### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JAMES SALING, 

### ) No. 80097-3-I

Appellant, 

### )

) DIVISION ONE v. GAITHER & SONS CONSTRUCTION, COMPANY, 

### ) UNPUBLISHED OPINION

Respondent. 

### ) FILED: September 16, 2019
SMITH, J.

— When a defendant in a negligence action claims that it is the plaintiff’s employer and therefore immune from liability underWashington’s Industrial Insurance Act, Title 51 RCW, we must determine whetherthere was an employment relationship between the defendant and the plaintiff. An employment relationship exists onlywhen the putative employer has the rightto control the worker-plaintiff’s physical conduct in the performance of his duties and there is consent bythe workerto an employment relationship. Here, James Saling was injured while working on ajob site atwhich Gaither & Sons Construction Company (Gaither) was the general contractor. He argues that because he raised genuine issues of material fact as to whether Gaitherwas his employer, the trial court erred by summarily dismissing his negligence action against Gaither. Because genuine issues of material facts remain as to whetherNo. 80097-3-1/2

Saling consented to an employment relationship with Gaither, we agree. Therefore, we reverse and remand forfurther proceedings. BACKGROUND On February 17, 2015, James Sating was injured while working at a construction site atwhich Gaitherwas the general contractor. Sating and his uncle, Daniel Pittman, had been assigned to work atthe site bytheir employer, Labor Ready, a companythat Gaither used to provide temporaryworkers. Labor Ready had notified Saling ofthejob the day before, and on the morning of February 17th, Saling and Pittman went to Labor Ready, received thejob assignment, and then wentto thejob site. Afterarriving atthejob site, Saling asked for Kevin Billups, whose name was on the paperworkthat Saling had. Billups asked if Sating and Pittman had protective equipment, which they did, and then “said he was going to get his lead
or supervisor and then [Saling and Pittman] would be talking with him if [they] needed or he would give [Saling and Pittman] the details of [their]job.” Billups then radioed Scott Zitterkopf, who walked Saling and Pittman to the building where theywould beworking. There, Zitterkopfexplained to Saling and Pittman thatthey would be moving stacks ofdoors to doorframes throughoutthe building. Zitterkopf marked the doorframes where the doors would be going with an “X.” Zitterkopfthen leftto attend to other matters. AfterZitterkopf left, Saling and Pittman devised a plan for moving the doors and spentthe nextthree hours orso moving doors from stacks on the second and third floors ofthe building. At about

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10:30 or 11:30, Sating and Pittman found Zitterkopfatthe main entrance to the building and spoke with him abouttaking a lunch, which Zitterkopf indicated was fine. Zitterkopfalso briefly showed Sating and Pittman the next stack ofdoors that theywould be moving from the firstfloorwhen they returned from lunch. When Saling and Pittman returned from lunch, theywent backto work and resumed moving doors. Saling was injured when he attempted “to pull the bottom outjust a little bit on the first doorso we could move it.” According to an accident report prepared by Billups, Saling was “moving doors from one location to another inside [building] when doorstackfell overstriking worker.” Saling applied forworkers’ compensation in connection with his injuries. The Washington Department of Laborand Industries (L&I) accepted his claim and assigned itto Labor Ready as Saling’s employer. L&I expended a total of $16,372.68 on Saling’s claim. In March 2016, Saling filed a negligence action against Gaither. Gaither subsequently moved forsummaryjudgment. Gaitherargued that under Washington’s Industrial Insurance Act, itwas immune from common law liabilityto Saling because Gaitherwas Saling’s “special employer.” It also argued that in the employmentterms and acknowledgements (ETA) that Saling signed in connection with this employment by Labor Ready, Saling entered into an enforceable agreementthat Gaitherwas his special employerand that he would lookto worker’s compensation as his sole remedyforon-the-job injuries. Specifically, section 14 ofthe ETA provides:

