Hojnacki v. Last Rebel Trucking Inc., No. COA09-460 (N.C. App. 1/5/2010), COA09-460.

CitationNo. COA09-460.
Case DateJanuary 05, 2010
CourtCourt of Appeal of North Carolina (US)

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Unpublished Opinion

STEVE F. HOJNACKI, Employee, Plaintiff,
CINDY BIVINS, Individually, and ROBY L. HENDERSON, Individually, and/or COMTRAK LOGISTICS, Employer, and
No. COA09-460.
Court of Appeals of North Carolina.
Filed January 5, 2010.
This case not for publication

North Carolina Industrial Commission I.C. Nos. 702970 PH-1787.

Appeal by plaintiff from Opinion and Award entered 13 November 2008 by the Full Commission of the North Carolina Industrial Commission. Heard in the Court of Appeals 26 October 2009.

Patterson Harkavy LLP, by Leto Copeley and Narendra K. Ghosh, for plaintiff-appellant.

Hedrick, Gardner, Kincheloe & Garofalo, L.L.P., by Martha W. Surles and Larissa M. Bixler, and Cerwin Law Firm, PA, by Todd Cerwin, for defendants-appellees.

MARTIN, Chief Judge.

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Plaintiff appeals from an Opinion and Award of the North Carolina Industrial Commission concluding it had no subject matter jurisdiction and dismissing his claim for benefits. Because we conclude plaintiff was an employee of Last Rebel Trucking, Inc. ("Last Rebel") at the time of his injury, we reverse the Commission's Opinion and Award and remand for further proceedings consistent with this opinion.

The evidence presented before the Industrial Commission tended to show that defendant Comtrak Logistics ("Comtrak") is a Tennessee corporation in the business of transporting goods in interstate commerce via tractor-trailer trucks. In conducting this business, Comtrak often leases tractor-trailer trucks from independent contractors. In 2002, Comtrak entered into a lease agreement with defendant Last Rebel, a North Carolina business, to lease its tractor-trailer truck. Pursuant to this lease agreement, Comtrak was to pay Last Rebel for the use of its truck and the services of its driver. Comtrak was also to have complete control over the truck, which was operated under Comtrak's USDOT number. The lease agreement further provided that "[Last Rebel] or [its] employee, whose qualifications must be pre-approved by [Comtrak], shall operate the equipment for the hauling and transporting of freight pursuant to instructions from [Comtrak]." At this time, Roby Henderson operated the truck as Last Rebel's driver.

In 2004, Cindy Bivins ("Ms. Bivins"), the owner and president of Last Rebel, decided to purchase a new tractor-trailer truck

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which would in turn be leased to Comtrak. In need of a driver for the second truck, Ms. Bivins discussed with plaintiff the possibility of driving one of Last Rebel's trucks under the Comtrak lease.

After Comtrak was informed that plaintiff was a potential driver for one of Last Rebel's trucks, Comtrak dispatched plaintiff to Atlanta, Georgia to undergo its qualification and training procedures. Plaintiff drove Last Rebel's truck to Atlanta in order to have Comtrak's decals and equipment installed. In Atlanta, plaintiff filled out Comtrak's Application for Qualification, participated in Comtrak's training session, took a DOT physical, and received a manual that set forth Comtrak's rules and regulations. After successfully completing Comtrak's application and training procedures, plaintiff was dispatched by Comtrak from Atlanta to Charleston, South Carolina.

From that point on, plaintiff worked out of Comtrak's Charleston terminal. When Comtrak had a shipment of goods it needed plaintiff to haul, it would give him instructions as to where the goods needed to go and when they needed to be at the specified destination. Ms. Bivins had no part in determining which loads plaintiff was assigned to haul. However, Last Rebel, through either Ms. Bivins or plaintiff, did have the option to refuse an assignment.

The maintenance and cost of operating the truck were the sole responsibility of Last Rebel. Therefore, if any mechanical problems arose with the truck, plaintiff would drive to North

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Carolina so that Ms. Bivins could make the necessary repairs. Moreover, Last Rebel paid for all the fuel used by the truck. Comtrak did issue plaintiff a Comdata card in its name to purchase fuel while he was on his trips. However, any amounts charged by plaintiff to the card to purchase fuel were deducted from the amount Comtrak paid Last Rebel.

