                                                                             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

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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.

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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.

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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.




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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

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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.

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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

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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.

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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.

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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

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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.

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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

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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

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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:



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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


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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

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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 Wn.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

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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 Wn.2d at 548 (1986). An employer, however, may loan his servant to

another employer. Stocker, 105 Wn.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 Wn.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 Wn.2d at 548;

Brown v. Labor Ready Nw., Inc., 113 Wn. 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 Wn. 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 Wn. 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 Wn. 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 Wn.2d 427, 434, 610

P.2d 353 (1980); Ackerman v. Terpsma, 74 Wn.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 Wn.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 Wn. 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 Wn.2d at 288; Davis v. Early Const. Co.,

                                              23 

No. 32179-7-III
Wilcox v. Basehore


63 Wn.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 Wn. 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 Wn. 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 Wn. 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 Wn. 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 Wn.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 Wn.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 Wn.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 Wn. 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 Wn. 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 Wn. 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 Wn. 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 

