Dean Wilcox v. Basehore , 189 Wash. App. 63 ( 2015 )

FILED
July 23, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
DEAN WILCOX, )
) No. 32179-7-111
Appellant, )
)
v. )
)
STEVE BASEHORE; BARTLETT ) PUBLISHED OPINION
NUCLEAR, INC.; BARTLETT )
SERVICES, INC.; BARTLETT )
SUPPORT SERVICES, INC., )
)
Respondents. )
FEARlNG,1. - Millwright Dean Wilcox, an employee of Washington Closure
Hanford (WCH), suffered serious injuries when he fell through an open hatch door on a
high scaffold while perfonning demolition work at "Building 336" at the Hanford site.
Wilcox contends that his fall resulted from the negligent design work or demolition work
plan of Stephen Basehore. On paper, Stephen Basehore was the employee of defendants
ELR Consulting, Inc. (ELR) or Bartlett Services, Inc. (Bartlett Services), if not both.
Nevertheless, if Basehore was a borrowed servant ofWCH when preparing the work
plan, Wilcox's negligence claim against ELR and Bartlett Services fails. Also, if
Basehore was a boO'owed servant of WCH, workers compensation bars Wilcox from
No. 32179-7-III
Wilcox v. Basehore
recovering against WCH because Basehore was a fellow servant. The trial court
dismissed ELR as a matter of law at the conclusion of trial. The trial court submitted the
borrowed servant issue and the question of Stephen Basehore's employment to the jury,
who found that Basehore was a borrowed servant of WCH.
On appeal, Dean Wilcox argues that, as a matter of law, Stephen Basehore was an
employee of Bartlett Services when he designed work on the scaffold. In turn, Wilcox
argues that, as a matter of law, Basehore was not a borrowed servant of WCH and the
trial court should not have submitted the question of Basehore's employer to the jury.
Settled law requires us to ignore savvy Hanford area contracts that declare Basehore to be
an employee of either or both ELR and Bartlett Services, rather than WCH, and to
address the practicalities of Stephen Basehore's employment. Since trial testimony
presented questions of fact as to who controlled Basehore's task of designing work
around the scaffold and, in turn, who functioned as Basehore's employer, we affirm the
trial court's submittal of the borrowed servant issue to the jury. We also affirm the
dismissal of ELR.
FACTS
Our review of Dean Wilcox's assigned errors requires a perusal of contracts
between and among the United States Department of Energy (DOE), WCH, Bartlett
Services, ELR, and Stephen Basehore. This perusal provides insights into corporate
America, the nature of contracting with the federal government, and the substance of
2
No. 32179-7-III
Wilcox v. Basehore
work at the southeast Washington Hanford nuclear site. The perusal leads to a
conclusion that many contract provisions written to gain government favor and to avoid
state employment benefits law are a farce. Our review of Wilcox's designated errors also
demands a focus on the nature of the tasks performed by Stephen Basehore and the
circumstances leading to Wilcox's catastrophic fall and miraculous landing. Finally, the
appeal requires we plumb the depth and breadth of the borrowed servant doctrine.
Our recitation of facts comes principally from the trial transcript. The Hanford
nuclear reservation sits on 586 square miles of shrub and steppe desert in Benton County.
Beginning in 1943, the American military used the remote site to produce plutonium for
the atomic bomb dropped on Nagasaki, after which World War II ended. After a short
lull, the United States government, in 1947, escalated nuclear weapon production at
Hanford to wage the Cold War. Use of the Hanford site for weapons manufacture
continued until 1987 when the last weapons grade reactor ceased operation. Weapon
production processes left solid and liquid wastes that pose a risk to the local environment
including the Columbia River. In 1989, the DOE, Environmental Protection Agency
(EPA), and Washington State Department of Ecology entered into an accord to clean the
Hanford site.
As part of the cleanup project, DOE contracted with WCH to decommission and
demolish buildings at the Hanford nuclear site. One such building is Building 336, where
Dean Wilcox sustained his injuries.
3
No. 32179-7-III
Wilcox v. Basehore
As part of its business practices, WCH supplements its permanent staff by "staff
augmentation" when a temporary task needs completion. Report of Proceedings (RP) at
860. Since demolition work eventually ends, a demolition contractor wishes to limit its
permanent staff. "Staff augmentation" consists of subcontracting with a firm, which, in
tum, finds workers to perform jobs on a transitory basis. Staff augmentation helps to
procure employees to fulfill temporary work tasks that may require a nationwide
employment search. One WCH subcontract manager identified staff augmentation as a
worker from another company working for WCH as if the worker belonged to WCH.
WCH periodically entered multi-year subcontracts with staff augmentation firms. This
appeal involves one such staff augmentation subcontractor, ELR.
ELR Consulting, Inc. is a small business formed in 2005 to provide temporary
workers to other businesses. ELR qualifies, for purposes of federal government
contracts, as a disabled military veteran owned small business. ELR's President Emmett
Richards suffered a gunshot wound during the Vietnam War. According to Richards, the
federal government requires that three percent of contract dollars go to disabled veteran
small businesses. Under its contract with DOE, WCH received a fee incentive for
subcontracting with small businesses and penalties if it did not. In addition to wishing to
limit its permanent staff, WCH engaged in staff augmentation by subcontracts with firms
such as ELR to fulfill contract requirements of dispensing sufficient contract funds to
small businesses and to reap additional payment.
4
No. 32179-7-III
Wilcox v. Basehore
In 2007, WCH awarded ELR a staff augmentation subcontract. ELR did not
always directly employ workers it provided WCH, but instead appropriated workers from
other employment service companies, such as Bartlett Services, to send to WCH. If
WCH desired the services of a particular person, ELR sometimes contracted with another
employment firm for the services of that person, which services it then provided to WCH.
ELR describes itself as a conduit for triggering federal benefits. In other words, WCH
received a contract incentive payment by contracting with ELR to provide workers that
ELR borrowed from other companies.
Bartlett Services is a Massachusetts corporation that boasts being the "Leading
Provider of Technical & Professional Services" to contractors at DOE nuclear sites such
as Hanford. Bartlett provides highly skilled professional workers that exercise
independent judgment, including employees with expertise in demolition and
decommissioning, known in the industry by the clever acronym, "D and D" work.
Bartlett Services entered no contract with WCH. Nevertheless, through staff
augmentation conduits such as ELR, about seventy Bartlett Services employees worked
at the Hanford site, including performing tasks for WCH. Bartlett Services maintained a
site coordinator, at Hanford, who responded to Hanford contractor employee needs. The
coordinator did not supervise the work tasks of employees sent to work for other
compames.
