COURT OF APPEALS

DECISION

DATED AND FILED

August 27, 2024

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2023AP826 Cir. Ct. No. 2020CV1014

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT III

MARK DEMARS,

 PLAINTIFF-APPELLANT,

ACCIDENT FUND GENERAL INSURANCE COMPANY OF AMERICA AND ACCIDENT 

FUND HOLDINGS,INC.,

 INVOLUNTARY-PLAINTIFFS,

 V.

FINCANTIERI MARINE GROUP, LLC AND MARINETTE MARINE CORPORATION,

 DEFENDANTS-RESPONDENTS,

STARR INSURANCE HOLDINGS, INC. D/B/A STARR INDEMNITY AND LIABILITY 

COMPANY,

 DEFENDANT-THIRD-PARTY PLAINTIFF-RESPONDENT,

 V.

BOSK CORPORATION AND AUTO-OWNERS INSURANCE GROUP D/B/A HOMEOWNERS INSURANCE COMPANY,

 THIRD-PARTY DEFENDANTS-RESPONDENTS.
No. 2023AP826

2

APPEAL from an order of the circuit court for Brown County: 

THOMAS J. WALSH, Judge. Affirmed. 

Before Stark, P.J., Hruz and Gill, JJ. 

¶1 STARK, P.J. This case addresses the negligence claims of a 

“loaned employee” against his borrowing employer under WIS. STAT. § 102.29(7)

(2021-22)1 of Wisconsin’s Worker’s Compensation Act (the Act). Mark Demars 

appeals from the circuit court’s grant of summary judgment to third-party 

defendants Bosk Corporation—which is Demars’ employer—and Auto-Owners 

Insurance Group d/b/a Home-Owners Insurance Company (collectively, Bosk) and 

from the court’s dismissal of Demars’ claims against Fincantieri Marine Group, 

LLC—which is the borrowing employer—and Marinette Marine Corporation.

2

 

Demars was injured while he was working at FMG’s premises. Demars applied 

for and received worker’s compensation benefits from Bosk, but he also filed this 

lawsuit solely against FMG. Pursuant to an indemnification agreement, FMG 

filed a third-party complaint against Bosk.

¶2 Bosk and FMG filed motions for summary judgment. The circuit 

court granted Bosk’s motion for summary judgment based on its conclusion that 

Demars was a loaned employee under WIS. STAT. § 102.29(7)—which we will 

 

1

 All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise 

noted.

2

 Marinette Marine Corporation is a subsidiary of Fincantieri Marine Group, LLC, and 

the owner of the premises. Starr Insurance Holdings, Inc. d/b/a Starr Indemnity Corporation is 

their insurer. We will refer to these parties collectively as “FMG.”
No. 2023AP826

3

refer to as “the loaned employee doctrine”—and, therefore, his suit against FMG 

was barred under the Act.

¶3 On appeal, Demars asserts three reasons the circuit court erred by 

granting summary judgment to Bosk: (1) Bosk, not FMG, asserted the loaned 

employee doctrine as an affirmative defense, and, therefore, FMG is barred from 

asserting it; (2) the court’s conclusion that Bosk was required to indemnify FMG 

was contrary to its conclusion that the loaned employee doctrine applied; and 

(3) Demars was not a loaned employee under WIS. STAT. § 102.29(7). For the 

reasons that follow, we reject all of Demars’ arguments, and we affirm the court’s 

decision.

BACKGROUND

¶4 In this case, neither the circumstances of Demars’ injury nor the 

details of FMG’s alleged errors or omissions are relevant to the issues on appeal. 

It is sufficient for us to note that Demars suffered an industrial workplace injury

on the premises of FMG in Marinette, Wisconsin, on June 19, 2018. At the time, 

Demars was employed by Bosk3as a painter, and Bosk had contracted with FMG 

to provide paint laborers to work on a littoral combat ship (hereinafter, LCS

project) in furtherance of FMG’s shipbuilding contract with the federal 

government. As a result of his injury, Demars filed a worker’s compensation 

claim with Bosk, and “[i]ndemnity and medical payments were issued.”

 

3

 The president and CEO of Bosk explained by affidavit that “Bosk Corporation is an 

industrial and commercial painting, coating and sandblasting company that has provided these 

services in schools, hospitals, papermills, powerplants, mines, and various other settings.”
No. 2023AP826

4

¶5 Demars also initiated this tort action against FMG, claiming FMG 

had violated Wisconsin’s Safe Place statute under WIS. STAT. § 101.11, the 

“common law duty to provide a safe workplace and safe place of employment,” 

and was otherwise variously negligent.4 Upon receipt of Demars’ complaint, 

FMG attempted to tender a defense to Bosk based on the terms and conditions of a 

purchase order agreement (the agreement) between FMG and Bosk. Within the 

agreement, Bosk had “agreed to provide labor and services to FMG ... in 

connection with the painting of a certain vessel described as LCS-19.” FMG 

alleged that Bosk had also agreed to defend and indemnify FMG against Demars’ 

claims. Bosk failed to respond to FMG’s tender of defense.

¶6 As a result, FMG filed a third-party complaint against Bosk, alleging 

contractual indemnity and breach of contract. Bosk, in its answer, denied all 

allegations regarding its duty to defend and indemnify FMG for Demars’ injuries.

¶7 Bosk subsequently filed a motion for summary judgment, seeking 

dismissal of Demars’ action on the basis of the loaned employee doctrine. On the 

same day, FMG also moved for summary judgment on two separate bases. 

FMG’s first motion sought the dismissal of Demars’ WIS. STAT. § 101.11 claim 

because Demars’ “act of operation,” rather than the acts of FMG, was “the 

efficient proximate cause of [his] injuries.” In its second motion, FMG sought a 

declaration as to the validity of the indemnification agreement between it and 

Bosk, argued that Bosk had breached the terms of the indemnification agreement, 

 

4

 Demars later filed an amended complaint, adding Marinette Marine Corporation and 

Starr Indemnity and Liability Company as defendants.
No. 2023AP826

5

and claimed that Bosk “must reimburse FMG ... for any defense costs incurred 

and to be incurred in defending FMG against [Demars’] claims.”

¶8 By written decision, the circuit court first granted Bosk’s motion for 

summary judgment. Relying on the test first established in Seaman Body Corp. v. 

Industrial Commission of Wisconsin, 204 Wis. 157, 235 N.W. 433 (1931), the 

court determined that Demars was a loaned employee because Demars consented 

to work for FMG; Demars was performing FMG’s work; FMG had the right to, 

and did, control Demars’ work; and FMG was the primary beneficiary of Demars’ 

work. As a result, the court concluded that Demars’ claims against FMG were 

barred under WIS. STAT. § 102.29(7).

¶9 Bosk then filed a proposed order in accordance with the circuit 

court’s decision. The proposed order granted Bosk’s motion for summary 

judgment; dismissed all of Demars’ claims and causes of action “on the merits, 

with prejudice, and with statutory costs [and] attorneys fees”; and stated that 

“[b]ecause this [o]rder disposes of the entire matter in litigation as to ... Demars, it 

is a final [o]rder for purposes of appeal as it relates to” Demars.

¶10 Demars objected to the proposed order and moved for clarification 

and/or reconsideration. According to Demars, FMG could not “avail itself of the 

[circuit c]ourt’s [o]rder granting summary judgment to Bosk ... because [FMG] 

never asserted the loaned employee doctrine as a defense to [Demars’] claims”; 

therefore, FMG had “waived” this defense and “any judgment granted to Bosk has 

no impact on [Demars’] claims against [FMG].” Demars also, for the first time, 

argued that the indemnification agreement between Bosk and FMG “waived 

[Bosk’s] worker’s compensation immunity” and that Demars’ claims should 

survive, regardless of his status as a loaned employee.
No. 2023AP826

6

¶11 The circuit court later entered a written decision on FMG’s motion 

for summary judgment seeking a declaration as to the validity of the 

indemnification agreement. The court granted the motion in part and denied it in 

part.

