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### This opinion was filed for record 

### at 

# 8,00OJli\ on

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# <5&~ SUPREME COURTCLERK 

## REME COURT OF THE STATE OF WASHINGTON

DEAN WILCOX, ) ) Petitioner, ) No. 92362-1 ) v. ) En Bane ) STEVE BASEHORE; BARTLETT ) 

## FEB 092017 NUCLEAR, INC; BARTLETT ) Filed SERVICES, INC.; BARTLETT ) SUPPORT SERVICES, INC., and 

### ) ELR CONSULTING, INC., ) ) Respondents. ) ) WIGGINS, J.-Dean Wilcox fell 50 feet through an open catwalk hatch onto a concrete floor. Having sustained severe injuries, he sued the on-site safety planner, Steven Basehore, for negligent planning causing the fall; Wilcox also named the safety planner's employer, Bartlett Services, Inc. (Bartlett), and an intermediary company, ELR Consulting, Inc. (ELR), in respondeat superior. Before trial, the court granted ELRjudgment as a matter oflaw. Attrial, the court instructed thejuryon the borrowed servant doctrine, an extension of respondeat superior. Wilcox appealed both decisions. The Court of Appeals, in a published decision, affirmed. Wilcox v. Basehore, 

### 189Wn. App. 63, 356 P.3d 736 (2015). We also affirm. We hold that the borrowed servant doctrine is properly a question forthejurywhere complete control is a disputed fact. Whether the servantWilcox v. Basehore eta/., 

### No. 92362-1 is loaned through an intermediary does not preclude application ofthe doctrine. We decline to consider the implications ofWilcox's indemnification argument because it
was raised as ajury instruction challenge forthefirsttime on appeal. We further hold thatjudgment as a matter of law was properly granted in favor of ELR because no reasonablejury could find that ELR had a right to control Basehore's conduct. FACTS I. Factual History This case stems from a workplace injury and the dismantling of a nuclear facility. The United States Department of Energy's (DOE) Hanford site in southeastern Washington produced nuclear weaponry (specifically plutonium) from 1943 until its closure in 1987.1 

### The site itself is vast, covering 586 square miles, and is further surrounded by the Hanford Reach National Monument-land long used to buffer the site's toxic emissions.2 

### After decades of plutonium production, the toxic waste clean-up efforts have been similarly substantial: since 1989, thousands of workers have been involved as facilities are "deactivated, decommissioned, decontaminated, and demolished."3

1U.S. DOE, HanfordHistory, HANFORDSITE (Jul. 25, 2016, 7:36AM), [https://perma.cc/2XHMBK54]. 2 See Proclamation No. 7319, 3 C.F.R. § 7319 (2001) (establishment ofthe Hanford Reach National Monument (Jun. 9, 2000); noting thatthe Hanford Reach has been "[m]aintained as a buffer area in a Federal reservation conducting nuclearweapons development and, more recently, environmental cleanup activities, with limits on developmentand human useforthe past 50 years"). 3 U.S. DOE, Hanford Cleanup, HANFORD SITE (Jul. 25, 2016, 7:36 AM), [https://perma.cc/5YQ3-8BJC]. 2Wilcox v. Basehore eta/., No. 92362-1 Washington Closure Hanford LLC (WCH)was a "prime contractor" involved in this cleanup. As demolition work involves many short-term and specialized tasks, WCH used manytemporaryworkers, acquired through "staffaugmentation" partners. This case specifically concerns the demolition of "Building 336" at the Hanford site. Wilcox, a millwright, was one of WCH's permanent employees. Basehore, a professional work control planner, was hired as an independent contractor. A. Work ControlPlanning Workcontrol planners help ensureon-sitesafetybycompiling "work packages." Thesework packages guide on-site work procedures by noting the tasks to be done, detailing their proper sequence, and, critically, identifying potential hazards.4 Work packages are developed by teams ofworkers, specialists, and engineers;5 the work control planner then collects information from the entire work team and puts it in a comprehensivework document.