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Release of Claims Against The Employer’s Customers and Transitional (Light) DutyWorkAgreement I understand that my employer provides temporaryworkers for its customers to work atthe customers’ project site. While working at the customer’sjob site, I agree and consentthatthe customer is my special employer (“Special Employer”) and thatthe customerdirects, controls and supervises mywork. After I have been paid by my employerforworkthat I have performed, I hereby assign, transfer and convey any and all lien rights I may have to my employerforthe work I have performed. Worker’s Comrensation shall be my sole remedyfor on the job injuries. If I am ever injured in the course of mywork I agree that I will elect, and solely rely upon TrueBlue’s Workers’ Compensation coverage for any recoveryforsuch injuries, and not seek any recoverywhether civil orthrough workers’ compensation ofany other party, including, but not limited to, a Special Employer. I furtherwaive any claim I or my heirs and assigns may now have orthat may later accrue against a Special Employer. I understand that I am notwaiving or releasing any claims which I may have againstTrueBlue’s Workers’ Compensation coverage. If I am ever inured in the course of myworkfor my employer, a transitional dutyjob will be made available for me. I understand that if I do not reportfortransitional dutywork immediately, I may jeopardize my entitlementto Workers’ Compensation wage replacement benefitsJ11 Saling countered that Gaitherwas not entitled to claim the benefit ofthe ETA because Gaitherwas not a partyto it. Saling also argued thatthe release language in the ETAviolated public policy as well as RCW 51 .04.060, which provides that “[nb employerorworker shall exempt himselfor herselffrom the

1 (Boldface omitted) (emphasis added). The record does not reflectthe relationship between Labor Ready and TrueBlue, but indicates that Labor Ready is “a TRUEBLUE company.”
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burden orwaive the benefits of [the Act] by any contract, agreement, rule or regulation, and any such contract, agreement, rule or regulation shall be pro tanto void.” The trial court granted Gaither’s motion for summaryjudgment. Although not incorporated into its written order, the trial court explained in its oral ruling that dismissal was warranted because Gaitherwas SaTing’s special employer. Saling appeals. ANALYSIS Saling argues thatthe trial court erred by summarily dismissing his negligence action against Gaither. Because Saling raised a genuine issue of material fact as to whether Gaitherwas his special employerand consequently immune from common law negligence liability, we agree. “We review summaryjudgment orders de nova, considering the evidence and all reasonable inferences from the evidence in the light mostfavorable to the nonmoving party.” Keckv. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). Summaryjudgment is appropriate “ifthe pleadings, depositions.

. . and admissions on file, togetherwith the affidavits, ifany, showthatthere is no genuine issue as to any material fact and thatthe moving party is entitled to a judgment as a matter of law.” CR 56(c). Summaryjudgment may be granted only when there is but one conclusion that could be reached by a reasonable person. Lamon v. McDonnell Douglas Corn., 91 Wn.2d 345, 349, 588 P.2d 1346 (1979). The Washington Industrial InsuranceAct (the Act) abolished common law

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causes ofaction forworkplace injuries. RCW 51.04.010. In lieu of private suits, the Act provides for state-funded workers’ compensation to injured workers. RCW 51.32.010; see also Seattle-First Nat’I Bankv. Shoreline Concrete Co., 91 Wn.2d 230, 242, 588 P.2d 1308 (1978) (‘With certain specified exceptions, the Act abolishes

. . . [ajIl civil actions for personal injuries arising between employees and the employers. In its place the State has provided employees with sure and certain relief regardless ofthe fault ordue care ofeitherthe employeror employee.”). The Act creates an exception, however, “permitting those workmen injured bythe negligence ofone ‘not in the same employ’ to electto seek a remedy againstthe tort-feasor.” Novenson v. Spokane Culvert & Fabricating Co., 91 Wn.2d 550, 552, 588 P.2d 1174 (1979); RCW 51.24.030(1). Thus, where a defendant in a common law negligence action claims immunity as an employer undertheAct, we askwhetherthe plaintiffwas an employee ofthe defendant within the context ofthe Act. To this end, theAct has been construed so as to “permit a workerto be concurrentlythe employee ofa general employer and atthe
same time the employee ofa special employer.” Novenson, 91 Wn.2d at 552. Here, the issue is whether Gaitherwas a special employer of Saling. Determining whether Gaitherwas Saling’s special employer involves a two pronged inquiry: “[A]n employment relationship exists onlywhen: (1) the employer has the right to control the servant’s physical conduct in the performance of his duties, and (2) there is consent bythe employee to this relationship.” Novenson, 91 Wn.2d at 553. Among thosefactors we may examine to determine control are

