Booth v. Trailiner Corp.

• Citation: 21 S.W.3d 869
• Parties: (Mo.App. S.D. 2000) Donald J. Booth, Employee-Respondent, v. Trailiner Corporation, Employer-Appellant, and Liberty Mutual Fire Insurance Company, Insurer-Appellant. 23138 0
• Decision Date: 30 May 2000
• Court: Court of Appeal of Missouri (US)

21 S.W.3d 869 (Mo.App. S.D. 2000)

Donald J. Booth, Employee-Respondent, v. Trailiner Corporation, Employer-Appellant, and Liberty Mutual Fire Insurance Company, Insurer-Appellant.

23138

Missouri Court of Appeals Southern District

05/30/2000

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: Raymond E. Whiteaker

Counsel for Respondent: Patrick J. Platter

Opinion Summary: None

Montgomery, P.J., Garrison, C.J., and Barney, J., concur.

PER CURIAM

The issue in this workers' compensation case is whether Donald J. Booth ("Booth") was an employee of Trailiner Corp. ("Trailiner") at the time he sustained an injury, or whether he was an "owner/operator" exempt from coverage under the workers' compensation law by reason of section 287.020.1.^{1 2} The Labor and Industrial Relations Commission ("Commission") held that Booth was an employee of Trailiner, and that he did not come under the "owner/operator" exemption. Trailiner appeals.

In reviewing a workers' compensation award, we review the findings of the Commission and not those of the Administrative Law Judge ("ALJ"). Gordon v. Tri-State Motor Transit Co., 908 S.W.2d 849, 852 (Mo.App. S.D. 1995). In this case, the Commission issued a separate opinion, but also attached and incorporated the ALJ's award and decision. We, therefore, consider the findings and conclusions of the Commission as including the ALJ's award. Kaderly v. Race Bros. Farm Supply, 993 S.W.2d 512, 514 (Mo.App. S.D. 1999). Findings and awards of the Commission which are clearly the interpretation or application of the law, as distinguished from a determination of facts, are not binding on the court and fall within the court's province of independent review and correction where erroneous. Leslie v. School Servs. and Leasing, 947 S.W.2d 97, 99 (Mo.App. W.D. 1997). A finding that a workers' compensation claimant is or is not an "employee" represents such an application of law. Watkins v. Bi-State Dev. Agency, 924 S.W.2d 18, 21 (Mo.App. E.D. 1996).

Booth worked as a truck driver in 1989 for a company named GCF, which was described in the evidence as a trucking company leased to Trailiner. He worked for GCF driving one of its trucks and pulling a trailer that belonged to Trailiner. After about a year, Booth purchased his own 1996 Peterbilt tractor, employed two drivers, and entered into what he described as an "owner/operator" agreement with Trailiner. After entering into the arrangement, Booth drove trucks owned by Trailiner as well as the one owned by himself. If the drivers working for Booth wanted to drive more, they would drive his truck and he would "take a Trailiner truck if they needed [him]." He also said that he would drive a Trailiner tractor "[w]henever [his] tractor wasn't busy and [he] wanted the extra work, or if your tractor broke down, they would loan you one." On March 17, 1996, Booth was injured while "getting out of [his] truck" when he stepped on a bottle. One of the two drivers who worked for Booth was with him at the time and did part of the driving to return to Missouri.

The Commission concluded that Booth was an employee of Trailiner. It said that drivers in the service of contract carriers have been held to be employees in such circumstances, citing Miller v. Hirschbach Motor Lines, Inc., 714 S.W.2d 652 (Mo.App. S.D. 1986); Glenn v. Stoneload Delivery Co., 894 S.W.2d 713 (Mo.App. W.D. 1995); Ceradsky v. Mid-America Dairymen, Inc., 583 S.W.2d 193 (Mo.App. W.D. 1979). Those cases, however, were decided under an earlier version of section 287.020.1 that did not contain the "owner/operator" exception.

