dissenting:
I express no opinion on the lead opinion’s holding that the Workers’ Compensation Act does not preclude an employee of a special employer who is injured by a loaned employee from bringing an action against a general employer. I dissent from the balance of the opinion because there is no need to remand this case on the respondeat superior issue.
The lead opinion correctly states that “as long as the general employer relinquishes control over the loaned employee, the general employer’s vicarious liability is suspended and is transferred to the special employer.” However, the lead opinion concludes that we must remand this case to the trial court for more specific findings on Beneficial’s control over Aiken. The record before us sufficiently indicates that under either of the lead opinion’s “right of control” or “whose business” test, Beneficial’s potential vicarious liability for Aiken’s actions had transferred to Anderson Lumber. Therefore, Kunz’s re-spondeat superior action against Beneficial must fail.
The trial court made the following undisputed findings of fact:
3. The alleged tort-feasor, Mr. Aiken, was working as a co-employee with the plaintiff under the control of plaintiff’s employer, Anderson Lumber.
4. The defendant, Beneficial Temporaries, had provided Mr. Aiken to Anderson Lumber as a temporary employee.
5. At the time of the injuries to the plaintiff, Mr. Aiken was under the direction and control of Anderson Lumber, and to some minor degree under the control of Beneficial Temporaries.
6.Anderson Lumber and its employees and agents principally directed the nature and scope of Mr. Aiken’s work.
(Emphasis added.)
Clearly Aiken was not under Beneficial’s “right of control” at the time of the accident. The record indicates that the only services provided by Beneficial consisted of paying Aiken and covering his payroll taxes, workers’ compensation premiums, and unemployment taxes. We have held that a temporary labor service “does not perform any work for customers; it merely supplies or ‘loans’ workers who are under contract to the service to work as an employee for a client. The work the employee performs is the work of the client.” Ghersi v. Salazar, 883 P.2d 1352, 1356 (Utah 1994). Only Anderson directed, supervised, and controlled Aiken’s work for Anderson. Certainly Beneficial was not in a position to foresee, avoid, or remedy any dangerous condition — one of the primary policies behind respondeat superior liability.
Applying the “whose business” test, the record is clear that Aiken was primarily furthering Anderson’s activities at the time of the accident. Upon assignment and arrival at work, Aiken essentially became Anderson’s employee and performed work requested by Anderson. There is no hint that Beneficial and Anderson were in a common business endeavor or that Beneficial had supervisors at the site.
The record before us is sufficient. Kunz’s respondeat superior action against Beneficial must fail.
RUSSON, J., having disqualified himself, does not participate herein; District Judge JON M. MEMMOTT sat.