4 In this case, the process included a "Job Hazard Analysis," identifying dangers and precautions to be incorporated into the work package. 5 Teams are assembled by a "Responsible Manager"; the team then performs on-the-ground analysis. This team is led by a "Senior Project Engineer," who in turn may delegate supervision to a "Project Engineer." The Project Engineer then supervises the work control planner. To help assess particular risks, "Subject Matter Experts" are consulted on specific issues, such as engineering, health and safety, or environmental concerns. After the work package is completed, a "Field Superintendent" ensures that its guidelines are properly executed. If additional changes are identified in the field, the Responsible Manager makes any necessary corrections to the work package.

3Wilcox v. Basehore eta/., No. 92362-1 Here, Basehore was one ofapproximately six people involved in preparing the work package for Building 336 and the only person who was not a WCH employee.6 The person with comprehensive oversight ofthe work packagewas a WCH manager. B. The Subcontractors Basehore's employer, Bartlett, is a Massachusetts corporation providing shortterm professional and technical staff to federal government contractors. Bartlett frequently provided WCH with temporary, specialized workers. After confirming Basehore's suitability and availability, WCH contracted with a third company, ELR, which in turn procured Basehore's services. ELR acted as an intermediary between WCH and Bartlett, according to ELR, "only to trigger" extra federal payments for WCH. ELR qualifies, for purposes of federal government contracts, as a service-disabled veteran-owned small business. According to ELR, WCH's contract with the DOE required that three percent of subcontracting dollars go to service-disabled veteran-owned small businesses, or else WCH would forgo an additional $9 million payment. ELR received a relatively small payment in exchange for acting, according to ELR's counsel, as a "conduit."7

6 Basehore's work was directly supervised by a project engineer, a senior project engineer, and the field superintendent, all of whom were WCH employees. Other workers were also purportedly consulted, though attendance at on-site meetings is not recorded. 7WCH paid $89/hourfor Basehore's services. ELR passed on $85.58/hourofthis to Bartlett. Thus, ELR's share of the payment was $3.42/hour. Basehore received $58.71/hour from Bartlett. 4Wilcox v. Basehore 

### eta/., No. 92362-1 C. Two-Step Contracting 

### With ELR as an intermediary, the parties then used a two-step contracting process. Basehore's services were conveyed from Bartlett to ELR by means of one contract (ELR-Bartlett Contract). Ex. 222 at BSI-1. Then Basehore's services were conveyed from ELR to WCH by a second contract (WCH-ELR Contract). Ex. 34 at ELR 000462. By funneling Basehore's services through ELR, WCH counted the contract in its tally of subcontracts with service-disabled veteran-owned small businesses.8 

### Both contracts characterized Basehore as an independent contractor. Ex. 222 at BSI-1; ex. 34 at ELR 000466. The ELR-Bartlett Contract, while notsigned byWCH,
was created "in support of" WCH. Ex. 222 at BSI-1. The contract established a maximum paymentvalue "forthisworkfrom WCH," 

### id., and incorporated by reference exhibits A ("General Conditions") and B ("Special Conditions") of the WCH-ELR Contract, 

### id. at BSI-2. The WCH-ELR Contract includes both general and special conditions, with the special taking precedence over the general. Ex. 34 at ELR 000466 ("Order of Precedence"). General condition (GC) 19 is a comprehensive indemnification provision. 

### /d. at ELR 000470. Most relevant is GC 2, which provided that ELRwould

8 The superior court judge in this case characterized the two-step arrangement as "just a phony deal to try to help [WCH] earn 9 million bucks." The judge who wrote the appellate court decision similarly referred to the contractual arrangement as "a farce." 189Wn. App. at 68. The validity of this contracting arrangement is not before us, and we thus decline to comment.



### 5Wilcox v. Basehore eta/., No. 92362-1 "maintain[] complete control over its employees and all of its lower-tier suppliers and subcontractors," which included Basehore. 

