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Kawaguchi v. Gainer9/16/2005
ughlin, 216 Ill. App. 3d at 36. Thus, in the context of employee claims, the court found that the employee's acquiescence in the arrangement was central to the inquiry of whether a borrowed employment situation existed. O'Loughlin, 216 Ill. App. 3d at 36. By contrast, the court noted that, in cases involving third-party claims, the employee's acquiescence is "at best an afterthought." O'Loughlin, 216 Ill. App. 3d at 36; see also Inmon v. Crane Rental Services, Inc, 205 Ariz. 130, 134 n.3, 67 P.3d 726, 730 n.3 (Ariz. App. 2003), citing 3 A. Larson, Larson's Workers' Compensation Law §67.02(1) (2001) ("The requirement of consent represents a significant difference between the [two situations.] * No such requirement exists in an analysis of the [latter], in part because a worker's right to bring suit is rarely at issue in such cases"); Brown v. Labor Ready Northwest, Inc., 113 Wash. App. 643, 649, 54 P.3d 166, 170 (2002) (" he sole concern for vicarious liability (as opposed to workers' compensation immunity) is whether the master accepted and controlled the service that led to the injury. Consent of the borrowed employee is thus irrelevant in cases where the borrowed employee is not the claimant"). Thus, cases support the conclusion that, in the context of third-party claims, the employee's consent is not necessary to the existence of a borrowed-employment situation.
Second, this conclusion is consistent with notions of basic fairness. If an employee injures a third party, the third party's recovery should not turn on the employee's understanding of whom he or she was working for at the time of the incident. Rather, the third party should be able to recover against the employer for whom the employee was in fact working. However, in the context of employee claims, where an employee's own rights and liabilities may turn on the identity of his or her employer (see, e.g., Lanphier v. Gilster-Mary Lee Corp., 327 Ill. App. 3d 801 (2002); Crespo v. Weber Stephen Products Co., 275 Ill. App. 3d 638 (1995); Palomar v. Metropolitan Sanitary District of Greater Chicago , 225 Ill. App. 3d 182 (1992)), the employee ought to be aware of and have a say in the identity of that employer. Danek v. Meldrum Manufacturing & Engineering Co., 313 Minn. 404, 490, 252 N.W.2d 255, 259 (1977) (" here an employee's rights are to be affected by his characterization as a loaned employee * the employee's consent to the special employment relationship is essential").
To sum up so far, in the context of third-party claims, a borrowed-employment situation can exist regardless of whether there is a contract between the alleged borrowing employer and the allegedly borrowed employee. That is, the employee's consent is not essential to a finding that a borrowed-employment situation exists. Thus, here, the fact that there was no contract between Trooper Gainer and the Authority does not necessarily mean that she was not a borrowed employee of the Authority. Rather, to make that determination, we must consider whether the Authority had the right to control Trooper Gainer. See 1 J. Lee & B. Lindahl, Modern Tort Law: Liability and Litigation §7:23 (2d ed. 2002) (noting that " he 'right to control' has been the most widely accepted test of liability under the loaned servant doctrine").
There are several factors on which Illinois courts have long focused to determine whether an alleged borrowing employer has the right to control an allegedly borrowed employee. Among these are the manner in which the performance of the employee's duties is directed, the mode of payment, and the right to discharge. See Gundich v. Emerson-Comstock Co., 21 Ill. 2d 117, 123 (1960). In addition to these factors, courts have also considered the te
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