5

 As relevant here, the court determined that a valid indemnification 

agreement existed between Bosk and FMG and that “Bosk was in breach of the 

purchase order’s binding indemnification provision when it failed to” accept 

FMG’s tender of defense. However, the court denied FMG’s motion for a

judgment for attorney’s fees “because there ha[d] been no apportionment of 

liability.”

6

¶12 The same day the circuit court issued its decision on FMG’s motion 

for summary judgment, it also held a status conference. At that hearing, the court 

informed the parties that it would issue a written decision clarifying its prior 

decision on the loaned employee doctrine. That written decision confirmed that 

“dismissal of Demars’ claims is the correct result.” Demars appeals.

DISCUSSION

¶13 This case involves the operation of the loaned employee doctrine

under WIS. STAT. § 102.29(7). Section 102.29(7) provides: “No employee who is 

loaned by his or her employer to another employer and who has the right to make 

 

5

 It appears that the circuit court did not directly issue a decision on FMG’s first motion 

for summary judgment, which sought dismissal of Demars’ WIS. STAT. § 101.11 claim, because 

the court had already granted Bosk’s summary judgment motion and dismissed all of Demars’ 

claims.

6

 The circuit court noted that based on its decision regarding the indemnification issue, 

the court was available to Bosk and FMG to pursue the indemnification matter to the extent the 

agreement allowed, which is why the case was not dismissed outright once the court dismissed 

Demars from the case.
No. 2023AP826

7

a claim for compensation under this chapter may make a claim or maintain an 

action in tort against the employer who accepted the loaned employee’s services.” 

“The rationale of the loaned employee doctrine as it relates to worker’s 

compensation is that an employee who is on loan to a borrowing employer 

becomes a loaned employee of the borrowing employer and should, for worker’s 

compensation purposes, be treated as an employee of the borrowing employer.”7 

Borneman v. Corwyn Transp., Ltd., 219 Wis. 2d 346, 353, 580 N.W.2d 253 

(1998). “The loaned employee doctrine is one way of promoting the compromises 

and policies underlying the Worker’s Compensation Act.” Id.

¶14 As noted, the circuit court granted summary judgment to Bosk. We 

review a circuit court’s grant of summary judgment de novo by applying the same 

methodology as the circuit court. 1325 N. Van Buren, LLC v. T-3 Grp., Ltd., 

2006 WI 94, ¶22, 293 Wis. 2d 410, 716 N.W.2d 822. Under that methodology, 

summary judgment is granted “if the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show 

that there is no genuine issue as to any material fact and that the moving party is 

entitled to a judgment as a matter of law.” WIS. STAT. § 802.08(2).

¶15 We acknowledge that there are facts in dispute, but none of the facts 

are material to the legal issue in this case. Where the material facts are 

undisputed, we determine whether an employee is a loaned employee de novo but 

benefiting from the circuit court’s analysis. See Bauernfeind v. Zell, 190 Wis. 2d

 

7

 We note that the case law on the topic of the loaned employee doctrine uses both 

“borrowing employer” and “special employer” to describe what WIS. STAT. § 102.29(7) refers to 

as “the employer who accepted the loaned employee’s services.” In this decision, we will use 

both terms interchangeably.
No. 2023AP826

8

702, 714, 528 N.W.2d 1 (1995) (citing Gansch v. Nekoosa Papers, Inc., 158 

Wis. 2d 743, 753, 463 N.W.2d 682 (1990)); Phelps v. Physicians Ins. Co. of Wis., 

2009 WI 74, ¶35, 319 Wis. 2d 1, 768 N.W.2d 615.

¶16 On appeal, Demars asserts three reasons the circuit court erred by 

granting summary judgment to Bosk. First, he claims that the court erred by 

expanding the loaned employee doctrine’s protections to FMG, despite FMG’s 

failure to assert that doctrine as a defense to Demars’ complaint. Second, Demars 

argues that the court’s conclusions that FMG was entitled to indemnification by 

Bosk and also entitled to the loaned employee defense were contradictory. Third, 

Demars asserts that the court erred by concluding that he was a loaned employee 

and that WIS. STAT. § 102.29(7) applied to this action. For the reasons that follow, 

we reject all of Demars’ arguments.

I. FMG’s Failure to Assert the Loaned Employee Doctrine

¶17 Demars first argues that the circuit court erred by “expand[ing]” 

Bosk’s loaned employee doctrine defense to FMG “even though [FMG] has never 

asserted the loaned employee doctrine as a defense to” Demars’ claims. Thus, to 

the extent summary judgment was properly granted to Bosk, Demars claims the 

same should not apply to FMG because it “waived”8the defense by failing to 

assert it.

 

8

 We note that Demars is actually asserting a forfeiture argument and not a waiver 

argument. See State v. Ndina, 2009 WI 21, ¶29, 315 Wis. 2d 653, 761 N.W.2d 612 (“[F]orfeiture 

is the failure to make the timely assertion of a right, [whereas] waiver is the intentional 

relinquishment or abandonment of a known right.” (citation omitted)).
No. 2023AP826

9

¶18 FMG responds that Demars did not argue that FMG forfeited the 

loaned employee defense until his motion for clarification and/or reconsideration, 

which was after the circuit court had granted Bosk’s summary judgment motion. 

See Bauer v. Wisconsin Energy Corp., 2022 WI 11, ¶14, 400 Wis. 2d 592, 970 

N.W.2d 243 (“[A] motion for reconsideration is not a vehicle for making new 

arguments or submitting new evidentiary materials [that could have been 

submitted earlier] after the court has decided a motion for summary judgment.” 

(second alteration in original; citation omitted)). Thus, FMG argues that Demars 

“has waived[9] his argument that FMG waived the loaned employee defense.” In 

the alternative, FMG claims that once the court determined that Demars was a 

loaned employee, it also determined that Demars’ exclusive remedy was under the 

Act. According to FMG, the court therefore lacked subject matter jurisdiction to 

further address Demars’ claims.

¶19 We conclude that, under the circumstances of this case, FMG did not 

forfeit the loaned employee doctrine defense, and the circuit court did not err by 

dismissing Demars from this case when it granted summary judgment to Bosk. 

Demars argues that FMG never asserted the loaned employee doctrine as an 

affirmative defense in response to Demars’ complaint, amended complaint, or in 

its motions for summary judgment. Generally, “affirmative defenses shall be 

raised in a responsive pleading.” Maple Grove Country Club Inc. v. Maple Grove 

Ests. Sanitary Dist., 2019 WI 43, ¶43, 386 Wis. 2d 425, 926 N.W.2d 184 (citing 

WIS. STAT. §§ 802.02(3), 802.06(2)). Section “802.06(2) provides an exception to 

that general rule, which indicates that the ten enumerated defenses ‘may at the 

 

9

 FMG’s assertion is also properly defined as a forfeiture argument, not a waiver.
No. 2023AP826

10

option of the pleader be made by motion.’” Maple Grove, 386 Wis. 2d 425, ¶43 

(quoting § 802.06(2)(a)).

¶20 As FMG argues, however, Demars fails to cite any relevant legal 

authority stating that the loaned employee doctrine is an affirmative defense that 

must be raised or else it is forfeited. Demars merely assumes that to be true. 