5
No. 32179-7-III
Wilcox v. Basehore
On occasion WCH identified in advance the worker whose temporary services it
desired. In 2008, WCH sought the skills of Stephen Basehore, a Bartlett Services
demolition and decommissioning "[ w]ork [c]ontrol [p ]lanner," to assist in prearranging
the demolition of Building 336 at the Hanford site. RP at 66. Building 336, also known
as the High Bay Testing Facility, was built in 1969 and housed experimental equipment
for the study of sodium properties in support of the Hanford Fast Flux Test Facility. The
building was 50 feet by 50 feet by 65 feet high. Building 336 never gathered nuclear
contamination.
Pursuant to its subcontract with ELR, WCH contracted with ELR for Basehore's
services. In tum, ELR procured the services of Basehore through his permanent
employer, Bartlett Services. WCH paid $89.00 per hour for Basehore's services to ELR,
which, in tum, paid Bartlett Services $85.58 per hour. Thus, ELR reaped $3.42 per hour
for Basehore's services, for procuring Basehore from Bartlett Services and furnishing
him to WCH.
WCH, ELR, Bartlett Services, and Stephen Basehore memorialized Basehore's
work arrangement in various contracts: a "Technical Services Subcontract Agreement"
between WCH and ELR (exhibit 34); Subcontract No: ELR-2008-008 between ELR and
Bartlett Services (exhibit 222); and a WCH acknowledgement of employment status,
benefits consent, and conflicts of interest form signed by Stephen Basehore (exhibit 5).
On appeal, Dean Wilcox underscores provisions of the contracts. WCH and Bartlett
6
No. 32179-7-III
Wilcox v. Basehore
Services entered no direct contract.
The Technical Services Subcontract Agreement between WCH and ELR defined
itself as "a Labor Hour Unit Rate type Subcontract" for technical services. Ex. 34 at ELR
000462. The Subcontract established the "WORK TO BE PERFORMED" as:
Except as specified elsewhere in this SUBCONTRACT, [ELR] shall
furnish all professional services including any labor, materials, tools and
supplies, equipment, transportation, supervision, and shall perform all
operations necessary and required to satisfactorily provide the Services of
Steve Basehore as fully described in Exhibit "D" and other documents
attached.
Ex. 34 at ELR 000462 (emphasis in original).
The Technical Services Subcontract Agreement identified four exhibits: exhibit A,
general conditions; exhibit B, special conditions; exhibit C, quantities, prices and data;
and exhibit D, scope of work. General condition 2 (GC-2) described ELR as an
independent contractor and directed it to control its employees:
[ELR] shall act as an independent contractor and not as the agent of
[WCH] in performing this Subcontract, maintaining complete control over
its employees and all of its lower-tier suppliers and subcontractors. . ...
[ELR] shall perform the Work hereunder in accordance with its own
methods subject to compliance with the Subcontract.
Ex. 34 at ELR 000466 (emphasis added). General condition 19 of the subcontract
required ELR to indemnify WCH for
any act, omission, fault or negligence whether active or passive of
[ELR], its lower-tier suppliers, subcontractors or of anyone acting under its
direction or control or on its behalf in connection with or incidental to the
performance of this Subcontract.
7
No. 32 179-7-III
Wilcox v. Basehore
Ex. 34 at ELR 000470.
General conditions 5 and 6 of the Technical Services Subcontract Agreement
between ELR and WCH established rules of contract interpretation. Under general
condition 6, special conditions took precedence over general conditions. Ex. 34 at ELR
000466-67. Special condition 13 (SC-13 B) of the subcontract assigned responsibility to
WCH Senior Project Engineer Kim Koegler for the technical aspects of Stephen
Basehore's work:
[WCH] has designated as Subcontract Technical Representative
(STR), Kim Koegler, who will be responsible for the technical aspects of
the performance of the Subcontract. The STR may designate other
personnel to oversee the performance of the Work, sign field tickets, etc.
However, the designated STR retains ultimate authority over the technical
aspects of the Work. Should [ELR] and STR disagree over the technical
requirements of the Subcontract, such matters will be immediately referred
to the [WCH]'s Subcontract Administrator for resolution. The STR does
not possess authority, express or implied, to direct [ELR] to deviate from
the terms and conditions of the Subcontract.
Ex. 34 at ELR 000486. Under the heading "INDEPENDENT CONTRACTOR,"
special condition 14 (SC-14) provided:
[ELR] realizes that any and all employees provided by [ELR] under
this agreement are not Employees of Washington Closure Hanford, LLC or
the Department of Energy. [ELR] is solely responsible for any and all
required taxes, insurance and liabilities arising under the performance of
this subcontract by its employees.
Ex. 34 at ELR 000486. The WCH-ELR contract included a blank copy ofWCH's
"ACKNOWLEDGEMENT OF EMPLOYMENT STATUS" form. Ex. 34 at ELR
8
No. 32 I 79-7-III
Wilcox v. Basehore
000500.
To fulfill its obligations to WCH, ELR contracted with Bartlett Services for
Stephen Basehore's services. Under "SCOPE OF WORK," the agreement between
Bartlett Services and ELR read:
[Bartlett Services] shall furnish the services set forth herein and shall
perform such services as an independent contractor and not as an employee
of [ELR].
Provide the services of Mr. Steve Basehore as a Work Control
Planner as a subcontractor to ELR Consulting, Inc. [Bartlett Services] will
be responsible for the employment and other employee related services
required to maintain this individual on the project, including any required
training.
Ex. 222 at I. The contract burdened Bartlett Services with payment of state and federal
taxes for the employment of Basehore. The contract incorporated by reference exhibits A
and B of the WCH-ELR subcontract and demanded that Bartlett Services obtain
Basehore's signature on WCH's acknowledgement of employment status form.
On May 27,2008, Stephen Basehore completed and signed WCH's
"ACKNOWLEDGEMENT OF EMPLOYMENT STATUS" form. Ex. 5. The
completed form read, in part:
I, STEPHEN P BASEHORE, have been advised, and hereby
acknowledge that, during the period that I am serving as a subcontractor to
Washington Closure Hanford, LLC, I shall remain an employee of
BARTLETT SERVICES, INC. for purposes of payment of any and all
wages, salaries, and benefits, including, but not limited to, paid absences,
non-executive bonuses, medical and dental benefits, pension, 40 I (k) plans,
life insurance, flexible spending, severance benefits, and all retirement
benefits.
9
No. 32179-7-III
Wilcox v. Basehore
Additionally, I understand and agree that BARTLETT SERVICES,
INC. is solely responsible for my workers' compensation coverage and any
and all applicable taxes - local, state, and federal. Accordingly, I agree and
acknowledge that BARTLETT SERVICES, INC. is my sole and exclusive
employer and as such is solely and exclusively responsible for payment of
any of the foregoing and that I have no legal recourse or rights against
Washington Closure Hanford for such payments. I further agree that my
employment with and compensation paid by BARTLETT SERVICES,
INC. is sufficient consideration for this consent and agreement.
