For the purposes of workers' compensation, "an employment relationship exists only when: (1) the employer has the right to control the servant's physical conduct in the performance of his duties, and (2) there is consent by the employee to this relationship." Novenson, 91 Wn.2d at 553; see also Marsland v. Bullitt Co., 71 Wn.2d 343, 345, 428 P.2d 586 (1967); Fisher v. City of Seattle, 62 Wn.2d 800, 804, 384 P.2d 852 (1963). "Whether a situation satisfies both prongs is a question of fact."
The phrase, 'third person, not in a worker's same employ,' RCW 51.24.030(1), excludes 'fellow servant[s] of the same employer.' Marsland v. Bullitt Co., 71 Wn.2d 343, 346, 428 P.2d 586 (1967). Manor v. Nestle Food Co., 131 Wn.2d at 444; see also Frost v. Department of Labor Indus., 90 Wn. App. 627, 631, 954 P.2d 1340 (1998), review denied, 137 Wn.2d 1001, 972 P.2d 464 (1999).
Drotzmann, Inc., was Stelter's employer on intrastate deliveries if (1) it had the right to control Stelter's physical conduct in the performance of his duties, and (2) Stelter consented to this master-servant relationship. See Restatement (Second) of Agency §§ 2, 15, 220 (1958); Novenson, 91 Wn.2d at 553 (citing Marsland v. Bullitt Co., 71 Wn.2d 343, 428 P.2d 586 (1967)); Fisher, 62 Wn.2d at 804-06. Many factors are considered to determine if an alleged employer/master has the requisite right of control over an alleged employee's/servant's physical conduct while performing duties. Restatement, supra, § 220(1), (2)(a)-(j).
There are fact questions remaining as to whether Nestle Foods was his employer under Washington's control-consent test of an employment relationship for purposes of workers' compensation which requires that "(1) the employer has the right to control the servant's physical conduct in the performance of his duties, and (2) there is consent by the employee to this relationship." Novenson, 91 Wn.2d at 553; accord Marsland v. Bullitt Co., 71 Wn.2d 343, 428 P.2d 586 (1967); Fisher v. City of Seattle, 62 Wn.2d 800, 384 P.2d 852 (1963); see Jackson v. Harvey, 72 Wn. App. 507, 864 P.2d 975, review denied, 124 Wn.2d 1003 (1994); Smick v. Burnup Sims, 35 Wn. App. 276, 666 P.2d 926 (1983). Moreover, there are also fact questions about whether Nestle Foods and Carnaco have separate corporate identities or whether they have one identity and thus Nestle Foods is Manor's employer entitled to immunity under the IIA.
[2] For purposes of workmen's compensation, an employment relationship exists only when: (1) the employer has the right to control the servant's physical conduct in the performance of his duties, and (2) there is consent by the employee to this relationship. Marsland v. Bullitt Co., 71 Wn.2d 343, 428 P.2d 586 (1967); Fisher v. Seattle, 62 Wn.2d 800, 384 P.2d 852 (1963). The right of control is not the single determinative factor in Washington.
For purposes of workmen's compensation, an employment relationship exists only when: (1) the employer has the right to control the servant's physical conduct in the performance of his duties, and (2) there is consent by the employee to this relationship. Marsland v. Bullitt Co., 71 Wn.2d 343, 428 P.2d 586 (1967); Fisher v. Seattle, 62 Wn.2d 800, 384 P.2d 852 (1963). The right of control is not the single determinative factor in Washington.
RCW 51.04.010; RCW 51.32.010. RCW 51.24.030(1); Marsland v. Bullitt Co., 71 Wn.2d 343, 346, 428 P.2d 586 (1967). This depends upon whether Henson was the borrowed servant of CMI. If Henson worked only for Labor Ready, then Labor Ready must answer to Brown under the rule of respondeat superior. If, on the other hand, Henson was also employed by CMI as its borrowed servant, Henson was Brown's coworker, in which case the industrial insurance statutes bar a negligence action against Henson, and therefore also bar any action against Labor Ready on a theory of vicarious liability.
Where the facts on the record conflict on this issue, summary judgment is improper.Novenson v. Spokane Culvert Fabricating Co., 91 Wn.2d 550, 553, 588 P.2d 1174 (1979) (citing Marsland v. Bullitt Co., 71 Wn.2d 343, 428 P.2d 586 (1967) and Fisher v. City of Seattle, 62 Wn.2d 800, 384 P.2d 852 (1963)).Fisher, 62 Wn.2d at 804.
when: (1) the employer controls the employees physical conduct in performing his duties, and (2) the employee consents to this relationship. See Novenson v. Spokane Culvert Fabricating Co., 91 Wn.2d 550, 553, 588 P.2d 1174 (1979) (citing Marsland v. Bullitt Co., 71 Wn.2d 343, 428 P.2d 586 (1967); Fisher v. City of Seattle, 62 Wn.2d 800, 384 P.2d 852 (1963)). Applying this test, there are no genuine issue of material fact.
For purposes of workmen's compensation, an employment relationship exists only when: (1) the employer has the right to control the servant's physical conduct in the performance of his duties, and (2) there is consent by the employee to this relationship. Novenson v. Spokane Culvert Fabricating Co., 91 Wn.2d 550, 553, 588 P.2d 1174 (1979) (citing Fisher v. Seattle, 62 Wn.2d 800, 384 P.2d 852 (1963)); Marsland v. Bullitt Co., 71 Wn.2d 343, 428 P.2d 586 (1967). Thus, the employment relationship must be entered into mutually by the employer and employee.