
      No. 3--01--0369
      _________________________________________________________________

      IN THE APPELLATE COURT OF ILLINOIS

      THIRD DISTRICT

      A.D., 2002

CHARLES LANPHIER,                 )     Appeal from the Circuit Court
      Plaintiff-Appellant          )    for the 21st Judicial Circuit,
                                                               )    Kankakee
                                       County, Illinois
                                                               )
      v.                          )     No. 99--L--133
                                  )
GILSTER-MARY LEE CORPORATION,     )     Honorable
      Defendant-Appellee.         )     Fred S. Carr, Jr.
                                  )     Judge, Presiding
            _______________________________________________________________

      JUSTICE BRESLIN delivered the opinion of the court:
_________________________________________________________________

      Petitioner Stanley  Lanphier  filed  this  negligence  action  against
respondent Gilster-Mary Lee Corporation (Gilster) to  recover  for  injuries
he received while working at a Gilster plant.  Lanphier  had  been  assigned
to  work  at  Gilster  by  a  temporary  employment  agency  named  Defender
Services.  He was injured and permanently disabled his first day on the  job
at Gilster when he fell 30 feet down a manlift shaft.
      The trial court relied on this court's prior decision  in  Wasielewski
v. Havi Corp., 188 Ill. App. 3d 340, 544 N.E.2d  116  (3rd  Dist.  1989)  to
dimiss Lanphier's action under section 2-619 of the Code of Civil  Procedure
(Civil Code) (735 ILCS 5/2-619) (West  2000))  because  it  determined  that
Lanphier qualified as a loaned employee under the Workers' Compensation  Act
(Act) and thus was prohibited  from  pursuing  a  negligence  claim  against
Gilster.  See 820  ILCS  305/5(a)  (West  2000)).   Lanphier  appealed.   We
reverse and hold that a temporary worker's status as a loaned employee is  a
question of fact to be determined by the trier of fact.  To the extent  that
our holding is inconsistent with this court's prior ruling  in  Wasielewski,
Wasielewski is overturned.
      The  sole  issue  on  appeal  is  whether  the  trial  court  properly
determined that Lanphier was a loaned employee as a matter of law under  the
Workers' Compensation Act.  Lanphier asserts that he  was   an  employee  of
Defender, not Gilster, and is therefore not  precluded  under  the  Workers'
Compensation Act from bringing a negligence action against Gilster.
      Our standard of review is de novo on questions of law  and  dismissals
under section 2-619 of the Civil Code (735 ILCS 5/2-619 (West 2000)).  Woods
v. Cole, 181 Ill. 2d 512, 693 N.E.2d 333 (1998); Epstein  v.  Chicago  Board
of Education, 178 Ill. 2d 370, 687 N.E.2d 1042 (1997).
      The Workers' Compensation Act  provides  protection  for  workers  for
accidental workplace injuries by imposing liability  without  fault  on  the
employer.  See Meerbrey v. Marshall Field  &  Co.,  139  Ill.  2d  455,  564
N.E.2d 1222 (1990).  In return, the  injured  employee  is  prohibited  from
bringing a common law action against the employer. Meerbrey, 139 Ill. 2d  at
462, 564 N.E.2d at 1225.  Section 1(a)(4) of the Workers'  Compensation  Act
(820 ILCS 305/1(a)(4) (West 2000)) extends the Act to employees who  are  on
loan from one employer to another  employer.   When  an  employer  lends  an
employee to a second employer and the employee is injured  while  performing
duties for the second employer, both employers  are  jointly  and  severally
liable  to  the  employee,  regardless  of  which   one   carried   workers'
compensation coverage on the employee. 820  ILCS  305/1(a)(4)  (West  2000);
Silica Sand Transport, Inc. v. Industrial Comm'n, 197 Ill. App. 3d 640,  554
N.E.2d 734 (1990).  Once a borrowed  employment  relationship  exists,  both
employers share immunity for tort damages  for  an  employee's  work-related
injuries and the employee's exclusive remedy is  under  the  Act.   See  820
ILCS 305/5(a) (West 2000); Barraza v. Tootsie  Roll  Industries,  Inc.,  294
Ill. App. 3d 539, 690 N.E.2d 612 (1997).
      Although the question of whether a  borrowed  employment  relationship
exists is  generally  a  question  of  fact,  section  1(a)(4)  specifically
defines an employer that is in the business of furnishing workers  to  other
