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Wiseman v. Dynair Tech of Arizona Inc.5/19/1998
This case presents the issue of legal standards for a lent employee. James Kevin Wiseman and Chong Wiseman (Wiseman) argue on appeal that DynAir Tech of Arizona, Inc. (DynAir) was not immune from tort liability for Mr. Wiseman's workplace accident and that a question of fact exists concerning his status as a lent employee. We affirm.
FACTS AND PROCEDURAL HISTORY
On appeal from summary judgment, we view the facts in the light most favorable to the party against whom judgment was entered. State ex rel. Corbin v. Challenge, Inc., 151 Ariz. 20, 24, 725 P.2d 727, 731 (App. 1986).
While unemployed in late 1993, Wiseman, a certified Federal Aviation Administration (FAA) airframe and powerplant (A&P; mechanic, heard about an opportunity to work for DynAir, an FAA-certified repair station. To take advantage of this opportunity, he had to be hired by PDS Technical Services (PDS), a labor contractor who provided temporary workers to the aerospace industry. Under a written service agreement between PDS and DynAir, PDS agreed to provide its employees to DynAir. PDS hired Wiseman, signed him to a written contract, and assigned him to DynAir as a temporary employee.
When Wiseman reported to DynAir for work, it instructed him about safety, security, communications, policies regarding working on aircraft, completing of DynAir work forms, using protective equipment, and handling hazardous materials. Although he mostly worked alone, at times he did work with crews composed of both PDS and DynAir workers. DynAir required that all work comply with FAA repair station authorization.
Wiseman used primarily his own tools, although he sometimes used DynAir's tools and equipment. If a PDS employee did not wish to use his own tools or lacked the tool required for a particular job, then DynAir was responsible for furnishing the needed tools. In addition, DynAir was required to supply all other materials, facilities, space, and equipment needed.
While working at DynAir, Wiseman was injured when he fell from a platform. He sued DynAir on the theory that it caused his injuries by negligently maintaining and inspecting the platform. DynAir moved for summary judgment under the claim that Wiseman's exclusive remedy, as a lent employee, was workers' compensation. The trial court entered judgment in DynAir's favor. Wiseman appealed from the judgment. We have jurisdiction under A.R.S. § 12-2101(B).
DISCUSSION
Three elements must be proved to establish that a "lent employee" has become the employee of the "special employer":
"(a) the employee has made a contract of hire, express or implied, with the special employer;"
"(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." Word v. Motorola, Inc., 135 Ariz. 517, 520, 662 P.2d 1024, 1027 (1983), quoting 1C A. Larson, Workmen's Compensation Law, § 48.00 (1982).
When all three factors are met, the special employer is liable for workers' compensation and entitled to the benefit of the statutory tort immunity given to complying employers. Id. See A.R.S. § 23-1022.
While agreeing that the second and third factors are satisfied, Wiseman argues that a genuine issue of fact exists as to the first element. He asserts that the issue of consent is for the jury because reasonable minds could differ as to whether he expressly or impliedly consented to a contract of hire with DynAir.
Because Wiseman does not dispute the second and third factors from Word, we examine only whether the uncontroverted fac
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