Ex. 5. Dean Wilcox, as an employee ofWCH, had no knowledge of the various
agreements among WCH, ELR, Bartlett Services, and Stephen Basehore.
Consistent with the three agreements, Bartlett Services deemed Stephen Basehore
its salaried employee and paid him $58.71 per hour. Bartlett Services afforded Basehore
paid vacation and health and dental benefits. Bartlett Services included Basehore as its
employee when reporting to government agencies.
As WCH's employee, Stephen Basehore was subject to the company's employee
handbook and safety manual. Bartlett Services' president testified that Basehore, like
other employees, also needed to abide by Bartlett Services' safety program. The
president also declared that, with respect to safety, Bartlett Services does not relinquish
exclusive control over an employee when he or she provides services to another entity.
Nevertheless, Bartlett Services, Inc. 's safety plans did not apply to Stephen Basehore
when working for WCH at Building 336. Since DOE provided a comprehensive site-
specific safety plan, under Bartlett Services' policy, its own safety plan did not apply.
10
No. 32179-7-III
Wilcox v. Basehore
Bartlett Services expected its employees to follow the client's "policies, rules, regulations
or guidelines." Ex. 46 at 2.
WCH contracted for Stephen Basehore's services as a "[w]ork [c]ontrol
[p]lanner." RP at 66. A work control planner prepares a "Job Hazard Analysis," which
identifies risks and hazards for a given project. Other experts provide safety suggestions
to the work planner, who then develops a protocol to perform tasks in a safe sequence.
The work control planner also assembles instructions into an Integrated Work Control
Package (IWCP), or work package for short. Federal law demands the preparation of
work package for demolition projects on DOE sites. The work package includes
instructions for discrete tasks, drawings, technical guides, permits, and approvals
necessary to safely accomplish demolition work activity. Task instructions seek to create
a safe work environment. The record does not detail whether a work package
incorporates the Job Hazard Analysis or if the analysis is a separate document. Dean
Wilcox claims Basehore negligently prepared the work package on the Building 336
demolition project.
According to Bartlett Services' vice president of human resources, the position of
work control planner demands unique knowledge, skills, and training. The job exacts the
exercise of independent judgment and discretion. The demolition field suffers a shortage
of work control planners because of the extensive training required.
WCH assigns a project director to a demolition project. The director designates a
11
No. 32179-7-111
Wilcox v. Basehore
"[r]esponsible [m]anager" and ensures proper training of this manager. Ex. 1 at 4. The
responsible manager selects the planning team, which consists of subject matter experts,
engineers, and workers. A responsible manager reviews and approves all work packages
and Job Hazard Analyses. The work package, in part, defines the roles and
responsibilities of WCH managers and workers assigned to the demolition project.
WCH employees filled all the roles, mentioned in the preceding paragraph, for the
Building 336 demolition undertaking. WCH's Dan Elkins served as project director.
Both Elkins and WCH's Thomas Kisenwether served as responsible managers. WCH's
Donna Vasek served as project engineer, and WCH's Jim Evans served as the safety
subject matter expert. WCH's Brad Schilperoort served as field work supervisor, and
WCH's Kim Koegler served as senior project engineer.
Under the Building 336 work package, the responsible manager supervised the
work control planner, Stephen Basehore. The responsible manager retained authority
over approval of Basehore's work package. If Basehore believed a tabletop discussion,
rather than an examination of the work area, sufficed for finalization of the Job Hazard
Analysis, Basehore needed approval from the responsible manager. The responsible
manager could request that Basehore revise the work package.
WCH utilizes two varieties of work packages: Type 1 for single engagement tasks,
and Type II for repeated tasks. The responsible manager determines which type will be
used for various tasks.
12
No. 32179-7-III
Wilcox v. Basehore
As previously mentioned, Technical Services Subcontract Agreement special
condition 13 designated WCH's Kim Koegler as responsible for the technical aspects of
Basehore's work. The subcontract also allowed Koegler to designate other WCH
personnel to oversee Basehore. Koegler delegated the supervision of Basehore to
engineer WCH's Donna Yasek, who supervised and directed Basehore on a daily basis.
Vasek reviewed Basehore's work package before review by responsible managers
Kisenwether and Elkins.
No contract term directed Bartlett Services or ELR to supervise or direct the
technical aspects of Stephen Basehore's work. No Bartlett Services or ELR manager
actually supervised or controlled Basehore's technical work on the work package. WCH
did not expect ELR or Bartlett Services to supervise Basehore's work performance.
Stephen Basehore initially assembled a Type II work package for Building 336
because WCH anticipated standard demolition processes. Demolition usually entails
severing a building's supports from top to bottom. A crane operator expressed concern,
however, that standard demolition practices might cause the structure to pivot outward
and fall on him. So, WCH changed the work package to a Type I package.
The Type I work package prepared by Stephen Basehore required workers to
ascend a ladder 50 feet to a scaffold or catwalk in order to remove the track stops for a
bridge crane. The catwalk caused Dean Wilcox's injuries. A bridge crane, also called an
overhead crane, is a stationary crane attached to the ceiling of an industrial building. The
13
No. 32179-7-111
Wilcox v. Basehore
overhead crane consists of parallel runways or tracks with a traveling bridge spanning the
gap. A hoist, the lifting component of the crane, travels along the bridge.
Before the chang~ from a Type II to Type I work plan, WCH's project director and
responsible manager Dan Elkins rated the Building 336 demolition project as low risk
and indicated that no work would be performed on elevated surfaces. WCH's change to
the Type 1 work plan entailed the performance of a Job Hazard Analysis site review,
called a walkdown. As the work control planner, Stephen Basehore led walkdowns of
Building 336 on June 15 and 25, 2009. Basehore inspected the catwalk from the ground,
but did not ascend the ladder to the catwalk because a climbing carabiner could not be
found. Basehore assumed stanchions and chains guarded the ladder's opening to the
catwalk. Basehore did not know that the ladder accessed the catwalk through a hinged
hatch.
Stephen Basehore lacked knowledge of all work to be performed on the catwalk,
so his work package did not include instructions for all tasks on the high walk. Because
he never ascended to the catwalk, Basehore did not know the scaffold's configuration.
Basehore failed to recognize the risks of falling presented by work on the catwalk.
Stephen Basehore planned for workers to use safety harnesses and lanyards
connected to the ladder to safely ascend to and descend from the catwalk. Basehore did
not know that the lanyard would route through an open hatch. On June 30, 2009, WCH's
Thomas Kisenwether approved Basehore's work package for Building 336 and work on
14
No. 32179-7-II1
Wilcox v. Basehore
the demolition project began that day.