FMG does acknowledge that “immunity” is one of the enumerated affirmative 

defenses under WIS. STAT. § 802.02(3) and that the loaned employee doctrine is 

called a form of statutory “immunity.” See, e.g., Bauernfeind, 190 Wis. 2d at 

713; Gansch, 158 Wis. 2d at 752. Regardless, we need not reach this issue 

because the record reveals that FMG did raise “all of the affirmative defenses 

contained in § 802.02” in its answer to Demars’ amended complaint. Further, as 

we noted above, Bosk also responded to FMG’s third-party complaint by stating 

that it was “entitled to the protections of WIS. STAT. § 102.29, including but not 

limited to, its exclusive remedy provisions” and further stated that “[f]or purposes 

of avoiding [forfeiture], [Bosk] incorporates the affirmative defenses set forth 

in ... § 802.02.” Thus, FMG and Bosk pled these defenses, and the loaned 

employee doctrine defense was not forfeited.

¶21 We also agree with the circuit court’s rationale for why it concluded 

that the loaned employee doctrine defense did not apply only to Bosk. According 

to the court, “Bosk’s position was crystal clear from the start—that Demars was a 

loaned employee of [FMG] and he was therefore statutorily barred from asserting 

any tort claims against [FMG] because his exclusive remedy was the worker’s 

compensation claim he already received.” The court noted that “Demars 

immediately went to work challenging Bosk’s loaned-employee theory by 

pointedly deposing Bosk and [FMG] employees concerning facts relevant to the 

elements of the loaned employee doctrine and then thoroughly briefing the 
No. 2023AP826

11

matter”; thus, Demars was well aware of, and had ample opportunity to respond 

to, the defense. Ultimately, the court “d[id] not see how the loaned employee 

ruling c[ould] be compartmentalized” and not applied to Demars’ claims against 

FMG in this matter. We agree. 

¶22 Based on the plain language of WIS. STAT. § 102.29(7), Demars 

could not maintain his claims against FMG once he was determined to be a loaned 

employee. Essentially, once a court determines that an employee is a loaned 

employee and that he or she “has the right to make a claim for compensation 

under” the Act, § 102.29(7) provides that “[n]o [loaned] employee ... may make a 

claim or maintain an action in tort against the employer who accepted the loaned 

employee’s services.” Sec. 102.29(7) (emphasis added). Thus, § 102.29(7) speaks 

directly to Demars’ claims against FMG. 

¶23 There is no dispute that Demars previously filed a worker’s 

compensation claim against Bosk, and he was paid. The circuit court then 

determined that Demars was a loaned employee whose services were loaned to 

FMG. Therefore, WIS. STAT. § 102.29(7) specifically prohibits Demars from 

“mak[ing] a claim or maintain[ing] an action in tort against” FMG, as “the 

employer who accepted the loaned employee’s services.” See § 102.09(7). The 

conclusion that Demars was a loaned employee subject to § 102.29(7), regardless 

of which party raised the argument, bars his tort action against FMG, and the court 

properly dismissed Demars’ claims.

II. Contradictory Rulings

¶24 Demars next argues that the circuit court’s “finding that Demars was 

a loaned employee[] is contradicted by the ... court’s finding that [FMG] was 
No. 2023AP826

12

entitled to indemnification.”10 According to Demars, Bosk “waived its immunity”

under the Act “when it entered [into] the indemnification agreement with [FMG].”

¶25 Generally, in Wisconsin, an employer cannot be liable to an injured 

employee beyond the liability imposed by the Act. WIS. STAT. § 102.03. 

Wisconsin courts have determined, however, that an employer can waive this 

immunity if the employer agrees to indemnify a third party for tort claims an 

employee has against that third party. See Schaub v. West Bend Mut., 195 

Wis. 2d 181, 183, 185, 536 N.W.2d 123 (Ct. App. 1995). Demars relies heavily 

on Schaub in support of his position. There, the plaintiff, who was injured on a 

construction project, was an employee of a subcontractor. Id. at 183. The plaintiff 

received worker’s compensation benefits and then filed a negligence action against 

the general contractor. Id. The general contractor filed a third-party complaint 

against the subcontractor based on an indemnification and insurance paragraph in 

the contract between them. Id. at 184. The circuit court concluded that because 

the indemnification agreement did not specifically waive the subcontractor’s 

immunity from suit under the Act, the agreement “had no force and effect” in the 

plaintiff’s action. Id. We reversed. Id. at 183.

¶26 Thus, Schaub undeniably stands for the proposition that employers 

may waive immunity from lawsuits under the Act, and they may do so by agreeing 

to indemnify a third party for claims the injured employee has against that third 

 

10

 As noted above, the circuit court determined that a valid indemnification agreement 

existed between Bosk and FMG and that “Bosk was in breach of the purchase order’s binding 

indemnification provision when it failed to [accept FMG’s] tender the defense of this case.” 

Neither Bosk nor FMG dispute the court’s conclusions on that issue.
No. 2023AP826

13

party. Id. at 183, 185. Further, “Wisconsin law does not require the use of 

specific phrases ... in order to give up immunity.” Id. at 183.

¶27 Schaub relied on Larsen v. J. I. Case Co., 37 Wis. 2d 516, 155 

N.W.2d 666 (1968), and Mulder v. Acme-Cleveland Corp., 95 Wis. 2d 173, 290

N.W.2d 276 (1980), which Demars also cites to support his position. Demars cites

these cases for the general proposition that “the rule of no liability of the employer

over and above that imposed by the Workmen’s Compensation Act does not apply

in the case of an express agreement for indemnification.” See Schaub, 195 

Wis. 2d at 185 (quoting Larsen, 37 Wis. 2d at 520); see also Mulder, 95 Wis. 2d

at 177-78 (reasoning that action between third parties and employer for 

indemnification is barred, “absent a specific and express agreement”).

¶28 Under the circumstances of this case, we conclude that the valid 

indemnification agreement between Bosk and FMG does not contradict the circuit 

court’s conclusion that Demars was a loaned employee. In general, Demars reads

the above cases too broadly. For example, in Schaub, at no point in the decision 

did this court mention or discuss the loaned employee doctrine. As the circuit 

court explained, Schaub is inapplicable to the case at hand because “in Schaub the 

loaned employee doctrine was not litigated and the validity of the plaintiff’s 

claims against the general contractor was never questioned.” Larsen and Mulder,

too, exclusively address indemnification agreements in the context of third-party

liability, not the loaned employee doctrine. See generally Larsen, 37 Wis. 2d 516; 

Mulder, 95 Wis. 2d 173.

¶29 We agree with the circuit court’s discussion highlighting the 

difference between these situations:

There is an inherent difference between the situation of a 

general contractor being sued by an employee of a 
No. 2023AP826

14

sub-contractor that is obligated to indemnify the general 

contractor and the situation of a loaned employee suing the 

company he was loaned to even if the loaning company has 

an agreement to indemnify. In the former case the general 

contractor is a third party to the claimant whereas in the 

latter case the company to whom the employee was loaned 

stands in the shoes of the employer.

Similarly, we agree with Bosk that, under Schaub, it may have been required to 

indemnify FMG for Demars’ damages were it not for the court’s determination 

that Demars was a loaned employee. Under the facts here, however, because of 

Demars’ status as a loaned employee, FMG is not a traditional third party under 

the Act, and Demars’ claims against it are barred. Thus, Bosk has essentially 

agreed to indemnify FMG against a barred claim; Bosk did not waive immunity 

under the Act.

¶30 According to Demars, however, the circuit court, FMG, and Bosk all 

“overlook the fact that an enforceable indemnification agreement waives worker’s 

compensation immunity, which by definition includes defenses based on [the] 

loaned employee” doctrine. In support of this statement, however, Demars again 

cites Schaub and Larsen. Beyond Demars’ repeated, conclusory assertions that 

Schaub’s holding applies in this case and that worker’s compensation immunity as 

it relates to an indemnification agreement “by definition includes” the loaned 

employee doctrine, Demars does not cite any legal authority in support of his 

position.11 See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 

1992) (“Arguments unsupported by references to legal authority will not be 

 

11

 Demars also cites Ehr v. West Bend Mutual Insurance Co., 2018 WI App 14, 

¶¶15-17, 380 Wis. 2d 138, 908 N.W.2d 486, and Gansch v. Nekoosa Papers, Inc., 158 Wis. 2d

743, 463 N.W.2d 682 (1990), which he claims “have also recognized that considerations of the 

loaned employee defense are to be analyzed within the exclusive remedy provision of WIS. STAT.