### /d. at ELR 000466. However, the contract's special conditions characterizethesituation differently: special condition (SC) 13 designates Kim Koegler ofWCH as the partywith "ultimate authorityoverthe technical aspects" ofBasehore'swork.9 

### /d. at 

### ELR 000486. These technical aspects included preparation ofthework package, whichWilcoxallegeswas negligently prepared. D. The Accident The parties agree as to the subsequent unfolding of events: On July 1, 2009, Wilcox was among those working on a catwalk in Building 336, preparing it for demolition. Thework package guiding that day's work was developed by Basehore. During his inspection of Building 336, Basehore had failed to realize thatthe catwalk
was accessed via a hatch that lacked protective guard chains. While Wilcoxwas still working, some other workers descended; they left the access hatch open with the expectation that the remaining workers would soon follow. Before Wilcox could also descend, he and anotherworkerwere asked to finish an additional task. While doing so,Wilcoxsteppedthrough theopen catwalk hatch, falling 50 feettothe concretefloor below.

9 Bonnie Cole, WCH's subcontract administrator, was assigned to handle the administrative aspects of Basehore's work. Ex. 34 at ELR 000486. 

### 6Wilcox v. Basehore eta/., No. 92362-1 Wilcoxsurvived thefall, sustaining serious injuriesto his legs and spine. Wilcox alleges that Basehore's negligent development of the work package and safety protocols led to his fall and resulting injuries. II. Procedural History Wilcox filed suit against Basehore, Bartlett, and ELR for negligence. Wilcox latervoluntarily dismissed Basehore from the suit. The remaining parties filed cross motions for summaryjudgment, which were denied. ELR laterfiled a second motion for summaryjudgment, whichwas also denied. Atthe close ofevidence, ELR brought
a CR 50 motion forjudgment as a matter of law, which was granted. The remaining claims against Bartlett proceeded to trial. At trial, Wilcox strongly disputed the jury instructions proposed by Bartlett and ELR. Two instructions in particular, instruction 12 and instruction 13, directed thejury to considerthe "borrowed servant doctrine." These instructionswere as follows: INSTRUCTION NO. 12
[l]f

...the defendant proves that Steve Basehorewas a borrowed servant of Washington Closure Hanford, your verdict should be for the defendant. INSTRUCTION NO. 13 Under the borrowed servant doctrine, a worker in the general employ and pay of one employer may be loaned to another. If an employer meets its burden of proving by a preponderance of the evidence that the worker is a "borrowing servant" that employer is not liablefor the worker's negligence. In order for a person to be a "borrowed servant", the general employer must surrender, and the borrowing employer must assume, exclusive supervision and control overthe worker. Exclusive control for 7Wilcox v. Basehore eta/., No. 92362-1 all purposes is not required. Rather, the question is whether the borrowing employer has exclusive control ofthe borrowed workerforthe transaction causing injury. Defendant has the burden of proving borrowed servant by a preponderance ofthe evidence. Pursuant to these instructions, ifthe jury found that WCH had exclusive control over Basehore's allegedly negligentactions, then onlyWCH would be potentially liable. As
a result, Wilcox would be confined to worker's compensation as his sole remedy. 10 Thejury found that Basehore was underWCH's exclusive control with respect to his allegedly negligent conduct. Because the jury concluded that Basehore was a borrowed servant ofWCH, it did not need to considerthe remaining issues, including whether Basehore was negligent, whether the alleged negligence caused Wilcox's injury, or what damages Wilcox might have incurred. Judge Spanner entered judgment in favor of Bartlett. Wilcox appealed. On appeal, Wilcox renewed his arguments that (1) the borrowed servant doctrine does not apply and (2) the trial court erred in granting ELR's motion for judgment as a matter of law. In support of his challenge to the borrowed servant doctrine's application, Wilcox also argued forthe first time on appeal thatthe doctrine
was superseded by ELR's indemnification agreementwith WCH.

10 In a claim against one's own employer, Washington workers' compensation system provides the sole remedy, with the exception of intentional injury by the employer. RCW 51.04.010 (noting that "[t]he common law system governing the remedy ofworkers against employers for injuries received in employment is inconsistent with modern industrial conditions" and "proves to be economically unwise and unfair"). The statute provides "sure and certain relief for workers, injured in their work, and their families and dependents is hereby provided regardless ofquestions offault andto the exclusion ofeveryotherremedy, proceeding orcompensation, exceptas otherwise provided in this title."