On July 1,2009, four workers, two riggers and two millwrights including Dean
Wilcox, ascended the ladder to the catwalk. A rigger specializes in moving large and
heavy objects. A millwright is a craftsman engaged in the erection or disassembly of
machinery. The millwrights intended to pull gear boxes and unlock brakes on the bridge
crane. weB's field supervisor Brad Schilperoort chose Wilcox as a millwright member
of the crew because he had prior experience in this task. Schilperoort directed the four
workers to ascend at one time, close the catwalk hatch, perform their work, and descend
together after reopening the hatch.
The four workers ascended to the catwalk and performed their tasks. One of the
riggers descended from the catwalk to replace the ground support rigger who left to
obtain materials. One of the three remaining workers on the catwalk closed the hatch
cover behind the descending rigger. When the remaining three workers believed they
were finished with the job, the other millwright descended the ladder and left the hatch
open believing the other two workers, including Dean Wilcox, would immediately
follow. During this time, the ground support rigger returned and called to direct one
additional task of the crew on the catwalk. The ground rigger asked that the two
scaffolded workers secure the crane trolley to the bridge with chains and tensioners.
Wilcox and the catwalk rigger concluded that the safest method to apply the chains would
be moving the crane closer to them by pushing the crane wheels from both ends of the
15
No. 321 79-7-III
Wilcox v. Basehore
crane bridge. As Wilcox ambled toward the west end of the catwalk, he did not notice
the open hatch, stepped into it, and fell fifty feet to the concrete floor below.
During his fall, Dean Wilcox struck a midpoint platform twenty-five feet below
the catwalk and then fell another twenty-five feet to the concrete floor. He survived the
fall, but cracked two vertebrae in his back, broke bones in both legs, and damaged his left
knee. He suffered no head or other internal injuries.
PROCEDURE
Dean Wilcox filed suit against Steve Basehore, Bartlett Services, and ELR for
negligence. Wilcox claimed that Basehore did not employ reasonable care when
preparing the work plan. Wilcox did not join WCH as a defendant since WCH was his
employer, who enjoyed worker compensation immunity. Bartlett Services answered, in
part, by alleging Stephen Basehore was the borrowed servant of WCH and thus Bartlett
Services incurred no liability for any negligence of Basehore. ELR answered that it was
not liable because at no relevant time was Stephen Basehore employed by or acting as an
agent or borrowed servant ofELR. At Dean Wilcox's request, the trial court dismissed
all claims against Stephen Basehore.
The case went to trial over two weeks. After all parties rested, Dean Wilcox
moved to dismiss ELR's affirmative defense that Stephen Basehore acted as WCH's
borrowed servant. Wilcox argued that, since ELR admitted that Basehore was never its
employee, the borrowed servant doctrine does not benefit ELR. In response, ELR moved
16
No. 32179-7-III
Wilcox v. Basehore
for a directed verdict. ELR argued that Basehore was neither its employee nor did it
exercise any control over Basehore for purposes of the borrowed servant doctrine. In
opposition, Wilcox emphasized contractual provisions declaring Stephen Basehore to be
an employee of ELR and appointing ELR as an independent contractor. The trial court
granted ELR's motion.
Perhaps encouraged by ELR's success, Bartlett Services also moved the trial court
for a directed verdict. Bartlett Services argued that the evidence showed it held no
control over the work of Stephen Basehore and that WCH exercised exclusive control
over Basehore's tasks. The trial court denied the motion, commenting: "There is more
than ample evidence here that Mr. Basehore was an employee of Bartlett. He was subject
to their safety manual. He was subject to the employee manual." RP at 935.
Dean Wilcox objected to jury instructions 12 and 13 and the special verdict form
that outlaid Bartlett Services' borrowed servant defense. Wilcox did not object to the
language within the two jury instructions but contended that no instruction addressing the
borrowed servant doctrine should be given because Bartlett Services could not rely on the
doctrine as a matter oflaw.
The trial court tendered a verdict form to the jury, which began:
SPECIAL VERDICT FORM
QUESTION NO.1:
17
No. 32 179-7-II1
Wilcox v. Basehore
Do you find that Steve Basehore was a borrowed servant of
Washington Closure Hanford?
(Answer "yes" or "no".)
ANSWER: Yes No - - - -
----
(DIRECTION: Ifyou answered "Yes" to Question No.1 sign this
verdict form and notify the bailiff. lfyou answered "No" to Question No.
1, proceed to Question No.2)
Clerk's Papers at 116. The jury answered yes to question no. 1. Thus, the jury did not
decide whether Stephen Basehore failed to exercise reasonable care when preparing the
Building 336 work package. Based on the jury's finding, the trial court entered judgment
in favor of Bartlett Services.
LAW AND ANALYSIS
On appeal, Dean Wilcox contends the trial court erred when it: (1) granted ELR a
directed verdict, and (2) instructed the jury on the borrowed servant defense. Each
assignment of error exacts an examination of the borrowed servant doctrine or defense.
With his first assignment of error, Wilcox contends an issue of fact as to the application
of the borrowed servant doctrine precluded a grant ofjudgment as a matter of law to
ELR. With his second assignment of error, Wilcox claims he was entitled to judgment as
a matter of law against Bartlett Services because no issue of fact arose during trial to
permit the application of the borrowed servant doctrine in favor of Bartlett Services.
Wilcox's request for judgment against Bartlett Services subsumes his objections to the
18
No. 32179-7-III
Wilcox v. Basehore
two jury instructions and the verdict fonn. We address the liability of Bartlett Services
first.
Bartlett Services
The parties do not dispute who employed Dean Wilcox. WCH employed Wilcox.
The wrangle below was and on appeal is who employed Stephen Basehore such that the
entity, other than WCH, could become vicariously liable for any negligent design work of
Basehore. The borrowed servant doctrine controls the question of who employed
Basehere.
Case law characterizes the borrowed servant doctrine as an exception to
respondeat superior or vicarious liability, but the doctrine may also be considered an
extension of respondeat superior. The loaned servant doctrine can be used to avoid or
impose liability. The general or pennanent employer may claim that it is not liable for
the acts of an employee, because it loaned the employee to another. An injured party
may argue that a special or temporary employer is liable for the acts of a borrowed
negligent employee. On appeal, Bartlett Services, Stephen Basehore's general employer,
invokes the doctrine to avoid liability.