§ 102.03.” But while these cases do address the loaned employee doctrine, they do not assert that 

an enforceable indemnification agreement negates WIS. STAT. § 102.29(7).
No. 2023AP826

15

considered.”). To the extent that Demars either fails to recognize the differences 

between the factual circumstances or fails to develop his argument that Schaub’s 

holding does or should apply (and why), we conclude that Demars has failed to 

demonstrate that the court erred. 

¶31 In summary, we agree with FMG that the indemnification agreement 

“does not deprive Bosk of its ability to rely on a loaned employee defense, and [it] 

certainly does not deprive FMG of that defense where FMG has not waived 

anything simply by accepting an indemnification from Bosk.”

III. Loaned Employee

¶32 We next determine whether Demars is properly considered a loaned 

employee under WIS. STAT. § 102.29(7).12 The test to determine whether an 

 

12

 We note that the Wisconsin Association for Justice (WAJ) filed an amicus curiae brief 

in this case. According to WAJ, this case should be analyzed in light of this court’s decision in 

Ehr, which addressed tort claims by temporary employees against their temporary employers 

under WIS. STAT. § 102.29(6)(b)1. (2015-16). In Ehr, the question was whether an employee of 

a temporary help agency who was injured in the course of his employment and who had not made 

a worker’s compensation claim could bring a tort claim against his temporary employer. Ehr, 

380 Wis. 2d 138, ¶1. We concluded “that a temporary employee who has not made a claim for 

compensation under the Act is permitted to pursue a tort claim against his or her temporary 

employer.” Id., ¶2. We also stated that “even if the employee at issue in this case is construed as

a loaned employee, rather than a temporary employee, we still conclude the Act does not bar his 

[or her] estate’s tort claims.” Id.

WAJ argues that Bosk “[c]learly ... leased its employee ... to FMG, and FMG controlled 

the work of Demars”; therefore, “Demars may or may not be a loaned employee, but his role 

definitely fits the definition of a [WIS. STAT.] § 102.01(2)(f) temporary employee.” (Footnote 

omitted.) According to WAJ, “there is no meaningful difference between a temporary employee 

and a loaned employee.” But see Bauernfeind v. Zell, 190 Wis. 2d 701, 712, 528 N.W.2d 1 

(1995) (stating that different tests apply to each). Based on these assertions, WAJ claims that 

because Demars did not assert a worker’s compensation claim against FMG, he “should be free 

to make a tort claim against FMG under WIS. STAT. § 102.29(6)(b)1.”

(continued)
No. 2023AP826

16

employee becomes a loaned employee of the borrowing employer was first set 

forth in Seaman. Our supreme court has explained that “[t]he Seaman loaned

employee test has two aspects: three elements and four vital questions.” 

Borneman, 219 Wis. 2d at 353.

 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.

 The vital questions in controversies of this kind 

are: (1) Did the employee actually or impliedly consent to 

work for a special employer? (2) Whose was the work he 

[or she] was performing at the time of injury? (3) Whose 

was the right to control the details of the work being 

performed? (4) For whose benefit primarily was the work 

being done?

Id. at 353-54 (quoting Seaman, 204 Wis. at 163). “[T]he three elements and the 

four vital questions of the Seaman test are intertwined and closely related,” and 

the case law “implicitly recognize[s] that the four vital questions are intended to 

 

WAJ’s argument is not persuasive because this court’s holding in Ehr has since been 

abrogated by amendments to the statute. In Ehr, we stated that “[t]he necessary implication of” 

the statutory phrase “who makes a claim for compensation,” as used in WIS. STAT. § 102.29(6)(b) 

(2015-16), “is that a temporary employee who does not make a claim for compensation under the 

Act is not prohibited from bringing a tort claim against his or her temporary employer.” Ehr, 380 

Wis. 2d 138, ¶14. After Ehr was issued, the Wisconsin Legislature amended various provisions 

of § 102.29 to change the language from “who makes a claim for compensation” to “who has the 

right to make a claim for compensation.” Compare WIS. STAT. § 102.29(6) (2015-16) with

§ 102.29(6); see also 2017 Wis. Act 139. Under the current version of the statute, whether 

Demars had the right to make a claim for compensation under the Act is ultimately the proper 

consideration, not whether he did or did not make a claim or if the claim was against Bosk or 

FMG. Further, neither § 102.29(6) nor (7) specify that the claim be made against a particular 

employer. Thus, we reject WAJ’s argument.
No. 2023AP826

17

facilitate analysis of the three-elements aspect of the Seaman test.” Borneman, 

219 Wis. 2d at 355-56, 358.

¶33 Our supreme court has also recognized, however, that “[t]he Seaman

test is often difficult to apply,” and “[t]he prior cases are difficult to fit together 

because the test is so ‘fact-oriented.’” Borneman, 219 Wis. 2d at 354 (quoting 

Gansch, 158 Wis. 2d at 750).

 Over the years this court has acknowledged the 

deficiencies of the Seaman test as well as the confusing 

and sometimes conflicting case law interpreting and 

applying it. On more than one occasion the court has 

expressed dissatisfaction with the application of the 

Seaman test, declaring that “this court, as well as others, 

has found the question of the ‘loaned employee’ 

troublesome. The definition and factual essentials 

necessary to establish the legal relationship of the loaned 

employee are not uniform in all the reported cases, nor is 

the same emphasis always to the necessary elements.” 

Gansch, 158 Wis. 2d at 751. Although the test is “readily 

comprehensible, when applied to specific factual situations, 

the distinctions are sometimes slight and the decisions 

well-nigh irreconcilable.” Freeman v. Krause Milling Co., 

43 Wis. 2d 392, 394, 168 N.W.2d 599 (1969).

Borneman, 219 Wis. 2d at 354-55. “Despite the difficulties in applying the 

Seaman test,” however, “neither courts nor commentators have devised a better 

one.” Borneman, 219 Wis. 2d at 355.

¶34 Here, Demars bases his arguments on the four vital questions of the 

Seaman test. In particular, he challenges the circuit court’s decision on these four 

grounds: (1) whether Demars “consented to a new employment relationship”;

(2) whether Demars deviated from performing Bosk’s work at the time of his 

injury; (3) whether Demars’ work was controlled by Bosk or by FMG; and 

(4) whether FMG benefitted from Demars’ work.
No. 2023AP826

18

a. Employee Consent

¶35 Demars’ first challenge is whether he “actually or impliedly 

consent[ed] to work for” FMG—Seaman’s first element and first vital question. 

See Seaman, 204 Wis. at 163. Our supreme court has stated that “the consent of 

an employee to enter into a new employment relationship with a borrowing 

employer is the most critical inquiry in the Seaman test.” Borneman, 219 Wis. 2d

at 356. While “consent cannot be implied merely from the fact that the employee 

obeyed the commands of the general employer in performing work for a special 

employer,” an employee who works “willingly” “under the direction” of the 

special employer impliedly consents to that working relationship. Bauernfeind, 

190 Wis. 2d at 715. The circuit court must determine “whether an employee 

consented to leave his or her general employment and to enter into a new 

employer-employee relationship, if only of a temporary nature.” Borneman, 219 

Wis. 2d at 357. Further, there is “a presumption that an employee remains in the 

employ of the general employer.” Id.