6No. 80097-3-1/7

(1) who controls the workto be done; (2) who determines the qualifications; (3) setting pay and hours ofwork and issuing paychecks; (4) day-to-daysupervision responsibilities; (5) providing work equipment; (6) directing whatwork is to be done; and (7) conducting safetytraining. Bennerstrom v. Dept of Labor & Indus., 120 Wn. App. 853, 863, 86 P.3d 826 (2004). Exclusive control for all purposes is not required; rather, the question is ‘the control ofthe borrowed servant bythe borrowing employerforthe transaction causing injury.” Brown v. Labor Ready Nw., Inc., 113 Wn. App. 643, 651, 54 P.3d 166 (2002). As to consent, “[a] mutual agreement must exist between the employee and employerto establish an employee-employer relationship.” Novenson, 91 Wn.2d at 553. Here, and as furtherdiscussed below, we conclude that although summary judgmentwas properon the issue ofcontrol, genuine issues of material fact remain as to consent. Therefore, reversal is required. Control Saling argues that he raised a genuine issue of material fact as to the control prong ofthe special employertest. We disagree. Brown is instructive. In Brown, Joyce Brown was an employee ofCMI, a lumberdistribution center. Brown, 113 Wn. App. at 645. Brown was injured when a bundle of lumberfell from a forklift onto her legs and then the forklift accelerated forward, pinning her between two bundles. Brown, 113 Wn. App. at 646. The forklift operator, Russell Henson, was employed by Labor Ready, which CMI customarily used as a source oftemporary labor. Brown, 113 Wn. App. at 645. Brown sued

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Labor Readyfor negligence, alleging that itwas vicariously liable for Henson’s negligence. Brown, 113 Wn. App. at 646. Afterthe trial court summarily dismissed Brown’s claims, Brown appealed to this court. Brown, 113 Wn. App. at 646. We explained that Labor Ready could not be vicariously liable for Henson’s negligence if Henson was Brown’s coworker, i.e., if Henson was also employed by CMI when the incident occurred. Brown, 113 Wn. App. at 647. And whether Henson was employed by CMI, forvicarious liability purposes,2 depended solely
on whether CMI had the rightto control Henson. Brown, 113 Wn. App. at 650-51. We held that summaryjudgmentwas proper, observing that there [was] no indication that Henson took charge in the absence of CMI direction. To the contrary, Henson was performing his work at the CMI yard underthe direction of CMI workers, and was operating a CMI forklift. CMI, and only CMI, had control over Henson at the jobsite. Each day, Henson reported to and had his timecards signed by CMI’s yard supervisor,

. . . who instructed Henson regarding his duties and monitored his work. CMI provided the equipment necessaryto perform thejob. Moreover, there was no Labor Ready employee on site to supervise the work ofthe dispatched temporary employees. Brown, 113 Wn.App. at 652. Here, as in Brown, Saling was performing work at Gaither’sjob site atthe direction ofZitterkopf, a Gaitherworker. And according to the testimony ofJordan Gaither, Gaither had primarily responsibilityforsafety atthe site and did not give that responsibilityto any otherentity. To that end, the Labor Ready “Job Order

2 In vicarious liability cases, proofofcontrol only (and not consent) is required because the rights ofthe loaned employee are not at issue. Brown, 113 Wn. App. at 653. Buttheirdiscussion ofthe control prong remains instructive.
8No. 80097-3-1/9

