concurring specially:
I concur in the majority opinion because I believe the Department of Employment and the Industrial Commission continue to labor under two misapprehensions of law. First, the Department of Employment and the Industrial Commission cannot dispose of a contract provision whereby the parties have agreed in their contract that their relationship is that of independent contractor rather than employer-employee, by merely stating that “the existence of such a contract does not necessarily control a decision,” as they have done in this case. Conclusion of Law IV. I continue to believe, as stated in my dissenting opinion in Burdick v. Thornton, 109 Idaho 869, 712 P.2d 570 (1985), that the preceding quotation from Conclusion of Law IV “reflects a basic evidentiary misunderstanding of the important role which the agreement between the parties plays in the determination of whether or not the relationship is employer-employee or principal and independent contractor.” 109 Idaho at 875, 712 P.2d at 576. I continue to be of the opinion that “the terms of the parties’ contract, while not conclusive, represent the most important evidence to be considered in determining the intent of the parties. This becomes particularly obvious when one carefully considers the right to control test used to determine whether an individual is an independent contractor. The right to control test requires an examination of whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract.” 109 Idaho at 875, 712 P.2d at 576. In this case the decision of the commission again fails to give the parties’ contract the consideration it warrants.
The second misapplication of law is the commission’s conclusion that if the contract may be terminated at any time without any liability on the part of the terminating party it is evidence of right to control the work and thus an employer-employee relationship. The commission cited the department’s administrative rule, No. 09.35.112 and -.113, which apparently so provides. The commission then concluded that “Sim-plot also has the right to control the work through the contracts since it may terminate the contract at will at any time without any liability whatsoever.”
However, the fact that the contract may be terminated at will is inconclusive evidence one way or the other concerning whether it is an independent contractual relationship or an employment relationship. Dept. of Employment v. Brown Bros. Constr., 100 Idaho 479, 600 P.2d 783 (1979) (Bakes, J., concurring specially). According to a January, 1986, article in the National Law Journal, more than two-thirds of the American jurisdictions have now abandoned the employment-at-will doctrine upon which the department’s rule is premised, and have put some limitations on an employer’s general right to fire an employee without incurring any liability. If those figures are accurate, and the information was taken from a December, 1985, update of a book entitled “Employee Dismissal Law and Practice,” by Professor Henry H. Perritt, Jr., Wylie & Sons, Inc., then the ability to dismiss without incurring any liability may well be better evidence of an independent contractual status than an employer-employee status. In any event, I believe that the right to terminate without *767incurring liability is insignificant evidence that the relationship is that of employer-employee, rather than independent contractor.