¶36 Our case law has established several ways that consent may be 

established. The first pertains to the second Seaman element: “Actual entry by 

the employee upon the work of and for the special employer pursuant to an 

express or implied contract so to do.” Seaman, 204 Wis. at 163; see also

Borneman, 219 Wis. 2d at 360 (“[T]he existence of an arrangement or 

understanding between a general employer and a borrowing employer is relevant 

to the issue of an employee’s consent to enter into a new employment relationship 

with the borrowing employer.”). However, a “formal” contract or agreement is 

not required; rather, “an express or implied agreement, or lack thereof,” between 

the employers is “a factor bearing on the issue” of whether the employee 

consented to work for the borrowing employer. Borneman, 219 Wis. 2d at 359. 
No. 2023AP826

19

Further, consent can be inferred from an employee’s words or acts which 

demonstrate his or her state of mind. See Bauernfeind, 190 Wis. 2d at 715. 

¶37 Under the undisputed facts in this case, we agree with the circuit 

court that Demars consented to work for FMG. First, there was an express 

agreement between Bosk and FMG, and that agreement provided painters 

employed by Bosk to FMG at an hourly rate to work on specific projects. Demars 

was engaging in that contracted work at the time of his injury.

¶38 Second, while Bosk directed Demars to work for FMG, the record 

demonstrates that Demars did more than merely obey Bosk’s direction. While 

working at FMG, Demars and the others in Bosk’s paint crew would begin their 

day in “muster meetings” with both Bosk and FMG employees where the FMG 

foreperson would instruct them what “needed [to be] done that day.” Demars’ 

testimony confirmed that the FMG foreperson, not the Bosk foreperson,13 would 

“tell [Bosk employees]” what they would be doing that day and assign specific 

tasks to individual members of Bosk’s paint crew. The Bosk foreperson 

confirmed that she did not “have any input as to where people were going to 

work.” The FMG foreperson testified that he would “walk the job sites and go 

through all the employees and check on them” to ensure they were working safely, 

and he had the authority to stop their work if needed. Thus, based on this record, 

Demars worked under the direct supervision of FMG, which was “telling the 

workers what to do and how to do it.” See Bauernfeind, 190 Wis. 2d at 715. 

 

13

 The Bosk foreperson’s deposition testimony confirmed that she had been “labeled” as 

a Bosk foreperson, but she clarified that she did not hold any supervisory duties at FMG. She 

stated, “I was labeled the foreman, but I was hired at [FMG] as a painter .... When I was at 

[FMG], I was a worker.” Bosk’s designation of her as a “foreman” simply meant that she “was in 

charge of [timekeeping] paperwork” for Bosk.
No. 2023AP826

20

Further, Demars has not identified any evidence that he refused to obey any of 

FMG’s directions.

¶39 Finally, Demars demonstrated his implied consent by accepting 

Bosk’s assignment to work for FMG. According to the record, Bosk’s employees,

“when placed with a certain client or assigned to a certain project, have the ability 

to request placement with a different client or reassignment to a different project if 

they so wish” based on “geographical, philosophical, or other reasons.” Demars, 

however, never requested replacement or reassignment while placed at FMG. At 

the time of his injury, Demars had been a Bosk employee for approximately thirty

years, and he had been working on projects for FMG for ten of those years. Based 

on these facts, we conclude that Demars impliedly consented to work for FMG.

¶40 Demars counters this conclusion with several arguments. Initially, 

he argues that the terms of the agreement between FMG and Bosk expressly 

prevented Demars from becoming a loaned employee of FMG. The agreement

states: “[Bosk] is an independent contractor and its employees and agents are not 

the employees or agents of [FMG].” Thus, he claims that the agreement

established his “employment relationship” and that should be honored.

¶41 We concur with the circuit court that this provision in the agreement, 

identifying that Bosk’s employees are not employees of FMG, is irrelevant. The 

agreement does not state that Bosk employees “are not the loaned employees of 

FMG.” Further, neither WIS. STAT. § 102.29(7) nor the Seaman test suggest that a 

loaned employee must become an actual employee of the borrowing employer. In 

fact, such a requirement is contrary to the purpose of the loaned employee doctrine

because if the worker were an actual employee of the borrowing employer, rather 

than a loaned employee, then the exclusive remedy provision could apply by 
No. 2023AP826

21

virtue of WIS. STAT. § 102.03(2) and not § 102.29(7). Thus, the agreement’s term,

stating that Bosk’s employees are not employees of FMG, is not determinative of 

whether Demars is considered a loaned employee.

14

¶42 Next, Demars asserts that he did not impliedly consent to work for 

FMG “because no new employment relationship was created.” (Formatting 

altered.) For support, he cites Borneman for the proposition that “the first consent 

[element] was not intended to ask if the [p]laintiff impliedly consented to work for 

the borrowing employer. Instead, the first Seaman [element] requires an 

employee to consent to leave his or her general employer and enter into a new 

employer-employee relationship.” According to Demars, the “[circuit] court made

no finding that a new employer-employee relationship was created,” and the 

record, instead, demonstrates that he “had been performing his work for Bosk at 

the [FMG] premises in the same manner he had worked for years.” He also argues 

that he never impliedly consented to work for FMG because he “never consented 

to enter into an employment agreement with” FMG.

¶43 We conclude that Demars misinterprets the consent element under 

Seaman. The best summary of Demars’ argument is his statement that the 

Seaman “consent [element] was not intended to ask if the [p]laintiff impliedly 

consented to work for the borrowing employer” but, instead, “requires an 

employee to consent to leave his or her general employer and enter into a new 

 

14

 We will not further address the cases cited by Demars on this issue. We do note, 

however, that Demars improperly cites an unpublished per curiam opinion in violation of WIS.

STAT. RULE 809.23(3). Demars appears to be aware of RULE 809.23(3)(b) because he cites to it, 

but he fails to properly apply the statute under the circumstances. We admonish counsel that 

violations of the Rules of Appellate Procedure may result in sanctions. See WIS. STAT.

RULE 809.83(2).
No. 2023AP826

22

employer-employee relationship.” (First emphasis added.) The literal language of 

the Seaman consent element requires “[c]onsent on the part of the employee to 

work for a special employer,” and the first vital question asks, “Did the employee 

actually or impliedly consent to work for a special employer?” Seaman, 204 Wis. 

at 163 (emphasis added). Thus, Demars’ representation that those are not the 

questions the consent element was “intended to ask” is not accurate.

¶44 To the extent Demars is claiming that the test has developed beyond 

the literal language of the original Seaman test, we agree that it is common in our 

legal system for appellate courts to develop guidelines through case law to assist 

circuit courts in making legal determinations, and the Seaman test is no different. 

We note, however, that Demars’ statement that “the first Seaman [element]

requires an employee to consent to leave his or her general employer and enter 

into a new employer-employee relationship” entirely misstates the quote in 

Borneman. (Emphasis added.) There, the court actually stated that “[t]he essence 

of the Seaman test ... lies in determining whether an employee consented to leave 

his or her general employment and to enter into a new employer-employee 

relationship, if only of a temporary nature.”

15

 Borneman, 219 Wis. 2d at 357 

(emphasis added). The distinction between leaving an employer versus leaving 

 

15

 Demars also states that “[n]o ‘new relationship’ was created” between himself and 

FMG because the circuit court “found that at the time of the injury, [he] had been performing his 

work for Bosk at the [FMG] premises in the same manner he had worked for years.” If Demars’ 

argument is meant to suggest that there is a time element to the test under Seaman Body Corp. v. 