### /d. (emphasis added). 8Wilcox v. Basehore 

### eta/., No. 92362-1 In a published decision, the Court of Appeals considered all arguments presented (including the new indemnification issue) and affirmed the trial court's decisions (1) submitting the borrowed servant doctrine to the jury and (2) granting ELR's motion forjudgment as a matter of law. Wilcox, 

### 189 Wn. App. 63. Wilcox then petitioned this court for review, noting that we have not revisited the borrowed servant doctrine in nearly 30 years. The parties requested clarification ofthe scope ofthe borrowed servant doctrine when the servant is loaned through an intermediary and when contractual language characterizes the servant as an independent contractor. The parties also continued to disagree whether WCH's exclusive control of Basehorewas adisputed fact subjectto resolution bythejury and whetherthe trial court erred in dismissing ELR by a directed verdict. STANDARD OF REVIEW Atrial court's decision to instructthejury on a point oflaw is reviewed de novo. Kappelman v. Lutz, 

### 167 Wn.2d 1, 6, 217 P.3d 286 (2009). The instructions '"are sufficient when they allow counsel 

### to argue their theory of the case, are not misleading, and when read as awhole properly informthetrieroffact ofthe applicable law."' Anfinson v. FedEx GroundPackage Sys., Inc., 

### 174Wn.2d 851,860, 281 P.3d 289 (2012) (quoting Bodin v. City ofStanwood, 

### 130 Wn.2d 726, 732, 927 P.2d 240 (1996)). We also afford de novo reviewtojudgments as a matteroflaw. Anaya Gomez
v. Sauerwein, 

### 180 Wn.2d 610, 616, 331 P.3d 19 (2014). "A directed verdict is appropriate if, as a matter of law, there is no substantial evidence or reasonable
9Wilcox v. Basehore eta/., No. 92362-1 inferenceto sustain averdictforthe nonmoving party." Chaneyv. Providence Health Care, 176 Wn.2d 727, 732, 295 P.3d 728 (2013). Substantial evidence exists '"if it is sufficient to persuade a fair-minded, rational person of the truth of the declared premise."' Guijosa v. Wa/-Mart Stores, Inc., 144Wn.2d 907, 915, 32 P.3d 250 (2001) (quoting Brown v. SuperiorUnderwriters, 30 Wn. App. 303, 306, 632 P.2d 887 (1980)).
ANALYSIS The primary issue in this appeal is the applicability of the borrowed servant doctrine when the servant is loaned through an intermediary. Ifthe doctrine does not apply in this situation, then the jury instructions in this case were erroneous and the
case must be returned for a newtrial. We conclude that the doctrine does apply and thejurywas correctly instructed. We affirm. 

### I. Whether the Jury Was Properly Instructed To Considerthe Borrowed Servant Doctrine The borrowed servant defense is a legal fiction that expands the concept of respondeat superior. Stocker v. Shell Oil Co., 105 Wn.2d 546, 548, 716 P.2d 306 (1986). Under respondeat superior, an employer is vicariously liable to third parties for torts committed by the servant within the scope of employment. RESTATEMENT (SECOND) OFAGENCY§ 219 (AM. LAW INST. 1958). An exception exists, however, when a servant's general employer loans the servantto another, or "special," employer. Forthose activities overwhich the special employer exercises complete control, the special employer also assumes vicarious liability underthe "borrowed servant" doctrine. Maca/e v. Lynch, 110Wash. 444, 448, 188 P. 517 (1920) ("It is

...well settled lawthat onewho is in the general employ and 10Wilcox v. Basehore eta/., No. 92362-1 pay ofone person may be loaned, or hired, by his employerto another, and when he undertakes to do the work of the other he becomes the servant of such other, to perform the particulartransaction."). Yet the borrowed servant doctrine does not require complete and exclusive control over all aspects ofthe loaned worker's conduct. Liability arises out ofthose particular transactions over which the special employer has exclusive control. Stocker, 105 Wn.2d at 548 ("If it can be established that the servant had borrowed servant status at the time of performance of such transaction, the servant's general employer can escape liability for damage or injuries flowing from the transaction.");
see also RESTATEMENT (SECOND)OFAGENCY§ 227 (A borrowed servant "may become the [special employer's] servant as to some acts and not as to others."). Whetherthe special employer had exclusive control forthe relevanttransaction is generally a question offact forthejury. Davis v. Early Constr. Co., 63 Wn.2d 252, 258-59, 386 P.2d 958 (1963) (finding that "the evidence fail[ed] to establish" that one party had "exclusive control" and thusfinding thatthe questionwas properlysubmitted to thejury). 

