Circuit Court for Worcester County Case No. 23-C-16-0233.
Gould, Harrell, Glenn T., Jr., (Senior Judge, Specially
April 15, 2014, Mauro Jimenez Garcia suffered an
"occupational disease disablement" to his lungs,
arising out of his work raising chickens on a farm owned by
Dai K. Nguyen. The chickens on Mr. Nguyen's farm were
raised for, and owned by, Tyson Farms, Inc.
("Tyson"), appellee. Mr. Garcia filed a claim
against Mr. Nguyen under the Workers' Compensation
on June 27, 2014. The Uninsured Employers' Fund
("UEF"),  appellant, was made a party to the claim
when it became clear that Mr. Nguyen did not possess
workers' compensation insurance. Mr. Garcia and UEF then
impleaded Tyson into the claim.
hearing on March 3, 2016, the Workers' Compensation
Commission ("Commission") declared that Mr.
Garcia's injuries arose out of the course of his
employment, and that both Mr. Nguyen and Tyson were
co-employers of Mr. Garcia at the time of his injuries. Tyson
appealed the Commission's decision to the Circuit Court
for Worcester County.
two-day jury trial took place on June 19 and 20, 2018; the
sole issue for the jury was whether Tyson was a co-employer
of Mr. Garcia. After the presentation of evidence, UEF and
Tyson made motions for judgment. The circuit court denied
both motions. The jury, after being instructed in the
applicable law (without objection), returned a verdict
finding that Tyson was not a co-employer at the time
of Mr. Garcia's injuries. UEF challenged the circuit
court's ruling on its motion for judgment and presents a
single question for our review, which we have reworded as
the circuit court err in denying UEF's motion for
reasons presented below, we answer this question in the
affirmative and reverse the circuit court's judgment.
Farm & Mr. Garcia's Hiring
the largest chicken producer in the country, does not own a
single chicken farm. Rather, the company contracts with
individual farmers to raise its chickens; the farmers own and
operate the farms, while chickens are raised by the farmer
according to Tyson's guidelines and best practices.
2009, Mr. Garcia was hired to work at a chicken farm where
Tyson's chickens were being raised. The farm was owned by
Terry Ung at the time. When Mr. Garcia was first hired, he
performed routine maintenance, such as removing dead
chickens, cutting the grass, and changing the lights. When
Mr. Ung became ill toward the end of 2009, Mr. Garcia began
managing the farm. Upon Mr. Ung's death at the end of
2009, his wife, Lee Ung, became the owner of the farm.
Mrs. Ung was unfamiliar with raising chickens, Tyson
representatives taught Mr. Garcia how to operate the farm.
During this period, Tyson employees came to the farm between
two and four times a week "to teach Mr. Garcia how to
maintain the farm and raise the chickens." According to
Mr. Garcia, "[the Tyson's employees] taught [him]
everything. They showed [him] how the system worked, how to
check the water levels, the feeding, temperature, fans, how
[all of the systems] would work properly, [and] how to turn
them on and off automatically." In addition to assuming
day-to-day responsibility for the chickens, Mr. Garcia also
began residing at the farm after Mr. Ung passed away, as
Tyson required someone to be present 24 hours a day, 7 days a
week, to ensure proper operation of the farm.
Ung sold the farm to Dai K. Nguyen in 2013. Mr. Nguyen, who
lived and worked in northern Virginia, did not know how to
operate a chicken farm either and purchased the farm as an
investment. Thus, Mr. Nguyen contracted with Tyson to raise
its chickens on the farm in June of 2013 as an "absentee
owner." Tyson will generally contract with an absentee
owner if someone is on the farm 24 hours a day, 7 days a
week, to respond to any emergencies that may arise with the
chickens. Based on Mr. Nguyen's status, "Tyson and
Mr. Nguyen agreed that the contract would only be approved if
[Mr. Nguyen] agreed to keep Mr. Garcia on as the resident
manager of the farm."
Nguyen and Tyson entered into a "Broiler Production
Contract" ("the Contract"). Under the
Contract, Tyson was required to:
(1) "[R]etain title and ownership to chickens, feed, and
medication[, ] . . . [and] determine the amount, type,
frequency, and time of delivery to and pick-up from [Mr.
Nguyen] of chickens, feed, and
(2) "[P]rovide veterinary services and technical
advice" to assist in raising the chickens; and
(3) "[C]omply with all applicable federal, state, and
local statutes, rules, regulations, and ordinances in
performance of [the] Contract."
In return, Mr. Nguyen was obligated to:
(1) "[F]urnish labor, materials, and utilities necessary
for" raising the chickens and, when necessary,
"seek [Tyson's] technical advice[;]"
(2) "[M]aintain biosecure housing for [Tyson's]
chickens, feed, and medication[;]"
(3) "[I]mplement [Tyson's] recommended best animal
management practices, including recommendations regarding
lighting, brooding, watering, ventilation, and
(4) "[C]omply with all applicable federal, state, and
local statutes, rules, regulations, and ordinances in
performance of [the] Contract[.]"
Contract also gave Tyson the unilateral right to terminate
the relationship upon default by Mr. Nguyen. Under the
termination clause, a "default" occurs upon:
Failure to comply with any provision of [the] Contract,
including but not limited to compliance with all applicable
environmental and litter management laws, rules, regulations,
and ordinances, and all requirements and programs contained
in the attached Schedules.
event of a default, Tyson had the right to "take
immediate possession of [their] chickens, feed, and
medication without further notice[.]" Tyson was further
permitted to "utilize [Mr. Nguyen's facilities] . .
. to complete the production of [the chickens] at [Mr.
Contract also included various addenda that set out how
chickens were to be raised on the farm. As an example, one
18-page document titled "Broiler Growing Guide,"
gave detailed instructions for raising a flock of chickens.
These instructions began at the stage of preparing the
facilities for a new flock through the chickens'
seven-week life cycle, giving specific instructions on how to
manage the flock's temperature, ventilation, water, food,
and light exposure for each week. The guide also included
requirements for the operation of various equipment and
procedures involved in raising the chickens. According to
Ronald Watkins, a Senior Manager of Live Production at Tyson,
if failure to comply with "programs [such as those in
the Broiler Growing Guide] leads to animal welfare issues or
poor performance," such a failure could result in the
termination of the Contract.
Oversight of the Farm
engaged in a continual oversight process to verify that the
farm was being operated in compliance with the Contract. To
ensure that conditions were adequate for chickens to be
placed on the farm, Tyson employees completed a 25-item
"Broiler Placement Checklist" before each flock of
chickens was placed. The checklist was ...