  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JAMES SALING,                               )
                                                   No. 80097-3-I
                        Appellant,          )
                                            )      DIVISION ONE
              v.

GAITHER & SONS
CONSTRUCTION, COMPANY,                      )      UNPUBLISHED OPINION

                        Respondent.         )      FILED: September 16, 2019


       SMITH, J.   —   When a defendant in a negligence action claims that it is the

plaintiff’s employer and therefore immune from liability under Washington’s

Industrial Insurance Act, Title 51 RCW, we must determine whether there was an

employment relationship between the defendant and the plaintiff. An employment

relationship exists only when the putative employer has the right to control the

worker-plaintiff’s physical conduct in the performance of his duties and there is

consent by the worker to an employment relationship.

       Here, James Saling was injured while working on a job site at which Gaither

& Sons Construction Company (Gaither) was the general contractor. He argues

that because he raised genuine issues of material fact as to whether Gaither was

his employer, the trial court erred by summarily dismissing his negligence action

against Gaither. Because genuine issues of material facts remain as to whether
No. 80097-3-1/2


Saling consented to an employment relationship with Gaither, we agree.

Therefore, we reverse and remand for further proceedings.

                                    BACKGROUND

        On February 17, 2015, James Sating was injured while working at a

construction site at which Gaither was the general contractor. Sating and his

uncle, Daniel Pittman, had been assigned to work at the site by their employer,

Labor Ready, a company that Gaither used to provide temporary workers. Labor

Ready had notified Saling of the job the day before, and on the morning of

February 17th, Saling and Pittman went to Labor Ready, received the job

assignment, and then went to the job site.

       After arriving at the job site, Saling asked for Kevin Billups, whose name

was on the paperwork that Saling had. Billups asked if Sating and Pittman had

protective equipment, which they did, and then “said he was going to get his lead

or supervisor and then [Saling and Pittman] would be talking with him if [they]

needed or he would give [Saling and Pittman] the details of [their] job.” Billups

then radioed Scott Zitterkopf, who walked Saling and Pittman to the building where

they would be working. There, Zitterkopf explained to Saling and Pittman that they

would be moving stacks of doors to door frames throughout the building.

Zitterkopf marked the door frames where the doors would be going with an “X.”

Zitterkopf then left to attend to other matters. After Zitterkopf left, Saling and

Pittman devised a plan for moving the doors and spent the next three hours or so

moving doors from stacks on the second and third floors of the building. At about



                                           2
No. 80097-3-113


10:30 or 11:30, Sating and Pittman found Zitterkopf at the main entrance to the

building and spoke with him about taking a lunch, which Zitterkopf indicated was

fine. Zitterkopf also briefly showed Sating and Pittman the next stack of doors that

they would be moving from the first floor when they returned from lunch. When

Saling and Pittman returned from lunch, they went back to work and resumed

moving doors. Saling was injured when he attempted “to pull the bottom out just a

little bit on the first door so we could move it.” According to an accident report

prepared by Billups, Saling was “moving doors from one location to another inside

[building] when door stack fell over striking worker.”

       Saling applied for workers’ compensation in connection with his injuries.

The Washington Department of Labor and Industries (L&I) accepted his claim and

assigned it to Labor Ready as Saling’s employer. L&I expended a total of

$16,372.68 on Saling’s claim.

       In March 2016, Saling filed a negligence action against Gaither. Gaither

subsequently moved for summary judgment. Gaither argued that under

Washington’s Industrial Insurance Act, it was immune from common law liability to

Saling because Gaither was Saling’s “special employer.” It also argued that in the

employment terms and acknowledgements (ETA) that Saling signed in connection

with this employment by Labor Ready, Saling entered into an enforceable

agreement that Gaither was his special employer and that he would look to

worker’s compensation as his sole remedy for on-the-job injuries. Specifically,

section 14 of the ETA provides:



                                          3
No. 80097-3-1/4


          Release of Claims Against The Employer’s Customers and
          Transitional (Light) Duty Work Agreement

       I understand that my employer provides temporary workers for its
       customers to work at the customers’ project site. While working at
       the customer’s job site, I agree and consent that the customer is my
       special employer (“Special Employer”) and that the customer directs,
       controls and supervises my work. After I have been paid by my
       employer for work that I have performed, I hereby assign, transfer
       and convey any and all lien rights I may have to my employer for the
       work I have performed.

