dissenting.
I would reverse the district court decision to grant summary judgment for Dravo Coal Company and also for the co-employees of Brebaugh.
Suit Against Dravo Coal Company
Dravo Coal Company and Rocky Mountain Energy Company formed a partnership which they called Carbon County Coal Company. Carbon County Coal Company, as owner, entered into a second and separate management contract with Dravo Coal Company from which Dravo Coal Company secured exclusive power and responsibility to manage the Carbon County Coal Company employees engaged in the mining operation. It is this management contract, and not the partnership agreement, that should provide the decisive information for settlement and resolution of this appeal.1 With*1142in the management contract, Dravo Coal Company stood in no different stead in its relation to the operation entity — the owner — than if it had been Peter Kiewit or Morrison-Knudsen Co., or some other management, engineering or construction entity. The terms of the contract called for Dravo Coal Company to “hire and discharge all labor and employees, and such labor and employees shall be and remain the separate employees of Owner.” (Emphasis added.) Dravo Coal Company as “contractor” was paid $500,000 a year for its management services by the business entity “owner,” Carbon County Coal Company.
It is the separate entity management provision in that operational contract that also altered the typical partnership arrangement in which all partners have an equal power and responsibility for direction and control. The equal right between partners to manage employees appears central to the argument advanced by this court, but that right was removed by the operational agreement. Carbon County Coal Company and Rocky Mountain Energy Company did not participate in the manage- . ment of Carbon County Coal Company employees. Dravo Coal Company, in its status as an independent entity, hired employees in the name of the business which it contractually managed, Carbon County *1143Coal Company. I would therefore hold Dravo Coal Company was not immune as it would be in a normal partnership. If Dra-vo Coal Company had been wearing its “partnership” hat, I would agree Dravo Coal Company was immune from the Bre-baugh suit. Dravo Coal Company, however, was performing executive services as an independent contractor when Brebaugh was injured and was not contributing to the worker’s compensation fund which would be necessary for immunity. Without a consolidated designation or attributable contribution, immunity was not properly achieved when the employee managed by Dravo Coal Company, but employed by Carbon County Coal Company, was injured. Stratman v. Admiral Beverage Corp., 760 P.2d 974 (Wyo.1988).2
While I readily agree with the majority “that a partner retaining his right of management is in an employment relationship with a partnership employee and, thus, is an employer under our worker’s compensation law,” I am uncertain how that holding applies to this case. Brebaugh does not question the legal effect of a partner retaining joint management right, but of a partner obtaining rights not provided by partnership law. In this case, that extraordinary contractual right is the exclusive right to manage the labor of a corporate partnership. Brebaugh asks specifically:
Is a corporation-partner who takes on independent duties [as opposed to retains partnership rights] under a separate management contract with the partnership to be considered an “employer contributing as required by law” under the Wyoming Constitution and statutes so as to acquire immunity under the Worker’s Compensation Act from suit by an employee of the partnership?
(Emphasis added.)
Other states considering the type of question posed by Brebaugh have answered that the partner is not immune. The Supreme Court of New Hampshire vacated a trial court decision which found individual partners immune from suit simply because the partners were part of a partnership-employer under the Workmen’s Compensation laws. While that court, like the majority in this opinion, held “a partner retaining his right of management is in an employment *1144relationship with a partnership employee and, thus, constitutes an employer under the Worker’s Compensation Law,” that court went on to remand “for a determination as to whether the partnership agreement provided that the defendants did not retain their legal rights of management.” Swiezynski v. Civiello, 126 N.H. 142, 489 A.2d 634, 637, 639 (1985). The majority citation of Swiezynski is inapplicable for the proposition which it is stated to support.3
It was important to know where managerial responsibilities resided in Swiezynski because under New Hampshire law, the “dispositive characteristic of the employer’s status is his right to control the employee’s work performance.” Id. 489 A.2d at 636 (accord Porter v. Barton, 98 N.H. 104, 105, 95 A.2d 118, 119 (1953)). Likewise in Wyoming. “The controlling inquiry in determining if an employment relationship exists is whether the alleged employer retained the right to control the alleged employee’s work.” Boehm v. Cody Country Chamber of Commerce, 748 P.2d 704, 712-13 (Wyo.1987). The reasoning which led the Supreme Court of New Hampshire to remand should lead this court to reverse the district court. Only Dravo Coal Company retained the right to control the employees’ work.
