                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 17-3055
                         ___________________________

                                  Rigoberto Quiles

                        lllllllllllllllllllllPlaintiff - Appellant

                                           v.

                                Alan Martin Johnson

                        lllllllllllllllllllllDefendant - Appellee
                                       ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                             Submitted: June 12, 2018
                              Filed: October 12, 2018
                                  ____________

Before LOKEN, ERICKSON, and GRASZ, Circuit Judges.
                           ____________

LOKEN, Circuit Judge.

       Rigoberto Quiles was severely injured when Alan Johnson fell asleep at the
wheel and drove his tractor-trailer off I-80 in Adair County, Iowa. At the time of the
accident, Quiles was a new employee of Swift Transportation Company of Arizona
(“Swift”), an interstate motor carrier, who was completing Swift’s commercial driving
training program. Johnson was transporting goods for Swift as an independent
contractor and serving as Quiles’s “driving mentor” in Swift’s training program.
Trainee Quiles was off-duty in the truck’s sleeper berth. After receiving workers’
compensation benefits from Swift, Quiles brought this diversity action against
Johnson, alleging that Quiles’s injuries were caused by Johnson’s negligence in
driving the truck. The district court1 granted Johnson’s motion for summary
judgment, concluding that Quiles was a dual employee of Swift and Johnson, and
therefore workers’ compensation benefits were Quiles’s exclusive remedy under the
Iowa workers’ compensation statute. Quiles appeals, arguing that genuine issues of
material fact preclude the conclusion that he was Johnson’s employee under Iowa
law. Reviewing the district court’s grant of summary judgment de novo, including
its interpretation of state law, we affirm. See HIP, Inc. v. Hormel Foods Corp., 888
F.3d 334, 338 (8th Cir. 2018) (standard of review).

                                           I.

      New Swift drivers must complete Swift's commercial driving training program
before they may drive a truck on their own. Swift hired Quiles as an at-will
commercial driving trainee in November 2014. Swift’s Driver Handbook, which
Quiles received and signed during orientation, described the training program as a
mandatory driver-mentor “apprenticeship program.” The program required Quiles
to complete at least two hundred hours of behind-the-wheel driving with an assigned
mentor, who evaluates the trainee’s performance. For the first fifty hours, the mentor
must sit in the passenger seat as the trainee drives. Thereafter, the trainee and mentor
may “team drive,” meaning that while one drives, the other is off duty and may
remain in the truck's sleeper berth, which increases allowed operating time.

        After orientation, Quiles completed fifty hours of training with a mentor but
left this relationship and resigned from the program after the mentor failed to pick


      1
        The Honorable John A. Jarvey, Chief Judge of the United States District Court
for the Southern District of Iowa.

                                          -2-
Quiles up at a prearranged location. Swift’s driver development supervisor persuaded
Quiles not to leave the program and assigned him a new mentor, Alan Johnson.
Quiles began training with Johnson in early December 2014. Johnson and trainee
Quiles did not sign a written agreement. Johnson’s contract with Swift allowed him
to participate in Swift's driver-mentor program by paying Swift $.05 “per loaded
dispatched mile” driven with a Swift trainee. The contract provided that a trainee
“shall remain a [Swift] employee during the period of time he/she is assigned to
[Johnson’s] truck. Any driver/trainee shall be considered a loaned employee or
borrowed servant under applicable law.” Johnson could not terminate Quiles'
relationship with Swift, but Johnson could refuse to accept Quiles as a trainee and
could discontinue the mentor relationship at any time. Likewise, Quiles could refuse
or discontinue a mentor relationship at any time.

       Because Quiles had completed fifty hours of training, he and mentor Johnson
were authorized to team drive for the balance of Quiles’s training. When they drove
as a team, as on the day of the accident, each operated under his separate agreement
with Swift. Swift hired Johnson for specific trips as an independent trucking
contractor. Johnson decided when he would transport shipments for Swift, which
determined when his truck would operate with driver trainee Quiles. Swift paid
trainee Quiles an hourly wage when he rode with mentor Johnson. Swift’s training
program required the mentor to complete a Student Performance Assessment for
every fifty hours of driving completed by the trainee; the trainee was required to
complete Swift’s Driver Training Paperwork. When off duty in the sleeping berth,
mentor Johnson could monitor Quiles’ driving via an application on his phone. All
three contracting parties benefitted from this arrangement -- Johnson received Quiles’
labor, permitting Johnson’s truck to operate more hours with team driving. Quiles
received instruction from Johnson, an hourly wage from Swift when team driving
with Johnson, and credit toward completing the training program. Swift received the
benefit of having shipments delivered with team driving while its trainee advanced
toward becoming an employee qualified to drive a Swift truck on his own.

