negligence case arising out of a single semi crash that occurred off i eighty in the southern use or via the driver was alan johnson the defendant mr johnson was an independent contractor with swift transportation he was operating under the dispatch of swift mr qualis was acting as his team driver mr quinn this was an employee of swith transportation and was undergoing going through his two hundred hours of behind the wheel training before receiving his own swift truck mr johnson fell asleep at the wheel left the roadway and crashed into an embankment had been sleeping in the sleeper berth was severely injured the district court found that mr quote us was acting as johnson's employee or actually special employee at the time of the crash and therefore mr johnson was immune from civil suit pursuant to chapter eighty five point twenty the exclusive remedy provision of i was worker's compensation law in order to prevail mr johnson in order to fail and receive immunity mr johnson would have to prove that he had an express or implied contract of hire with m whether an express contract or implied contract for hire exists is ordinarily one of fact it can become a question of law when there is only one inference that can come from it that's what the district court found we're seeking reversal from that there are genuine issues of material fact as to whether an implied contract existed and there are also genuine issues of whether a fact as to whether in the express contract existed henderson versus jenny edmonson hospital and in that case the the plaintiff was seeking worker's compensation benefits she was going through a training program she actually paid money to go to a training program to be like a nurse's aid and she was injured in the hospital denied that she was their employee as a secondary argument she indicated that she was an apprentice my recollection of what the i was supreme courts held was that because she received no wages she could not be an apprentice and your honest point i believe what eighty five sixty one really means is that apprentices eighty five point sixty one in order to have an apprenticeship i think that's a very good point your honor and in this case as we've set forth mr quick was as testified that he received no training from mr johnson oh sorry go ahead and in fact they were team driving at the time which that would occur because mr close had had a previous mentor he had already finished fifty hours of training by the time he was assigned to johnson by swift transportation that enabled him to team drive where one driver sleeps in the other drives they drive eleven hours and rest ten hours and so during that process quits never received any training or instruction from johnson all of his instructions were coming from a qualcom system from swift transportation they were dispatched by swift swift had the authority for the loads and routes and if you look at the employment handbook that the defendants rely on significantly those training her crime and the training requirements of swift not johnson this wasn't alan johnson's truck training school they were swiss requirements swift had a requirement that mr quest was supposed to drive a minimum of forty hours a didn't read henderson the way that you described it when i just looked at it it doesn't say that i think what you said what it says is that hander said paid for the privilege of being drained and didn't talk about whether she was paid or not paid in fact it noted that  in ancient times under the common law that apprentices were not ordinarily paid and that today they are customarily paid but as i read it well i can read it to you it says here there is substantial evidence to support the commissioner's finding that the p it was not serving as an apprentice at the hospital she paid a fee for the instruction in training and that's a very different thing than i'm getting paid by swift swift as a contract with johnson swift as a contract with me the two contracts when read in its entirety requires me to undergo the supremacy of period to suppress your period i was assigned to johnson that seems different then i paid johnson for the privilege of this training  as judge well can ask me yes mr quest no matter how you define him he's defined as a trainee a student a student trainee a commercial tribe or a trainee he's getting work benefits from his employer swift transportation in order for mr johnston to be his employer he has to prove a contract express or implied and i don't believe he has proven either go out and what was judged found the existence of t and the handbook documents write they have a documents reference a mentor mentee program but it doesn't mention anything about a special employment with that mentor and i think it's significant because it's an in it's a handbook the handbook cases and i won't require a definite offer of employment to me your whole argument is basically rejecting the notion of do on the cop system the advantage of exclusivity your whole argument is why that can't be well my whole argument is his immunity is based on his assertion that the mr  employment is about having two employers and i don't think that exists in this case is i read your brief are you arguing that at least from the express contract provision that  you see his name is i call him quote was ok because there's no evidence in the record that shows that he knew that an employer employee relationship was being created between himself and johnson therefore he couldn't have an express contract because you can't express a contract without knowledge of who the employer is that's on the express side and on the implied side are you making the same argument doors or something else well the implied side i think we  have to look at a few factors in the record when questioned about whether he had an employment agreement with mr willis mr johnson said no that's one fifty six the joint appendix there's no record he ever told mr qualis that he employed him qualis did not believe he was employed by mr johnson then you look at the five factors which are contained in the henderson case about factors as an aid to show whether such an implied employment agreement exists and if you look at those factors the first is the right of selection or control in this case or to employ it will write a selection  johnson didn't select mr quill as he mr close was assigned to johnson by swift transportation the second element is responsibility of wages paid by the employer swith paid no employer situation work purposes and that's what it's implied as a matter of law