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Wiseman v. Dynair Tech of Arizona Inc.5/19/1998
by himself and not as part of a crew. When he did work as part of a crew, unlike a subcontractor with its employees, PDS did not supervise him. Even if we accept this reasoning, Wiseman would still have an employee relationship with DynAir because his case would fall within the statutory employer doctrine. However, the "statutory employer doctrine governs only situations where an 'employer (owner or general contractor) procures work to be done for him by a contractor . . . .'" Word, 135 Ariz. at 519, 662 P.2d at 1026. Wiseman acknowledges on appeal that PDS was not a subcontractor of DynAir. His argument that he envisioned himself as working for a subcontractor fails.
Wiseman cites cases from other states that are factually distinguishable or inconsistent with Arizona case law. In Kowalski v. Shell Oil Co., 588 P.2d 811 (Cal. 1979), Kowalski's employer, the C. Norman Peterson Company, was not a labor contractor but instead contracted with Shell to perform maintenance work at a refinery. Kowalski worked with a crew of Peterson carpenters and a Peterson foreman supervised him. Peterson supplied its employees with tools, equipment, hard hats, and Peterson identification badges. The court affirmed the jury's finding that Kowalski was not Shell's special employee. Uncontradicted evidence persuaded the court that Shell did not exercise control over Kowalski's duties because Peterson's foreman supervised him at all times. Here, in contrast, PDS is a labor contractor; Wiseman did not work with a PDS supervised crew, and PDS never provided him with equipment.
Similarly, in Appeal of Longchamps Electric, Inc., 634 A.2d 994 (N.H. 1993), Longchamps, although not a labor contractor, agreed to supply its electricians' services to Mikol. A Longchamps' employee supervised the injured employee while he worked at Mikol, and Mikol neither supervised nor instructed him concerning his work. Mikol did not contract for the services of any individuals but rather for the services of a Longchamps electrical crew. The appellate court affirmed the lower court's finding that the worker was an employee of Longchamps only. In this case, DynAir contracted for individual PDS employees, not for a crew of employees under PDS's direct work supervision.
In both Barajas v. USA Petroleum Corp., 184 Cal. App. 3d 974, 229 Cal. Rptr. 513 (1986), and Novenson v. Spokane Culvert & Fabricating Co., 588 P.2d 1174 (Wash. 1979), labor contractors provided the workers to the defendant companies. Barajas held that it could not say as a matter of law that the worker had an employment relationship with the assigned special employer, noting that the existence of the special employment relationship is generally a question for the trier of fact. 229 Cal. Rptr. at 517. Novenson concluded that consent to an employment agreement with the assigned employer should not be imputed to the employee as a matter of law and that material factual questions existed concerning his consent to enter into a contract of hire.
California's and Washington's case law makes the existence of the lent employee/special employer relationship a question of fact. In Arizona, by contrast, the circumstances of each case determine whether the issue is one of fact or law. If the facts of the employment are undisputed, the issue is decided as a matter of law. See Avila, 179 Ariz. at 505, 880 P.2d at 725.
CONCLUSION
The undisputed evidence supports the trial court's ruling that Wiseman impliedly consented to a contract of hire with DynAir and thus that DynAir is immune from tort liability for his injuries. Accordingly, we affirm the trial court's summary judgment in favor of DynAir.
Rudolph J. Gerber,
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