Brookshire Grocery Co. v. Morgan

• Decision Date: 01 March 2018
• Docket Number: No. CV–17–576,CV–17–576
• Citation: 539 S.W.3d 574
• Parties: BROOKSHIRE GROCERY COMPANY, Appellant v. Cleon MORGAN, Sr., Appellee
• Court: Arkansas Supreme Court

539 S.W.3d 574

BROOKSHIRE GROCERY COMPANY, Appellant

v.Cleon MORGAN, Sr., Appellee

No. CV–17–576

Supreme Court of Arkansas.

Opinion Delivered March 1, 2018

PPGMR LAW, PLLC, by: R. Scott Morgan, Pine Bluff, and Patrick Feilke, for appellant.

Josephine Linker Hart, Justice

This case is once more before this court pursuant to a petition for review filed by Brookshire Grocery Company (Brookshire). On April 3, 2017, Brookshire filed a petition asking us to review an opinion, Brookshire Grocery Co. v. Morgan , 2017 Ark. App. 170, 2017 WL 1019035, handed down by the court of appeals on March 15, 2017. We noted that in this workers' compensation case, neither the Commission nor the court of appeals had issued a formal opinion. Brookshire Grocery Co. v. Morgan , 2017 Ark. 221, 2017 Ark. 221. The Arkansas Workers' Compensation Commission (the Commission) merely adopted the administrative law judge's findings of fact and conclusions of law, and the court of appeals issued a memorandum opinion. Id. That memorandum opinion became the impetus for our decision to abolish the practice of disposing of fully briefed cases by memorandum opinion. Id. We overruled In re Memorandum Opinions , 16 Ark. App. 301, 700 S.W.2d 63 (1985) (per curiam), and we amended Arkansas Supreme Court Rule 5–2(e) to require that all opinions issued by the court of appeals "be in conventional form." Brookshire , 2017 Ark. 221.

We remanded the case to the court of appeals, requiring it to state in conventional-opinion form its reasoning for the disposition of the case. The court of appeals did so, issuing a new opinion on June 21, 2017. Brookshire Grocery Co. v. Morgan , 2017 Ark. App. 387, 525 S.W.3d 58. Brookshire again petitioned for review, and we granted its petition. We also allowed Brookshire to supplement the brief it had filed in the court of appeals. We now consider Brookshire's appeal on the merits, and we reverse and remand.

Brookshire appeals from a decision of the Compensation Commission (Commission). It found that, at the time of his injury, Deputy Cleon Morgan, Sr., had two employers, the Jefferson County Sheriff's Department and Brookshire. The Commission concluded that as "joint employers," both were liable for Deputy Morgan's workers'-compensation benefits. On appeal, Brookshire raises four points, which we have renumbered for the sake of simplicity:

I. Appellants cannot be liable for worker's-compensation benefits if Morgan was an independent contractor.

II. When the traditional factors are applied, they demonstrate Morgan was an independent contractor on the day of his injury.

III. The court of appeals erred by considering factors that are wholly irrelevant to the issue of employee versus independent contractor.

IV. The court of appeals erred by inserting facts into the record.

In considering Brookshire's arguments on appeal, we first wish to make it clear that, consistent with our long-established practices and procedures, when we review a decision by the court of appeals, we treat the case as though it had been originally filed in this court. Askins v. Kroger Ltd. P'ship , 2018 Ark. 23, 535 S.W.3d 629. We will therefore treat Brookshire's arguments accordingly.

It is undisputed that Deputy Morgan injured his ankle on February 19, 2014, while working a part-time security job at a Brookshire grocery store. He noticed a female in the store who he believed was shoplifting. When he approached her, he found several pieces of merchandise concealed on her person. By his own description, when that occurred, he was in "arrest mode" and his "authority as a deputy kicked in." According to Deputy Morgan, he "sweet-talked" the suspect into accompanying him upstairs to the manager's office. Deputy Morgan recalled that sometimes the manager will decline to press charges and instead ban the shoplifter from the store. However, on the night in question, the manager insisted that the shoplifter go to jail. There, he handcuffed her and formally placed her under arrest. She then asked to be uncuffed so that she could use the restroom. When the restraint was unlocked, she bolted. Deputy Morgan sprained his ankle while sprinting after her down the stairs.

Deputy Morgan informed the sheriff's department of his injury. Initially, Deputy Morgan's medical expenses were submitted to his health-and-accident insurance carrier, but personnel at the sheriff's department told him it was a workers'-compensation claim. He eventually was held out of work for five weeks.