from these relationships well i don't think that that's what the statute means your honor i think it just factors that i was going through that are are those five factors that are applied in a defined if a contract fire exists and mr johnson have the right to terminate mr equalises employment with was swift swift think that i think when it is part of the dual wire relationship i think the court and persons as i recall indicated that the procter and gamble also had the ability to say we don't want this person from kelly services working for us but they couldn't terminate the media there the court addressed and i think if you look those five factors as kelly in the person's case they reflect quite well compared to what we have here as you know i don't think a labor broker situation is like  labor brokers are doing that they're just currently writing a workforce and they help paperwork and so forth i think you've stated something that i stated in one of our briefs as well your honor and and i would employers send people out for training all the time i mean my law firm does two independent people to do software things a to learn how to do it from independent contractors that doesn't make that person their employer if they negligently injure them they don't automatically just flip off the switch and become an employee of somebody entirely new when they don't know about it that's the difference with the with the apprenticeship i see that my time's up my name's chris enochian where i'm from omaha i'm representing alan johnson today i'm here to ask that this court affirmed the district court's decision to grant mr johnson summary judgment i would code eighty five twenty specifically states that the exclusive remedy provision of the worker's compensation statute shall be the sole remedy of any employee or student the code goes on to provide and define employee as including an apprentice there it looked to stop you right there because like to me that's maybe the key to this whole case is a proper understanding of i will code eighty five one sixty one to that language of requiring an employment contract i think it also be hughes us to think about just the general relationship of an apprentice and who's training them an apprenticeship is defined as somebody who's receiving training in a trade and obtaining real life experience if you look at the situation at hand mr quills was being trained yes he was involved in swift's training program but the person directly overseeing him was johnson the handbook and the v i p materials make that very clear that mr johnson was who perform regular reviews of mr qualls work every fifty hours of driving that mr quills completed johnson was to review his work on a two page performance schedule so he was supposed to check off the boxes to make sure that mr quills was learning certain tasks those tasks related to driving they also related to doing paperwork for swift as well as running the qualcomm system it didn't just didn't drop volved driving that's an important key issue that the appellant's council seems to ignore that there's more to certain tasks don't involve driving at all like filling out the paperwork quiz couldn't fill out the paperwork for swift while he was driving either but the two could sit down together and figure out how to fill out the paperwork properly the same thing would go for running system they're not supposed to operate that system while they're driving they're supposed to operate it while they're awake and the truck is not moving at so that's how that occurred your honour's if i may the very important documents in this case are the handbook and the vi paperwork those are in the record and very clearly demonstrate the expressed agreement of both parties the hamburg in particular is signed by mr quills and chose his side of the bargain he understood he would be in a mentorship program there are parts parts of the handbook particularly the payment portion where it explains that he could be assigned to an owner operated truck and everybody in the business understands that means he could be an independent contractor driving down the road not a swift employee so he could he understood that he would not he would be trained by somebody or could be trained by somebody that was not us why employee but rather own his own truck and if you go through the factual details quill's understood that johnson did not own the truck or johnson did on the truck it wasn't a swift truck that johnson was driving if the case law goes into the five factors and one important detail to remember is that those five factors have to evaluate the relationship between quill's and johnson not the relationship between quills and swift so if you look at those five factors for example the payment of wages johnson could affect quill's wages he got to dictate when whether or not that truck went down the road and in doing so he affected quill's hourly pay johnson because he owned a truck also controlled at least to some extent quill's his upper operations as he went down the road he decided whether quill's picked up a certain load or not and whether or not quills was allowed to drive the truck and receive his the other factors also weigh in favor of finding that johnson employed quill's johnson had the right to decide whether or not he would let quills in a struct in the first place to be his student so that being the case johnson did have the right to select quells and that relates to that factor weighing in favor of finding an employment relationship johnson also directly affected the wages as i stated earlier johnson had the right to discharge quills if quill's and him had an issue johnson could say he no longer wanted to train him  experienced with this quote had a previous mentor who decided to stop that relationship and i think it was a mutual decision between quill's and his previous mentor mr sonner but they jointly decided to end that mentor relationship which is when quills was assigned to johnson johnson also had a previous student that he decided he didn't want to train anymore he had communication issues with him and so he discharged that student from his employ and decided to no longer train him johnson also directly that's the johnson also directly benefited from quills work johnson paid a five mile a five cent per mile rate to have quills on his truck he was paid a mileage fee that was greater than that rate so in effect he paid for quill services to go down the road and was receiving a higher rate of pay for every mile that quilts drove so johnson did directly benefit from