Industrial Commission of Wisconsin, 204 Wis. 157, 235 N.W. 433 (1931), we disagree. The 

court’s use of the term “new” in Borneman v. Corwyn Transport, Ltd., 219 Wis. 2d 346, 580 

N.W.2d 253 (1998), does not suggest that the court meant that the employer-employee 

relationship needs to “have[] recently come into existence,” but rather that the relationship be 

“different from one of the same category that has existed previously.” See New, 

MERRIAM-WEBSTER DICTIONARY, https://www.merriam-webster.com/dictionary/new (last 

visited Aug. 14, 2024). The fact that Demars had been doing the same work at FMG for ten years 

is not, in and of itself, evidence that he was not a loaned employee.
No. 2023AP826

23

one’s general employment is important given that our supreme court stated that “it 

is not necessary ... that a borrowed employee leave the employ of his or her

general employer in order to become the borrowed employee of another. An 

employee can remain in the employ of both employers.” Phelps, 319 Wis. 2d 1, 

¶43 (footnote and citation omitted). 

¶45 Regardless, we disagree that Borneman supports Demars’ position. 

In Borneman, Monty Szydel was employed as a truck driver by Corwyn 

Transport, which contracted with Major Industries to haul furniture from 

Wisconsin to Georgia. Borneman, 219 Wis. 2d at 350. Szydel’s role was to drop 

off a trailer truck at Major Industries, where it was to be loaded by employees of 

Major Industries, and then he was to pick up the loaded trailer for transport to the 

intended destination. Id. When Szydel arrived to pick up the trailer, however, the 

trailer was not yet loaded and, for unknown reasons, Szydel assisted Major 

Industries’ employees in loading the trailer. Id. Of note, neither company 

compensated Szydel for helping to load the trailer, and there was no arrangement 

between the companies that Szydel would help load the trailer. Id. at 350-51. As 

the trailer was finished being loaded, part of the contents fell on an employee of 

Major Industries, causing his death. Id. at 351. In the resulting wrongful death 

action, the circuit court granted Corwyn’s motion for summary judgment on the 

ground that Szydel was a loaned employee of Major Industries, and this court 

reversed that decision. Id. at 351-52.

¶46 The plaintiff in Borneman challenged our decision on the basis that 

we had both incorrectly applied and modified the Seaman test. Borneman, 219 

Wis. 2d at 355. Our supreme court disagreed, concluding that we “properly 

focused” on whether Szydel “consented to a new employee-employer relationship

with Major Industries” and that we properly recognized that “the existence of an 
No. 2023AP826

24

arrangement or understanding between a general employer and a borrowing 

employer is relevant to the issue of an employee’s consent to enter into a new 

employment relationship with the borrowing employer.” Id. at 358, 360. 

Ultimately, the court determined that Szydel was not a loaned employee of Major 

Industries because “the two employers did not have a prior arrangement or 

understanding to loan Szydel or any other employee to Major Industries to load 

the trailer,” “Szydel’s job as truck driver did not require him to help load the 

trailer,” “[h]e was not compensated by either employer for helping to load the 

trailer,” and “Szydel was paid only for delivery of the load to the intended 

destination.” Id. at 360.

¶47 Borneman is entirely factually distinct from the case at bar. 

According to Demars, he is like Szydel because he “never consented to enter into 

a new employment agreement with” FMG. However, Demars misunderstands the

basis of the Borneman decision. Our supreme court explained:

 It is one thing for Szydel to have assisted the employees 

of Major Industries with loading the trailer and an entirely 

different matter for Szydel to have consented to enter into 

an employment relationship with Major Industries. The 

record does not support an inference that Szydel consented 

to employment with Major Industries for purposes of 

loading the trailer. Szydel’s cooperation with the 

employees of Major Industries in the loading process was 

not sufficient to rebut the presumption that Szydel 

remained in the employ of Corwyn Transport.

Id. at 360-61. Corwyn and Major Industries had contracted for Szydel to transport 

furniture from Wisconsin to Georgia by trailer but not to transport the furniture 

into the trailer. Further, the court observed that Szydel “was not compensated by 

either employer for helping to load the trailer,” and he “was paid only for delivery 

of the load to the intended destination.” Id. at 360. Thus, the court concluded that 
No. 2023AP826

25

Szydel did not meet the definition of a loaned employee “for purposes of loading 

the trailer.” See id.

¶48 Here, there is no dispute that at the time of his injury, Demars was 

engaging in the work that Bosk and FMG had contracted for him to do. Demars 

even admits that “[n]othing about his activities on the day of his injury [was]

different or unusual from his activities on a typical day.” Further, unlike in 

Borneman, Bosk was paid for Demars’ work, and Bosk, in turn, paid Demars for 

the specific work he was engaging in when the incident occurred. Therefore, 

Borneman does not support Demars’ position.

¶49 Next, Demars argues that neither he nor any of his Bosk coworkers 

“consented to enter into an employment agreement with” FMG. In support of his 

position, Demars cites deposition testimony from Bosk employees that they 

considered themselves and Demars to be Bosk employees and that they never 

witnessed Demars explicitly consent to become an employee of FMG. He also 

cites testimony of an FMG employee stating that, as far as he knew, Demars never 

consented to “an employment relationship” with FMG.

¶50 Demars’ purported evidence is immaterial to the loaned employee

analysis. As Bosk recognizes, “[t]he issue is not whether Demars consented ‘to 

enter into an employment contract with [FMG],’ as [Demars] suggests.” (Second 

alteration in original.) Our case law explaining the loaned employee doctrine does 

not require that a loaned employee provide explicit consent or enter into a formal 

employment agreement with the borrowing employer. Again, if a formal 

employment agreement between the employee and the borrowing employer were 

necessary, as discussed above, that requirement could make the employee an 
No. 2023AP826

26

actual employee of the borrowing employer and would render WIS. STAT.

§ 102.29(7) meaningless.

b. Work Performed

¶51 The next vital question of the Seaman test is: “[w]hose was the 

work he [or she] was performing at the time of injury?” Seaman, 204 Wis. at 163. 

Demars argues that he was doing Bosk’s work because he “never deviated from 

the same tasks and assignments he performed pursuant to the Bosk-[FMG] 

contract. At the time of the injury, [Demars] was performing painting services 

which [was] Bosk’s business.”

¶52 We conclude that the circuit court properly determined that Demars 

was performing FMG’s work at the time of his injury. According to Bosk’s 

president’s affidavit, “the arrangement between Bosk” and FMG “was a 

‘time & attendance’ contractor, meaning that Bosk ... provided painters to [FMG] 

to work on [FMG’s LCS] project.” Thus, Bosk’s agreement with FMG was not to 

provide a finished product; instead, Bosk’s “work” in its agreement with FMG 

was to “provide[] [FMG] people.” The finished product was the LCS project 

under FMG’s agreement with the federal government, and Bosk was not a party to 

that contract. As the court reasoned, “[w]hile true that the work being done was 

painting, the painting was being done on the LCS project,” and, “[u]ltimately, the 

only reason Bosk employees like Demars were painting at [FMG’s] facility was 

because [FMG] needed to perform under that defense contract.” Demars was 

assisting FMG in fulfilling its obligations under its contract with the federal 

government.

¶53 Demars’ arguments to the contrary overly complicate this aspect of 

the Seaman test. First, Demars claims that the circuit court “disregarded the 
No. 2023AP826

27

Borneman presumption that Demars remained a Bosk employee.” (Formatting 

altered.) He cites Borneman for the following proposition:

In the absence of evidence to the contrary, there is an 

inference that the actor remains in his 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, he 

[or she] has surrendered it.

Borneman, 219 Wis. 2d at 357 & n.6 (collecting cases and quoting RESTATEMENT 

(SECOND) OF AGENCY § 227 cmt. b (1958)). What Demars fails to note, however, 

is that the presumption that the “employee remains in the employ of the general 

employer” is clearly rebuttable based on “evidence to the contrary.” See id. Here, 

as noted above, there was sufficient evidence in the record demonstrating both that 

Demars had implicitly consented to a new relationship with FMG to do FMG’s 

work and that he did not remain in his general employment with Bosk at the time 

of the incident.

