dissenting.
I respectfully dissent. I recognize that the majority has reviewed the seven-factor test recited in Hale in reaching its conclusion. Although I also follow that template, I do not agree that Jennings was a "co-employee" of St. Vincent and StarMed at the time of his injury.
As one steps back and inspects the facts here it is apparent that for a variety of reasons, mostly economic one would presume, St. Vincent had chosen to contract with StarMed for the professional services of Jennings. Jennings was paid only by StarMed, wore his own uniform and brought his own stethoscope and trauma shears to work and, because he was a nurse, of course he otherwise used St. Vincent's "equipment." He could hardly be expected to drag his own x-ray machine to work, nor to supply his own medi*1056cations, needles, and other disposable items that are a nurse's stock-in-trade. In addition, the contract that StarMed and St. Vincent signed clearly, unambiguously, and directly denominates Jennings as StarMed's employee and only StarMed's employee. It is clear to me that St. Vincent did not believe Jennings was its employee nor did it want Jennings to be its employee, at least until such time as it became legally convenient in the present lawsuit for Jennings to be its employee. Jennings was not eligible for St. Vincent employment benefits, did not fill out an employment form for the hospital, and did not punch the St. Vincent time clock. St. Vincent did apparently retain the right to dismiss Jennings, provided it first notified StarMed of its intent to do so. This should be given minimal weight as an indicator that Jennings was St. Vincent's employee. It is hard to imagine an independent contractor arrangement that would not allow the hiring company to discharge the worker if it was unsatisfied with him or her. See Nowicki v. Canmon Steel Erection Co., N.E.2d 536, 545 (Ind.Ct.App.1999) (Kirsch, J., dissenting), trans. denied. In sum, I agree with the Mississippi Supreme Court when it said, "neither of the parties should be permitted to dispute a contractually-created independent contractor relationship between them when to do so adversely affects an injured third party." Richardson v. APAC-Mississippi Inc., 6321 So.2d 143, 150 (Miss.1994). Allowing St. Vincent to disavow its previous designation of Jennings as an independent contractor adversely affects Jennings.
Although I agree with the majority that "control" over a worker is an important aspect of this equation, I disagree that the facts presented in this case mandate the result the majority reaches. Certainly Jennings, as a nurse, followed orders given to him by the physicians at the hospital, as any nurse would and should. The record, however, indicates that these physicians were themselves independent contractors and not employees of the hospital. This makes it even more problematic to come to the conclusion that co-employee status for Jennings should be inferred. The majority responds to this concern by asserting, "that these physicians may have been independent contractors makes no difference, inasmuch as they were acting on behalf of St. Vincent when instructing Jennings." Slip op. p. 14. I would assume St. Vincent would disagree vehemently with this statement were it the defendant in a medical malpractice suit alleging negligence on the part of an independent contractor physician working at the hospital. Indeed, the law would be with St. Vincent that it would not be responsible for the acts of an independent contractor physician, provided it gave written notice to its patients at the time of admission that the physicians were independent contractors and not employees of the hospital. See Sword v. NKC Hospitals, Inc., 714 N.E.2d 142, 152 (Ind.1999).
Likewise, the length of employment criterion militates against the majority's finding, in my view. There was a finite time, defined by a clear and unambiguous contract for a specific task. That, to me, is a straightforward indicator of independent contractor status for Jennings.
Although the majority concedes that the definition of "work boundaries" is not clear, I do not give this much weight at all because of the nature and gist of the agreement between StarMed and St. Vincent. That document called for a nurse to work in the St. Vincent emergency room. We should not be taken aback or surprised when that area of the hospital is the "boundary" that is used by Jennings. He certainly could not ply his professional trade anywhere else or he would be outside the parameters of the contract be*1057tween St. Vincent and StarMed. It was the contract that defined Jennings' physical "work boundaries," not St. Vincent. The contract was also highly specific as to how many hours per week Jennings could work and when he was entitled to time off. St. Vincent had control over when those hours would be assigned, but none over the amount of hours.
The fact is that St. Vincent entered into this business arrangement because it believed it was one that was beneficial and shielded it from various liabilities. Fair enough. I do not believe that an entity such as St. Vincent should be permitted to use this decision to enter into this agreement with StarMed as both a sword and a shield. Judge Kirsch aptly stated a few years ago that the purpose of the Worker's Compensation Act is "not to immunize third-party tort feasors and their liability insurers from liability for negligence which results in serious injuries to one who is not in their employ." Nowicki, 711 N.E.2d at 544 (Kirsch, J., dissenting). Additionally, I keep in mind that "the remedies provided in the Worker's Compensation Act are in derogation of common law, ... and a statute that is in derogation of common law must be strictly construed against limitations on a claimant's right to bring suit." McQuade v. Draw Tite, Inc., 659 N.E.2d 1016, 1018 (Ind.1995). Any doubts about the application of the Act must be resolved in favor of the injured party. See id. (quoting Stump v. Commercial Union, 601 N.E.2d 327, 331-82 (Ind.1992)). Although the facts here seem to make this a relatively close call, further scrutiny, in my opinion, reveals that we should.err, if at all, on the side of the suing claimant-Jennings.
The majority and I are on the same page that the mode of payment and length of employment factors of the Hale test clearly weigh against finding co-employee status for Jennings. I think we also are in agreement that the "work boundaries" factor is, at best, neutral in this case. The majority also recognizes that the belief of the parties factor weighs against finding co-employee status, but I would place much more emphasis on this factor than the majority does, given the plain and unambiguous language of the contract between St. Vincent and StarMed. I concede that St. Vincent had an indirect right to discharge Jennings but give this factor only minimal weight. I disagree that the "supplying tools or equipment" factor clearly weighs in favor of finding co-employee status and conclude it is at most a neutral consideration, given the nature of the "tools or equipment" a nurse uses in his or her work. I also disagree that the control factor indicates co-employee status, given that Jennings was directed in his day-to-day activities by doctors who themselves were independent contractors, not employees of St. Vincent. I would find, after weighing the seven Hale factors, that Jennings was not a "co-employee" of St. Vincent and StarMed.
I vote to reverse the trial court and to reinstate the complaint.