Similar authority is found in Mickelson v. Northern Plains Natural Gas Co., 644 F.Supp. 630 (D.Neb.1986), where Northern Plains was a member of Northern Border, a pipeline construction partnership. As Dravo Coal Company did with Carbon County Coal Company, Northern Border entered into a construction management contract with its partner, Northern Plains. Northern Border, the general partnership, had purchased the worker’s compensation insurance policy for all the contractors on the project. Just as with Dravo Coal Company’s claim of immunity as a partner to Carbon County Coal Company, Northern Plains claimed “because Northern Border paid the premium on the policy of worker’s compensation insurance under which [the injured worker had] been compensated, and because Northern Plains is a general partner in Northern Border, * * * Northern Plains is immune from [the injured worker’s] action for damages.” Id. at 631.
The Nebraska court disagreed with the position taken by Mickelson and now Dra-vo Coal Company. “Northern Plains had certain duties as the construction manager of the pipeline project. Liability arising out of those duties is not extinguished through its status as a partner in Northern Border.” Id. at 632. The aggregate theory of partnerships has its limits in providing employer’s worker’s compensation immunity. Karadanis v. Sourwine, 783 P.2d 454 (Nev.1989).
These authorities more nearly fit the present factual situation. For that reason and because I believe the holding of this court does not address the issue raised by Brebaugh and is broader than necessary to resolve this case, I dissent.
Co-Employees’ Summary Judgment
I would also reverse the summary judgment granted to the co-employees of Bre-baugh because careful assessment of the record provides a conclusion that a question of material fact exists. Baros v. Wells, 780 P.2d 341 (Wyo.1989), Urbigkit, J., dissenting; Poulos v. HPC, Inc., 765 P.2d 364 (Wyo.1988); Wessel v. Mapco, Inc., 752 P.2d 1363 (Wyo.1988).
The deposition given by Hales indicates that releasing the tension from the “comea-*1145longs” during splicing could result in “imminent danger” from a runaway belt if the conveyors were on a slope. He knew Bre-baugh lacked previous experience in the vulcanizing process. Brebaugh had no supervisor to watch over his first experience in this area. The point on the slope where the belt was released and its total weight of 20 tons or more almost guaranteed for anyone knowledgeable with conveyor belts that it could or would run if proper precautions had not been taken. First, proper blocking at the top and bottom pulley or belt clamps had not been provided. Secondly, the belt was “broke in” between the top and bottom so unequal weight existed, providing a gravity factor which furnished reason for the heavy conveyor “to run downhill.” Third, the inexperienced employees were not warned by the supervisor of the danger that the conveyor belt could run. With all of this, the supervisor left the job site “at about dinner hour” and the unwarned employees continued into danger and tragedy. These separate acts should suffice for jury consideration of the required culpability for liability. Case v. Goss, 776 P.2d 188 (Wyo.1989); Wessel, 752 P.2d 1363.
My point of departure from the majority occurs with the evidentiary evaluation that “[t]he risk of harm to the crew members in the event of a run-a-way belt was not obvious to [Hales].” Giving every beneficial inference from the record to Brebaugh, another possible evaluation of that evidence% indicates a jury could find a disregard of a known or obvious risk that was so great as to make it highly probable. Much would depend on which witnesses were the most credible to the finder of fact. “ ‘Evaluative judgment between two rationally possible conclusions from facts cannot be engaged in on summary judgment.’ ” Cordova v. Gosar, 719 P.2d 625, 639 (Wyo.1986) (quoting Fegler v. Brodie, 574 P.2d 751, 754 (Wyo.1978)).
For these reasons, I would reverse the grant of summary judgment.
. The management contract, with Dravo Coal Company designated "contractor” and Carbon County Coal Company, the partnership, designated "owner,” in substantive part, provided:
*1142ARTICLE I DEFINITIONS
1.01. Definitions. For purposes of this Agreement, certain terms and provisions used herein are defined as follows:
******
(d) General Manager. A General Manager, who shall have the responsibilities and authorities of the chief operating officer for Owner, shall be appointed by Owner and shall be responsible to and report to Contractor. The general supervision and management of the day-to-day operation of the Facilities shall be under the charge and control of the General Manager.
ARTICLE II SCOPE AND MANNER OF PERFORMANCE OF THE WORK
2.01. Employment of Contractor. Owner hereby appoints Contractor to perform and Contractor hereby agrees to the Work hereinafter defined.