Sheet” thatwas completed for Saling’s task indicated that Gaitherwould provide all site- and task-specific protective equipment and training, if required. Furthermore, when Saling arrived atthejob site, SaTing reported to Billups, Gaither’s site superintendent, who confirmed that Saling had the requisite protective equipment. And another Gaitherworker, Zitterkopf, instructed Saling regarding his duties. Although Zitterkopfdid not stayto actively monitor Saling and Pittman as they carried out his instructions, the record establishes that Zitterkopf had the rightto direct and monitortheirwork: Zitterkopf marked with an “X” each doorframe atwhich Saling and Pittman were to place doors, and Saling sought Zitterkopf’s permission to take a lunch break. Finally, Saling points to no evidence that Labor Ready retained control ofSaTing after his arrival on Gaither’s job site. Forthese reasons, Saling has not raised a genuine issue of material fact
as to control. Saling makes no attemptto distinguish Brown but argues that “[t]he only evidence in the record” on the issue ofcontrol “is that [Gaither]’s assistant superintendent showed [Saling] and Mr. Pittman where the doors were and where theywere to be moved.” But as discussed above, the record contains more than that. The record reflects that Gaither had primary responsibilityforsafety at the job site; that Gaitherwould provide site- and task-specific protective equipment and training, if required; and that Saling sought Zitterkopf’s permission to go to lunch. Furthermore, Saling acknowledged in the ETA thatthe Labor Ready customerto whose project site he was sentwould direct, control, and supervise

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his work. This acknowledgement is furtherevidence that Gaither had the right to control Saling. Saling’s argument is unpersuasive. Consent Saling argues that he raised a genuine issue of material fact as to whether he consented to an employment relationship with Gaither. We agree. RecentWashington cases discussing the consent prong ofthe special employertest stem from our Supreme Court’s decision in Fisherv. City of Seattle, 62 Wn.2d 800, 384 P.2d 852 (1963). In Fisher, a workerwas hired by Standard Stations, Inc. and injured through the negligence ofWestern Operations, Inc., Standard Station’s sister company. Fisher, 62 Wn.2d at 801. The worker sued Western Operations, and Western Operations claimed immunity underthe Act. The trial court granted summaryjudgment in favor ofWestern Operations, reasoning that because Western Operations and Standard Stations were related companies, the injured workerwas an employee of both companies. Fisher, 62 Wn.2d at 802. Our Supreme Court reversed, holding that, “in cases involving the issue whether underWashington’sworkmen’s compensation laws there is an employer-employee relation, such a relation cannot existwithoutthe consent of the workman.” Fisher, 62 Wn.2d at 806. Because the injured workerwas unaware thatWestern Operations and Standard Stations were related companies, consentto an employer-employee relationship did not exist. Fisher, 62 Wn.2d at 806. In arriving at its holding, the Fisher court outlined a number of principles

10No. 80097-3-I/li

with regard to the consent prong ofthe special employertest. Itfirst distinguished workers’ compensation cases from vicarious liability cases, in which control only— and not consent—is required to establish an employment relationship. Fisher, 52 Wn.2d at 804-05. It explained that “[t]he rules ofvicarious liability.

. . were used generallyforthe adjustment of rights between the masterand a third party due to activities carried on bythe servant.” Fisher, 62 Wn.2d at 804. “Thus, it made no difference whetherthere was a mutual agreement, as to their respective status, between the ‘master’ and ‘servant.” Fisher, 62 Wn.2d at 804. But in the workers’ compensation context, “the rights to be adjusted are reciprocal rights between employerand employee.” Fisher, 62 Wn.2d at 805 (quoting I LEX K. LARSON, WORKMEN’S COMPENSATION LAW

## § 47.10 (1952)). Consequently, “[t]o thrust upon a workeran employee status to which he has never consented

. . . mightwell deprive him ofvaluable rights underthe compensation act, notably the rightto sue his own employerfor common law damages.” Fisher, 62 Wn.2d at 805 (quoting 1 LARSON 

