1

The Hon. Donald E. O'Brien, United States District Judge for

the Northern District of Iowa.

_____________

No. 95-2337NI

_____________

Debora Swanson and *

Buddy Swanson, *

*

Appellees, *

* On Appeal from the United

v. * States District Court

* for the Northern District

* of Iowa.

White Consolidated Industries, *

Inc., WCI Laundry Division, ** Appellant. *

___________

 Submitted: January 8, 1996

 Filed: February 20, 1996 ___________

Before RICHARD S. ARNOLD, Chief Judge, MAGILL and BEAM, Circuit

Judges. ___________

RICHARD S. ARNOLD, Chief Judge.

At trial, the jury found an express contract between Debora

Swanson and White Consolidated Industries, WCI Laundry Division

("WCI"), that she was not WCI's employee. Accordingly, the

District Court1 held, Ms. Swanson's previously entered personalinjury judgment against WCI is enforceable. On appeal, WCI argues

that the District Court should not have submitted Ms. Swanson's

express-contract theory to the jury because the theory was
 2

Iowa Code Ann. § 85.20 (West 1984) provides:

The rights and remedies provided in this chapter . . . shall

be the exclusive and only rights and remedies of [an] employee

. . . against:

1. his or her employer; or

2. any other employee of such employer . . ..

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unsupported by the evidence. We affirm. 

I.

Ms. Swanson was assigned to work at WCI, testing washing and

drying machines, by Gadbury Temporary Employment. Gadbury is a

temporary-employment agency, a "labor broker," which recruits and

hires workers and then sends these workers to its clients for

temporary placement. Ms. Swanson was injured on the job when a

laundry basket she was carrying broke, causing her to spill

clothes, trip, and fall. Everyone in this case agrees that she was

Gadbury's employee, working at WCI, when she was injured; the

important question here is, was she WCI's employee also? 

After her injury, Ms. Swanson received workers' compensation

benefits from Gadbury. She then sued WCI in the District Court,

claiming WCI was liable in tort for her injuries. WCI contended

that Iowa's Workers' Compensation Act provided Ms. Swanson's

exclusive remedy and barred her lawsuit.2

 In motions for summary

judgment, Ms. Swanson argued that the Act's exclusive-remedy

provision did not apply because she was Gadbury's employee, while

WCI insisted that she was its employee also. The District Court

denied these motions. Early in the trial, however, the Court held

as a matter of law that Ms. Swanson was Gadbury's employee, not

WCI's, and left the jury to decide only if WCI had been negligent.

The jury found WCI liable for the injuries and awarded damages to
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Ms. Swanson and her husband. 

On its first appeal to this Court, WCI claimed the District

Court had erred in holding that Ms. Swanson was exclusively

Gadbury's employee because the jury could have found an implied

contract for hire between WCI and Ms. Swanson. See Swanson v.

White Consolidated Industries, Inc., 30 F.3d 971, 973 (8th Cir.

1994). We agreed with WCI that "[a] reasonable jury could have

found that Swanson was employed by both Gadbury and WCI," id. at

975 (emphasis in original), and remanded the case for a jury to

determine if Ms. Swanson and WCI had formed an employment

relationship through an implied contract for hire. At the second

trial, Ms. Swanson changed tactics and argued that she and WCI had

expressly agreed that she was not WCI's employee, while WCI again

asserted an implied agreement that she was. The jury was persuaded

by Ms. Swanson's express-contract theory. 

WCI now challenges the District Court's jury instructions on

three fronts, arguing that (1) the District Court should not have

submitted Ms. Swanson's express-contract theory to the jury; (2)

the District Court did not adequately instruct the jury on Iowa

dual-employment law; and (3) the District Court failed to instruct

the jury that the parties' relationship "may not have been what

they called it." Because we think the evidence permitted the

express-contract instructions, we affirm.

II.

The District Court submitted Ms. Swanson's express-contract

theory - that she and WCI had expressly agreed she was not WCI's

employee - to the jury in the instructions and in the verdict form.

According to WCI, however, the only evidence of an express contract

between WCI and Ms. Swanson was Ms. Swanson's testimony that, after

she was injured, Theodore Johnson, a WCI manager and Ms. Swanson's

supervisor, told her she was Gadbury's employee and not WCI's. WCI
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asserts that this after-the-fact statement was merely Mr. Johnson's

opinion and could not by itself create an express contract.

Perhaps so, but this statement was not the only evidence of an

express agreement. Mr. Johnson also testified that "it was never

intended that [Ms. Swanson] be WCI's employee," and that "the

understanding" between Ms. Swanson and WCI was that she was not

WCI's employee. Alice Hayes, another Gadbury employee assigned to

WCI, testified that she had asked Mr. Johnson if she could become

a full-time WCI employee but was told she "couldn't work as a WCI

employee" and that she was "solely Gadbury's employee." And Ms.

Swanson testified that when she entered the WCI facility each day,

she had to sign the "visitor's log" at the "security shack." WCI's

employees did not sign the log. 