       Worker’s Comrensation shall be my sole remedy for on the job
       injuries.

      If I am ever injured in the course of my work I agree that I will elect,
      and solely rely upon TrueBlue’s Workers’ Compensation coverage
      for any recovery for such injuries, and not seek any recovery whether
      civil or through workers’ compensation of any other party, including,
      but not limited to, a Special Employer. I further waive any claim I or
      my heirs and assigns may now have or that may later accrue against
      a Special Employer. I understand that I am not waiving or releasing
      any claims which I may have against TrueBlue’s Workers’
      Compensation coverage.

       If I am ever inured in the course of my work for my employer, a
      transitional duty job will be made available for me. I understand that
       if I do not report for transitional duty work immediately, I may
      jeopardize my entitlement to Workers’ Compensation wage
      replacement benefitsJ11

Saling countered that Gaither was not entitled to claim the benefit of the ETA

because Gaither was not a party to it. Saling also argued that the release

language in the ETA violated public policy as well as RCW 51 .04.060, which

provides that “[nb employer or worker shall exempt himself or herself from the



      1  (Boldface omitted) (emphasis added). The record does not reflect the
relationship between Labor Ready and TrueBlue, but indicates that Labor Ready is
“a TRUEBLUE company.”


                                         4
No. 80097-3-1/5


burden or waive the benefits of [the Act] by any contract, agreement, rule or

regulation, and any such contract, agreement, rule or regulation shall be pro tanto

void.”

         The trial court granted Gaither’s motion for summary judgment. Although

not incorporated into its written order, the trial court explained in its oral ruling that

dismissal was warranted because Gaither was SaTing’s special employer. Saling

appeals.

                                       ANALYSIS

         Saling argues that the trial court erred by summarily dismissing his

negligence action against Gaither. Because Saling raised a genuine issue of

material fact as to whether Gaither was his special employer and consequently

immune from common law negligence liability, we agree.

         “We review summary judgment orders de nova, considering the evidence

and all reasonable inferences from the evidence in the light most favorable to the

nonmoving party.” Keckv. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015).

Summary judgment is appropriate “if the pleadings, depositions.        .   .   and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” CR 56(c). Summary judgment may be granted only

when there is but one conclusion that could be reached by a reasonable person.

Lamon v. McDonnell Douglas Corn., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979).

         The Washington Industrial Insurance Act (the Act) abolished common law



                                            5
No. 80097-3-116


causes of action for workplace injuries. RCW 51.04.010. In lieu of private suits,

the Act provides for state-funded workers’ compensation to injured workers. RCW

51.32.010; see also Seattle-First Nat’I Bank v. Shoreline Concrete Co., 91 Wn.2d

230, 242, 588 P.2d 1308 (1978) (‘With certain specified exceptions, the Act

abolishes   .   .   .   [ajIl civil actions for personal injuries arising between employees and

the employers. In its place the State has provided employees with sure and

certain relief regardless of the fault or due care of either the employer or

employee.”). The Act creates an exception, however, “permitting those workmen

injured by the negligence of one ‘not in the same employ’ to elect to seek a

remedy against the tort-feasor.” Novenson v. Spokane Culvert & Fabricating Co.,

91 Wn.2d 550, 552, 588 P.2d 1174 (1979); RCW 51.24.030(1). Thus, where a

defendant in a common law negligence action claims immunity as an employer

under the Act, we ask whether the plaintiff was an employee of the defendant

within the context of the Act. To this end, the Act has been construed so as to

“permit a worker to be concurrently the employee of a general employer and at the

same time the employee of a special employer.” Novenson, 91 Wn.2d at 552.