## § 47.10). Thus, the Fishercourt explained, the focus ofthe consent inquiry is on the putative employee: Underworkmen’s compensation law,

. . . the spotlightfocuses on the employee, i.e., the servant, ratherthan on the employer, i.e., the master. The important question, here, is: Did the workman consent with the ‘employer’ to the status of ‘employee’? Unlike the common law, compensation law demands that, in orderto find an employer employee relation, a mutual agreement must exist between the employerand employee. Fisher, 62 Wn.2d at 804. It also quoted Justice Cardozo to emphasize the importance ofthe putative employee’s subjective understanding ofthe

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employment relationship: “We do not doubtthatthe same man may be in the general employmentofone masterand the special employmentofanother [Citations omitted.] But employment, like any other contract, presupposes understanding. The new relation cannot be thrust upon the servantwithout knowledge or consent. [Citations omitted.] 

### ii~ must understand that he is submittinci himselfto the control ofa new master.

. . . Understandinci may be inferred from circumstances, but understandinci there must be. Common-law rights and remedies are not lost by stumbling unawares into a new contractual relation. There can be no unwitting transferfrom one service to another.” Fisher, 62 Wn.2d at 806 (emphasis added) (first and third alterations in original) (quoting Murrayv. Union Ry. Co., 229 N.Y. 110, 127 N.E. 907 (N.Y. 1920)). Sixteen years after it decided Fisher, our Supreme Court again discussed the consent prong ofthe special employertest in Novenson. In Novenson, the plaintiff-worker, Joseph Novenson, sought part-time employmentthrough Kelly Laborof Northwest, Inc. Novenson, 91 Wn.2d at 551. Novenson signed the requisite forms at Kelly Labor and was dispatched to Spokane Culvert and Fabricating Company, a customerof Kelly Labor. Novenson, 91 Wn.2d at 551. The next day, Novenson was reassigned to Spokane Culvert at his request. Novenson, 91 Wn.2d at 551. On his third day ofwork at Spokane Culvert, Novenson’s hands were crushed when theywere drawn into the rollers ofa culvert rolling machine. Novenson, 91 Wn.2d at 551. Novenson received workers’ compensation benefits as a Kelly Laboremployee and then brought a negligence action against Spokane Culvert. Novenson, 91 Wn.2d at 551-52. On Spokane Culvert’s motion forsummaryjudgment, the trial court dismissed Novenson’s claims, concluding as a matterof lawthat Spokane Culvertwas Novenson’s

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employer and thus immune from liability undertheAct. Novenson, 91 Wn.2d at 552. Our Supreme Court reversed, holding that issues of material fact remained
as to whether Novenson consented to an employment relationship with Spokane Culvert. Novenson, 91 Wn.2d at 555. Citing Fisher, the Novenson court stressed the importance ofa mutual agreement between the employee and the employer and explained that “[t]he trier offact attrial is the one to draw any inferences as to Novenson’s understanding and consent vis-a-vis an employment relationship with Spokane Culvert.” Novenson, 91 Wn.2d at 553, 555 (emphasis added). In short, in both Fisherand Novenson, our Supreme Court stressed the importance ofthe putative employee’s subjective understanding ofthe relationship in determining consent. We applied the principles of Fisher and Novenson in Rideau v. Cort Furniture Rental, 110 Wn. App. 301, 39 P.3d 1006 (2002). In Rideau, the plaintiff, Garland Ray Rideau, was hired by Occupational Resource Management (ORM), a provider oftemporary labor. Rideau, 110 Wn. App. at 302. ORM offered Rideau a temporaryjob with Cort Furniture Rental, and Rideau accepted thejob. Rideau, 110Wn. App. at 302. Cort supervised Rideau’s work, and Rideau followed Cort’s directions and expressed no concerns about Cort’s supervision. Rideau, 110 Wn. App. at 303. “Nevertheless, Rideau stated that he did not believe Coil was his employer orthat hewas Cort’s employee; he considered ORM to be his employer.” Rideau, 110 Wn. App. at 303.

