysis and concluded that Hancock qualified as a statutory employee of Wal-Mart. Id.
Tennessee is certainly free to diverge from the general approach of its sister states. However, it is not clear why Tennessee's Workers' Compensation Law would operate differently than the statutes at issue in the aforementioned cases in dealing with vendorvendee relationships. The very concept of "employer" under Tennessee's Workers' Compensation Law is defined in relation to paying for services: "'Employer' includes any individual, firm, association or corporation, the receiver or trustee of the individual, firm, association or corporation, or the legal representative of a deceased employer, using the services of not less than five (5) persons for pay ...." Tenn. Code Ann. § 50-6-102(11) (emphasis added); accord Kelly, 487 P.3d at 727-28 (analyzing similar language under the Idaho Workers' Compensation Act in arriving at the conclusion that vendor-vendee relationships fall outside the scope of Idaho's principal-subcontractor provision). It is critical to Tractor Supply being classified as a statutory employer that it is a "principal contractor" and that Stanley National is its "subcontractor." See Tenn. Code Ann. § 50-6-113(a).
The subcontractor language of the Tennessee Code was adopted into Tennessee law in 1919. 1919 Pub. Acts, ch. 123, § 15. From its roots, stretching long before 1919, the definition of subcontractor has been connected with performing work. Tracing the definition and usage of the word to the end of the 1700s with a continuation of that same meaning to the present, the Oxford English Dictionary defines a subcontractor as "[a] person who or company which undertakes work under a subcontract, or (more generally) undertakes work on a particular part of a larger project." The Oxford English Dictionary's multiple definitions of subcontract as a verb similarly emphasize work being performed: One, "[t]o employ a person or company under a subcontract to undertake (all or part of the work specified in an original contract); to commission (work) from a subcontractor. Frequently with out in later use. Also in extended use: to delegate (work, a responsibility, etc.)." Two, "[t]o employ a person or company under a subcontract; to make a subcontract with a third party; to grant a subcontract for." Three, "[t]o undertake work as a subcontractor; to agree a subcontract with a person or company; to undertake a subcontract for work." Four, "[t]o undertake or produce (work) under a subcontract."Merriam-Webster Dictionary similarly traces the modern definition of the verb "subcontract" to before 1919 and aligns subcontract with the concept of work, defining the verb as follows: One, "to let out or undertake work under a subcontract." Two, "to engage a third party to perform under a subcontract all or part of (work included in an original contract)-sometimes used with out." Three, "to undertake (work) under a subcontract."
Subcontractor, Oxford English Dictionary, https://www.oed.com/dictionary/subcontractor_n?tab=meaning_and_use#20038073.
Subcontract, Oxford English Dictionary, https://www.oed.com/dictionary/subcontract_v?tab=meaning_and_use#20037971. There is a fifth definition of subcontract as a verb that is obsolete and related marriage: "To cause (a person) to become betrothed for a second time." Id.
Id.
Id.
Id.
Id.
Subcontract, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/subcontract.
The conventional understanding of a subcontract when used as a noun relates a contract with a third party to perform part or all of an existing obligation of the principal contractor to another, but that understanding does not conventionally fit with a vendor providing goods to a retailer. Defining subcontract as a noun, the Oxford English Dictionary and Merriam-Webster Dictionary note that a subcontract exists where a party to an original contract in turn contracts with a third party to undertake responsibilities under the original contract which could include providing work or materials. Relatedly, tracing the definition to the late 1700s, Merriam-Webster Dictionary defines subcontractor as "an individual or business firm contracting to perform part or all of another's contract."Similarly, Webster's 1909 New International Dictionary, the most proximate edition of Webster's in time to the 1919 adoption of the subcontractor language that is presently codified in Tennessee Code Annotated section 50-6-113(a), defines subcontractor as "[o]ne who contracts with a contractor to perform part or all of the latter's contract" with subcontract as a noun defined as "a contract under, or subordinate to, a previous contract." The contract here, however, is not for Stanley National, as a third party, to satisfy Tractor Supply's existing contractual obligations, whether they be for work or materials, under an original contract with another party. There is no other contract that Stanley National is contracting to perform all or part of. Instead, the only contract is the 2010 vendor agreement between Stanley National and Tractor Supply.