While on the trips, plaintiff would keep track of the miles he traveled on his trip sheets. He would also keep a daily log book in which he would indicate the dates and times at which he was operating the truck. He turned both the trip sheets and the log books in to Comtrak. Comtrak would then use the trip sheets provided by plaintiff to calculate Last Rebel's pay for the lease of its truck. Once Last Rebel received its settlement sheet from Comtrak, it would pay plaintiff accordingly. Plaintiff was compensated by Last Rebel at a rate of 32 cents per mile. This rate was decided upon by Ms. Bivins as one comparable to the rate Comtrak paid its company drivers.

In addition to compensating plaintiff for his work, Last Rebel paid for his occupational accident insurance policy. This particular policy was one obtained by Last Rebel through Comtrak's insurance carrier, Great West Casualty Company ("Great West"). Comtrak would pay the monthly premium for plaintiff's insurance policy directly to Great West, and the cost would in turn be deducted from Last Rebel's compensation.

Around midnight on the evening of 21 October 2004, at Comtrak's terminal in Charleston, South Carolina, plaintiff was

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involved in an accident while connecting a trailer to Last Rebel's truck. As plaintiff was trying to reach across from the tractor to the trailer to hook up the hoses, his foot slid and his right leg fell into the gap in the truck platform. His left leg remained on top of the platform. Two hours later, when plaintiff finally removed his leg from the gap, his arm, head, shoulder, and stomach were injured. Despite this, plaintiff cleaned himself and his truck, continued on his trip to Chattanooga, Tennessee, delivered the goods, and returned to Charleston, South Carolina. After this incident, plaintiff suffered from various medical problems. Plaintiff's accident—related medical expenses were paid for by Great West under the occupational accident policy purchased by Last Rebel. Plaintiff also received $500 per week in income replacement under this policy.

On 26 January 2007, plaintiff filed a Form 18 Notice of Accident to Employer and Claim of Employee, Representative, or Dependent.1 After a hearing, a deputy commissioner issued an Opinion and Award granting plaintiff temporary total disability benefits in the amount of $526.79 per week from 23 October 2004

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until the Commission orders otherwise, ordering Last Rebel and Comtrak to pay plaintiff's necessary medical expenses, ordering Last Rebel and Comtrak to pay plaintiff's attorney's fees, and imposing a civil penalty on Last Rebel for failure to maintain workers' compensation coverage. The deputy commissioner concluded that Last Rebel and Comtrak were joint employers of plaintiff, the Commission had jurisdiction over the entire claim, plaintiff was injured "out of and in the course of his employment with both Last Rebel and Comtrak," and plaintiff was disabled as a result of this injury. Last Rebel and Comtrak both gave notice of appeal to the Full Commission.

The Full Commission reversed the deputy commissioner, finding there was no evidence of an employer—employee relationship between plaintiff and Last Rebel. Instead the Full Commission found that plaintiff was the employee of Comtrak at the time of his injury. The Full Commission thus concluded that, pursuant to N.C.G.S. § 97-36, "the North Carolina Industrial Commission [lacked] subject matter jurisdiction over plaintiff's claim." Plaintiff appeals.

On appeal, plaintiff challenges the Full Commission's jurisdictional conclusions. Plaintiff first argues the Full Commission erred in concluding that he was not an employee of Last Rebel. We agree.

"To be entitled to maintain a proceeding for workers' compensation, the claimant must be, in fact and in law, an employee of the party from whom compensation is claimed." Youngblood v. N.

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State Ford Truck Sales, 321 N.C. 380, 383, 364 S.E.2d 433, 437, reh'g denied, 322 N.C. 116, 367 S.E.2d 923 (1988). "The question whether an employer-employee relationship existed is a jurisdictional one, and the finding of a jurisdictional fact by the Industrial Commission is not conclusive upon appeal even though there be evidence in the record to support such finding." Hughart v. Dasco Transp., Inc., 167 N.C. App. 685, 689, 606 S.E.2d 379, 382 (2005) (internal quotation marks omitted). Thus, this "[C]ourt has the right, and the duty, to make its own independent findings of such jurisdictional facts from its consideration of all the evidence in the record." Lucas v. Li'l Gen. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261...

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