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About sixweeks after he was hired by ORM and while still a temporary workerwith Cort, Rideau was injured when he was a passenger in a car driven by
a permanent Cort employee. Rideau, 110 Wn. App. at 303. Rideau received workers’ compensation benefits, and after his workers’ compensation claim closed, Rideau sued Cort in negligence. Rideau, 110 Wn. App. at 303. The trial court summarily dismissed Rideau’s claims, concluding that Cort had satisfied both the control and consent prongs ofthe special employertest. Rideau, 110 Wn. App. at 303. We disagreed, holding that genuine issues of material fact remained as to “whether Rideau consented to the role of ‘employee’ to Cort and whether a mutual agreement existed.” Rideau, 110 Wn. App. at 307-08. We reviewed Fisher and Novenson, observing thatthe Novenson court highlighted the public policy implications ofthe workers’ compensation scheme:

When the party asserting the existence ofan implied employment relation is not an employee seeking statutory compensation, but an employer seeking a defense to a common-law suit, different social values are at stake. In the formersituation, ifan employment agreement is established, moderate statutory benefits are available to the injured worker; however, reaching such a conclusion in the second situation results in the destruction of valuable common-law rights to the injured workman. Novenson, 91 Wn.2d at 554-55. We concluded thatwith regard to the consent prong ofthe special employertest, “there must be clearevidence of a mutual agreementbetween the employee and employersuch thatthe employee has clearly consented to be the ‘employee’ ofthe ‘employer.” Rideau, 110 Wn. App. at 307. We also concluded that “[am employee’s subjective belief as to the

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existence ofan employer-employee relationship is material to the issue of consent.” Rideau, 110 Wn. App. at 307. We observed that although Rideau accepted ajob with Cortfrom ORM, he also stated that he considered ORM to be his sole employer. Rideau, 110 Wn. App. at 307. “This fact alone[,]” we held, “raises the question ofwhether Rideau consented to the role of ‘employee’ to Cort and whethera mutual agreement existed.” Rideau, 110 Wn. App. at 307-08. Therefore, summaryjudgmentwas inappropriate. We hold here, as we did in Rideau, that summaryjudgmentwas inappropriate. Like the plaintiff in Rideau, Saling considered Labor Readyto be his sole employer. Specifically, Saling testified that he understood Labor Readyto be his employer and that “[alt no time did I think I was an employee of Gaither.
nordid I consentto be an employee of Gaither.” Although Saling’s subjective beliefthat he was not employed by Gaitherdoes not conclusively negate an employment relationship, this evidence, when viewed in the light mostfavorable to Saling, raises a triable issue offact as to whether Saling consented to a mutual employment relationship with Gaither. See Jackson v. Harvey, 72 Wn. App. 507, 519, 864 P.2d 975 (1994) (“Aworker’s bare assertion of beliefthat he orshe worked forthis orthat employerdoes not establish an employment relationship.”). Furthermore, and although the focus ofthe consent inquiry is on the putative employee, “[a] mutual agreement must exist between the employee and employerto establish an employee-employer relationship.” Novenson, 91 Wn.2d at 553. To that end, in Novenson, the courtfound itworth noting thatthe

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contractual agreement between Kelly Laborand Spokane Culvert “mentions no contract between Novenson and Spokane Culvert.” Novenson, 91 Wn.2d at 555. Here, the record contains no contractual agreement between Labor Ready and Gaither,3 much less one that mentions an agreement between Gaitherand Saling. Thus, here, as in Novenson, the absence ofevidence ofan agreement between Saling and Gaitheralso weighs against imputing consent as a matterof law. The trial court erred by granting summaryjudgment to Gaither. Gaither argues that summaryjudgment was proper because Saling expressly agreed in the ETAthatwhile working at a Labor Ready customer’sjob site, ‘1 agree and consentthatthe customer is my special employer.” It contends that Saling is barred bythe parol evidence rule from introducing testimony contradicting the terms ofthe ETA. Butthe cases that Gaither cites in support of its argument are breach ofcontract cases.4 This is not a breach ofcontract case, and Gaither points us to no authority holding thatthe parties’ contractual characterization oftheir employment relationship conclusively determines whether