### A. Where the WorkerIs Loanedthrough an Intermediary Wilcox argues that the borrowed servant doctrine should not apply in this case because atwo-step loan scenario does notfit astrictdefinition ofthe doctrine; he asks
us to avoid any novel applications ofthe doctrine because it "results in the destruction

11

### Wilcox v. Basehore eta!., No. 92362-1 ofvaluable common-law rights." 11 Wilcoxdefinesthe doctrineas: "A loans his servant to B, undersuch circumstances that B assumes complete control and direction ofthe servant's work." Thus, Wilcox contends, where A loans a servant to B, who further loans him to C, the borrowed servant doctrine should not apply. This argument fails to serve eitherthe definition orthe purpose ofthe doctrine. First, the definition Wilcox describes is artificially narrow. We have repeatedly described the doctrine not as a mathematical formula, but as a concept by which "one who is in the general employ and pay of one person may be loaned, or hired, by his employerto another." 

### Maca/e, 110Wash. at448. The "Ato B" characterization ofthe doctrine is illustrative, not definitive. It is reasonable that employers would generally loan employees directly to the party who needs them; that this path is common, however, does not make it necessary. Wilcox asks us to require that servants be borrowed directly in order to satisfy the borrowed servant doctrine. In so doing, we would arbitrarily shrink the boundaries of the borrowed servant doctrine, not simply preserve its scope. 12

11 Here, Wilcox quotes Novenson v. Spokane Culvert& Fabricating Co., 91 Wn.2d 550, 554- 55, 588 P.2d 1174 (1979). Yet this language in Novenson more applicably explains why we require clear consent when the borrowed servant is also the plaintiff. In Novenson, we emphasized the potential unfairness to the loaned servantwho, having been borrowed, is no longer able to recover against his own employer. /d. at 554. Thus, the employee's consent to being loaned should not have been implied and must have been explicitly obtained before the borrowed servant doctrine could apply. /d. at 553. 12 Wilcox emphasizes the monetary motivations for using the two-step structure in this case as a reason to preclude application of the borrowed servant doctrine. That one party has used a route in a potentially objectionable fashion, however, is an insufficient reason to find the route itself improper. Similarly, Wilcox comments that "[t]he doctrine typically has been applied to situations involving laborers" ratherthan "highly specialized professional services,"
12Wilcox v. Basehore eta/., No. 92362-1 Second, Wilcox's emphasis on the conveyance process is inconsistentwith the doctrine'sessential purpose. In a borrowed servantdoctrineanalysis, we consistently focus on one basic question: Who controls the servant's conduct? See, e.g., Maca/e, 110Wash. at448("Thecontrollingfacts in these cases, and in all otherswhich support the rule, is thatthe servant musthave been in the exclusivecontrol ofthe oneto whom he is loaned."). 13 We emphasize control because the very premise ofthe borrowed servant doctrine is to hold accountable those who can account for the allegedly tortious action. Wilcox offers neither authority nor argument for why we should abruptly reframe our analysis to focus on whetherthe servantwas borrowed directly from the general employer or borrowed in multiple steps. It is consistentwith both the definition and the purpose ofthe borrowed servant doctrine to apply it to situations of "double borrowing"-as in this case, where the general employer loans a servantto a second party, who loans the servant to a third party.

yet no principled support is either offered or apparent for enforcing this sort of arbitrary distinction between manual and professional work. 13 See also McHugh v. King County, 14 Wn.2d 441, 445, 128 P.2d 504 (1942) ("He who controlsthe actions and directstheworkoraction ofanother is responsible forthe acts ofthe one to whom the instruction is given."); Christiansen v. McLellan, 74 Wash. 318, 320, 133 P. 434 (1913) ('"The test is whether, in the particular service which [the servant] is engaged to perform, he continues liable to the direction and control ofhis master, or becomes subjectto thatofthe partyto whom he is let or hired."' (quoting Coughlan v. Cambridge, 166 Mass. 268, 277, 44 N.E. 218 (1896))); Boe v. Hodgson Graham Co., 103 Wash. 669, 670, 175 P. 310 (1918) ("[W]e must look to the evidence in the case to determine who was in fact [the borrowed boat's] master."); Olson v. Veness, 105Wash. 599,601, 178 P. 822 (1919) (noting that "the question ofcontrol ofoperation is the determining factor"). 13Wilcox v. Basehore eta/., No. 92362-1 B. Where Exclusive Contrails