Ms. Swanson also produced documentary evidence supporting her

express-contract theory. For example, each week, Ms. Swanson

completed and signed her time sheet, gave it to Mr. Johnson to

sign, and then sent it in to Gadbury. Gadbury would then send her

a paycheck. Mr. Johnson signed the time sheet as Gadbury's

"client"; Ms. Swanson is identified as Gadbury's "employee." The

back side of the time sheet contained a "Client Agreement" with

the following language:

Client agrees that utilization of the employee named on

the reverse of this time sheet on either a temporary or

permanent basis within six months from the date on time

sheet will be through GTE [Gadbury]. If the client

desires to hire this person on a permanent basis, it is

agreed that notification of this intent will be given to

GTE, and that the person will remain on GTE's payroll for

a period of eight (8) weeks from the date of

notification.

The agreement also stated that the "Client will not entrust GTE

employees with the care, custody, or control of cash . . .."

According to Ms. Swanson, these time sheets were both "weekly

ratifications" and "substantial evidence" of an express agreement
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In our previous opinion, we noted that "[b]ecause it is

undisputed that no express contract for hire existed, Swanson's

recovery hinges upon whether there existed an implied contract for

hire." 30 F.3d at 973. Contrary to WCI's suggestion, we did not

say there could not have been an express agreement that Ms. Swanson

was not WCI's employee.

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between her and WCI that she was not its employee. Ms. Swanson

also introduced a Gadbury promotional letter which was sent to WCI

and which assured prospective clients that by hiring temporary

workers, 

[y]ou are not maintaining a permanent workforce or

guaranteeing work. The worker is an employee of Gadbury

Temporary Employment. We maintain all the insurance and

taxes. Thus you save money by avoiding overtime, have

fewer people on your payroll and avoid paying into large

benefit programs. 

Similarly, one of Gadbury's marketing pamphlets notes that "you can

avoid burnout among your permanent employees due to excessive

overtime . . .. The temporary employees assigned to you are

employees of Gadbury Temporary Employment." 

We are asked to decide only whether, given all the evidence,

the express-agreement theory was a "permissible way[] of resolving

the issues in the case." Thornton v. First State Bank of Joplin,

4 F.3d 650, 652 (8th Cir. 1993) (quoting Farmland Indus., Inc. v.

Morrison-Quick Grain Corp., 987 F.2d 1335, 1341 (8th Cir. 1993)).3

In Iowa, "[a]ll minor details of the contract need not be proven in

the first instance in order to present the issue for the trier of

fact." Netteland v. Farm Bureau Life Ins. Co., 510 N.W.2d 162, 165

(Iowa App. 1993) (citations omitted). We think Ms. Swanson

presented sufficient evidence to permit a jury to find an express

contract. It is true that Ms. Swanson presented no document, with

the heading "express contract," stating in terms that "Ms. Swanson

is not WCI's employee." That a writing is ambiguous, however, does

not mean it cannot constitute or demonstrate an express contract.
 4

Neither Parson v. Proctor & Gamble Mfg. Co., 514 N.W.2d 891

(Iowa 1994), relied upon by WCI, nor Fletcher v. Apache Hose &

Belting Co. Inc., 519 N.W.2d 839 (Iowa App. 1994), controls this

case. In both cases, the court considered whether the facts

established, as a matter of law, an implied contract between a

temporary worker and a labor broker's client. Neither case

involved an alleged express contract of no employment.

 We note that both parties incorrectly cited Parson in their

briefs, and urge all counsel to help this Court by paying close

attention to their citations.

 5Judgment Entry (April 25, 1995). 

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We think a reasonable jury could have interpreted the time sheets,

and the "Client Agreement" on the sheets' reverse side, as an

express contract between Ms. Swanson and WCI that she was not WCI's

employee. The statements of Mr. Johnson, Ms. Swanson, and Ms.

Hayes support this interpretation, as do Gadbury's promotional

materials. Indeed, a reasonable jury could have believed that the

reason companies hire temporary workers from brokers like Gadbury

in the first place is to avoid taking on costly employees. We

think the District Court, correctly, reviewed the evidence "in the

light most favorable to the party proposing the instruction, giving

it the benefit of all reasonable, favorable, inferences . . .."

Drabik v. Stanley-Bostitch, Inc., 997 F.2d 496, 506 (8th Cir. 1993)

(citations omitted). We therefore reject WCI's first challenge.4

We also agree with the District Court that the jury's finding

"precludes the defendant, WCI, from having an implied contract that

the plaintiff was an employee of WCI."5 We therefore do not need

to discuss WCI's other objections, because they relate to WCI's

implied-contract theory, which the jury did not need to reach. We

disagree, however, with WCI's assertion that it was

"prevented . . . from submitting its theory to the jury." The

District Court did instruct the jury about implied contracts; the

jury simply accepted Ms. Swanson's express-contract theory instead.

Affirmed.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.