The parties may assume that, if Stephen Basehore is the borrowed servant of
WCH, Bartlett Services automatically avoids liability because Basehore is then not the
employee of Bartlett Services for purposes of vicarious liability. The special verdict fonn
assumed that Basehore could not be both the employee of WCH and Bartlett Services
19
No. 32179-7-111
Wilcox v. Basehore
when performing the alleged negligent design work, since the verdict form directed the
jury to end its consideration of liability of Bartlett Services if it found Basehore to be the
borrowed servant ofWCH. A worker can remain an employee of the general employer
while also becoming a borrowed servant of the special employer, but reported decisions
impliedly shun a finding of two employers for purposes of vicarious liability because
both employers do not simultaneously control the negligent worker's task that led to a
plaintiffs injuries. We might envision a situation where the general employer and
special employer retain some control over a worker's particular task, but Dean Wilcox
does not contend that an entity other than WCH controlled in the field the preparation of
the work package by Stepheh Basehore. Therefore, we follow the general rule that when
the servant has borrowed servant status at the time of performance of the relevant
transaction, the servant's general employer can escape liability for damage or injuries
flowing from the transaction. Stocker v. Shell Oil Co., 105 Wash. 2d 546, 548, 716 P.2d
306 (1986).
Dean Wilcox contends that the borrowed servant doctrine does not apply to label
Stephen Basehore as WCH's employee or to shed Bartlett Services' status as the
employer for vicarious liability purposes for six reasons. First, under the contracts
among WCH, ELR, Bartlett Services, and Stephen Basehore, Bartlett Services retained
control over the work of Basehore, conceded an employment relationship with Basehore,
and agreed to be vicariously liable for Basehore's conduct. Second, the various parties
20
No. 32179-7-111
Wilcox v. Basehore
were independent contractors and the borrowed servant doctrine does not apply when the
potential employers are independent contractors. Third, the duty to indemnify WCH
found in contract language trumps the borrowed servant doctrine. Fourth, the present
circumstances are unique in that Stephen Basehore underwent a transfer from employer
one to employer two and from employer two to employer three, rather than from one
general employer to one special employer. Thus, Wilcox contends, the borrowed servant
rule does not apply in a situation involving two conveyances of the purported negligent
employee. Fifth, the borrowed servant doctrine does not apply when the servant is a
professional, rather than a common laborer. Sixth, ELR, Bartlett Services, and WCH
engaged in phony contracts in order to gain payments or avoid penalties under WCH's
contract with the United States government and, as a matter of public policy, the court
should strictly apply contractual language to penalize ELR and Bartlett Services for their
counterfeit contracts. Three of the arguments conflate since Wilcox's independent
contractor and indemnification arguments are based on contract language. The numerous
arguments prolong our opinion.
Dean Wilcox's arguments, while understandable, have not been recognized or
accepted by any court. We follow precedent that focuses on the realities of the situation,
not the language of contracts. We follow case law that demands that the borrowed
servant doctrine be applied when the special employer controls and supervises the tasks
performed by the worker. Since trial testimony supported a conclusion that WCH, not
21
No. 32179-7-III
Wilcox v. Basehore
Bartlett Services, controlled the performance of Stephen Basehore when he prepared the
work package, the trial court did not err by allowing the jury to find that Stephen
Basehore was a borrowed servant of WCH.
Under the rule of respondeat superior, an employer is vicariously liable to third
parties for his servant's torts committed within the scope of employment. Stocker v. Shell
Oil Co., 105 Wash. 2d at 548 (1986). An employer, however, may loan his servant to
another employer. Stocker, 105 Wash. 2d at 548. When a servant's general employer loans
his servant to the borrowing, or "special" employer, the servant then becomes the
"borrowed servant" of the special employer to perform a particular transaction. Stocker,
105 Wash. 2d at 548. If it can be established that the servant had borrowed servant status at
the time of performance of such transaction, the servant's general employer can escape
liability for damage or injuries flowing from the transaction. Stocker, 105 Wash. 2d at 548;
Brown v. Labor Ready Nw., Inc., 113 Wash. App. 643, 647, 54 P.3d 166 (2002).
An employee may become the loaned servant of another by submitting himself to
the direction and control of the other with respect to a particular transaction or piece of
work. Fisher v. Seattle, 62 Wn.2d 800,805,384 P.2d 852 (1963); Jones v. Halvorson-
Berg, 69 Wash. App. 117, 121,847 P.2d 945 (1993). In circumstances when the borrowed
servant is also the plaintiff, a question of whether the servant consented to being
borrowed arises. Brown v. Labor Ready Nw., Inc., 113 Wash. App. at 649. But when, as
here, the plaintiff is not the allegedly borrowed servant, consent is not an issue. The issue
22
No. 32179-7-111
Wilcox v. Basehore
becomes whether the borrowing employer accepted and controlled the service that led to
the injury. Brown, 113 Wash. App. at 649.
In order for the loaned servant doctrine to apply, the borrower must have exclusive
control over the employee. Am. Sign & Indicator Corp. v. State, 93 Wash. 2d 427, 434, 610
P.2d 353 (1980); Ackerman v. Terpsma, 74 Wash. 2d 209, 212, 445 P.2d 19 (1968). An
employee may become the other's servant as to some acts and not as to others. Nyman v.
MacRae Bros. Constr. Co., 69 Wash. 2d 285, 288, 418 P.2d 253 (1966); see also
REST ATEMENT (SECOND) OF AGENCY § 227. Exclusive control for all purposes is not
required, rather the question is the control of the borrowed servant by the borrowing
employer for the transaction causing injury. Brown, 113 Wash. App. at 651. This rule is
reasonable since the employer most responsible for the work that causes the plaintiff
injury should be the liable employer. A related determining factor for the borrowed
servant doctrine is whose work is being performed. Pearson v. Arlington Dock Co., III
Wash. 14,22, 189 P. 559 (1920). The trier of fact should consider the work being
performed at the time of the accident and its relationship to the business of the special
employer and general employer. Davis v. Early Constr. Co., 63 Wn.2d 252,257,386
P.2d 958 (1963).
Whether the borrowing employer exercised exclusive control over the borrowed
servant for the transaction that caused the injury is typIcally a question of fact for the
jury. Nyman v. MacRae Bros. Constr. Co., 69 Wash. 2d at 288; Davis v. Early Const. Co.,
23
No. 32179-7-III
Wilcox v. Basehore
63 Wash. 2d at 257; Campbell v. State, 129 Wn. App. 10,21, 118 P.3d 888 (2005). When
there is conflicting evidence, the question is one of fact to be decided by the trier of facts.
Anderson v. Red & White Constr. Co., 4 Wash. App. 534, 539,483 P.2d 124 (1971). Only
when the evidence is undisputed does the nature of the relationship existing present a
question of law. Pichler v. Pac. Mech. Constructors, 1 Wn. App. 447,450,462 P.2d 960
(1969).
