                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


             JAMES MOORE, individually, Plaintiff/Appellant,

                                        v.

     BREWER COTE OF ARIZONA, INC., an Arizona corporation,
                     Defendant/Appellee.

                             No. 1 CA-CV 14-0563
                               FILED 6-25-2015


           Appeal from the Superior Court in Maricopa County
                          No. CV2013-002582
                 The Honorable Patricia A. Starr, Judge

                                  AFFIRMED


                                   COUNSEL

Perona, Langer, Beck, Serbin, Mendoza & Harrison, APC, Long Beach, CA
By Ellen R. Serbin

The Law Offices of Larry H. Parker, PC, Phoenix
By Kathleen McCaffrey, Kyle Packer
Co-Counsel for Plaintiff/Appellant

Jones, Skelton & Hochuli, PLC, Phoenix
By Edward G. Hochuli, Jonathan P. Barnes, Jr., Kenneth L. Moskow
Counsel for Defendant/Appellee
                          MOORE v. BREWER COTE
                            Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Maurice Portley delivered the decision of the Court, in
which Judge John C. Gemmill and Judge Michael J. Brown joined.


P O R T L E Y, Judge:

¶1            James Moore appeals the summary judgment granted to
Brewer Cote of Arizona, Inc. (“Brewer”). He contends the trial court erred
by finding that he was a lent employee and, as a result, could not sue Brewer
for his injuries, which he sustained in a single-truck accident. For the
following reasons, we affirm.

                   FACTS AND PROCEDURAL HISTORY

¶2             Moore was a truck driver for Choice Drivers, which is a labor
contractor that temporarily lends out its drivers to other companies for a
fee. Choice Drivers and Brewer had entered into a contract which provided:
“[Choice Drivers] shall at all times be the General Employer of the drivers
it furnishes to [Brewer] under this Labor Agreement, and [Brewer] shall be
the Special Employer of said drivers.”

¶3            Choice Drivers assigned Moore to Brewer on September 11,
2012, and he accepted the assignment. Moore was injured while driving
Brewer’s semi-tanker truck to Payson on State Route 87 when the brakes
failed, causing the truck to overturn. He filed for and received workers’
compensation benefits through Choice Drivers’ insurer. Moore then filed
this negligence lawsuit against Brewer seeking damages for his injuries.

¶4            Brewer moved for summary judgment arguing that it was
statutorily immune from tort liability as Moore’s special employer. The
trial court granted the judgment, and Moore appealed. We have
jurisdiction under Arizona Revised Statutes (“A.R.S.”) section
12-2101(A)(1).1

                                 DISCUSSION

¶5         In reviewing a motion for summary judgment, we determine
de novo whether any genuine disputes of material fact exist and whether

1   We cite the current version of the statute unless otherwise noted.


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                         MOORE v. BREWER COTE
                           Decision of the Court

the trial court properly applied the law. See Eller Media Co. v. City of Tucson,
198 Ariz. 127, 130, ¶ 4, 7 P.3d 136, 139 (App. 2000). We view the facts and
the inferences to be drawn from those facts in the light most favorable to
the party against whom judgment was entered. AROK Constr. Co. v. Indian
Constr. Svcs., 174 Ariz. 291, 293, 848 P.2d 870, 872 (App. 1993). Summary
judgment will be granted when “there is no genuine dispute as to any
material fact and the moving party is entitled to judgment as a matter of
law.” Ariz. R. Civ. P. 56(a). “Where the facts of employment are
undisputed, . . . the existence of an employment relationship is a matter of
law.” Avila v. Northrup King Co., 179 Ariz. 497, 505, 880 P.2d 717, 725 (App.
1994).

I.       Lent Employee

¶6            Moore contends that the trial court erred in ruling, as a matter
of law, that he was a lent employee. We disagree.

¶7             The lent employee doctrine provides that if the employee’s
regular employer (the general employer) temporarily lends the employee
to another employer (the special employer), and the lent employee is
injured on the job, then the lent employee can look for workers’
compensation protection from both the general and special employer under
certain conditions. See generally Word v. Motorola, Inc., 135 Ariz. 517, 520,
662 P.2d 1024, 1027 (1983); Special Fund Div./No Ins. Section v. Indus. Comm’n,
172 Ariz. 319, 323, 836 P.2d 1029, 1033 (App. 1992); Lee v. M & H Enterprises,
Inc., ___ Ariz. ___, ___, ¶¶ 31-32, ___ P.3d ___, ___, 2015 WL 1813948, at *8,
(Ariz. Ct. App. 2015) (discussing the lent employee doctrine). And if the
special employer is obligated to provide the lent employee workers’
compensation benefits, then under the workers’ compensation system,
A.R.S. § 23-1022(A), the lent employee loses the right to sue the special
employer for negligence unless the employee has opted out of the workers’
compensation system.2 See Word, 135 Ariz. at 519, 662 P.2d at 1026; A.R.S.
§ 23-906(B).