                                         -3-
                                           II.

       “When an employer’s workers’ compensation liability is insured and benefits
are recoverable, an action for workers’ compensation benefits is the exclusive remedy
available to an employee against an employer for work-related injury.” Subcliff v.
Brandt Engineered Prods., Ltd., 459 F. Supp. 2d 843, 850 (S.D. Iowa 2006); see Iowa
Code § 85.20(1) (2014). The workers’ compensation statute defines “worker” or
“employee” as “a person who has entered into the employment of, or works under
contract of service, express or implied, or apprenticeship, for an employer.”
§ 85.61(11). The critical issue in determining whether an injured worker is limited
to the exclusive workers’ compensation remedy “is whether the worker entered into
a contract of hire, express or implied.” Parson v. Procter & Gamble Mfg. Co., 514
N.W.2d 891, 893 (Iowa 1994). “The intent of the parties is the overriding element
in determining whether an employment contract existed.” Rouse v. State, 369
N.W.2d 811, 814 (Iowa 1985). “In Iowa, a contract will be implied where there has
been a mutual manifestation of assent by acts and deeds (rather than words) to the
same terms of an agreement.” McBride v. City of Sioux City, 444 N.W.2d 85, 90
(Iowa 1989).

       Under the Iowa statute, as in other States, “an employee may have more than
one employer.” Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 506 (Iowa 1981);
see Beaver v. Jacuzzi Bros., Inc., 454 F.2d 284, 285 (8th Cir. 1972) (“As a matter of
common experience and of present business practices . . . it is clear that an employee
may be employed by more than one employer even while doing the same work.”). A
claim of dual employment may be made by a putative employee seeking workers’
compensation benefits, or by a putative employer seeking to limit the plaintiff in a tort
action to the exclusive workers’ compensation remedy. Dual employment is not
contrary to policies underlying the workers’ compensation statute. “Nothing in the
statute prohibits joint employers from allocating between themselves the
responsibility for obtaining insurance for their mutual workers’ compensation

                                          -4-
liability.” Subcliff, 459 F. Supp. 2d at 851. In a dual employment case, the question
is whether an employee of a “general” employer -- here, Swift -- simultaneously
served as the employee of a “special” employer -- here, Johnson. “Although in Iowa
an employee may have two employers, the presumption is that a general employer,
such as [Swift], is the sole employer.” Swanson v. White Consol. Inds., Inc., 30 F.3d
971, 974 (8th Cir. 1994); see Parson, 514 N.W.2d at 894. The sole issue on appeal
is whether the district court erred in concluding that, at the time of the accident,
Quiles was the dual employee of Swift and Johnson.

       As the district court noted, in the great majority of reported dual employment
or “borrowed worker” decisions, the general employer was a temporary employment
agency or broker in the business of “loaning” its employees to clients on a temporary
basis to do the clients’ work for a fee. Because the broker employed the temporary
worker, paid his or her wages and fringe benefits, and paid premiums to provide
workers’ compensation insurance covering the temporary work, the question was
whether the client was a special employer when the temporary employee suffered a
work-related injury. In Iowa, these cases have turned on a fact-intensive analysis of
whether there was a separate contract for hire, express or implied, between the
employee and the special employer. See Parson, 514 N.W.2d at 894-97 (no express
contract; strong evidence special employer did not intend to employ; summary
judgment for employer reversed); Fletcher v. Apache Hose & Belting Co., 519
N.W.2d 839, 840-41 (Iowa App. 1994) (no express contract but intent to employ
temporary worker clear; special employer prevailed); Jones v. Sheller-Globe Corp.,
487 N.W.2d 88, 93 (Iowa App. 1992) (special employer prevailed because of its
exclusive control over and benefit from the loaned employee’s work; workers
compensation provided through the broker); Subcliff, 459 F. Supp. 2d at 852 (express
contract for hire established special employer’s control over work; summary
judgment for employer granted); Swanson, 30 F.3d at 974-75 (summary judgment for
employee reversed; existence of contract for hire a disputed fact).



                                         -5-
       Though Johnson’s contract with Swift stated that a driver trainee such as
Quiles “shall be considered a loaned employee or borrowed servant under applicable
law,” the relationship between Swift and Johnson was much different than an
employment broker’s typical relationship with its clients. Assuming the requisite
contract for hire between Quiles and Johnson, the leading workers’ compensation
treatise describes the resulting three-party relationship as “joint employment”:

            Joint employment occurs when a single employee, under contract
      with two employers, and under the simultaneous control of both,
      simultaneously performs services for both employers, and when the
      service for each employer is the same as, or is closely related to, that for
      the other. In such a case, both employers are liable for workers’
      compensation.