Subcontract, Oxford English Dictionary, https://www.oed.com/dictionary/subcontract_n?tab=meaning_and_use; Subcontract, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/subcontract.
Subcontractor, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/subcontractor.
Subcontractor, Webster's New International Dictionary 2066 (1909), available at https://archive.org/details/webstersnewinter00unse_0/page/2066/mode/2up; Subcontract, Webster's New International Dictionary 2066 (1909), available at https://archive.org/details/webstersnewinter00unse_0/page/2066/mode/2up.
Turning to the 1910 Second Edition of Black's Law Dictionary, which is the edition published closest to 1919, it similarly defines subcontract and subcontractor in relation to work being performed. It provides as follows:
Subcontract, Black's Law Dictionary (2d ed. 1910), available at https://dictionary.thelaw.com/subcontract/.
A contract subordinate to another contract made or intended to be made between the contracting parties on one part or some of them and a stranger. 1 II. Bl. 37 45. Where a person has contracted for the performance of certain work (e.g.. to build a house) and he in turn engages a third party to perform the whole or a part of that which is included in the original contract (e.g. to do the carpenter work.) his agreement with such third person is called a "subcontract" and such person is called a "subcontractor."
Id.
In other words, the subcontracting is for the performance of work. Id. Even if considered in relation to contracts intended to be made, it is not clear how Tractor Supply and Stanley National's contract is subordinate to another contract. An expansive reading of this definition would threaten to convert every contract from product suppliers to retailers into principal and subcontractor agreements.
These dictionary definitions, which were applicable in 1919 when the General Assembly adopted the subcontractor measure and remain so, pose challenges to treating a vendor of goods to a retailer as a subcontractor. Also problematic, this court nearly eighty years ago, in addressing the principal-subcontractor language of the Tennessee Code in the context of a statutory employer application, indicated that "[t]he gist of this section is [a] relationship either ascending or descending or both." Int'l Harvester Co. v. Sartain, 222 S.W.2d 854, 863 (Tenn. Ct. App. 1948). It is not clear how the relationship between Stanley National and Tractor Supply fits within this paradigm as an ascending, descending, or both an ascending and descending relationship. A concept of subcontractor sufficiently broad to reach the supplying of products for retail sale creates complexities in identifying precisely who is the subcontractor and who is the principal.
In the present case, the parties characterized themselves in their contractual agreement not as a principal and subcontractor but instead expressly identified Stanley National as a vendor. Their briefing before this court continues to include references to Stanley National as a vendor. In Tractor Supply's brief on appeal, it writes that it operates a "retail store" in Fayetteville, Tennessee, and that "Stanley National Hardware . . . is a vendor that sells products" at the Fayetteville store. Mr. Coblentz agrees, referring to Tractor Supply's Fayetteville storefront as just one of approximately 145 "hardware stores . . . and large hardware suppliers/distributors" he visits as part of his duties at Stanley National. As Mr. Coblentz's counsel noted "Stanley National provides the product and the defendant places that product in the store for sale....Stanley National has the product and supply chain personnel, and Tractor Supply has the storefronts and the employees."
Stanley National's role in its relationship with Tractor Supply of a product vendor is reflected in Stanley National and Tractor Supply's 2010 Vendor Agreement. That document is entitled "Vendor Agreement" and expressly identifies Stanley National as a vendor. Even more importantly, the terms of the agreement also indicate that the substance of the contract between Stanley National and Tractor Supply is that of an agreement for the sale of goods. As a few of the many examples that pervade the contract, Section Six of the agreement, concerning "Vendor Quotes," states that "Vendor shall identify all goods it is offering to TSC together with a quote for each in response to a Request for Quote ("RFO") issued by a TSC Buyer. Such quote shall contain information including but not limited to: description of the goods, price, whether the price includes freight and minimum quantities (the "Quote")." Section Eight clarifies that the Vendor, Stanley National, retains "the right, at its discretion, to change or supplement the goods offered for sale to TSC, provided that Vendor provides written notice of any such change . . ." (Emphasis added). Section Nine concerns the logistics of shipping perishable goods. Section Ten outlines purchase orders and the process for canceling purchase orders "at any time before the shipment of the goods." Section Fifteen explains how to deal with returned goods, and Section Twenty outlines the parties' mutual expectations regarding the shipment of Stanley National goods. Section Seventeen-pertaining to the physical display of Stanley National goods that allegedly malfunctioned and caused Mr. Coblentz's injuries-indicates that Stanley National may have such a display and that it will contain "only Vendor's goods."