2   A.R.S. § 23-1022(A) provides:

         The right to recover compensation pursuant to this chapter
         for injuries sustained by an employee or for the death of an
         employee is the exclusive remedy against the employer or any
         co-employee acting in the scope of his employment, and
         against the employer’s workers’ compensation insurance



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                         MOORE v. BREWER COTE
                           Decision of the Court

¶8            The employer receiving a lent employee will be liable for
workers’ compensation benefits to an injured lent employee if: (1) the
special employer had the right to control the details of the employee’s work;
(2) the employee consented to an express or implied contract of hire with
the special employer; and (3) the work being done was essentially that of
the special employer. Wiseman v. DynAir Tech of Arizona, Inc., 192 Ariz. 413,
415, ¶ 7, 966 P.2d 1017, 1019 (App. 1998) (citing Word, 135 Ariz. at 520, 662
P.2d at 1027). “When all three factors are met, the special employer is liable
for workers’ compensation and entitled to the benefit of the statutory tort
immunity given to complying employers.” Wiseman, 192 Ariz. at 415, ¶ 7,
966 P.2d at 1019 (citing A.R.S. § 23-1022); see also Schwager v. VHS Acquisition
Corp./Vanguard Health Mgmt., 213 Ariz. 414, 416, ¶ 10, 142 P.3d 1227, 1229
(App. 2006) (immunity applies “whether or not the employee seeks to
recover benefits from the special employer”). Here, undisputed evidence
supports the three factors to immunize Brewer from the tort lawsuit under
A.R.S. § 23-1022(A).

       A.     Right to Control the Employee’s Work

¶9           First, Brewer had the right to control Moore on the day of the
accident. The Brewer—Choice Drivers contract specifically provided:

       [I]t shall be the exclusive right of [Brewer] to dispatch the
       aforementioned vehicles, to direct the place of loading and
       unloading thereof, to select routes to be traveled by the
       vehicles and to determine stops and deliveries to be made and
       the sequence thereof. While under the special employ of
       [Brewer], [Brewer] shall have exclusive direction and control


       carrier or administrative service representative, except as
       provided by § 23-906, and except that if the injury is caused
       by the employer’s wilful misconduct, or in the case of a co-
       employee by the co-employee’s wilful misconduct, and the
       act causing the injury is the personal act of the employer, or
       in the case of a co-employee the personal act of the co-
       employee, or if the employer is a partnership, on the part of a
       partner, or if a corporation, on the part of an elective officer of
       the corporation, and the act indicates a wilful disregard of the
       life, limb or bodily safety of employees, the injured employee
       may either claim compensation or maintain an action at law
       for damages against the person or entity alleged to have
       engaged in the wilful misconduct.



                                       4
                         MOORE v. BREWER COTE
                           Decision of the Court

       of each driver supplied by [Choice Drivers], and in addition
       thereto, [Brewer] shall have the exclusive and absolute right
       to discharge any driver from the performance of services
       under this Agreement at any time, with or without cause, and
       to refuse to accept any driver from [Choice Drivers] for
       services to be rendered pursuant to this labor agreement.

The contract further provided, “[i]t is agreed that the drivers, although
employees of [Choice Drivers] as set forth in Paragraph 4 above, shall be in
the exclusive authority and control of [Brewer] during the period that such
drivers are performing services on behalf of [Brewer].”

¶10            Brewer contractually had control of Moore during the day he
was driving the truck to Payson. Although Brewer did not physically
supervise or direct Moore during his pre-trip inspection, “the decisive
factor is the right to supervise and control, not the exercise of that right.”
Nation v. Weiner, 145 Ariz. 414, 418, 701 P.2d 1222, 1226 (App. 1985); see, e.g.,
Lee, ___ Ariz. at ___, ¶¶ 34-36, ___ P.3d at ___ 2015 WL 1813948, at *9.
Brewer had the right to control Moore’s work and there is no evidence to
suggest otherwise.

       B.     Consent to a Contract of Hire

¶11            Second, Moore impliedly consented to a contract of hire. “A
contract of hire is implied when the employee accepts (1) the general
employer’s assignment to work with the special employer, and (2) control,
direction and supervision by the special employer.” Avila, 179 Ariz. at 502,
880 P.2d at 722 (citing Lindsey v. Bucyrus-Erie, 161 Ariz. 457, 459, 778 P.2d
1353, 1355 (App. 1989)). “Such acceptance, even for a short time, is
sufficient to imply consent.” Id.

¶12            Here, Moore signed Choice Drivers’ policy stating that
drivers “are dispatched and supervised by the customer.” Moore, however,
contends that there must be a clear showing of deliberate and informed
consent before a court can find that a person was a lent employee. In Avila,
we rejected the argument when we stated, “Arizona law is contrary to the
[notion] that deliberate and informed consent by the employee is necessary
to create a special employment relationship.” 179 Ariz. at 505, 880 P.2d at
725. Rather, we stated, and have yet to reconsider, that “the requisite
consent to a contract of hire . . . can be implied from the circumstances.” Id.
at 502, 880 P.2d at 722 (citing Nation, 145 Ariz. at 419, 701 P.2d at 1227). The
evidence, as a result, shows that Moore impliedly consented to a contract
of hire by accepting the assignment with Brewer. See Avila, 179 Ariz. at 504,



                                       5
                         MOORE v. BREWER COTE
                           Decision of the Court

880 P.2d at 724 (“[F]or the lent employee doctrine to apply, the employee
need only be aware of and consent to the facts that give rise to the lent
employee relationship. [The employee] need not be aware of and consent
to the legal consequences of such facts.”). Moore also accepted Brewer’s
control and direction by driving the truck where Brewer wanted to deliver
the product. As such, Moore accepted a contract of hire.

