dissenting.
I respectfully dissent to the majority holding herein because I do not accept the reasoning nor the conclusion reached. I feel that the result is far too harsh and is based upon a misinterpreted logic that does not support the holding under the given facts in this matter.
The majority concludes that the appellee worker was a “loaned servant” and thus became an employee of the appellant so as to invoke the immunity inuring to a “statutory employer.”
It was argued (and apparently accepted by the majority) that the issue of such immunity was a special affirmative defense that required it to be pled in accordance with CR 8.08 but that it was also an issue which had been tried with consent. Although it may be conceded that issues which are to be relied upon should be adequately set forth in pleadings, since it effectively permits judicial economy and tends to avoid the trial court’s overlooking such issues, I do not believe that that procedural technicality is the linchpin to a decision in this case. The issue, as I see it, of whether or not the appellee Wilson was a “loaned servant” of appellant is a question of fact to be resolved by the jury from the evidence in light of the legal definition applicable.
There is no question here that Wilson was at all times the employee of Dingo. He was obeying Dingo’s order when he went to work on Dingo’s equipment under the limited supervision of Allied’s mechanic, Allen. It is admitted that Allen’s negligence is not in issue and that such is Allied’s negligence. Allied’s escape, if at all, is purely a matter of avoidance by being a statutory employer.
The majority has held that the three-pronged test of a “loaned servant” as defined by Larson was met in this case. I have sincere difficulty in reaching the same result. The majority admits that it is a close call.
There certainly is no expressed contract of hire. Thus, it must be held that there was an implied contract of hire with the special employer in order to comport with the first prong of the test. How it can be said here that Wilson in anywise contracted for hire with Allied strains my understanding. Whatever may have been understood between Dingo and Allied is of little or no concern since nothing is said, but in any event Wilson would not have been where he was except at the direct orders of Dingo. He had absolutely no opportunity to exert or assert a real choice in this matter. How it can be assumed that he impliedly entered into a special relationship of employment with Allied is beyond credulity. When one accepts employment today, he is aware of the provisions of workers’ compensation and that they supplant the common law rights of litigation he may have otherwise had. However, I believe it is safe to say he is completely unaware of all the subtle subterfuges that may by operation of law be imposed. In equity and conscience I cannot impose such limitations unless some notice of those imposed restrictions is made known to the employee and he thereby willingly assumes such risk at the hands of the special employer.
For this reason, I would affirm the lower court’s judgment.