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Phelps v. Physicians Insurance Company of Wisconsin6/22/2005
9). However, the application of facts to a legal standard is a question of law subject to de novo review. State v. Wills, 193 Wis. 2d 273, 277, 533 N.W.2d 165 (1995). If there is both a disputed question of fact and a disputed question of law, this court should "first review the facts under a clearly erroneous standard of review and then determine [the question of law] under a de novo standard of review . . . ." Id. at 277-78. The circuit court was thus faced with a question of fact (whether MCWAH relinquished control of Lindemann to St. Joseph's) and a question of law (whether Lindemann became St. Joseph's "borrowed employee").
In Hegarty, a lengthy, well-reasoned opinion, the court of appeals discussed precisely the same issue----namely, whether a resident directly employed by MCWAH is a "borrowed employee" of the hospital at which the resident serves at the time of the alleged malpractice. Hegarty, 249 Wis. 2d 142, -78. In that case, it was undisputed that residents associated with MCWAH are "employees" of MCWAH in the general sense, as the circuit court also found in this case. Id., .
As the Hegarty court recognized, the more difficult question is whether the residents are also "borrowed employees" of the hospitals at which they serve. The critical issue is who "control " the residents' activities. Id., (citing Pamperin v. Trinity Mem'l Hosp., 144 Wis. 2d 188, 199, 423 N.W.2d 848 (1988) ("The right to control is the dominant test in determining whether an individual is a servant.")). To answer this question, the court of appeals adopted a test we developed in Seaman Body Corp. v. Industrial Commission, 204 Wis. 157, 235 N.W. 433 (1931):
The relation of employer and employee exists as between a special employer to whom an employee is loaned whenever the following facts concur: (a) Consent on the part of the employee to work for a special employer; (b) Actual entry by the employee upon the work of and for the special employer pursuant to an express or implied contract so to do; (c) Power of the special employer to control the details of the work to be performed and to determine how the work shall be done and whether it shall stop or continue.
Hegarty, 249 Wis.2d 142, (citing Seaman, 204 Wis. at 163).
Under Seaman, there is a presumption that,
n the absence of evidence to the contrary, . . . the actor remains in his [or her] general employment so long as, by the service rendered another, he [or she] is performing the business entrusted to him [or her] by the general employer. There is no inference that because the general employer has permitted a division of control, [the employer] has surrendered it.
Id., (citing Borneman v. Corwyn Transp., 212 Wis. 2d 25, 43-44, 567 N.W.2d 887 (Ct. App. 1997)). MCWAH therefore had to overcome this presumption with evidence that "it relinquished full control of its servant." Id., -71.
In Hegarty, the court of appeals determined that whether MCWAH had "relinquished full control" of the resident was a factual determination to be resolved by the circuit court. It therefore remanded to allow that court to answer the following two questions: "(1) at any time, was [the resident] a servant of [MCWAH], i.e., was she employed by [MCWAH] and was she subject to [MCWAH's] control or right to control; and, if so (2) did [MCWAH] loan [the resident] to another and surrender the right to control [the resident] to that other institution or person?" Id., . The circuit court should have asked----and answered----the same questions in this case in response to the plaintiffs' motion for declaratory judgment as to the applicability of chapter 655 and the defendants' subsequent mo
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