¶54 Next, Demars argues that the cases the circuit court relied on to 

reach its decision on this element—Bauernfeind, Seaman, and Phelps—are

inapplicable because “[i]n each of those cases, the employee made clear deviations 

from the work typically performed by their existing employer to assist the special 

employer.” However, Demars cites no authority in support of his argument that 

such deviation is required or determinative of Seaman’s work-performance vital 

question or that a loaned employee cannot perform the same type of work for the 

borrowing employer that he or she otherwise performs for the general employer. 

See Pettit, 171 Wis. 2d at 646; see also supra ¶33 (discussing the difficulty of 

comparing prior cases because the Seaman test is fact oriented).
No. 2023AP826

28

c. Right to Control

¶55 The third element of the Seaman test asks whether the borrowing

employer had the “[p]ower ... 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.” Seaman, 204 Wis. at 163. In other words, the vital question is who 

had “the right to control the details of the work being performed?”16 Id. We 

conclude that FMG had that right.

 

16

 We pause here to note that Bosk states: “All that is required to establish the ‘control’ 

[element] under Seaman is that the special employer maintained ‘some control’ of the work 

performed by the loaned employee.” We disagree that “some control” is the standard for the 

loaned employee doctrine under Seaman. 

Bosk cites Kaelber Plumbing & Heating v. LIRC, 160 Wis. 2d 342, 465 N.W.2d 829 

(Ct. App. 1991), for this proposition. There, this court stated, “It is no longer necessary that the 

borrowing or special employer have exclusive control over the details of the loaned employee’s 

work activities; all that is needed is that the special employer have some control over the work 

activities.” Id. at 351 n.4. In making that statement, we relied on Gansch to conclude that “the 

statutory definition of a ‘temporary help agency,’ [WIS. STAT. § 102.01(2)(f)], was applicable to 

determining the loaned employee issue[.]” Kaelber, 160 Wis. 2d at 350-52 (footnote omitted) 

(citing Gansch, 158 Wis. 2d at 750-52). However, in Bauernfeind, our supreme court stated 

unequivocally that WIS. STAT. § 102.29(6)

was intended to replace the Seaman test only with respect to 

employees of a temporary help agency. The Seaman test 

remains intact with respect to all other alleged loaned employees 

who make a claim against a temporary employer. Thus, 

employees of a temporary help agency are subject to the 

statutory test, while all persons alleged to be loaned employees 

remain subject to the Seaman test.

Bauernfeind, 190 Wis. 2d at 712. The statement in Kaelber pertaining to “some control” was in 

reference to § 102.01(2)(f) (1989-90), which defines a temporary help agency. Kaelber, 160 

Wis. 2d at 351 & n.4; see also Gansch, 158 Wis. 2d at 750-52. Accordingly, because our 

supreme court has stated that different tests apply to loaned employees and employees of 

temporary help agencies, we do not understand the loaned employee case law to require only 

“some control” in the hands of the borrowing employer.
No. 2023AP826

29

¶56 We agree with the circuit court that whether FMG had the right to 

control Demars’ work begins with the terms of the agreement. As noted above, 

FMG contracted with Bosk for the sole purpose of utilizing Bosk’s painters to help 

fulfill its defense contracts. According to the record, Bosk often “contracts with 

commercial clients on a task completion basis” whereby a client hires Bosk to 

undertake an entire project, Bosk “controls the tasks and work of its employees 

and provides all of the workers and equipment necessary for completion of the 

project,” and the client pays Bosk a lump sum upon completion.

¶57 Bosk’s arrangement with FMG as a “time & attendance” contractor

was different. FMG compensated Bosk based on an agreed hourly rate for Bosk’s 

workers, Bosk’s employees logged their hours in FMG’s timekeeping program,

and Bosk’s workers were prohibited from bringing any material to FMG’s facility 

because FMG provided “all material and equipment necessary” for Bosk’s 

employees to complete the work for FMG. Further, FMG retained the rights to 

test Bosk’s employees “to verify their qualifications,” to require Bosk’s workers to 

take direction from the FMG forepersons, to discipline and/or dismiss Bosk’s 

workers from its facilities, and to require Bosk’s workers to follow FMG’s 

workplace rules and procedures.

¶58 Additionally, as discussed above, see supra ¶¶38-39, according to 

the evidence in the record, while Bosk would place its employees “with a certain 

client or assign[] [them] to a certain project,” Bosk’s workers who were placed at 

FMG “were required to and did take direction from fore[persons] and other 

supervisors of [FMG] with respect to the actual work and tasks they were 

performing on the [LCS] project” pursuant to the daily “muster meetings.” Bosk’s 

foreperson at FMG did not control the details and/or assign tasks with respect to 

the work on FMG’s LCS project. Because Bosk was not a party to FMG’s defense 
No. 2023AP826

30

contract, it needed to rely on FMG to give appropriate instructions to Bosk’s 

employees about what was required under that contract. Under the circumstances, 

these facts demonstrate that FMG had the right to control the details of the work 

being performed by Demars.

¶59 Demars, in contrast, denies that his work was controlled by FMG. 

According to Demars, FMG, “as a typical general contractor, coordinated Bosk 

employees’ activity, but Bosk controlled the details of [Demars’] work.”17 

Specifically, he first states that Bosk “maintained its own supervisors at the site.” 

However, as we have already addressed, see supra ¶38 & note 13, Bosk’s alleged 

foreperson at the FMG facility explained that she was “labeled the foreman” but 

that simply meant that she completed timekeeping paperwork. She 

clarified: “When I was at [FMG], I was a worker.” FMG’s supervisor confirmed 

this fact. Thus, we reject this argument.

¶60 Further, in support of his position, Demars cites deposition 

testimony from FMG’s safety coordinator that she was told18 she did not need to 

investigate Demars’ injury because “it was a Bosk employee supervised by a Bosk 

 

17

 We note that Demars’ arguments on this issue all appear to focus on the control 

element as “weighed under the circumstances of Demars’[] activities that day” or, put another 

way, FMG’s “lack of control over Demars at the time of the incident.” In general, then, Demars’ 

arguments demonstrate a lack of understanding of the control element of the Seaman test, which 

considers “the right to control the details of the work being performed” and the “[p]ower 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.” See Seaman, 204 Wis. at 163 

(emphasis added). Thus, whether FMG had literal control over Demars, and how much, on the 

day of his injury may be factors to consider to determine whether FMG had the right or power to 

control the details of Demars’ work. Nevertheless, neither of these factors are required or 

determinative under Seaman.

18

 FMG’s safety director allegedly told FMG’s safety coordinator to stop her 

investigation. Demars, however, did not cite the safety director’s deposition testimony in support 

of this statement.
No. 2023AP826

31

person.” Demars’ alleged evidentiary support is not well taken. We observe that 

the safety coordinator also testified that she had no “independent knowledge ... as 

to whether or not the specifics or the details of the work” Demars was “performing 

on the date of the incident were things that were assigned by [an FMG] supervisor 

or project coordinator or someone in a foreperson role.” Thus, even apart from 

possible hearsay concerns, the safety coordinator’s testimony has no bearing on 

the question of the “right to control the details of the work” under the control 

element of the Seaman test.

¶61 Demars next argues that FMG’s supervisor “was not controlling” 

Demars’ work because he “was a hundred yards down the ship when the incident 

occurred” and “was not working right alongside Demars.” In support, Demars 

relies on Bauernfeind, where the plaintiff—an employee of Penda Corporation—

was injured while moving materials in Penda’s warehouse after the plaintiff’s 

supervisor instructed him to “work for” Coleman-Zell Construction, a 

subcontractor hired to install industrial storage racking. Bauernfeind, 190 Wis. 2d

at 707-08. The plaintiff “went to the warehouse and proceeded to work under the 

supervision of [Coleman-Zell], who was ‘running the floor’ and telling the people 

involved in installing the racking system what they should do and how they should 

do it.” Id. at 708.