The Commission also found that Booth was not exempt from the workers' compensation law as an "owner/operator", saying that Trailiner presented no evidence of any "owner/operator agreement,"³ that any of the parties were issued a certificate by the Interstate Commerce Commission ("ICC"), or that Trailiner operated within a commercial zone within or close to the confines of a single municipality. It said that "[b]ased upon the testimony of Booth, the items from his personnel file which were admitted into evidence, the absence of any purported agreements between Booth and Trailiner, and [the Code of Federal Regulations requiring certain "owner/operator" agreements to be in writing], it cannot be concluded that Booth and Trailiner entered into an agreement which the exemption contemplates." It also noted that the circumstances of Booth's work with Trailiner did not change after he purchased his own tractor in that he was still subject to its safety regulations, he attended its safety meetings, he underwent drug testing paid for by Trailiner, and he went to a doctor selected by Trailiner for work-related injuries.

In its first point on appeal, Trailiner contends that the Commission erred in finding that the "owner/operator exemption" under section 287.020.1 did not apply and that Booth was an employee "because the Commission failed to properly apply Section 287.020.1, in that it read into the statute a requirement that the owner/operator agreement must be written, that it must be shown that there is not control exerted over the claimant, and that the 'relative nature of the work' test must be overcome for the exemption to apply."

Trailiner argues that the Commission incorrectly interpreted the law when it concluded:

We think the above-cited statute suggests a written owner/operator lease agreement. This is consistent with federal motor carrier regulations requiring certain (interstate) owner/operator leasing agreements to be in writing. See 49 C.F.R. 376.11 et seq. (See also 4 CSR 265-10.040 for intrastate leasing agreements) Employer introduced no evidence, written or otherwise, of an agreement. The only evidence of an agreement was Mr. Booth's answer "Yes, I did" when asked if he entered into an owner/operator agreement with Trailiner after he purchased a truck. We have no way to know if Mr. Booth referred to an owner/operator agreement pursuant section 287.210.1 RSMo. We will not speculate as to its terms. This case demonstrates how important it is to place the agreement into evidence. We are not prepared to say the lack of a written agreement, which meets the conditions of section 287.210.1 RSMo will always be fatal to proving the owner/operator exemption. We do believe the absence of an agreement places employer in a challenging evidentiary posture.Part of Trailiner's point is based on the conclusion that the Commission "read into the statute a requirement that the owner/operator agreement must be written." While we agree with Trailiner that section 287.020.1 does not, by its terms, require such a lease or contract to be in writing, we are not persuaded that the Commission's findings quoted above indicate such an interpretation. It said that section 287.020.1 "suggests" a written agreement, but it specifically said that it was not prepared to say that the lack of a written agreement would always be fatal. As will be indicated infra, we interpret the Commission's ruling as being based on the lack of what it considered sufficient evidence of the contents of an agreement. The portion of Trailiner's point premised on the conclusion that the Commission interpreted section 287.020.1 as requiring a written agreement is not well taken.

Trailiner also contends that the Commission improperly "read into the statute" a requirement that it must be shown that "there is not control exerted over the claimant, and that the 'relative nature of the work' test must be overcome for the exemption to apply." Its argument concerning this portion of the point is, in part:

. . . the Commission's holding that the owner/operator exemption does not apply in this case is a misapplication of the law because the Commission infers that, for the exemption to apply, there must be evidence that the claimant 'was engaged in a separate business sufficient to believe that he paid for all business expenses and would be sufficiently funded to pay for risks of loss such as work related injuries.' This would require, in essence, evidence regarding the control exerted by Trailiner over Booth and the relative nature of the work. Nowhere in Section 287.020.1, RSMo, is such a requirement set forth in the context of the owner/operator exemption. Nowhere in the workers' compensation regulations is such a requirement set forth.Trailiner bases this argument on the findings of the Commission. The Commission said that "[e]mployer introduced no evidence, written or otherwise, of an agreement" other than Booth's statement that "Yes [he] did" when asked if he had entered into an "owner/operator" agreement. It also noted, however, that "[w]hile the scope of the agreement or agreements between Booth and Trailiner are not clear," the Code of Federal Regulations requires that certain "owner/operator" agreements must be in writing, and indicate the terms which must be included in "the lease" such as a requirement that the "lease" clearly specify the legal obligation of the authorized carrier to maintain insurance coverage for the protection of the public, and specify who is responsible for providing any other insurance coverage for the operation of the "leased" equipment. The Commission also said:

Based upon the testimony of Booth, the items from his personnel file which were admitted into evidence, the absence of any purported agreements between Booth and Trailiner, and the regulations noted above, it cannot be concluded that Booth and Trailiner...