¶1MORAN, dissenting:
¶2I do not agree that the plaintiff is an employee of the defendant. Nor do I agree that summary judgment was proper in this action. The majority creates a contract between the parties without their consent, and in so doing disregards several conflicting facts in the record as well as the law on summary judgments.
¶3Summary judgment is available when no genuine issue as to a material fact exists. The procedure is not designed to try an issue of fact, but to determine if one exists. Fletcher v. Boxx, 10 Ill. App. 3d 928, 295 N.E.2d 248.
¶4In the case before us, the trial court granted summary judgment based on the finding that as a matter of law, plaintiff was a loaned employee within section 1(a)(4) of the Workmen’s Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.1(a)(4)), and therefore barred from pursuing her common law remedy. In this finding, the trial court was clearly in error.
¶5Section 1(a)(4) of the Workmen’s Compensation Act is applicable to employers who are in the business of “hiring, procuring, or furnishing employees to or for other employers … shall be deemed a loaning employer within the meaning and provisions of this Section.” At the outset, it should be pointed out that the record is absent any evidence as to the business of Marra Corporation other than operating a motel. If Marra Corporation is in the business of hiring, procuring or furnishing employees to or for other employers, the record does not substantiate such a finding. Additional findings are necessary before the trial court should have granted summary judgment on the basis of a loaned employee.
¶6In M & M Electric Co. v. Industrial Com., 57 Ill. 2d 113, 311 N.E.2d 161, our Supreme Court held that the existence of a “loaned employee” relationship is a question of fact. The court stated:
“There are many different considerations which may be applicable to the loaned-employee question. (See generally Restatement (Second) of Agency, section 220, p. 485 et seq.) Due to the large number of factors which may be relevant to any factual situation, we have held that generally the existence of the loaned-employee relationship is a question of fact, and therefore a question for the Industrial Commission. (Gundich v. Emerson-Comstock Co. (1961), 21 Ill. 2d 117.) The test for whether or not a question is one of law or fact in such cases was set forth in Henry v. Industrial Com. (1952), 412 Ill. 279. At page 284 we stated: ‘If the undisputed facts upon any issue permit more than one reasonable inference to be drawn therefrom, the determination of the issue presents a question of fact, and the conclusion of the commission in deciding the question will not be disturbed upon review; only if the undisputed facts are susceptible of but a single inference can the question be characterized as one of law [citations],’ ” 57 Ill. 2d 113, 117.
¶7It is apparent from the record that several material facts are at issue, which have a direct bearing on the employment relationship between the plaintiff and the defendant. The plaintiff contends that she was a business invitee of the defendant. The defendant contends that the plaintiff was an employee of the Marra Corporation as indicated in defendant’s affirmative defense and the discovery depositions. These facts are in direct conflict with the trial court’s findings and at a minimum present a triable issue of fact.
¶8On appeal it is incumbent upon this court to determine if there is a triable issue of fact on this record. The majority chose to forego this determination and proceeded to make further findings of fact as to the employment relationship between the plaintiff and defendant.
¶9In holding that the plaintiff was an employee of the defendant, the majority makes findings of fact that are clearly inconsistent with the evidence in the record. Defendant asserted in its affirmative defense that plaintiff was an employee of Marra Corporation. Also, Tony Augustine, president of Augustine’s Incorporated, the defendant corporation, testified in the discovery deposition that plaintiff was an employee of Marra Corporation and sent down to the defendant to defray the expenses of work done by the defendant for the Marra Corporation. The record is absent any assertions on which the majority can base its findings.
¶10In order to substantiate the decision of the majority, it is necessary to show that the plaintiff had consented to a change of employer, and that plaintiff had expressly or impliedly entered into a contractual relationship with the defendant. In Crepps v. Industrial Com., 402 Ill. 606, the court stated:
“The relationship of employer and employee is a contractual relationship, the requisites to the formation of such relationship being determined by an application of the principles governing the formation of other contracts. The relationship is a product of mutual assent, that is, of a meeting of minds expressed by some offer on the part of one to employ or to work for the other and an acceptance on the part of the other.” 402 Ill. 606, 614.
¶11In my opinion, the record does not contain sufficient facts to satisfy the requirements of a change of employer. The record reflects the fact that the plaintiff was paid by Marra Corporation and was sent to work for the defendant to defray expenses of work performed by the defendant for Marra Corporation. The record is absent any facts that show a meeting of the minds between the plaintiff and the defendant. On the contrary, the record shows that a genuine issue exists as to who in fact was the employer of the plaintiff.
¶12I believe this case should be governed by Dowell v. William H. & Nelson Cunliff Co., 26 Ill. App. 3d 388, 324 N.E.2d 660. In Dowell this court reversed the order of the circuit court granting summary judgment on a very similar question of a “loaned employee.” This court recognized its scope on review as determining if there was a triable issue of fact presented on the record. Citing M & M Electric Co. v. Industrial Com., 57 Ill. 2d 113, 311 N.E.2d 161, this court determined that a material fact existed. The facts in Dowell are very similar to the facts in the case on appeal. In both cases the employee was paid by someone other than the defendant-employer. In both cases, the plaintiff was under the direction of the defendant and could be fired by the defendant.
¶13In view of the above, I am compelled to dissent. I believe a genuine issue of fact exists as to the plaintiffs employment relationship with the defendant, and therefore summary judgment was improper.