2.02. Scope of the Work. The Work shall consist of supervising the construction and completion of the Mine and the development and operation of the Facilities so as to efficiently, economically and lawfully mine coal by underground methods in the volume and quality required by Owner, all in accordance with such production programs, operational programs and budgetary authorizations as may be established from time to time by Owner. In performance of its Work, Contractor, through the General Manager or otherwise, will, on behalf of, and in the name of, Owner:
(a) hire and discharge all labor and employees, and such labor and employees shall be and remain the separate employees of Owner, shall be carried on its payroll and shall be subject to its full charge, supervision, and sole discretion;
(b) at Owner's expense purchase, construct, lease or otherwise acquire all property and assets including material, supplies, equipment, water, utilities and transportation required to carry on Owner's business (such purchases and acquisitions shall be made on the best terms available taking into account all of the circumstances); obtain such customary warranties and guarantees as are available in connection with such purchases and acquisitions;
(c) pay out of Owner’s funds all of Owner’s direct costs and expenses. * * *
(d) at Owner’s expense procure and maintain insurance coverage pertaining to Owner's operations as may be required by applicable law, and, in addition, carry adequate Automobile Public Liability and Property Damage Insurance covering all automotive equipment which Owner may use in its operations and such other insurance, if any, as may from time to time be approved by Owner. Each policy carried hereunder shall name the Owner and the Partners as assured, as their interest may appear, and shall require the insurers to notify the Partners in writing ten days prior to any cancellation or modification thereof. Upon request, Owner will furnish each insured with a certificate issued by the insurance carrier or carriers showing the coverage in force hereunder;
******
(p) provide Owner with the following administrative services:
(i) Administration, general supervision, technical and legal assistance (by Contractor’s technical and legal staff or other regularly employed personnel);
******
2.04. Personnel. Contractor shall furnish such qualified employees as may be required for the efficient performance of the Work.
As between Owner and Contractor all personnel furnished by Contractor to perform the Work shall be considered to be employees of Contractor.
Contractor shall have the right to employ consultants and to subcontract any part of the Work, subject to such limits as Owner may define.
. In obvious response to Stratman, the Wyoming statutes on joint entity operation were changed by Wyo.Sess.Laws ch. 226, § 1 (1989):
27-14-102. Definitions.
(a) As used in this act:
•k k * * * *
(xix) "Joint employer” means any person, firm, corporation or other entity which employs joint employees, is associated by ownership, commonly managed or controlled and contributes to the worker's compensation account as required by this act;
(xx) "Employer making contributions required by this act” means the employee's employer and any joint employer when the employer or any joint employer reports the employee's wages to the division on an account or through a consolidated worker’s compensation account and contributions are made to the fund as required by this act;
(xxi) "Joint Employee" means any person:
(A) Who has an express or implied contract for employment with more one (1) joint employer at the same time;
(B) Whose work is controlled by more than one (1) joint employer; and
(C) Who is engaged in the performance of work for more than one (1) joint employer.
(xxii) "Consolidated Wyoming worker's compensation account” means an account maintained by the Wyoming worker’s compensation division to which an employer reports the wages of its employees and joint employees for its own account and the account of its joint employers, pursuant to which contributions are made to the fund as required by this act.
As actually suggested in Stratman and now detailed by the new statutory provision, the managerial answer is to designate the account within the Wyoming Worker’s Compensation agency as a consolidated account under W.S. 27-14-102(a)(xxii) and include associated entities within the purview of subsection (xix). The employer for the consolidated account should include all entities, which by management, ownership or controlled relationships seek common worker’s compensation coverage and consequently separate immunity from liability when an employee is injured.
We are not presented in this case with a consolidated account which was permitted under prior law, see Stratman, 760 P.2d at 986, 987, and nothing in the record reflects why the account did not include those "consolidated” entities for which immunity is now claimed. Hopefully, corporate partnership entity businesses will recognize the exposure in non-action and the benefit in compliance with the Strat-man worker’s compensation statutory amendments of 1989.
. The issue of Swiezynski, 489 A.2d 634 for which the case was remanded by the appellate court to the district court following appeal for a further determination is precisely the issue presented here. That issue is the effect of an agreement of the partnership which effectively contracts away rights of equal management. That determination was controlling in Swiezyn-ski and is precisely the present issue here where a "third party” management agreement is made between the partnership and one of the partners as an independent contractor. This court and particularly the special concurrence ignores the contracting away language found in the New Hampshire case which was also decisive in theory and application in Mickelson v. Northern Plains Natural Gas Co., 644 F.Supp. 630 (D.Neb.1986). Mickelson and Swiezynski are identical in applied theory in addressing results of a partner or partnership contracting away rights of management. Swiezynski, 489 A.2d at 637.