Dean Wilcox faults Stephen Basehore and the Building 336 work package he
assembled for causing his fall. Thus, when addressing Wilcox's assignments of error, we
must determine if some facts showed that WCH exercised exclusive control over Stephen
Basehore's creation of the work package. Many facts evidenced exclusive control in
WCH. Basehore submitted the work package for approval to the demolition project's
responsible manager, an employee ofWCH. Under WCH's IWCP, the responsible
manager supervised Basehore's performance as the work control planner. The
responsible manager could demand that Basehore revise his work package. The WCH­
ELR Technical Services Subcontract Agreement special condition 13 designated Kim
Koegler, an employee ofWCH, as responsible for the technical aspects of Basehore's
work. The subcontract allowed Koegler to designate other personnel to oversee
Basehore. Koegler delegated the supervision of Basehore to WCH engineer Donna
Yasek, who supervised and directed Basehore on a daily basis. No trial testimony
suggested that any employee or manager of Bartlett Services oversaw or controlled
24
No. 32179-7-III
Wilcox v. Basehore
Stephen Basehore's preparation of the work package deemed defective by Dean Wilcox.
Dean Wilcox argues that WCH, ELR, Bartlett Services, and Stephen Basehore's
various contracts preclude a borrowed servant defense on three grounds: (l) Wilcox
remained Bartlett Services' employee, (2) ELR, Bartlett Services, and Basehore were
independent contractors, and (3) ELR promised to indemnity WCH. Since Bartlett
Services had no direct contract with WCH, Wilcox may rely, in part, on the provision in
the agreement between Bartlett Services and ELR that bound Bartlett Services to the
contract between ELR and WCH.
The subcontract between ELR and WCH declared that all employees provided by
ELR under the agreement, which included Stephen Basehore, "are not Employees of
Washington Closure Hanford, LLC or the Department of Energy." Ex. 34 at ELR
000486. Also, a provision in the ELR subcontract read that ELR would "maintain!]
complete control over its employees and all of its lower-tier suppliers and subcontractors .
. .. [ELR] shall perform the Work hereunder in accordance with its own methods subject
to compliance with the Subcontract." Ex. 34 at ELR 000466 (emphasis added).
Therefore, Wilcox reasonably argues that Basehore could not be a borrowed servant of
WCH. Wilcox contends the sophisticated parties could and did contract to remove the
employment of Stephen Basehore outside the common law borrowed servant rule.
In support of his contention, Dean Wilcox forwards no law that supports his
argument that provisions in a contract prevail over the realities of the work site. Wilcox's
25
No. 32179-7-111
Wilcox v. Basehore
argument also fails to acknowledge that the borrowed servant doctrine assumes that the
negligent worker remains in the general employ of one employer who is not vicariously
liable and that general employer may still claim the loaned servant is another's employee
for a particular task. Stephen Basehore could be a borrowed employee of WCH for one
purpose and the employee of Bartlett Services for another purpose. The subcontract
between ELR and WCH may refer only to general employment or employment for
purposes of wages and benefits and not specific or special employment of a task.
Dean Wilcox also relies on testimony of Bartlett Services' president that Bartlett
did not relinquish exclusive control over Stephen Basehore's safety. Wilcox contends
this admission negates the "exclusive control" element of the borrowed servant doctrine.
This argument ignores the fact that DOE and WCH rules controlled safety at the Building
336 worksite. Also the gist of the doctrine is that the special employer controls the tasks
performed by the employee, not the employee's safety.
Dean Wilcox's appeal ignores a contractual provision that harms his legal
position. Special condition l3 (SC-l3) of the Technical Services Subcontract Agreement
between WCH and ELR assigned responsibility to WCH Senior Project Engineer Kim
Koegler for the technical aspects of Stephen Basehore's work. The ELR subcontract
special conditions prevailed over the subcontract's general conditions, a practice common
to construction contracts.
26
J
I
I
No. 32179-7-III
II
Wilcox v. Basehore
Brown v. Labor Ready Northwest, Inc., 113 Wash. App. 643 (2002) demolishes
I
Dean Wilcox's argument that the contracts between the employing entities control over
the underpinnings of the borrowed servant rule. In that case, Joyce Brown, an employee
II
ofCMI Northwest, suffered injuries as the result of the operation ofa forklift by Russell
i Henson, a worker sent to CMI by Labor Ready, a labor agency. Brown sought to impose
liability on Labor Ready as the general employer of the forklift operator. Summary
judgment in favor of Labor Ready was affirmed on appeal, since CMI controlled the
forklift operations of Henson. On appeal, Brown emphasized the agreement between
Henson and CMI, which read that Henson was not an employee of Labor Ready's
customer and that Labor Ready would pay worker compensation premiums for Henson.
Brown unsuccessfully argued that the contractual language rendered Labor Ready the
employer of Henson and imposed liability on Labor Ready for negligent acts of Henson.
The decision illustrates the unimportance of contractual terms in determining
employment for purposes of liability for injuries caused by a worker.
Dean Wilcox argues Bartlett Services, ELR, and Stephen Basehore's status as
independent contractors precludes the borrowed servant defense. The subcontract
between WCH and ELR declared ELR to "act as an independent contractor and not as the
agent of [WCH] in performing this Subcontract." Ex. 34 at ELR 000466. Under the
agreement between Bartlett Services and ELR, Bartlett Services provided the services of
Stephen Basehore as a work control planner as a subcontractor to ELR. In turn, Basehore
27
No. 32179-7-III
Wilcox v. Basehore
signed an acknowledgment that he served as a "subcontractor to Washington Closure
Hanford, LLC." Ex. 5. Wilcox may consider a subcontractor to be synonymous with an
independent contractor.
In support of his independent contractor argument, Wilcox cites Hartell v. T.H
Simonson & Son Company, 218 N.Y. 345, 113 N.E. 255 (1916). In Hartell, a large
lumber truck driven by a Durr employee collided with a wagon operated by Edward
Hartell, resulting in the death of Hartell. Simonson & Son Company owned the truck
and its cargo of lumber and had hired Durr to cart lumber with Durr's employee and
Durr's team of horses. Simonson paid a rate per day to Durr, who paid his employees by
the hour. At issue was whether Simonson became liable under the borrowed servant
doctrine.
The New York court, in Hartell, expressed a general rule and an exception for
independent contractors:
A servant in the general employment of one person, who is
temporarily loaned to another person to do the latter's work, becomes, for
the time being, the servant of the borrower, who is liable for his negligence.
But if the general employer enters into a contract to do the work of another,
as an independent contractor, his servants do not become the servants of the
person with whom he thus contracts, and the latter is not liable for their
negligence.
