                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 04-2998
                                    ___________

Anthony Phillips, Angie Phillips,        *
                                         *
            Appellants,                  *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Arkansas.
United States of America,                *
                                         *
            Appellee.                    *
                                    ___________

                             Submitted: April 14, 2005
                                Filed: September 6, 2005
                                 ___________

Before WOLLMAN, HANSEN, and RILEY, Circuit Judges.
                         ___________

WOLLMAN, Circuit Judge.

       Anthony Phillips appeals from the district court’s grant of summary judgment
on his negligence claim against the United States Postal Service (USPS). We reverse
and remand.
                                         I.
       In 1998, USPS contracted with trucking company Pat Salmon & Sons, Inc.
(S&S), to transport mail between USPS facilities in Little Rock, Arkansas, and
Indianapolis, Indiana. Pursuant to the contract, S&S truck drivers sort, load, and
unload mail in addition to transporting it.
       Phillips, a S&S mail truck driver since 1999, alleges that a USPS employee
negligently struck and injured him with a mail cage while Phillips was loading mail
at one of the Little Rock facilities. After settling a workers’ compensation claim with
S&S, Phillips filed suit against the United States under the Federal Tort Claims Act
(FTCA), 28 U.S.C. §§ 2671-2680. The district court granted USPS’s subsequent
motion for summary judgment, holding that Phillips was barred from maintaining a
FTCA action against USPS because USPS was Phillips’s special employer and
because USPS was protected from tort liability by Arkansas’s “dual employment”
doctrine.

                                         II.
      We review de novo the district’s court grant of summary judgment, viewing the
evidence in the light most favorable to the nonmoving party. Shanklin v. Fitzgerald,
397 F.3d 596, 602 (8th Cir. 2005). Summary judgment is proper when there is no
genuine issue as to any material fact and the moving party is entitled to judgment as
a matter of law. Id.; Fed. R. Civ. P. 56(c).

      Under the FTCA, the United States is liable for injuries “caused by the
negligent or wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment, under circumstances where the
United States, if a private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
Under Arkansas law, which controls in this case, workers’ compensation is the
exclusive remedy available to employees against employers who “secure the
payment” of workers’ compensation benefits.1 Ark. Code Ann. § 11-9-105. The
injured employee retains the right, however, to make a claim or maintain an action
against any non-employer third party. Ark. Code Ann. § 11-9-410.


      1
       It is undisputed that the contract between USPS and S&S required S&S to
maintain workers’ compensation benefits for its employees.

                                         -2-
       The issue before us is whether, with respect to Phillips, USPS is an employer
(and therefore insulated from tort liability through the operation of the exclusive
remedy provision) or a third party. Arkansas analyzes such questions under the dual
employment doctrine, which assumes that the employee has both a general employer
(here, S&S) and a special employer (putatively, USPS) for the act at issue (loading
mail) and asks whether: (1) “[t]he employee has made a contract for hire, express or
implied, with the special employer”; (2) “[t]he work being done is essentially that of
the special employer”; and (3) “[t]he special employer has the right to control the
details of the work.” Daniels v. Riley’s Health and Fitness Ctrs., 840 S.W.2d 177,
178-79 (Ark. 1992). If all three questions are answered in the affirmative, both the
general and the special employer are liable for workers’ compensation and are thus
protected by the exclusive remedy provision. Id.


         The district court found that each criterion of the dual employment test was
satisfied in Phillips’s case. We need not discuss whether the district court was correct
in its finding regarding the latter two aspects of the test, however, for we conclude
that the district court erred in finding that the first requirement—the existence of a
contract for hire—was satisfied. Simply put, there is no evidence in the record that
either an express or implied contract was formed between Phillips and USPS. In
contrast to the situation that existed in Daniels, where the employee signed a time
card which contained a contract pursuant to which the employee was provided to the
special employer, 840 S.W.2d at 177-78, there is no evidence in the present case that
Phillips had any knowledge of the details of the contract between S&S and USPS.
Nor is there evidence that Phillips in any way impliedly consented to an employee-
employer relationship with USPS.2 See Charles v. Lincoln Constr. Co., 361 S.W.2d


      2
       We recognize that there is language in the Arkansas Supreme Court’s opinion
in Nat’l Union Fire Ins. v. Tri-State Iron and Metal, 914 S.W.2d 301 (Ark. 1996), that
might support an argument that a special employer is protected by the exclusive
remedy provision even if it does not meet the three-part dual employment test. Id. at

                                          -3-
1, 3-4 (Ark. 1962) (employee consented to special employment relationship where
employee worked on special employer’s property, received separate payment on
distinctive check from special employer, and testified that he understood that, while
on special employer’s property, he worked for special employer). See also Sharp
County Sheriff’s Office v. Ozark Acres Improvement Dist., 75 S.W.3d 690, 695 (Ark.
2002) (putative special employer cannot be liable for workers’ compensation benefits
where there is no express or implied contract for hire between special employer and
employee).


     The district court’s grant of summary judgment is reversed, and the case is
remanded for further proceedings consistent with this opinion.
                       ______________________________




302. We note, however, that Arkansas law requires the presence of an express or
implied contract of hire or apprenticeship before an individual may be termed the
employee of a given employer. Ark. Code Ann. § 11-9-102(9)(A). Because the
record contains no evidence of a contract between Phillips and USPS, it is insufficient
to show that Phillips was USPS’s employee.

                                         -4-