Here, the issue is whether Gaither was a special employer of Saling.

       Determining whether Gaither was Saling’s special employer involves a two

pronged inquiry: “[A]n employment relationship exists only when: (1) the employer

has the right to control the servant’s physical conduct in the performance of his

duties, and (2) there is consent by the employee to this relationship.” Novenson,

91 Wn.2d at 553. Among those factors we may examine to determine control are



                                                   6
No. 80097-3-1/7


       (1) who controls the work to be done; (2) who determines the
       qualifications; (3) setting pay and hours of work and issuing
       paychecks; (4) day-to-day supervision responsibilities; (5) providing
       work equipment; (6) directing what work is to be done; and (7)
       conducting safety training.

Bennerstrom v. Dept of Labor & Indus., 120 Wn. App. 853, 863, 86 P.3d 826

(2004). 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 v. Labor Ready Nw., Inc., 113 Wn. App. 643, 651, 54 P.3d

166 (2002). As to consent, “[a] mutual agreement must exist between the

employee and employer to establish an employee-employer relationship.”

Novenson, 91 Wn.2d at 553.

       Here, and as further discussed below, we conclude that although summary

judgment was proper on the issue of control, genuine issues of material fact

remain as to consent. Therefore, reversal is required.

                                        Control

       Saling argues that he raised a genuine issue of material fact as to the

control prong of the special employer test. We disagree.

       Brown is instructive. In Brown, Joyce Brown was an employee of CMI, a

lumber distribution center. Brown, 113 Wn. App. at 645. Brown was injured when a

bundle of lumber fell from a forklift onto her legs and then the forklift accelerated

forward, pinning her between two bundles. Brown, 113 Wn. App. at 646. The forklift

operator, Russell Henson, was employed by Labor Ready, which CMI customarily

used as a source of temporary labor. Brown, 113 Wn. App. at 645. Brown sued



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No. 80097-3-1/8


Labor Ready for negligence, alleging that it was vicariously liable for Henson’s

negligence. Brown, 113 Wn. App. at 646. After the trial court summarily dismissed

Brown’s claims, Brown appealed to this court. Brown, 113 Wn. App. at 646.

       We explained that Labor Ready could not be vicariously liable for Henson’s

negligence if Henson was Brown’s coworker, i.e., if Henson was also employed by

CMI when the incident occurred. Brown, 113 Wn. App. at 647. And whether

Henson was employed by CMI, for vicarious liability purposes,2 depended solely

on whether CMI had the right to control Henson. Brown, 113 Wn. App. at 650-51.

We held that summary judgment was proper, observing that

       there [was] no indication that Henson took charge in the absence of
        CMI direction. To the contrary, Henson was performing his work at
       the CMI yard under the direction of CMI workers, and was operating
       a CMI forklift. CMI, and only CMI, had control over Henson at the
       jobsite. Each day, Henson reported to and had his timecards signed
       by CMI’s yard supervisor,   .  who instructed Henson regarding his
                                       .   .


       duties and monitored his work. CMI provided the equipment
       necessary to perform the job. Moreover, there was no Labor Ready
       employee on site to supervise the work of the dispatched temporary
       employees.

Brown, 113 Wn.App. at 652.

       Here, as in Brown, Saling was performing work at Gaither’s job site at the

direction of Zitterkopf, a Gaither worker. And according to the testimony of Jordan

Gaither, Gaither had primarily responsibility for safety at the site and did not give

that responsibility to any other entity. To that end, the Labor Ready “Job Order



       2In vicarious liability cases, proof of control only (and not consent) is
required because the rights of the loaned employee are not at issue. Brown, 113
Wn. App. at 653. But their discussion of the control prong remains instructive.


                                               8
No. 80097-3-1/9


Sheet” that was completed for Saling’s task indicated that Gaither would provide

all site- and task-specific protective equipment and training, if required.