### a DisputedFact Wilcox argues that WCH did not have "exclusive control" over Basehore sufficient to satisfy the borrowed servant test. Whether the special employer has exclusive control is a question offactforthejury. Davis, 63 Wn.2d at 259. Here, the jury was explicitly asked to find whether WCH exercised exclusive control over Basehore "for the transaction causing injury," and concluded that such control was established. Wilcox counters that submission to the jury was precluded because Bartlett "admitted it never gave up exclusive control over the core of Mr. Basehore's worksafety." Bartlett acknowledged that it expected Basehore to abide by its own safety plan "as well as our customers' programs." Bartlett's president further clarified that "[t]he site's plan is the overriding safety plan to be used while our employees are there," though Bartlett's plan may be followed if it is more conservative. WhileWilcox concludes that these statements are an admission of Bartlett's ongoing control over safety matters, they do not foreclose exclusive control by WCH over a given safetyrelated activity. Exclusive control is task specific, nottopic specific. Thus, the basic factual dispute remained: Did Bartlett's or WCH's safety plan govern Basehore's actions in this instance? This is a factual question that was properly submitted to thejury. 

### C. Where Contractual Language Characterizes the Worker as an Independent Contractor Wilcox further argues that the parties' "contractual agreements trump the borrowed servantdefense," notingthatthis rule "was established long ago." Here, the

14Wilcox v. Basehore eta/., No. 92362-1 contracts described Basehore as an independent contractor. An independent contractor, by definition, is not underthe control ofthe partyforwhom heworks. Afoa
v. Port ofSeattle, 176 Wn.2d 460, 476, 296 P.3d 800 (2013). As a result, Wilcox argues, we must find that the parties' contractual language precludes application of the borrowed servant defense. This conclusion misstates our case law and conflates two contract-related issues. Wilcox mistakenlyrelies on our holding in Stocker, which specificallyaddressed indemnification agreements. 105Wn.2d 546. Wilcox paraphrases Stocker's holding
as: "When contractual terms are contrary to the borrowed servant defense, those terms must be given effect over the defense." This oversimplifies Stocker's holding,
as that case solely concerned the impact of indemnification agreements-a discrete legal issue. In Stocker, Shell Oil Company made use oftemporary workers supplied by a labor contractor, P.M. Northwest Inc. 105 Wn.2d at 547. Negligence by one ofthe loaned laborers led to afire at Shell's oil refinery, killing two other borrowed workers, including Ed Stocker. 

### /d. The personal representatives ofthe slain men sued Shell, which settled. 

### /d. Shell then sought indemnification from P.M. Northwest pursuantto
an indemnification agreement between the two companies. 

### /d. Noting that "[i]ndemnity agreements are essentially agreements for contractual contribution," we concluded that "an express contractual agreement for indemnification must prevail
over the tort defense of 'borrowed servant'." 

### /d. at 549 (emphasis added). Similarly, the borrowed servant doctrine allocates the cost of liability between the special and general employers. Wilcox's omission ofthe indemnification qualification significantly 

### 15Wilcox v. Basehore eta/., No. 92362-1
overstates Stockers implications. AndWilcoxoffers no othersupportfor his argument that contractual descriptions mustorshould overcome the reality ofexclusive control. Indeed, parties sometimes characterize their loaned workers as "independent contractors" or"employees"fordifferentpurposes, including responsibilityforbenefits, taxes, and training. In fact, this reflects the parties' behavior in this case, as Bartlett retained responsibility for paying, training, and providing other benefits associated with Basehore's employment. Wilcox offers no reason why we should require a workerto betreated identicallyfor all purposes; indeed, the borrowed servantdoctrine itselfallowsthataworker may be a borrowed servantforonetaskand an independent contractorforanother. RESTATEMENT (SECOND) OFAGENCY§ 227 (A borrowed servant "may becomethe [special employer's] servant asto some acts and notasto others."). Imposing uniform treatment on a given worker would be a novel departure. Wilcox does not provide any argument or authority forwhy we should take this step, and we decline to do so. D. ContractualIndemnification Issue On appeal, Wilcox argues that "the parties allocated to 