       C.     Essence of the Work

¶13           Third, Moore’s work was essentially for Brewer. For this last
element we ask, “who[‘]s[] work was being done at the time of the
accident?” Lindsey, 161 Ariz. at 459, 778 P.2d at 1355 (internal citations and
quotation marks omitted). Here, the accident happened when Moore was
driving Brewer’s truck to deliver its product. Consequently, Moore’s work
was for Brewer. See Avila, 179 Ariz. at 502–03, 880 P.2d at 722–23 (noting
that “[t]he usual rule is that the employer obtaining workers from a labor
contractor is held to assume the status of special employer”).
Consequently, there is no genuine dispute of material fact that Moore was
a lent employee and Brewer was his special employer, which immunized it
from a negligence lawsuit under A.R.S. § 23-1022(A).

II.    Judicial Estoppel

¶14          Moore, however, contends that the trial court erred by not
applying judicial estoppel to prevent Brewer from claiming that Moore was
a lent employee. Specifically, Brewer contends that the declaratory lawsuit
filed by Brewer’s commercial carrier after this lawsuit should preclude
Brewer from claiming him as a lent employee. We disagree.

¶15          Brewer’s commercial vehicle insurer, Alpha Property &
Casualty Insurance Company, sued Brewer and Moore after Moore filed
this negligence action. Alpha Property & Casualty sought a judicial
declaration that Moore’s accident was not covered under its insurance
policy because it could otherwise be covered by workers’ compensation
laws.3



3Alpha Prop. & Cas. Ins. Co. v. James Moore, Brewer Cote of Arizona et al., Case
No. CV2013-008864 (Maricopa Cnty. Sup. Ct.) (“declaratory judgment
action”). “An appellate court can take judicial notice of any matter of which
the trial court may take judicial notice, even if the trial court was never
asked to do so.” State v. McGuire, 124 Ariz. 64, 66, 601 P.2d 1348, 1349 (App.
1978).


                                       6
                        MOORE v. BREWER COTE
                          Decision of the Court

¶16            Judicial estoppel will only apply if “three requirements [are]
met: (1) the parties must be the same, (2) the question involved must be the
same, and (3) the party asserting the inconsistent position must have been
successful in the prior judicial proceeding.” Bank of Am. Nat. Trust & Sav.
Ass’n v. Maricopa Cnty., 196 Ariz. 173, 175, ¶ 7, 993 P.2d 1137, 1139 (App.
1999) (internal citations and quotation marks omitted). Here, although
there is an extra party, Alpha Property & Casualty, the question involved is
different. The issue in the declaratory judgment action was whether the
carrier was protected by an exclusion in the commercial vehicle insurance
policy. But, the issue here was whether Brewer is entitled to statutory
immunity from a negligence action as a special employer. Because the
questions are different, the trial court correctly rejected Moore’s judicial
estoppel argument.

III.   Judicial Admission

¶17          Finally, Moore contends that the trial court erred because a
genuine dispute of material fact remains because Brewer made a judicial
admission that Moore was not an employee in the declaratory judgment
action. We disagree.

¶18            An admission in a pleading can bind a party. The rule,
however, is generally not a rule of evidence “but of pleading. When the
parties have framed the issues for resolution, they may not change them
absent an amendment of the pleadings or trial of the issue by consent. A
party so bound is often said to have made a judicial admission.” Bank of
Am. Nat. Trust & Sav. Ass’n., 196 Ariz. at 176, ¶ 11, 993 P.2d at 1140 (quoting
Black v. Perkins, 163 Ariz. 292, 293, 787 P.2d 1088, 1089 (App. 1989)).

¶19            In the separate declaratory judgment action, Brewer stated in
its answer that “Defendant James Moore is not an employee of [Brewer].”
The statement is true; Brewer did not hire Moore as an employee, but
received him as a lent employee from Choice Drivers. Moreover, the
statement in the answer was not made in response to whether Moore was a
lent employee, but in response to an allegation in the complaint that Moore
was an employee of Brewer, as such, Brewer may be liable for Moore’s
injuries under workers’ compensation laws. Because the statement in the
answer is true in its context of the declaratory judgment action, the
statement does not create a genuine dispute of material fact that
undermines the analysis that Moore was a lent employee. Consequently,
the trial court did not err by granting Brewer summary judgment.




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               MOORE v. BREWER COTE
                 Decision of the Court

                     CONCLUSION

¶20   For the foregoing reasons, we affirm the judgment.




                           :ama




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