Del. P.J.I. Civ. § 18.3

BORROWED SERVANT

Delaware’s Workers’ Compensation Law provides that a person injured on the

job must accept workers’ compensation and may not file a liability claim against the

employer.

In this case, [plaintiff’s name] was an employee of [name]. [Defendant’s

name] claims that [plaintiff’s name] acted as a loaned or borrowed employee of

[Defendant’s name] at the time of the injury. A loaned or borrowed employee who

is temporarily acting under the control of a second employer is considered the second

employer’s employee.

Factors to consider in deciding whether an individual is acting as the employee

of a second employer include:

(1) The terms of any agreement between the second employer and the

alleged employee, and the extent of control that second employer could exert over

the alleged employee. A requirement that the work of the alleged employee be

performed according to standards and specifications imposed by a second employer

is not sufficient to establish control. Instead, you must examine the provisions of

any agreement about the manner or means by which the work was to be performed.

(2) Whether the alleged employee is engaged in an occupation or business

distinct from the second employer.

(3) Whether at the jobsite, the work specified in the contract is usually done

under the direction of the contracting party or by a specialist without supervision.

(4) The independent skill required by the alleged employee’s area of work.

(5) Whether the second employer paid the wages of the alleged employee

while working on the particular job.

(6) Whether the second employer hired and could fire the alleged employee

while working on the particular job.

(7) Whether the second employer controlled the manner and performance

of the alleged employee while on the job. Of all the factors, this is the most

important.

(8) Whether the second employer supplied the tools and place of work to

the alleged employee.

(9) Whether the alleged employee had an opportunity to profit under the

agreement with the second employer.

(10) The length of the relationship between alleged employee and the second

employer.

You must determine whether, at the time of the injury, [plaintiff’s name] was

acting in the business of and under the direction of the general employer, [name], or

the second employer, [name].