#### JAMES W. ANDERSON, SR. v. TEXAS GULF, INC.

No. 863SC410

(Filed 30 December 1986)

Master and Servant 8 35— negligence action — joint or loaned employee — Rule 12(b)(6) dismissal based on workers’ compensation coverage — improper

Plaintiffs action for negligence arising from an accident at defendant’s plant should not have been dismissed for failure to set forth a claim upon which relief could be granted on the grounds that plaintiff was an employee of defendant under either the joint or lent employee doctrines and therefore limited to workers’ compensation where there was no allegation that there was a contract for hire with defendant, the special employer, and no allegation that the work being done was essentially that of the special employer. N.C.G.S. § 97-10.1, N.C.G.S. § 1A-1, Rule 12(b)(6).

*635APPEAL by plaintiff from Phillips (Herbert O., Ill), Judge. Order entered 7 February 1986 in Superior Court, CRAVEN County. Heard in the Court of Appeals 24 September 1986.

Plaintiff, James W. Anderson, Sr., filed a personal injury action against defendant, Texas Gulf, Inc., alleging negligence in connection with an accident which occurred at the Texas Gulf plant in Aurora, North Carolina. Defendant filed a timely motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. From allowance of the motion to dismiss, plaintiff appeals.

Voerman & Ward, P.A., by J. Allen Murphy, attorney for plaintiff appellant.

Sumrell, Sugg & Carmichael, by James R. Sugg and Rudolph A. Ashton, III, attorneys for defendant appellee.

ORR, Judge.

The sole issue before the Court is whether the plaintiffs complaint should have been dismissed because it conclusively showed plaintiff to be an employee of defendant at the time he was injured and thereby limited his remedy to recovery under the Workers’ Compensation Act. We conclude that the trial court erred in dismissing the case.

N.C.G.S. § 97-10.1 provides that if an employee and employer are subject to and have complied with the Workers’ Compensation Act, the rights and remedies granted to the employee under the Act are his sole remedy and exclude all other rights and remedies he may have had against his employer at common law. According to defendant, plaintiffs complaint conclusively shows him to be an employee, either under the lent or joint employee doctrines such that recovery under the Workers’ Compensation Act provides the sole remedy for his injuries.

Under the lent employee doctrine:

> “When a general employer lends an employee to a special employer, the special employer becomes liable for workmen’s compensation only if

> “(a) the employee has made a contract of hire, express or implied, with the special employer;

> *636“(b) the work being done is essentially that of the special employer; and

> “(c) the special employer has the right to control the details of the work.

> “When all three of the above conditions are satisfied in relation to both employers, both employers are liable for workmen’s compensation.”

Collins v. Edwards, 21 N.C. App. 455, 459, 204 S.E. 2d 873, 876, cert. denied, 285 N.C. 589, 206 S.E. 2d 862 (1974) (quoting 1C, Larson, The Law of Workmen’s Compensation § 48.00). Joint employment, on the other hand, occurs when

> a single employee, under contract with two employers, and under the simultaneous control of both, simultaneously performs services for both employers, and when the service for each employer is the same as, or is closely related to, that for the other. In such a case, both employers are liable for workmen’s compensation.

1C, Larson, The Law of Workmen’s Compensation § 48.40, p. 8-511 (emphasis added).

In determining whether plaintiffs complaint was sufficient to withstand a motion to dismiss, “the well-pleaded material allegations of the complaint are taken as admitted; but conclusions of law or unwarranted deductions of facts are not admitted.” Lloyd v. Babb, 296 N.C. 416, 427, 251 S.E. 2d 843, 851 (1979) (quoting Sutton v. Duke, 277 N.C. 94, 98, 176 S.E. 2d 161, 163 (1970)). The material allegations of plaintiffs complaint are as follows:

> 1. “That at all times alleged . . . plaintiff was an employee of East Coast Machine and Iron Works, Inc.”;

> 2. That “although an employee of East Coast Machine [,] . . . [plaintiff] was on loan to Texas Gulf, Inc. and was under the direct supervision and control of Texas Gulf, Inc. and [was] working at their place of business ... in Aurora, North Carolina”;

> 3. “That at all times alleged . . . defendant . . . was in direct control of the plaintiffs work activities and the plaintiffs safety”;

> *6374. That on the day of the accident plaintiff reported “directly to the defendant’s business site in Aurora, North Carolina”;

> 5. That on the day of the accident, “[a]t the direction of the supervisory personnel of the defendant, plaintiff was instructed along with two other employees on loan from East Coast Machine ... to fit pipe together as part of a construction job at the business site of the defendant”;

> 6. “That as a proximate result of the plaintiff working [in unsafe conditions] and without any safety features provided by the defendant, the plaintiff slipped and fell . . . and in doing so twisted and fractured his ankle severely and otherwise suffered severe permanent and disfiguring injuries”;

> 7. That “the plaintiff was at all times doing his work for the defendant in as careful and safe a manner as possible under the conditions which the defendant instructed him to work”; and

> 8. “The proximate cause of the plaintiffs . . . injury was the negligence of the defendant. . . .”

In applying the lent employee doctrine to the allegations, we clearly have a general employer who has loaned his employee to a special employer. Similarly, the allegations state in unambiguous language that the plaintiff was under the direct supervision and control of Texas Gulf. The complaint does not allege, however, that there was a contract for hire, express or implied, with the special employer. Nor does the complaint allege that the work being done was essentially that of the special employer. Indeed, the complaint fails to even mention the line of work in which Texas Gulf is engaged.

In discussing the necessity, under the lent employee doctrine, that the employment be under an “appointment or contract of hire,” this Court in Collins v. Edwards noted that in lent employee cases:

> The only presumption is the continuance of the general employment, which is taken for granted as the beginning point of any lent-employee problem. To overcome this presumption, it is not unreasonable to insist upon a clear *638demonstration that a new temporary employer has been substituted for the old . . . failing this, the general employer should remain liable. [Citations omitted.]

21 N.C. App. at 460, 204 S.E. 2d at 877. Thus, to find that all three conditions of the lent employee doctrine were met, this Court would be required to overcome presumptions and to make conclusions of law and unwarranted deductions of facts not admitted by the pleadings. This we will not do.

The joint employee doctrine poses a similar obstacle to defendant’s motion to dismiss. For “although there is a mutual business interest between the two employers, and perhaps even some element of control, joint employment as to one employer cannot be found in the absence of a contract with that employer.” 1C, Larson, The Law of Workmen’s Compensation § 48.44, pp. 8-531-32.

The Supreme Court of North Carolina in Sutton v. Duke, 277 N.C. 94, 102, 176 S.E. 2d 161, 165-66 (1970), has noted and followed the rule that “a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” In Sutton it was additionally noted that the motion to dismiss under Rule 12(b)(6) may not be successfully interposed to a complaint formerly labeled a “defective statement of a good cause of action.” “For such complaint . . . the rules governing discovery, and the motion for summary judgment provide procedures adequate to supply information not furnished by the complaint.” Id. at 106, 176 S.E. 2d at 168. Therefore, even if a clearer explanation of plaintiffs employment relationship with defendant would have been helpful, plaintiffs complaint cannot be dismissed on that ground.

“To dismiss the action now would be ‘to go too fast too soon.’ . . . This case is not yet ripe for a determination that there can be no liability as a matter of law.” Id. at 108, 176 S.E. 2d at 169.

Allowance of the motion to dismiss was error. We reverse and remand this case for further proceedings in accordance with this opinion.

*639Reversed and remanded.

Chief Judge Hedrick and Judge Arnold concur.