employers and who pays those workers even though they are doing the work  of
the second employer as a "loaning employer."  See  Willfong  v.  Dean  Evans
Co., 287 Ill. App.  3d  1099,  679  N.E.2d  1252  (1997);.   Based  on  that
definition, the Wasielewski  court  reasoned  that  if  the  first  employer
qualified as a loaning employer under section 1(a)(4) of the Act  (820  ILCS
305/1(a)(4) (West 2000)), it logically followed  that  the  second  employer
must be a borrowing  employer  and  that  the  employee  must  be  a  loaned
employee. See Wasielewski, 188 Ill. App. 3d at 342, 544 N.E.2d at  118.   It
therefore held that the employee was an loaned employee as a matter  of  law
and that his exclusive  remedy  for  a  workplace  injury  was  through  the
Workers' Compensation Act.  See Wasielewski, 188 Ill.  App.  3d  at  342-43,
544 N.E.2d at 118; 820 ILCS 305/5(a) (West 2000).
      Other courts have disagreed with the Wasielewski  interpretation.   In
Crespo v. Weber Stephen Products, Co., 275 Ill. App. 3d 638, 656 N.E.2d  154
(1st Dist. 1995), after rejecting the reasoning set  forth  in  Wasielewski,
the court determined that an employee's status was a question of  fact.   In
that case, a laborer assigned by a temporary employment agency to  a  second
employer's shop was injured when his hand was  crushed  by  a  punch  press.
After settling a workers' compensation claim  with  the  employment  agency,
the laborer filed a negligence action against the second  employer.  Crespo,
275 Ill. App. 3d at 640, 656 N.E.2d at 155.  The court determined  that  the
purpose of defining "loaning employer" in the Workers' Compensation Act  was
to establish the secondary liability of the loaning employer and to  relieve
the employee from having to establish the factual basis of  employment  with
the loaning employer. Crespo, 275 Ill. App. 3d at 642, 656  N.E.2d  at  157.
The court also determined that the definition of "loaning employer" was  not
meant to define borrowing employers or loaned employees.  Crespo,  275  Ill.
App. 3d at 642,  656  N.E.2d  at  157.   Instead,  the  court  employed  the
traditional  two-prong  analysis  used  in  A.J.  Johnson  Paving   Co.   v.
Industrial Comm'n., 82 Ill. 2d 341,  412  N.E.2d  477  (1980)  to  determine
whether the employee was a "loaned employee" and limited to  recovery  under
the Workers' Compensation Act.  The first prong examined whether the  second
employer had the right to direct  and  control  the  employee.   The  second
prong asked whether an employment  contract,  express  or  implied,  existed
between the employee and the second employer. Crespo, 275 Ill.  App.  3d  at
641, 656 N.E.2d at 156.
       More  recently,  the  court  in  Chaney  ex  rel.  Chaney  v.  Yetter
Manufacturing Co., 315 Ill. App. 3d 823, 734 N.E.2d 1028  (4th  Dist.  2000)
followed the reasoning set forth in Crespo and determined that  a  machinist
who  was  injured  while  on  assignment  by  an  employment  agency  to   a
manufacturing plant was a loaned employee under the two-prong analysis  used
in Crespo.  The court rejected the assumption that the statutory  definition
of a loaning employer automatically established  as  a  matter  of  law  the
statuses of borrowing employer and loaned employee and  applied  the  Crespo
two-prong analysis. Chaney, 315 Ill. App. 3d at 828, 734 N.E.2d at 1032.
      We find the reasoning in Crespo and Chaney persuasive  and  hold  that
an employee's status is a question of fact to be determined by the trier  of
fact.   Section  1(a)(4)  of  the  Workers'  Compensation  Act   (820   ILCS
305/1(a)(4) (West 2000)) does not define loaned employee.   We  believe  the
two-prong analysis set forth in Crespo  is  the  appropriate  test  and  the
status of an employee's relationship with its employer  should  be  made  by
applying the Crespo analysis.  Accordingly, we  reverse  the  trial  court's
decision  granting  Gilster's  motion  to   dismiss   and   remand   for   a
determination of Lanphier's status at the time of the accident based on  the
two-prong analysis.  To the extent that  Wasielewski  is  inconsistent  with
this opinion, it is overturned.
      For the foregoing reasons, the judgment of the circuit court
of Kankakee County is  reversed  and  remanded  to  the  circuit  court  for
further hearings consistent with this opinion.
      Reversed and remanded.
      LYTTON, P.J., and SLATER, J., concur.