Hartell, 218 N.Y. at 349. The Hartell court reasoned that Durr, the truckman, did not
stand in the relation of an independent contractor to Simonson because he did not
undertake to deliver lumber for the latter. Durr simply furnished a team and driver to
28
No. 32 179-7-III
Wilcox v. Basehore
enable Simonson to do its own work. Thus, the New York court did not apply any
independent contractor exception.
Dean Wilcox urges this court to apply Hartell's exception for independent
contractors given the contracts between WCH, ELR, Bartlett Services, and Stephen
Basehore. Nevertheless, for the exception to operate, the general employer must
undertake to do the work of another. Hartell, 218 N.Y. at 350. Bartlett Services did not
undertake WCH's work. WCH did not contract ELR or Bartlett Services to undertake its
demolition of Building 336 or the creation of the work package. Instead, WCH
contracted for "the Services of Steve Basehore." Ex. 34 at ELR 000462 (emphasis in
original),
Dean Wilcox next argues that ELR's promise to indemnify WCH for Stephen
Basehore's negligence precludes the borrowed servant defense. The WCH-ELR contract
required ELR to indemnify WCH for "any act, omission, fault or negligence whether
active or passive of [ELR], its lower-tier suppliers, subcontractors or of anyone acting
under its direction or control or on its behalf in connection with or incidental to the
performance of this Subcontract." Ex. 34 at ELR 000470.
Before addressing the merits of Wilcox's argument, we must address a procedural
objection raised by Bartlett Services. Bartlett Services argues that Wilcox failed to
preserve this indemnity language argument for appeal. Wilcox vehemently objected to
the trial court's instructing the jury on the borrowed servant defense and often
29
No. 32179-7-III
Wilcox v. Basehore
emphasized the underlying contractual relationships. The record does not show Wilcox
having identified the indemnity clause to support its objection.
Generally, failure to raise an issue before the trial court precludes a party from
raising it on appeal. Lunsfordv. Saberhagen Holdings, Inc., 139 Wash. App. 334, 338,160
P.3d 1089 (2007), affd, 166 Wn.2d 264,208 P.3d 1092 (2009); RAP 2.5. But when the
issue raised for the first time on appeal is arguably related to issues raised in the trial
court, a court may exercise its discretion to consider newly articulated theories for the
first time on appeal. Lunsford, 139 Wash. App. at 338. We apply this exception here.
Dean Wilcox's reliance on the indemnity language is closely related to his arguments that
other contract language precludes application of the borrowed servant doctrine. Bartlett
Services suffers no prejudice from our entertaining the argument.
In support of his argument that indemnity language precludes a borrowed servant
defense, Wilcox cites to Stocker v. Shell Oil Company, 105 Wash. 2d 546,548, 716 P.2d
306 (1986) and Tidewater Oil Company v. Travelers Insurance Company, 468 F .2d 985
(5th Cir. 1972). Neither case precludes instructing the jury on a borrowed servant
defense in a case where the injured party, rather than a contracting party, seeks recovery.
In Stocker v. Shell Oil Company, the Washington Supreme Court defined the issue
before it as: "whether the borrowed servant status of a negligent worker, assigned
pursuant to a contract between a labor supplier and a labor user, may defeat an express
indemnity agreement between the contracting parties." 105 Wash. 2d at 546-47 (emphasis
30
No. 32179-7-III
Wilcox v. Basehore
j
I added). The court held that an express contractual agreement for indemnification must
I prevail over the tort defense of borrowed servant. Stocker stands for the proposition that
I contracting parties may allocate the risk of such liability as they see fit: "Indemnity
I
i
agreements are essentially agreements for contractual contribution, whereby one
tortfeasor, against whom damages in favor of an injured party have been assessed, may
look to another for reimbursement." Stocker, 105 Wash. 2d at 549. Under Stocker, the
borrowed servant doctrine might still operate to assess fault and liability in favor of the
injured party. But when parties have allocated the financial risk for such liability in
contract, the doctrine cannot serve to reallocate that risk.
ELR's duty to indemnify WCH would be relevant in a suit brought by WCH for
indemnification against ELR. The duty holds no importance in a negligence suit brought
by Dean Wilcox against ELR or Bartlett Services. ELR, and indirectly Bartlett Services,
agreed to indemnify WCH, not Wilcox.
Tidewater Oil Company is no more helpful to Dean Wilcox. There, Hughes
Company employed Teddy Smith, paid his wages, and made necessary deductions for
unemployment insurance, old age benefits, and worker compensation. Tidewater Oil
contracted for Hughes Company to provide labor, transportation, tools, and equipment for
the performance of maintenance work on Tidewater facilities. The contract provided,
"All persons furnished by [Hughes] in the performance hereunder shall be considered
servants or agents of[Hughes], and not of Tidewater." 468 F.2d at 987. Hughes
31
No. 32179-7-III
Wilcox v. Basehore
furnished Teddy Smith to Tidewater to work as a roustabout and then switcher.
Tidewater oversaw and controlled Smith's work. As a result of Smith's negligence, a
boat of Tidewater's collided with a small vessel, killing one person and injuring another.
After claims were settled, Tidewater sought indemnification from its insurance company.
The trial court denied indemnification, because Smith was a borrowed servant of
Tidewater whose negligence was attributable to Tidewater.
In Tidewater Oil, the Fifth Circuit United State Court of Appeals reversed the trial
court, writing:
By its emphasis upon Smith's status as borrowed servant of
Tidewater, and the lack of independent contractor status of Smith, the
District Court in effect bypassed the question of whether the arrangement
was intended to be independent of status and to relieve the regular user of
contract labor from the very sort of argument over status which has arisen
in this case.
Tidewater Oil Co. v. Travelers Ins. Co., 468 F.2d at 988. Like Stocker, Tidewater Oil
Company recognizes that tort principles establish liability, the risk of which parties may
reallocate by contract:
Neither law nor policy forbids the regular user of contract labor from
requiring that, in the interest of certainty and uniformity, vicarious liability
be on the supplier and the supplier fix his contract hiring rate accordingly
and insure against it ifhe desires. Conversely, the parties may agree for
vicarious liability to fall on the user. Insofar as the furnished workman is
under traditional tests a borrowed servant, the allocation ofultimate
responsibility can be in terms ofindemnity or ofthe employee being treated
as the servant ofone party or the other.
Tidewater Oil Co., 468 F.2d at 988 (emphasis added). Again, ELR's duty, and by
32
No. 32 I 79-7-III
Wilcox v. Basehore
extension Bartlett Services' duty of indemnity, only favors WCH and not Dean Wilcox.
