Harp v. Malone Freight Lines Inc.

• Decision Date: 22 February 2000
• Citation: 16 S.W.3d 667
• Parties: (Mo.App. E.D. 2000) . Carl Harp, Claimant, v. Malone Freight Lines, Inc., Employer. Case Number: ED75799 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

16 S.W.3d 667 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.

Carl Harp, Claimant, v. Malone Freight Lines, Inc., Employer.

Case Number: ED75799

Missouri Court of Appeals Eastern District

Handdown Date: 02/22/2000

Appeal From: Labor and Industrial Relations Commission

Counsel for Appellant: John J. Johnson, T. Michael Ward and Bart B. Zuckerman

Counsel for Respondent: Dale E. Nunnery

Opinion Summary: Malone Freight Lines, Inc. appeals the Labor and Industrial Relations Commission decision that Carl Harp was Malone's employee under section 287.020.1 RSMo 1994.

AFFIRMED.

Division Four holds: The Commission correctly held Harp is not excluded from section 287.020.1 because he is an operator, but not an owner, of a leased or contracted vehicle as specified in the statute.

Opinion Author: Judge Mary K. Hoff

Opinion Vote: AFFIRMED. Crandall, P.J., and Pudlowski, S.J., concur.

Opinion:

Malone Freight Lines, Inc. (Malone) appeals from the decision of the Labor and Industrial Relations Commission (Commission) that Carl Harp (Carl)¹ was Malone's employee under Section 287.020.1 RSMo 1994.² We affirm.

Dan Harp (Dan) owns a truck and is in the business of transporting freight on behalf of contract or common carriers. Malone and Dan entered into an Independent Operating Agreement (operating agreement) designating Dan as an independent contractor. As part of the agreement, he contracted the use of his truck and equipment to Malone, an interstate common and contract carrier.

Dan suggested his brother, Carl, call Malone regarding employment. Carl called Malone and filled out an Application for Lease/Independent Contract Operator Information which included an agreement (lease application and agreement). The application included Carl's employment record for the past ten years, his driving record, educational background, military status, and general information. At Malone's direction, for about three days Carl watched instructional films, took Department of Transportation tests, and submitted to a drug test for Malone. After completing the paperwork and the tests, Carl received a Malone driver's card.

Carl then began hauling loads for Malone. The truck Carl used was owned by Dan, and the trailers he pulled were owned by Malone. Carl was required to contact Malone two or more times a day by using an 800 number. If he did not contact Malone, he received a financial penalty. While working for Malone, Carl was not allowed to make any personal trips. When Carl picked up a load, he received an advance from Malone to pay for his fuel. To pay Carl, Malone deposited money into Dan's account. Dan kept a percentage of that money for supplying the truck, and sent Carl the remainder of that money.

On July 9, 1996, Carl injured his neck while delivering a load for Malone. He called Malone to report his injury and subsequently filed a worker's compensation claim.

The Administrative Law Judge (ALJ) held Carl was an employee of Malone and entered a temporary or partial award in Carl's favor and against Malone. In a unanimous decision, the Commission adopted the ALJ's temporary and partial award. This appeal followed.

Usually a temporary or partial award may not be appealed. Cahall v. Cahall, 963 S.W.2d 368, 371 (Mo. App. E.D. 1998). "However, appellate review on the issue of liability in a workers' compensation case is permissible although an award is denominated 'temporary or partial.' " Id. Because the only issues raised on appeal address Malone's liability, we have jurisdiction over this appeal from a temporary or partial award.

In its first point, Malone argues the Commission erred in concluding Carl was Malone's employee because Section 287.020.1 exempts over-the-road drivers of trucks leased to common carriers, regardless of whether or not the driver owns the truck, from the statutory definition of "employee." Specifically, Malone contends the Commission erred when it held the exemption does not apply to the driver of a contracted vehicle who has no ownership interest in that vehicle. Malone argues the statutory language indicates the legislature intended to exempt any over-the-road driver who operates trucks leased or contracted to contract and common carriers. Therefore, Malone argues, Carl should be excluded from the definition of "employee." Carl responds, if the legislature intended for him to be exempt, the statute would say simply "operator" rather than "owner and operator."

Section 287.020.1 states:

The word "employee" as used in this chapter shall be construed to mean

every person in the service of any employer, as defined in this chapter, under

any contract of hire, express or implied, oral or written, or under any

appointment or election . . . . The word "employee" shall not include an individual

who is the owner and operator of a motor vehicle which is leased or contracted

with a driver to a for-hire common or contract motor vehicle carrier operating within

a commercial zone as defined in section 390.020 or 390.041, RSMo, or operating under

a certificate issued by the transportation division of the department of economic

development or by the interstate commerce commission.

In relevant part the Commission stated: "this statute clearly limits the exclusion to individuals who are both owners and operators of the leased motor vehicle. Since [Carl] had no ownership interest in the truck which he was driving for Malone, this section cannot be applied to exclude him as a possible employee."

Decisions of the Commission which are clearly the interpretation or application of law, as distinguished from a determination of fact, are not binding upon us and fall within our province of review and correction. Burgess v. NaCom Cable Co., 923 S.W.2d 450, 452 (Mo. App E.D. 1996).

We find that this is a case of first impression because the parties have not directed us to and we have not found a Missouri case that has addressed this issue. In matters of statutory construction, the intent of the legislature controls. Christian Disposal, Inc. v. Village of Eolia, 895 S.W.2d 632, 633 (Mo. App. E.D. 1995). To determine the legislature's intent, we look to the language of the statute and the plain and ordinary meaning of the words employed. Id. Because the statute excludes only those who are a truck "owner and operator" (emphasis added) the plain and ordinary meaning of the phrase does not exclude a driver who is an operator but not an owner of the leased or contracted truck.

"Missouri law requires the Workers' Compensation Act to be construed liberally with a view to the public welfare . . . so as to extend its benefits to the largest possible class and restrict those excluded to the smallest possible class." Leslie v. School Services and Leasing, Inc., 947 S.W.2d 97, 99 (Mo. App. W.D. 1997). Additionally, the law favors a construction of a statute which avoids unjust or unreasonable results. Maryland Cas. Co. v. General Elec. Co., 418 S.W.2d 115, 118 (Mo. banc 1967). If we construe the statute as Malone interprets it, all operators of leased or contracted vehicles would be excluded from the statutory definition of employee, which would exempt the largest possible class from benefits. This interpretation is unjust and unreasonable. Carl does not fall within the statutory exclusion. Point one denied.

In its second point, Malone contends the legislature's amendment of the statute altered the employment status of owner-operators of leased or contracted vehicles, making those vehicles' owners independent contractors and severing any employment relationship between carriers and drivers hired by such a vehicle's owner. Therefore, Malone argues, Carl should be considered an "employee" of the truck's owner, Dan, rather than an employee of Malone. Because no evidence exists in this case to establish Carl was hired by Dan, we do not address Dan's relationship to Carl or the statute's effect on that relationship. Point two denied.

In its third...