### ELR liability for any harm" caused by Basehore in the indemnity provision oftheWCH-ELR Contract. Ex. 34 at ELR 000470. Bartlettand 

### ELR objectthatthis issue is precluded because itwas not raised attrial. Failureto raise an issue before thetrial court generally precludes a party from raising it on appeal. RAP 2.5. While "this rule insulates some errors from review, it encourages parties to make timely objections, gives the trial judge an opportunity to address an issue before it becomes an error on appeal, and promotes the important 16Wilcox v. Basehore eta/., No. 92362-1 policies ofeconomy and finality." State**v~** Kalebaugh, 183Wn.2d 578,583, 355 P.3d 253 (2015). For objections to jury instructions in particular, an appellate court usually considers a claimed error onlyifthe appellant raised the specific issue attrial. Galvan
v. Prosser Packers, Inc., 83 Wn.2d 690, 692, 521 P.2d 929 (1974) (noting that consideration oferrors in instructions on appeal "is limited to those issues specifically raised" at trial); see also Trueax v. Ernst Home Ctr., Inc., 124 Wn.2d 334, 339, 878 P.2d 1208 (1994). Here, Wilcox failed to mention contractual indemnification in his challenge to the borrowed servant doctrinejury instructions. All parties acknowledge that Wilcox vehemently opposed the borrowed servant instructions generally and made multiple arguments forthe doctrine's exclusion. However, as noted above, the implications of
an indemnity agreement is a discrete exception to the borrowed servant doctrine: as a bargained-for allocation of liability between parties, it trumps allocation by common law as between those parties. There was no reason for the trial court to know that arguments concerning general contractual language also raised a specific legal argument concerning WCH and ELR's indemnification agreement. As a result, the trial court was inadequately apprised of the points of law in dispute relating to the indemnification provision. Wetherefore declineto considerthis issue. II. Whether ELRWas Entitled to Judgment as a MatterofLaw Wilcox argues thatthe trial court improperlygranted ELRjudgmentas a matter oflaw because a principal-agent relationship existed, giving rise to vicarious liability. 

### 17Wilcox v. Basehore eta/., 

### No. 92362-1 We extend vicarious liabilitywhere a principal "is accountable" for the actions of an agent. Chi. Title Ins. 

### Co. v. Office ofIns. Comm'r, 

### 178 Wn.2d 120, 143, 309 P.3d 372 (2013). While we consider whether a principal exercised authority, actual exercise ofcontrol is not necessary so long as "the principal had the right to control the details of the agent's performance." 

### /d. However, "a principal who hires an independent contractor is not liable for harm resulting from the contractor's work." Afoa, 

### 176Wn.2d at 476. The crucial distinction is the right to control. In considering whether "a relationship between a superior business party and a subordinate business party" is
a principal-agent relationship oran "independentcontractorship[,]

...the mostcrucial factor is the right to control the details of the work." Lamer v. Torgerson Corp., 

### 93 Wn.2d 801, 804-05, 613 P.2d 780 (1980). Where there is no rightto control, then the subordinate party is an independent contractor. 

### /d. This distinction "can only be decided as a matter of law where there are no facts in dispute and the facts are susceptible ofonly one interpretation." Graves v. P.J. Taggares 

### Co., 94 Wn.2d 298, 302-03, 616 P.2d 1223 (1980). Here, the parties agree that ELR did not employ Basehore. As Wilcox notes, "BSI, ELR and WCH all agreed in writing that Basehorewas acting as an independent contractor." Wilcox further states that "[t]hose writings correctly described the relationship." 14 

