Roger & Tami Nash
5195 Tyler Oaks Drive
Mount Olive, Alabama 35117
Chief Justice Roy Moore
Alabama Supreme Court
300 Dexter Avenue
Montgomery, Alabama 36104-3741
Ref: 1011475 ATS, Inc., and ATS, Inc. of Georgia
Roger and Tami Nash
Dear Justice Moore,
I wanted to write one more time about the Alabama Supreme Court’s opinion concerning the wrongful death of our son, Justin. It is my hope that the court will not find my letters to be nuisance, but that you can understand how important this issue is to Tami and I.
I have done a great deal of study in the recent weeks about the employee leasing industry and the issue of ‘borrowed servant’ doctrine. What I have learned is that it is an industry in the middle of much conflict. There are many cases involving workman’s compensation disputes and a few cases, such as ours, that involve liability to a 3rd party. What stands out the most about these cases is the much too common occurrence of the leasing companies trying to escape any liability.
It appears that they are trying to find a way to get around the laws that are in place to protect both their employees and the public. They do not want to be responsible for these employees’ actions but yet they need to claim them as employees for other benefits. There are conflicts between the labor laws and the tax laws in areas such as retirement plans and there are problems in many other areas when it comes to determining who is responsible for these leased employees.
The bottom line is that there is not a clear-cut legal category of employer that fits the business of employee leasing. And because the industry, in many ways, is still in its infancy, the laws governing its actions are not adequate to protect the interests of all those involved.
I have learned that the courts seem to be using the very old “borrowed servant” doctrine to apply to a situation that is very different from what it started out to be many years ago. I can understand if the doctrine is used to exempt an employer whose employee is not longer performing duties that benefit his business, and now is a benefit to another instead, but the employee leasing industry’s business is supplying people to perform work for other companies. That is how their employees make money for them. They are still heavily involved with the management of these employees and they receive financial benefit from the labor they perform. How can it be that they are protected from liability under workers compensation because they are considered to be the employer, but in cases such as ours, they are protected from liability because they are not the employer? It is an immoral and dishonest position they are trying to take.
Roger Walker was the employee of ATS, doing ATS’s business of driving trucks for other companies. They still exercised a great deal of control over their employees. They were responsible for the required background checks. Their policies determined when and how a previous employer was contacted, (this was an important part of our case). They issued medical cards for their employees. (Walker was driving without the required medical card at the time of the wreck. ATS issued one to him a week later.) There are many other examples of the extensive control they retained over there employees. This is not a situation where one company has loaned an employee to another company, this is an example of an employee having two masters: doing the business of two different companies, with both companies sharing in the benefits and the responsibilities of their employee’s actions. How can this court say that it is “a matter of law” that Roger Walker was a loaned servant? How did our Judge err in allowing a jury to decide this questionable issue? If it were such a clear-cut “matter of law” why couldn’t ATS convince a jury of the “law” during our two weeks in court?
I have also learned that one of the reasons “respondeat superior” is considered a valid doctrine is because holding the master responsible will cause him to make the necessary changes to insure that the same thing does not happen again. Which employer in our case had the type of control that could prevent this from happening again?
Did the control of where the truck was driven have more bearing on this wreck than did the control of who was driving it?
ATS shared with Mercer Trucking in the responsibility for who was driving the trucks. Nether company had constant day-to-day control over the actions of their drivers. No one from ether company was in the cab with him to warn him to stop before he killed our son. I wish there had been. But both companies made the poor decisions that allowed a driver such as Roger Walker to be in that truck, and both companies should be held responsible for their actions.
These companies are making these same decisions today about the truck driver that will be following your children or grandchildren tomorrow.
“Where there is no accountability there will be no change.”
We beg you to please reconsider this decision and hold ATS accountable for their employees.
We pray that God will bless you and guide you in all your decisions.
Roger and Tami Nash