¶62 According to Demars,

Penda did not have a supervisor in the warehouse or give 

instructions to [the] plaintiff on what to do, Penda was not 

in the business of installing storage racking but relied on 

[Coleman-Zell] to do it, [the p]laintiff was working in a 

location where he typically did not work, [and for o]ver 

two hours, working side-by-side together, [Coleman-Zell]

gave [the plaintiff] specific instructions on what to do and 

how to do it which were followed until the time he was 

injured. In fact, a [Coleman-Zell] supervisor stood over the 

plaintiff and instructed him as follows: “Mr. Zell instructed 

me to snap the bandings because I was the only one there 
No. 2023AP826

32

not holding onto the bundle, and so I took the tin 

snips ... and proceeded to cut the bands and pull the bands 

from out under the bundle.”

(Citation omitted.) Demars claims that unlike Coleman-Zell in Bauernfeind, 

FMG “did not maintain control over the details of Demars’[] work,” and “Bosk 

maintained its own supervisors at the site.”

¶63 On this issue, we agree with the circuit court that “Demars is arguing 

in too literal a sense.” According to the FMG supervisor’s deposition testimony, 

at the beginning of the day he was responsible for “hand[ing] out jobs to all the 

people, get them going, make sure they have all the tools they need to do their job, 

[and] make sure they’re doing it safely.”19 He further explained that he would 

“walk the job sites and go through all the employees and check on them all,” and 

he agreed that his “primary responsibility” was “supervisory with respect to the 

painters,” which applied equally to Bosk employees and FMG employees.

¶64 Demars has cited no legal authority for the proposition that the 

control element of the Seaman test requires that the borrowing employer be 

literally standing over the employee controlling his or her work. Instead, this

element asks whether the borrowing employer has “the right to control the details 

of the work being performed” and the “[p]ower ... to control the details of the 

 

19

 Demars, seemingly in contrast, relies on deposition testimony from his coworker, 

Kenneth Knight, stating that “we kind of got our jobs, and then we’d go over there and verify 

with the [FMG] foreman what they wanted us to do.” He asserts, based on Knight’s statement, 

that “[e]very morning, Bosk employees, including Demars and his coworker, Ken Knight, 

attended Bosk muster meetings where the Bosk employees got their orders for the day” and 

would, thereafter, “verify their assignments with” FMG. (Emphasis added.) However, Demars’ 

own deposition testimony, in addition to the Bosk foreperson’s and the FMG foreperson’s 

testimony, affirms that FMG’s supervisor would give the Bosk employees their assignment for 

that given day and tell them “what they needed done today.” Demars also agreed during his 

deposition that FMG would go so far as to direct individual Bosk employees to do certain tasks.
No. 2023AP826

33

work to be performed and to determine how the work shall be done and whether it 

shall stop or continue.” Seaman, 204 Wis. at 163 (emphasis added). As the 

circuit court observed, “The evidence supports the conclusion that Bosk was 

retained because its union-trained painters had the expertise and experience on 

similar projects to be able to come in and work on the LCS project with minimal 

direction and supervision.” Thus, unlike the factual situation in Bauernfeind, the 

Bosk employees did not need over-the-shoulder supervision because they were 

doing a job they customarily did. We concur with the court’s assessment that the 

agreement and Bosk’s president’s affidavit “make clear that this was not a 

situation where Bosk was coming in to direct a project, rather, [FMG] retained 

Bosk to apply its expertise where [FMG] told it to apply it.”

d. Primary Benefit

¶65 The final vital question under the Seaman test is: “For whose 

benefit primarily was the work being done?” Seaman, 204 Wis. at 163. The 

circuit court determined “that the work Demars was doing at the time of his injury, 

i.e., painting the vessel, was clearly being done for [FMG’s] benefit.” Demars 

calls this determination “confounding” because the court “apparently ignored the 

fact that Bosk benefitted from its business of painting, coating and sandblasting 

(and providing painters) and Demars benefitted by earning a paycheck.” He 

claims that “[t]he question the [circuit] court should have asked is whether Demars 

received any new benefit for his work with a borrowing employer. Had that 

analysis been done, the answer would clearly have been ‘no.’”

¶66 Again, Demars relies on Bauernfeind for support. There, according 

to Demars, Coleman-Zell “needed additional manpower to accomplish their 

goals,” and the plaintiff “deviated from his usual tasks to provide additional 
No. 2023AP826

34

manpower and reduce [Coleman-Zell]’s workload,” which benefited 

Coleman-Zell. See Bauernfeind, 190 Wis. 2d at 716. Here, Demars argues, “as a 

Bosk employee, Demars was performing Bosk duties—painting. While he 

performed his tasks, he was not reducing [FMG’s] workload. It did not expedite 

[FMG’s] assignments. Demars was performing the role for which Bosk hired him, 

with no new benefit to any party. His work benefited Bosk.” In support, Demars 

notes that “Bosk earned approximately $36.54 for every hour [Demars] worked for 

them at [FMG],” based on Bosk charging FMG more per hour than Bosk was 

paying Demars for his work.

¶67 Demars’ arguments conflict with the language of the primary-benefit 

vital question of the Seaman test, which asks for “whose benefit primarily was the 

work being done?” See Seaman, 204 Wis. at 163. There is no requirement within 

that language that the benefit be a new benefit. Thus, Demars’ claim that “[h]e 

cannot be considered to be a loaned employee of [FMG] when no new benefit was 

conferred” is in conflict with the language in Seaman, and Demars fails to cite any 

legal authority to support his position.20 See Pettit, 171 Wis. 2d at 646.

¶68 Furthermore, the test in Seaman specifically uses the word 

“primarily.” Seaman, 204 Wis. at 163. “Primarily” means “essentially; mostly; 

 

20

 Demars cites the court of appeals’ decision in Borneman v. Corwyn Transport, Ltd.

(Borneman II), 212 Wis. 2d 25, 567 N.W.2d 887 (Ct. App. 1997), for the proposition that 

“[a]nother factor which may tend to show that an employee consented to work for a special 

employer is whether the employee received any new consideration or benefit by doing so.” This 

court’s discussion of “new consideration,” however, was in the context of the consent element of 

the Seaman test, not the primary-benefit vital question. Borneman II, 212 Wis. 2d at 36. 

Demars cites no other legal authority for his assertion that “new consideration” is a factor to 

consider under the Seaman primary-benefit vital question.
No. 2023AP826

35

chiefly; principally” or “in the first instance; at first; originally.” Primarily, 

DICTIONARY.COM, https://www.dictionary.com/browse/primarily (last visited 

Aug. 14, 2024). Thus, our supreme court’s use of the term “primarily” 

demonstrates the court’s understanding that there may be others that benefit from 

an employee’s work, but the question is focused on what or who primarily benefits 

from that work. Thus, Demars’ argument that his work also benefited both Bosk 

and himself misses the point.

¶69 We agree with the circuit court’s conclusion that the work performed 

by Demars was primarily for FMG’s benefit. As the court explained, “The only 

reason Bosk and [FMG] contracted was because [FMG] had been awarded the 

defense contract,” and, therefore, “every coat of paint Demars applied went 

towards finishing [FMG’s] end of the LCS project.” Based on the fact that FMG 

entered into an agreement with Bosk, it is clear to this court that FMG required 

additional workers in order to complete or to avoid a delay in completing the 

LCS project pursuant to its contract with the federal government. Thus, while 

both Bosk and Demars were being compensated, “the work being done”—i.e., the 

painting—was primarily for FMG’s benefit to complete the LCS project.

¶70 Accordingly, we conclude that Demars was a loaned employee 

under WIS. STAT. § 102.29(7), and his suit against FMG was therefore barred 

under the Act. The circuit court did not err by dismissing Demars from this case.

By the Court.—Order affirmed.

Not recommended for publication in the official reports.