quills driving his truck all of those factors weigh in favor of finding an employment relationship but your honour's i don't think you really have to get there because the two contracts signed by the two individuals involved at the in this matter the handbook that was signed by quills and the independent contractor agreement signed by johnson demonstrate the party's respective intentions and they demonstrate that quill's intended to be a mentor or a excuse me a trainee a student and johnson intended to be a mentor and those two positions fall squarely within the iowa statutes definition of a employment relationship and for that reason i think any you will know in larson they go into great detail about the dual employment relationship they discuss very clearly that an employee can be employed by two people at the same time who are covered by one worker's compensation policy and so that worker's compensation policy can benefit to employers at the same time and provide coverage to an employee independently at the same time so i would i would suggest using that r key it uses the oxford comma and so it did linnie it's that there are three types of relationships that fall within an employee relationship so the language itself within that statute indicates that you can have somebody who is hired under contract to work you can have an employee who's specifically identified as an employee and you can have an apprentice there's three types of relationships or individuals who fall within the category or definition of an employee would you agree that it's possible to have an apprenticeship where there is not an employer employee relationship under this statute no i don't believe that's possible because the statu plainly uses the language i think we have to give effect to the legislature's intent i think they included that word for a reason and to be perfectly honest the appellant hasn't brought forth a reason to not give effect to that  yes i would say so under the statutory definition and just general statutory analysis you have to give a fact and meaning to every word in the statue word union well if it's not further defined you and you would go to the basic dictionaries like webster's and i have included those definitions within my brief they specifically define an apprentice as somebody of taining a skill or learning a trade through the experience of working is a matter that henderson cited to black's law dictionary and then cited to webster's as well and laid out goals in syria i mean are those are those controlling  have some interest to us or do we not care i don't think they're controlling and there's case law saying there's not they're not controlling i believe wilma's and i believe parsons say that they are not controlling factors i believe you have to look at this from a statutory interpretation standpoint and interpret the saturate to give it full meaning in effect and i don't think you can ignore the word apprentice by just saying there has to be an employment relationship because if you do that you're ignoring the statutory or well actually the statutory wording says or apprenticeship kamel for an employer or so it seems to actually talk to some kind of an employment relationship and then we come back into that person's presumption of sole employment rather than dual employment barring evidence stablish you something otherwise right really it is a bit circular i will admit that it is but the way to really and i think it's to get full effect to all words with satch you do have to give effect to employer but if you ignore the apprentice wording i don't think you can really do that you have to give some effect to that word and in in eighty five to i think argument do that's being made on the other side is that you don't ignore or not give effect to the word what you're arguing is that apprentice for an employer is still tied together that in who is the employer they're saying swift you're saying johnson i'm saying both i'm saying it's a dual employee right exactly and i think it has to be a dual employment i think you can certainly use the factors for guidance i think the factors come down on the side of finding employment when you particularly look at johnson and quills relationship i think switzer lation ship with quills is pretty rich irrelevant to the analysis it does demonstrate the duality of the employment but it is only one side of the story well it actually the relationship has some bearing because but for quills relationship the swift and swift independent contractor agreement with johnson would be just a non sequitur right it is a it is a  connecting mechanism to get the two parties together i will certainly hunch that and the other side would argue that that's precisely why it's a question for the jury not for the judge why was it wrong i believe that's wrong because the facts come out to show that quills understood he was being trained he knew and understood he was a student at all times he expressed lee confirmed he had to complete two behind the wheel hours with a mentor and who's the mentor it's johnson on it and with that being the case if you have any other questions i'm happy to answer them otherwise i think i've made my points i would just point out when i was going over the five factors that i will considers whether an implied contract exists i didn't get to the fifth factor which is the identity of the employer as the authority in charge of the work or for whose benefit is perfor i think that's important in this analysis because it's very clear to me at least that swift was the authority that was in charge of the work of both johnson and coolest they dispatch the qualcomm system the load being hauled at the time of the wreck was a swift load there's no evidence that these two hold anything but swift they were only together a few days but swift was the one controlling this operation and i think that's very significant in the analysis of this case is that they are that the entity that is in the authority in charge aren't you worried about making that argument that you're going to run flat into the fellow servant doctored oh well that's an issue  that has been i've thought of is that these two fellows were acting more like co employees than an employer employee i understand but and that would be problematic because then we'd have to prove that he was grossly negligent i think we can do that based on the testimony but that that is something that's crossed my mind ok if there are no other questions that's all i have thank you we ask that this matter be reversed and remanded for trial