Furthermore, when Saling arrived at the job site, SaTing reported to Billups,

Gaither’s site superintendent, who confirmed that Saling had the requisite

protective equipment. And another Gaither worker, Zitterkopf, instructed Saling

regarding his duties. Although Zitterkopf did not stay to actively monitor Saling

and Pittman as they carried out his instructions, the record establishes that

Zitterkopf had the right to direct and monitor their work: Zitterkopf marked with an

“X” each door frame at which Saling and Pittman were to place doors, and Saling

sought Zitterkopf’s permission to take a lunch break. Finally, Saling points to no

evidence that Labor Ready retained control of SaTing after his arrival on Gaither’s

job site. For these reasons, Saling has not raised a genuine issue of material fact

as to control.

       Saling makes no attempt to distinguish Brown but argues that “[t]he only

evidence in the record” on the issue of control “is that [Gaither]’s assistant

superintendent showed [Saling] and Mr. Pittman where the doors were and where

they were to be moved.” But as discussed above, the record contains more than

that. The record reflects that Gaither had primary responsibility for safety at the

job site; that Gaither would provide site- and task-specific protective equipment

and training, if required; and that Saling sought Zitterkopf’s permission to go to

lunch. Furthermore, Saling acknowledged in the ETA that the Labor Ready

customer to whose project site he was sent would direct, control, and supervise



                                           9
No. 80097-3-1/10


his work. This acknowledgement is further evidence that Gaither had the right to

control Saling. Saling’s argument is unpersuasive.

                                       Consent

       Saling argues that he raised a genuine issue of material fact as to whether

he consented to an employment relationship with Gaither. We agree.

       Recent Washington cases discussing the consent prong of the special

employer test stem from our Supreme Court’s decision in Fisher v. City of Seattle,

62 Wn.2d 800, 384 P.2d 852 (1963). In Fisher, a worker was hired by Standard

Stations, Inc. and injured through the negligence of Western Operations, Inc.,

Standard Station’s sister company. Fisher, 62 Wn.2d at 801. The worker sued

Western Operations, and Western Operations claimed immunity under the Act.

The trial court granted summary judgment in favor of Western Operations,

reasoning that because Western Operations and Standard Stations were related

companies, the injured worker was an employee of both companies. Fisher, 62

Wn.2d at 802. Our Supreme Court reversed, holding that, “in cases involving the

issue whether under Washington’s workmen’s compensation laws there is an

employer-employee relation, such a relation cannot exist without the consent of

the workman.” Fisher, 62 Wn.2d at 806. Because the injured worker was

unaware that Western Operations and Standard Stations were related companies,

consent to an employer-employee relationship did not exist. Fisher, 62 Wn.2d at

806.

       In arriving at its holding, the Fisher court outlined a number of principles



                                          10
No. 80097-3-I/li


with regard to the consent prong of the special employer test. It first distinguished

workers’ compensation cases from vicarious liability cases, in which control only—

and not consent—is required to establish an employment relationship. Fisher, 52

Wn.2d at 804-05. It explained that “[t]he rules of vicarious liability.             .   .   were used

generally for the adjustment of rights between the master and a third party due to

activities carried on by the servant.” Fisher, 62 Wn.2d at 804. “Thus, it made no

difference whether there was a mutual agreement, as to their respective status,

between the ‘master’ and ‘servant.” Fisher, 62 Wn.2d at 804. But in the workers’

compensation context, “the rights to be adjusted are reciprocal rights between

employer and employee.” Fisher, 62 Wn.2d at 805 (quoting I LEX K. LARSON,

WORKMEN’S COMPENSATION LAW         § 47.10 (1952)).        Consequently, “[t]o thrust upon

a worker an employee status to which he has never consented             .   .   .   might well

deprive him of valuable rights under the compensation act, notably the right to sue

his own employer for common law damages.” Fisher, 62 Wn.2d at 805 (quoting 1

LARSON   § 47.10).   Thus, the Fisher court explained, the focus of the consent

inquiry is on the putative employee:

      Under workmen’s compensation law,        . the spotlight focuses on the
                                                   .   .


      employee, i.e., the servant, rather than on the employer, i.e., the
      master. The important question, here, is: Did the workman consent
      with the ‘employer’ to the status of ‘employee’? Unlike the common
      law, compensation law demands that, in order to find an employer
      employee relation, a mutual agreement must exist between the
      employer and employee.

