(concurring). ¶ 108. I concur. The dissent in this case makes for good reading, but it is light on substance. It suggests that Miguel Olivas is an "employer" under Wis. Stat. § 102.04(l)(b)l. and (l)(e)(2003-04).1 No evidence exists in this record that Olivas entered into a written or oral contract to employ anyone.
¶ 109. In order to be an "employer," Olivas would have to employ three or more employees,2 or he would have to have a person in service "under any contract of *681hire, express or implied, oral or written."3 Assuming that Olivas qualifies as an employer under either Wis. Stat. § 102.04(l)(b)l. or (l)(e), he then is deemed thereby to have elected, as an employer who has entered into a contract for the insurance of compensation, or against the liability therefore, as provided in Wis. Stat. § 102.05, to become subject to the provisions of Chapter 102.4 The applicable provision of § 102.05 provides that "[a]ny employer who shall enter into a contract for the insurance . . . shall be deemed thereby to have elected to accept the provisions of this chapter, and such election shall include . .. employees ... if such intent is shown by the terms of the policy." Wis. Stat. § 102.05(2).
¶ 110. Under Wis. Stat. § 102.04(l)(e), the creation of an employment contract is a necessary requirement before one can be deemed to have elected to become an employer pursuant to Wis. Stat. § 102.05. Acuity bears the burden of proving the existence of an employer-employee relationship between Olivas and the workers at issue,5 and Acuity has failed to meet its burden. I agree with the majority's holding that "the Kress Packing test continues to have vitality in determining whether a sufficient employer-employee relationship exists under the Act between an applicant and an alleged employer,"6 and its conclusion that the workers at issue were not employees of Olivas under this test.7 I would add only that these workers were not *682Olivas' employees under the plain language of § 102.04(l)(e).8 No contract of hire, express or implied, oral or written, has been offered into evidence. Indeed, the evidence is to the contrary. Majority op., ¶¶ 21-22, 81-105. See also dissent, ¶¶ 125, 130-131.
¶ 111. The dissent simply assumes that an employment relationship exists in the absence of any evidence to support that assumption, because, after all, there were six workers, but only one insurance policy. Yet, no written contract of employment between Olivas and the other workers was offered into evidence. No testimony was introduced establishing an oral contract of employment between Olivas and the other workers. In the absence of any evidence of any written or oral employment contract between Olivas and the other workers, or that an employment relationship between Olivas and the other workers otherwise existed under the statutes or common law, Acuity has simply failed to establish how the remainder of Chapter 102 is at all applicable. The evidence is just not there.
¶ 112. One need only look at the terms of the insurance policy to see who was covered under the policy. Acuity's policy lists Miguel A. Olivas as the first named insured. In that part of the policy that lists additional named insureds, the policy itself provides the answer: "NONE." The policy lists as "FIRST NAMED INSURED," "INDIVIDUAL." While the policy does cover "[y]our employees ... for acts within the scope of their employment[,]" evidence must exist that any covered individual is "your" employee.
¶ 113. Olivas testified that he was not an employer and did not have any workers, but was one of a group of six people who hung drywall for Steve Tenpas. *683Jose Míreles, one of the six workers in question, testified that he worked for Steve Tenpas. None of the remaining workers were called to testify by Acuity. As Acuity has the burden of proof as to the status of the workers to establish its prima facie contract case, it has simply failed to carry its burden. Any "election" to become an "employer" referred to by the dissent is simply irrelevant in the absence of proof of an employment contract.
¶ 114. Accordingly, I join the majority opinion in this matter.
Wis. Stat. § 102.04(l)(b)l.
Wis. Stat. § 102.04(l)(e) (emphasis added).
Wis. Stat. §§ 102.04(l)(e) and 102.05(2).
Majority op., ¶¶ 31-52.
Majority op., ¶ 90 (referring to Kress Packing Co. v. Kottwitz, 61 Wis. 2d 175, 182, 212 N.W.2d 97 (1973)).
Majority op., ¶¶ 92-105.
See also Wis. Stat. § 102.07(4)(a).