That parties label their agreement in terms of vendor rather than a principalsubcontractor relationship does not make it so. See Harness v. Bechtel Jacobs Co., LLC, No. E2006-00194-COA-R3-CV, 2007 WL 10447, at *3 (Tenn. Ct. App. Jan. 3, 2007). The agreement between Stanley National and Tractor Supply, however, goes far beyond simply labeling Stanley National as a vendor. In both substance and form, it appears that Stanley National in its relationship with Tractor Supply is operating as a product vendor.
Existing Tennessee caselaw does not appear to have addressed vendor status in connection with the principal-subcontractor relationship for purposes of determining statutory employer status. The majority has applied existing Tennessee caselaw, and I find no fault in the majority's thoughtful analysis of existing caselaw. In my view, however, there is a gap in Tennessee's existing caselaw located right around Larson's presupposition regarding vendors. To address this gap, I would invite briefing from the parties to address whether, under the statutory measures that compose Tennessee's Workers' Compensation Law, a vendor-to-retailer relationship falls within the parameters of the principalsubcontractor relationship or whether it is presupposed that it is excluded. Additionally, I would invite the parties to address, assuming that such a presupposition exists under Tennessee's statutory scheme, at what point a contractual relationship as to the sale and delivery of goods become sufficiently imbued with services so as to create a potential principal-subcontractor relationship. If Tennessee's Workers' Compensation Law includes the presupposition of its sister states with regard to vendors, this case should be remanded for the parties to have an opportunity to present their case under the appropriate standard.
Courts have taken different approaches in line drawing as to where the vendor-vendee presupposition exclusion ends and the relationship becomes amenable to being considered a principalsubcontractor relationship. Virginia courts appear to have adopted a restrictive approach looking at any activities that are not the delivery of the goods. Burch v. Hechinger Co., 563 S.E.2d 745, 747-48 (Va. 2002). Alternatively, multiple jurisdictions appear to draw the line in connection with providing "substantial services in connection with the goods sold." See, e.g., Brothers, 232 S.W.2d at 650 (Arkansas); Gray Bldg. Sys. v. Trine, 391 S.E.2d 764, 765 (Ga. 1990); Kelly, 487 P.3d at 729 (Idaho); Bendure, 433 P.2d at 564 (Kansas); Broussard, 268 So.2d at 660 (Louisiana). In a different context, addressing whether the common law or Uniform Commercial Code applies to breach of contract actions that involve hybrid contacts for goods and services, Tennessee courts have applied the predominant purpose test. Audio Visual Artistry v. Tanzer, 403 S.W.3d 789, 798-99 (Tenn. Ct. App. 2012) (citing Pass v. Shelby Aviation, No. W1999-00018-COA-R9-CV, 2000 WL 388775 (Tenn. Ct. App. April 13, 2000)). The predominant purpose test requires a reviewing court to examine (1) "the language of the contract," (2) "the nature of the business of the supplier of goods and services," (3) "the reason the parties entered into the contract," and (4) "the amounts paid for the rendition of services and goods, respectively." Id. at 799. In concluding that the relationship fell outside the reach of principalsubcontractor relationship and instead remained a vendor-vendee relationship (between the supplier and retailer), the South Carolina Court of Appeals emphasized "the primary purpose of the arrangement between Derst and Piggly Wiggly . . . was to provide baked goods for retail sale" with the services "incidental" to this primary purpose. Meyer, 500 S.E.2d at 193.
Applying existing caselaw without integrating the limitation as to vendors threatens to make many more employers liable for workers' compensation of employees who are not their direct employees while reducing the protections of such employees against negligence by employers who are not their direct employer. Maybe the employers or employees would take the bitter with the sweet, but I am concerned that the statutory measures of Tennessee's Workers' Compensation Law are being stretched too far, resulting in pushing the square peg, vendors of goods to retailers, into the round hole of existing caselaw. I respectfully dissent.