Fisher, 62 Wn.2d at 804. It also quoted Justice Cardozo to emphasize the

importance of the putative employee’s subjective understanding of the



                                          11
No. 80097-3-1/12


employment relationship:

      “We do not doubt that the same man may be in the general
      employment of one master and the special employment of another
      [Citations omitted.] But employment, like any other contract,
      presupposes understanding. The new relation cannot be thrust upon
      the servant without knowledge or consent. [Citations omitted.] ii~
      must understand that he is submittinci himself to the control of a new
      master.  .   .Understandinci may be inferred from circumstances, but
                       .


      understandinci there must be. Common-law rights and remedies are
      not lost by stumbling unawares into a new contractual relation.
      There can be no unwitting transfer from one service to another.”

Fisher, 62 Wn.2d at 806 (emphasis added) (first and third alterations in original)

(quoting Murrayv. Union Ry. Co., 229 N.Y. 110, 127 N.E. 907 (N.Y. 1920)).

      Sixteen years after it decided Fisher, our Supreme Court again discussed

the consent prong of the special employer test in Novenson. In Novenson, the

plaintiff-worker, Joseph Novenson, sought part-time employment through Kelly

Labor of Northwest, Inc. Novenson, 91 Wn.2d at 551. Novenson signed the

requisite forms at Kelly Labor and was dispatched to Spokane Culvert and

Fabricating Company, a customer of Kelly Labor. Novenson, 91 Wn.2d at 551.

The next day, Novenson was reassigned to Spokane Culvert at his request.

Novenson, 91 Wn.2d at 551. On his third day of work at Spokane Culvert,

Novenson’s hands were crushed when they were drawn into the rollers of a culvert

rolling machine. Novenson, 91 Wn.2d at 551. Novenson received workers’

compensation benefits as a Kelly Labor employee and then brought a negligence

action against Spokane Culvert. Novenson, 91 Wn.2d at 551-52. On Spokane

Culvert’s motion for summary judgment, the trial court dismissed Novenson’s

claims, concluding as a matter of law that Spokane Culvert was Novenson’s


                                         12
No. 80097-3-1/13


employer and thus immune from liability under the Act. Novenson, 91 Wn.2d at

552.

       Our Supreme Court reversed, holding that issues of material fact remained

as to whether Novenson consented to an employment relationship with Spokane

Culvert. Novenson, 91 Wn.2d at 555. Citing Fisher, the Novenson court stressed

the importance of a mutual agreement between the employee and the employer

and explained that “[t]he trier of fact at trial is the one to draw any inferences as to

Novenson’s understanding and consent vis-a-vis an employment relationship with

Spokane Culvert.” Novenson, 91 Wn.2d at 553, 555 (emphasis added). In short,

in both Fisher and Novenson, our Supreme Court stressed the importance of the

putative employee’s subjective understanding of the relationship in determining

consent.

       We applied the principles of Fisher and Novenson in Rideau v. Cort

Furniture Rental, 110 Wn. App. 301, 39 P.3d 1006 (2002). In Rideau, the plaintiff,

Garland Ray Rideau, was hired by Occupational Resource Management (ORM), a

provider of temporary labor. Rideau, 110 Wn. App. at 302. ORM offered Rideau a

temporary job with Cort Furniture Rental, and Rideau accepted the job. Rideau,

110 Wn. App. at 302. Cort supervised Rideau’s work, and Rideau followed Cort’s

directions and expressed no concerns about Cort’s supervision. Rideau, 110 Wn.