Brookshire contested its liability for Deputy Morgan's workers'-compensation benefits, arguing that he was an independent contractor, not an employee. The issue was tried before an administrative law judge, with only Deputy Morgan testifying.

Deputy Morgan stated that he joined the Jefferson County Sheriff's Department on January 1, 2010, and he currently worked in the patrol division. For his work, he wears a uniform and a gun. He noted that he was trained at the police academy in Camden. His usual shift at the sheriff's department was from 8:00 a.m. to 5:00 p.m., five days a week.

After serving with the sheriff's department for a year, he was allowed to file a formal written request for off-duty employment. Deputy Morgan noted that most of the deputies in the department engaged in off-duty security work. His request was approved. The department had a specific off-duty work policy. It restricted deputies to no more than twenty hours of part-time work per week. According to Deputy Morgan, while on location in their off-duty jobs, the deputies were required to "follow the policy of the Sheriff's Department and wear [their] uniform, carry [their] gun and handcuffs." He also stated that he carried a Taser. Deputy Morgan confirmed not only that Brookshire did not supply him with any type of equipment, but also that the sheriff's office required him to wear to Brookshire "exactly what I wear doing my regular duties." During his security work for Brookshire, as in any off-duty situation, he was authorized to make arrests at the store. He was also allowed to drive his patrol vehicle to his security job at Brookshire. He also noted that if he encountered a person who had an outstanding warrant while he was working his security job, he was obligated to serve the warrant.

Deputy Morgan further testified that, aside from telling him to make sure that nobody was left in the store at closing time and to watch for shoplifters, he received no direction from Brookshire regarding how to do his job. Initially, his duties were shown to him by a fellow deputy. He did not even interview with anyone at Brookshire before accepting security work. The manager of the store where Deputy Morgan worked did not directly schedule his security work. The scheduling was done by Lafayette Wood, who set his hours and chose his work locations. Deputy Morgan failed to identify whether Wood was an employee of Brookshire or merely coordinated off-duty security work by deputies for various entities. All part-time work had to be approved by his superiors in the sheriff's department.

Deputy Morgan stated that his compensation was $18 an hour, with nothing withheld by Brookshire. He received no employee benefits from Brookshire. His hours were kept on a sign-in sheet at the store. When he arrived at a work location, he was required to report to the sheriff's department that he was "10–8," which meant that he was in the service area of Brookshire, working part time. According to Deputy Morgan, he was "basically on duty twenty-four hours."

As noted previously, the administrative law judge concluded that at the time of Deputy Morgan's injury, Brookshire and the Jefferson County Sheriff's Department were "joint employers" and that both were liable for Deputy Morgan's "benefits and expenses." The Full Commission affirmed and adopted the administrative law judge's findings of fact and conclusions of law. Brookshire timely filed a notice of appeal.

We first note our standard of review. We view the evidence in the light most favorable to the Commission's decision and affirm that decision if it is supported by substantial evidence. Id. Substantial evidence exists if reasonable minds could have reached the same conclusion. Id. (citing Plante v. Tyson Foods, Inc. , 319 Ark. 126, 890 S.W.2d 253 (1994) ). We now turn to Brookshire's argument on appeal.

Because Brookshire's first and second points are so closely related, we consider them simultaneously. Brookshire argues that Deputy Morgan, an off-duty sheriff's deputy, was an independent contractor when he was injured while working part time for Brookshire. Citing Dillaha Fruit Co. v. LaT ourrette , 262 Ark. 434, 437, 557 S.W.2d 397, 399 (1977), for the proposition that joint employment exists only where relation of employer to employee is simultaneously maintained, Brookshire asserts that before a company can become a joint employer, the person being paid for services must, in fact, be an employee of the company. Further, in determining whether a person is an independent contractor or an employee, courts must review the totality of the circumstance. Blankenship v. Overholt , 301 Ark. 476, 479–80, 786 S.W.2d 814, 815 (1990). Brookshire argues that this court uses the factors listed in Restatement (Second) of Agency § 220 to evaluate the relationship, focusing especially on the degree of control. Brookshire lists these factors as (1) the extent of control that the master exercises, (2) whether the worker is engaged in a distinct occupation or business, and (3) if the work is a part of the regular business of the master. ConAgra Foods, Inc. v. Draper , 372 Ark. 361, 365, 276 S.W.3d 244, 248 (2008).

Using these factors to analyze its relationship with Deputy Morgan, Brookshire argues that the record is devoid of any evidence that demonstrates it had the right to, or attempted to, control the details or manner in which Deputy Morgan conducted his security duties. It notes that Deputy Morgan himself admitted that Brookshire...