2 Larson’s Workers’ Compensation, Desk Edition § 68.01, at p. 68-1. Quiles
performed closely related services for both Swift and Johnson, under the
simultaneous control of both. “Where a legitimate joint employment relationship is
present it is to be expected that the employee’s relationship with both employers
would evince the attributes of employment encapsulated in the Henderson factors.”2
Subcliff, 459 F. Supp. 2d at 853. The agreement between Johnson and Swift
provided that Johnson would provide workers’ compensation insurance for his own
employees, but Swift would provide workers’ compensation for driver trainees
assigned to Johnson. Johnson understood that the $0.05 he paid Swift for each loaded
dispatched mile that a trainee rode in his truck was in part to pay for workers’
compensation coverage.




      2
        In Henderson v. Jennie Edmunson Hosp., 178 N.W.2d 429, 431 (Iowa 1970),
the Supreme Court of Iowa discussed five factors, beyond intent of the parties, useful
in determining the existence of an employer-employee relationship under Iowa law.

                                          -6-
       Although we think it clear that the agreement between Johnson and Swift
established a joint employer relationship whenever independent contractor Johnson
agreed to serve as mentor for a Swift employee completing its mandatory
apprenticeship training program, the question remains whether Quiles and Johnson
entered into an express or implied contract for hire when they agreed that Johnson
would serve as Quiles’s mentor. The district court concluded that undisputed facts
demonstrate that Quiles intended to form an employment relationship with Johnson
as well as Swift:

      The most persuasive action Quiles took was when he agreed to
      participate in the apprenticeship program as described in his
      employment agreement with Swift. All his subsequent actions
      demonstrate a continuing commitment to the apprenticeship program.
      Quiles agreed to accept a mentor in order to finish his apprenticeship.
      He then went to work with Johnson and participated in a team driving
      arrangement for four days before the collision occurred. He was free to
      end the relationship at any time and request a new mentor, but did not
      do so. From having reviewed the [training program] materials when he
      began his employment, Quiles was aware of the mentor’s role in
      evaluating and training him during his apprenticeship, and of the fact
      that Johnson could indirectly control Quiles’ pay by choosing when the
      semi would be operational. . . . It is particularly telling that Quiles
      continued to work with Johnson given that he had terminated his
      relationship with another mentor because he was dissatisfied with the
      prior mentor’s work habits.

      After careful review of the summary judgment record, we agree with this
analysis. Like the district court, we consider it significant that the Iowa workers’
compensation statute includes an “apprenticeship” as one type of “contract of service,
express or implied” that is performed “for an employer.” § 85.61(11); see Black's
Law Dictionary 122 (10th ed. 2014) (defining “apprentice” as “someone who works
for an employer for a fixed period in order to learn a particular skill or job”);
Henderson, 178 N.W.2d at 433 (“In modern times, the apprentice works for the

                                         -7-
master for wages, usually less than that received by the journeyman who has finished
his training.”). When a general employer’s apprenticeship program requires its
employee to apprentice with an independent contractor in performing work for the
general employer’s benefit, a joint employment is likely to occur.

       Quiles enrolled in Swift’s driving program knowing he would need to train
under a mentor to complete Swift’s apprenticeship program. The parties’ separate
agreements with Swift, and their actions in team driving to deliver shipments for
Swift in Johnson’s truck, demonstrate that both Johnson and Quiles intended to enter
into an apprentice relationship -- “the overriding element in determining whether an
employment contract existed.” Rouse, 369 N.W.2d at 814. Whether a contract is
express or implied concerns only the evidence by which the contract is proved. See
Newman v. City of Indianola, 232 N.W.2d 568, 574 (Iowa 1975). Here, by both their
words and their actions, Johnson and Quiles manifested their assent that Quiles would
serve as Johnson’s apprentice when they engaged in team driving to deliver
shipments for Swift. We therefore conclude that Johnson and Quiles entered into an
employment relationship in which Swift and Johnson were joint employers mutually
liable under Iowa law to provide Quiles workers’ compensation benefits when he
suffered a work-related injury, an obligation Swift has fully performed. Accordingly,
the workers’ compensation benefits Quiles received are his exclusive remedy against
Johnson.

      The judgment of the district court is affirmed.
                     ______________________________




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