App. at 303. “Nevertheless, Rideau stated that he did not believe Coil was his

employer or that he was Cort’s employee; he considered ORM to be his

employer.” Rideau, 110 Wn. App. at 303.



                                           13
No. 80097-3-1/14


       About six weeks after he was hired by ORM and while still a temporary

worker with Cort, Rideau was injured when he was a passenger in a car driven by

a permanent Cort employee. Rideau, 110 Wn. App. at 303. Rideau received

workers’ compensation benefits, and after his workers’ compensation claim

closed, Rideau sued Cort in negligence. Rideau, 110 Wn. App. at 303. The trial

court summarily dismissed Rideau’s claims, concluding that Cort had satisfied

both the control and consent prongs of the special employer test. Rideau, 110

Wn. App. at 303.

       We disagreed, holding that genuine issues of material fact remained as to

“whether Rideau consented to the role of ‘employee’ to Cort and whether a mutual

agreement existed.” Rideau, 110 Wn. App. at 307-08. We reviewed Fisher and

Novenson, observing that the Novenson court highlighted the public policy

implications of the workers’ compensation scheme:

              When the party asserting the existence of an implied
      employment relation is not an employee seeking statutory
      compensation, but an employer seeking a defense to a common-law
      suit, different social values are at stake. In the former situation, if an
      employment agreement is established, moderate statutory benefits
      are available to the injured worker; however, reaching such a
      conclusion in the second situation results in the destruction of
      valuable common-law rights to the injured workman.

Novenson, 91 Wn.2d at 554-55. We concluded that with regard to the consent

prong of the special employer test, “there must be clear evidence of a mutual

agreement between the employee and employer such that the employee has

clearly consented to be the ‘employee’ of the ‘employer.” Rideau, 110 Wn. App.

at 307. We also concluded that “[am employee’s subjective belief as to the


                                          14
No. 80097-3-1/15


existence of an employer-employee relationship is material to the issue of

consent.” Rideau, 110 Wn. App. at 307. We observed that although Rideau

accepted a job with Cort from ORM, he also stated that he considered ORM to be

his sole employer. Rideau, 110 Wn. App. at 307. “This fact alone[,]” we held,

“raises the question of whether Rideau consented to the role of ‘employee’ to Cort

and whether a mutual agreement existed.” Rideau, 110 Wn. App. at 307-08.

Therefore, summary judgment was inappropriate.

       We hold here, as we did in Rideau, that summary judgment was

inappropriate. Like the plaintiff in Rideau, Saling considered Labor Ready to be

his sole employer. Specifically, Saling testified that he understood Labor Ready to

be his employer and that “[alt no time did I think I was an employee of Gaither.

nor did I consent to be an employee of Gaither.” Although Saling’s subjective

belief that he was not employed by Gaither does not conclusively negate an

employment relationship, this evidence, when viewed in the light most favorable to

Saling, raises a triable issue of fact as to whether Saling consented to a mutual

employment relationship with Gaither. See Jackson v. Harvey, 72 Wn. App. 507,

519, 864 P.2d 975 (1994) (“A worker’s bare assertion of belief that he or she

worked for this or that employer does not establish an employment relationship.”).

      Furthermore, and although the focus of the consent inquiry is on the

putative employee, “[a] mutual agreement must exist between the employee and

employer to establish an employee-employer relationship.” Novenson, 91 Wn.2d

at 553. To that end, in Novenson, the court found it worth noting that the



                                         15
No. 80097-3-1/16


contractual agreement between Kelly Labor and Spokane Culvert “mentions no

contract between Novenson and Spokane Culvert.” Novenson, 91 Wn.2d at 555.

Here, the record contains no contractual agreement between Labor Ready and

Gaither,3 much less one that mentions an agreement between Gaither and Saling.

Thus, here, as in Novenson, the absence of evidence of an agreement between

Saling and Gaither also weighs against imputing consent as a matter of law. The

trial court erred by granting summary judgment to Gaither.