~ The record contains a Labor Ready credit application completed by Gaither in 2012. It also contains an offerto supplytemporaryworkers that appears to be a Labor Ready customer agreement. Butthe customer name on the agreement is “Cook Street Losts LLC,” the agreement is signed only bythe customerand not Labor Ready, and the effective date ofthe agreement is June 22, 2015 (i.e., afterthe date of Saling’s injury). See Perryv. Continental Ins. Co., 178 Wash. 24, 33 P.2d 661 (1934) (breach of insurance policy); Martin v. Smith, 192 Wn. App. 527, 368 P.3d 227 (2016) (breach ofexpress warranty); Max L. Wells Trustv. Grand Cent. Sauna and HotTub Co., 62 Wn. App. 593, 815 P.2d 284 (1991) (breach of lease); Turner v. Wexler, l4Wn. App. 143, 538 P.2d 877 (1975) (breach ofconditional sales agreement).
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a putative employer is immune from liability underthe Act. Rather, our precedents suggest otherwise. Forexample, in Bennerstrom,
we observed that a contract is an “importantfactorto consider in determining whetheran employment relationship exists.” Bennerstrom, 120 Wn. App. 853, 860, 86 P.3d 826 (2004) (emphasis added). And in the vicarious liability context,
our Supreme Court has declined to conclude thatthe contractual classification of workers as independent contractors precludes an argumentthatthe workers are employees. See Wilcoxv. Baseshore, 187 Wn.2d 772, 786-87, 389 P.3d 531 (2017); ct Masseyv. Tube Art Display, Inc., 15 Wn. App. 782, 786, 551 P.2d 1387 (1976) (whether parties believed theywere creating a master-servant relationship just one ofseveral factors to be considered in determining whether a worker is a servant or an independent contractor). We are not persuaded thatthe ETA’s characterization of Labor Ready’s customers as Saling’s “special employers” is determinative here. Gaither next argues thatthe consent prong has been conclusively proven because Saling also agreed in the ETAthatwhile working at a Labor Ready customer’sjob site, “the customerdirects, controls, and supervises mywork.” But the consent required in this context is consentto a mutual employment relationship, notjust consentto a relationship in which the borrowing employer has control overthe worker’s work. ~ Rideau, 110 Wn. App. at 307 (“With respect to consent, there must be clear evidence ofa mutual agreement between the employee and employersuch thatthe employee has clearly consented to be the

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‘employee’ ofthe ‘employer.”). Therefore, the acknowledgment in the ETA does not establish consent as a matterof law. Gaither’s argument is unpersuasive. As final matters, we decline to address Saling’s argumentthat because Gaitherwas not a partyto the ETA, Gaithercannot claim the benefit ofthe ETA. On appeal, Saling raised this argumentforthe firsttime in his reply brief, and he expressly characterized Gaither as a third-party beneficiary to the ETA in his opening brief. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (“An issue raised and argued forthe firsttime in a reply brief is too late to warrant consideration.”). Additionally, because we hold that genuine issues of material fact exist as to whether Gaitherwas Saling’s special employer (and not a third party), we do not reach Saling’s argumentthatthe ETA’s release language constitutes an unlawful waiver of Saling’s rightto pursue a negligence action against a third party. See Wash. State Farm Bureau Fed’n v. Greqoire, 162 Wn.2d 284, 307, 174 P.3d 1142 (2007) (declining to address additional issues on appeal when resolution ofone issue effectively disposed ofcase.) We reverse and remand forfurther proceedings.

18