Farmer v. Employers Ins. of Wausau

• Decision Date: 09 January 1980
• Docket Number: No. 57856,57856
• Citation: 264 S.E.2d 26,152 Ga.App. 608
• Parties: FARMER v. EMPLOYERS INSURANCE OF WAUSAU et al.
• Court: Georgia Court of Appeals

Page 26

264 S.E.2d 26

152 Ga.App. 608

FARMER v. EMPLOYERS INSURANCE OF WAUSAU et al.

No. 57856.

Court of Appeals of Georgia.

Argued May 3, 1979.

Decided Nov. 30, 1979.

Certiorari Granted Jan. 9, 1980.

John M. Strain, Athens, for appellant.

George L. Pope, Jr., Andrew J. Hamilton, Atlanta, Edward E. Strain, III, Cornelia, for appellees.

UNDERWOOD, Judge.

In this workers' compensation proceeding it was determined that claimant suffered compensable injuries arising out of and in the course of his employment as a truck driver with Ryder Truck Lines, Inc. and Hames Trucking Company. On appeal to the full board, and upon de novo consideration of all the evidence, the board determined, with one director dissenting, that "Hames Trucking Company neither had the right to nor exercised any control over claimant in reference to his trip back into Georgia . . ." The board also determined that the language of the "trip lease" entered into by Ryder and Dan Martin, the owner of the tractor in question refers to results to be accomplished and was "never understood to give Ryder the right to control claimant as to the time, manner, and method of his driving their trailer to Georgia." The board then concluded that "no employer-employee relation existed between claimant" and the two trucking concerns, and the claim was denied. On appeal to the superior court the denial was affirmed. Claimant appeals; we likewise affirm.

As noted above, the tractor which claimant was driving was owned by Dan Martin, who leased considerable trucking equipment (tractors and trailers) to Hames Trucking, Inc. The agreement between Martin and Hames as to the leased equipment provided that return loads "from without the State of Georgia to some destination within the State of Georgia" were the "sole responsibility of (Martin) who shall be entitled to all revenue for loads that are trip leased to a common regulated carrier." The contract called for Martin "to furnish at his expense, competent, qualified, licensed and experienced operators to operate said leased equipment" who were to be the employees of Martin, and he was to be solely responsible for the "compensation, selection, supervision and control of said operators," although Hames would have the right to request Martin to replace any operator who "may not be qualified." Another provision of the lease stated that "the operators of said equipment shall be under the exclusive control, direction, jurisdiction and supervision of (Martin). (Hames) shall only have the authority to designate the destination of outgoing loads."

The record reveals that the claimant driver hauled for Martin a load of poultry from Georgia to Chicago. As is common practice, the driver then located a regulated carrier, Ryder, which had a trailer that needed to be delivered to Georgia on the return trip. The driver, representing Martin, signed an agreement with Ryder, referred to as a "one-way trip lease," providing for the transportation of goods in interstate commerce "under direction and control of Ryder Truck Lines, Inc." The lease stated that "the leased equipment under this agreement is in the exclusive possession, control, and use of the authorized carrier Lessee (Ryder) and that the Lessee assumes full responsibility in respect to the equipment it is operating to the public, the shippers, and all regulatory bodies having jurisdiction. It is agreed that Lessor (Martin) will carry acceptable Public Liability and Property Damage Insurance." It further provided that Martin was responsible for the maintenance of the tractor, payment of the driver and payment for any citations or fines received by him.

During the return trip from Chicago an accident occurred in which the driver received permanent injuries. He subsequently filed this claim seeking workers' compensation contending he was an employee of Ryder and Hames at the time of the accident.

1. The issue in this case is whether the "control" provisions of a "trip lease" agreement, pursuant to which the owner of a tractor unit leases such unit to a regulated carrier for a single trip to deliver a single trailer of freight, makes the driver an employee of the regulated carrier for purposes of determining workers' compensation coverage. It is urged that because applicable federal legislation, 49 U.S.C.A. § 304, requires that the equipment in a trip lease arrangement be under the control of the regulated carrier, the driver becomes an employee of the regulated carrier for the term of the lease, i. e., during the one-way trip.

This, we believe, is an unnecessarily narrow, one-dimensional test for determining whether there exists an employee-employer relationship and ignores some practical aspects of a trip-lease transaction. It also goes beyond the public purpose which Congress sought to serve in mandating that the regulated carrier exercise "control" in a trip-lease situation. The United States Supreme Court, while not addressing the question presented in this case, has dealt with the background and purpose of the "control and responsibility" provisions of 49 U.S.C.A § 304 in Transamerican Freight v. Brada Miller Freight Systems, 423 U.S. 28 (96 S.Ct. 229, 46 L.Ed.2d 169) (1975). In that case the court recognized the distinction between operational control concerning the equipment and other aspects of the shipment and ministerial control concerning the driver. "It is to be acknowledged, to be sure, that the lessor's furnishing of a driver allows an aspect of control, in a sense, to remain in the lessor. But this is ministerial control, not control of the kind with which the Commission was concerned (in promulgating regulations under the legislation) . . . Its concern . . . was with operating authority, with routes and destinations and classes of freight, with the integrity of certifications, and with that ultimate control in the lessee that makes and keeps it responsible to the public, the shipper, and the Commission." Transamerican Freight v. Brada Miller Freight Systems, supra, at p. 39, 96 S.Ct. at p. 235.

Our conclusion is that the "control" provisions which were included in the written lease pertaining to this "trip lease" were mandated by Congress to make the regulated carrier responsible for damages to the freight during shipment and to provide other protections to the public whom the carrier has been authorized to serve. We can find no persuasive indication that these provisions were intended to affect the "ministerial" aspects of the relationship between the lessor and the driver, or to make the driver an employee of the regulated carrier. Ryder could not fire the driver or replace him with another driver. The driver was paid by Martin who also paid for all expenses of the trip. The nature of the relationship between the claimant and Ryder does not satisfy our prior standards for finding an employment relationship. Sanders Truck Co. v. Napier, 117 Ga.App. 561, 161 S.E.2d 440 (1968); Pilcher v. Wise Elec. Co., 129 Ga.App. 92, 198 S.E.2d 713 (1975).

2. As Hames was clearly not claimant's employer with respect to this occurrence, the board properly denied compensation as to it.

Judgment affirmed.

DEEN, C. J., QUILLIAN, P. J., and SMITH, SHULMAN, BIRDSONG and CARLEY, JJ., concur.

McMURRAY, P. J., and BANKE, J., dissent.

McMURRAY, Presiding Judge, dissenting.

This is a workers' compensation case in which claimant was a truck driver injured in a highway collision while in the course of his employment. He was driving a tractor trailer in which he was transporting goods in interstate commerce. Without doubt he was the employee of someone.

The issue here is to determine which of three concerns were his employer or employers. The truck which he was driving was owned by Dan Martin who leased considerable trucking equipment (tractors and trailers) to Hames Trucking, Inc. The lease agreement as to the tractor in question which claimant was driving was executed by "Hames Trucking, Inc.," by C. Scott Hames, lessee. It involved shipment of goods known as "outgoing loads." With reference to return loads "from without the State of Georgia to some destination within the State of Georgia," this became the "sole responsibility of Lessor who shall be entitled to all revenue for loads that are trip leased to a common regulated carrier." If there were return loads of exempt commodities, same were to be in the name of "Hames Trucking, Inc." and covered by liability and cargo insurance only when lessee was notified in advance of shipment with cost to lessee. This...