       Gaither argues that summary judgment was proper because Saling

expressly agreed in the ETA that while working at a Labor Ready customer’s job

site, ‘1 agree and consent that the customer is my special employer.” It contends

that Saling is barred by the parol evidence rule from introducing testimony

contradicting the terms of the ETA. But the cases that Gaither cites in support of

its argument are breach of contract cases.4 This is not a breach of contract case,

and Gaither points us to no authority holding that the parties’ contractual

characterization of their employment relationship conclusively determines whether


       ~ The record contains a Labor Ready credit application completed by
Gaither in 2012. It also contains an offer to supply temporary workers that
appears to be a Labor Ready customer agreement. But the customer name on
the agreement is “Cook Street Losts LLC,” the agreement is signed only by the
customer and not Labor Ready, and the effective date of the agreement is June
22, 2015 (i.e., after the date of Saling’s injury).
        See Perry v. Continental Ins. Co., 178 Wash. 24, 33 P.2d 661 (1934)
(breach of insurance policy); Martin v. Smith, 192 Wn. App. 527, 368 P.3d 227
(2016) (breach of express warranty); Max L. Wells Trust v. Grand Cent. Sauna
and Hot Tub Co., 62 Wn. App. 593, 815 P.2d 284 (1991) (breach of lease); Turner
v. Wexler, l4Wn. App. 143, 538 P.2d 877 (1975) (breach of conditional sales
agreement).


                                         16
No. 80097-3-1/17


a putative employer is immune from liability under the Act.

       Rather, our precedents suggest otherwise. For example, in Bennerstrom,

we observed that a contract is an “important factor to consider in determining

whether an employment relationship exists.” Bennerstrom, 120 Wn. App. 853,

860, 86 P.3d 826 (2004) (emphasis added). And in the vicarious liability context,

our Supreme Court has declined to conclude that the contractual classification of

workers as independent contractors precludes an argument that the workers are

employees. See Wilcox v. Baseshore, 187 Wn.2d 772, 786-87, 389 P.3d 531

(2017); ct Massey v. Tube Art Display, Inc., 15 Wn. App. 782, 786, 551 P.2d 1387

(1976) (whether parties believed they were creating a master-servant relationship

just one of several factors to be considered in determining whether a worker is a

servant or an independent contractor). We are not persuaded that the ETA’s

characterization of Labor Ready’s customers as Saling’s “special employers” is

determinative here.

       Gaither next argues that the consent prong has been conclusively proven

because Saling also agreed in the ETA that while working at a Labor Ready

customer’s job site, “the customer directs, controls, and supervises my work.” But

the consent required in this context is consent to a mutual employment

relationship, not just consent to a relationship in which the borrowing employer has

control over the worker’s work. ~ Rideau, 110 Wn. App. at 307 (“With respect

to consent, there must be clear evidence of a mutual agreement between the

employee and employer such that the employee has clearly consented to be the



                                         17
No. 80097-3-1/18


‘employee’ of the ‘employer.”). Therefore, the acknowledgment in the ETA does

not establish consent as a matter of law. Gaither’s argument is unpersuasive.

      As final matters, we decline to address Saling’s argument that because

Gaither was not a party to the ETA, Gaither cannot claim the benefit of the ETA.

On appeal, Saling raised this argument for the first time in his reply brief, and he

expressly characterized Gaither as a third-party beneficiary to the ETA in his

opening brief. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809,

828 P.2d 549 (1992) (“An issue raised and argued for the first time in a reply brief

is too late to warrant consideration.”). Additionally, because we hold that genuine

issues of material fact exist as to whether Gaither was Saling’s special employer

(and not a third party), we do not reach Saling’s argument that the ETA’s release

language constitutes an unlawful waiver of Saling’s right to pursue a negligence

action against a third party. See Wash. State Farm Bureau Fed’n v. Greqoire, 162

Wn.2d 284, 307, 174 P.3d 1142 (2007) (declining to address additional issues on

appeal when resolution of one issue effectively disposed of case.)

      We reverse and remand for further proceedings.




                                         18