We now move beyond Dean Wilcox's arguments based on the language of the
parties and WCH's contracts. Dean Wilcox also contends that only a general employer
may loan a servant. Wilcox then labels Bartlett Services as the general employer and
observes that ELR contracted with WCH for the services of Stephen Basehore. ELR, as
an intermediary entity, contracting party, or employer lay between the relationship
between Bartlett Services, as general employer, and WCH, as special employer. Wilcox
posits that the borrowed servant doctrine cannot favor Bartlett Services since it did not
loan Stephen Basehore to WCH.
Although no case law rejects Dean Wilcox's contention, no case law buttresses his
position either. Case law does not dictate how a general employer lends its employees or
whether the general employer may employ an intermediary lender. Analysis and
application of the borrowed servant rule invariably focuses on who exerted control over
the servant for the transaction causing an injury. Brown, 113 Wash. App. at 651. In some
circumstances, the manner in which the general employer lends its servant may impact
who controls the work of the servant, but not here. WCH remained in exclusive control
of Stephen Basehore's preparation of the critical work package. Application of the gist
of the borrowed servant doctrine demands that we reject this argument.
Dean Wilcox next argues that the borrowed servant defense should apply only to
lending of laborers, drivers, or machine operators, not Bartlett Services' supplying of the
33
No. 32179-7-III
Wilcox v. Basehore
"brainpower" or professional services of Stephen Basehore. Under Wilcox's contention,
demolition work design services constitute "brainpower." The borrowed servant rule,
however, does not draw a distinction between forms of work. No case supports Wilcox's
position.
General definitions of "servant" also do not support Dean Wilcox's contention.
RESTATEMENT (SECOND) OF AGENCY § 220, cmt. a (1958), reads:
The word "servant" does not exclusively connote a person rendering
manual labor, but one who performs continuous service for another and
who, as to his physical movements, is subject to the control or to the right
to control of the other as to the manner of performing the service. The
word indicates the closeness of the relation between the one giving and the
one receiving the service rather than the nature of the service or the
importance of the one giving it.
Under this definition, Stephen Basehore was a servant and WCH contracted for Stephen
Basehore's "services."
Finally Dean Wilcox emphasizes the spurious nature of the contracts among
WCH, ELR, Bartlett Services, and Stephen Basehore. He highlights contract provisions
that declare Basehore to be the employee of Bartlett Services and spurn Basehore being
an employee of WCH. He underlines contract terms that state ELR maintains control
over the work of Basehore. Wilcox characterizes the subcontracts among the parties as a
fraudulent means of procuring incentive payments from the federal government. He asks
this court to enforce the accentuated contract stipulations and impose liability on Bartlett
Services as a matter of public policy.
34
No. 32179-7-III
Wilcox v. Basehore
Dean Wilcox's public policy argument enjoys allure, but, as with his other
arguments, lacks support in the law. To the contrary, Brown v. Labor Ready Northwest,
Inc., 113 Wash. App. 643 (2002) supports the conclusion that the practicalities in the field
with regard to control of the servant's tasks control over deceitful contract provisions.
Wilcox should address this complaint to the federal government or some other higher
authority.
ELR Consulting
We now address, in a shorter breath, Dean Wilcox's assignment of error to the
trial court's dismissal ofELR upon a motion for a directed verdict. This court reviews a
trial court's ruling on a CR 50 motion for judgment as a matter of law de novo, applying
the same standard as the trial court. Gorman v. Pierce County, 176 Wash. App. 63, 74, 307
P.3d 795 (2013), review denied, 179 Wn.2d 1010,316 P.3d 495 (2014). CR 50(a)(l)
provides:
If, during a trial by jury, a party has been fully heard with respect to
an issue and there is no legally sufficient evidentiary basis for a reasonable
jury to find or have found for that party with respect to that issue, the court
may grant a motion for judgment as a matter of law.
Dean Wilcox contends that Stephen Basehore was the employee as a matter of law
of Bartlett Services and for that reason concedes that Basehore was not an employee of
ELR. Wilcox argues ELR remains vicariously liable for the conduct of Basehore,
nonetheless, because Basehore was an agent ofELR despite not being an employee.
35
No. 32179-7-III
Wilcox v. Basehore
Presumably, Wilcox claims that Basehore was an independent contractor ofELR.
Wilcox argues that ELR had a contractual right to control Stephen Basehore's work and
this right established agency.
Dean Wilcox cites the rule:
An agency relationship exists when one agrees to act for another
under the latter's direction and control. The principal need not actually
exercise control; it suffices that he has the right to do so. Whether an
agency exists is usually a question for the jury. The court may decide the
question only if the facts are undisputed and lead to a single conclusion.
ITT Rayonier, Inc. v. Puget Sound Freight Lines, 44 Wash. App. 368, 377, 722 P.2d 1310
(1986) (citations omitted). Wilcox correctly states the law but misapprehends the facts.
ELR had no right to control Stephen Basehore's creation of the work package for
Building 336. Wilcox emphasizes general condition 2 of the WCB-ELR subcontract
provides: "[ELR] shall act as an independent contractor and not as the agent of [WCB] in
performing this Subcontract, maintaining complete control over its employees." Ex. 34
at ELR 000466. But special condition 13 prevails over GC-2 under the contract's order
of precedence clause. The special condition designated WCB's Kim Koegler as
responsible for the technical aspects of Stephen Basehore's work. WCB possessed the
contractual right to control Stephen Basehore's assembling of the work package for the
Building 336. ELR lacked any right to control Basehore's work as a work control
planner, and did not, in fact, control that work.
36
No. 32179-7-III
Wilcox v. Basehore
Dean Wilcox claims that Kim Koegler testified that he only performed
administrative services with regard to Stephen Basehore's work and never reviewed the
work package prepared by Basehore. This argument misstates Koegler's testimony.
Koegler declared that he did not review the work package "on a regular basis." RP at
565. He averred that he administered the technical aspects of the use of Basehore's
services.
During argument on ELR's motion for judgment, the trial court asked Dean
Wilcox's counsel ifhe agreed Stephen Basehore was not an ELR employee and counsel
agreed. Wilcox designated Basehore as an independent contractor ofELR. The trial
court correctly noted that a principal is not liable for the torts of the independent
contractors. Afoa v. Port ofSeattle, 176 Wn.2d 460,476,296 P.3d 800 (2013); Tauscher
v. Puget Sound Power & Light Co., 96 Wn.2d 274,277,635 P.2d 426 (1981).
ELR argues that the jury verdict finding Stephen Basehore to be a borrowed
servant ofWCH excuses it from liability. We need not address this additional argument.
CONCLUSION
We affirm the judgments in favor of Bartlett Services and ELR. The trial court
committed no error when submitting the question of Stephen Basehore's borrowed
37
No. 32179-7-111
Wilcox v. Basehore
servant status to the jury and granting ELR judgment as a matter of law.
WE CONCUR:
dJ UOtl)% . ~~
Siddoway, C.J.
38