### In oral argument concerning ELR's directed verdict motion, Wilcox's

14 Wilcox reiterates the beliefthat Basehorewas ELR's independentcontractor as supportfor the assertion that ELRwas unable to loan Basehore to WCH. 18Wilcox v. Basehore eta/., No. 92362-1 counsel again agreed that Basehore was ELR's independent contractor. Nonetheless, Wilcox asserts that a principal-agent relationship existed between ELR and Basehore, leaving ELRvicariously liablefor Basehore's alleged negligence: "ELR had a right, andan obligation, to control Mr. Basehore orat leastensure hisworkwas performed in a safe, professional manner." It is worth emphasizing that Wilcox is arguing for the truth of two mutually exclusivefacts: (1) that Basehorewas an independentcontractor of ELR and (2) that ELR had the rightto control Basehore'swork. This confusion is understandable, as it is rooted in mutuallyexclusive provisions oftheWCH-ELR Contract, described below. In reviewing ELR's motionforadirected verdictas a matteroflaw, thetrial court held that Basehore was not an agent of ELR, granting the motion. During argument, the court provided two bases for its decision: First, the "mere right [to control] is not enough without some exercise of it." Second, the parties all agreed that Basehore
was properly deemed an independent contractor and that "a principal is not liable for the torts ofthe independent contractors." The CourtofAppeals affirmed on the basis that "ELR had no rightto control" Basehore'swork. 15 Wilcox, 189Wn. App. at95. We agree.Significant confusion on this issue arises out of conflicting contractual provisions in the WCH-ELR Contract. Wilcox relies largely on GC 2, which required ELR to "maintain[] complete control over its employees and all of its lower-tier

15The CourtofAppeals correctly restates ourprecedent, aswe explicitly providethatthe right to control is itself a sufficient basis for an agency relationship; exercise of control is not required. Chi. Title, 178Wn.2d at 143. 

### 19Wilcox v. Basehore eta/., No. 92362-1 suppliers and subcontractors," including Basehore. Ex. 34 at ELR 000466. However, SC 14established that Basehorewas an independent contractor. 

### /d. at ELR 000486. SC 13 further provided for comprehensive supervision of Basehore's technical and administrative duties byWCH employees. 16 

### /d. Whilethese general and special conditions appearto conflict, the contract itself resolves the issue: GC 6 provides that special conditions take precedence over general conditions. 

### /d. at ELR 000466-67. As a result, GC 2, stating that ELR exclusively controlled Wilcox, gives way to SC 1, providing that Wilcox was an independent contractor as to ELR, and to SC 13, stating that Wilcox was subject to WCH's control. Thus, the contract does not grant ELR any right of control over Basehore on its own terms. Werethere additional evidence outside the four corners ofthe contracttending to establish ELR's right to control Basehore, the alleged principal-agency relationship might remain a fact question for thejury. However, the only evidence offered is the contract itself, which is unavailing, and outside evidence only supports the understanding that ELR lacked control over Basehore entirely: the parties agreethat ELR's role was to provide a "conduit." Thus, even viewing the evidence in the light

16 Wilcox argues that SC 13 "addresses only technical-administrative requirements of the subcontract, not the technical work safety planning performed by Basehore." This argument contains its own refutation. Basehore's job, all agree, was to develop a work safety plan. This is a technical matter, assigned pursuant to a technical services subcontract. Wilcox himselfdescribes the task as "technical work safety planning." Ex. 34 at ELR 000486. Thus, it is unclear how Koegler's "ultimate authority" for "technical aspects" of Basehore's work could not encompass the work safety plan at issue. /d. 20Wilcox v. Basehore eta/., No. 92362-1
mostfavorable to Wilcox, "there is no substantial evidence or reasonable inferenceto sustain averdict" in his favor. Chaney, 176 Wn.2d at 732. We affirm the directed verdict for ELR.
CONCLUSION We hold thatthetrial court properly instructedthejuryto considerthe borrowed servantdoctrine. The doctrine is properlysubmittedtothejurywherecomplete control is a disputed fact. Whether the servant is loaned through an intermediary does not preclude application ofthe doctrine. We decline to considerWilcox's indemnification exception argument as it was raised forthe first time on appeal. Wefurther hold that ELRwas properlygrantedjudgmentas a matteroflawbecausethere is no substantial evidence that ELR had a right to control Basehore. Therefore, we affirm the Court ofAppeals.



### 21Wilcox v. Basehore eta/., No. 92362-1

WE CONCUR.



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