Jackson v. Lee's Travelers Lodge, Inc.

• Decision Date: 20 February 1997
• Docket Number: No. 19645,19645
• Citation: 563 N.W.2d 858,1997 SD 63
• Parties: Robert JACKSON, Plaintiff and Appellee, v. LEE'S TRAVELERS LODGE, INC., a South Dakota Corporation, Defendant and Appellant, and Darrell Nelson and Emma Nelson, jointly and severally; and Minnesota Mutual Fire & Casualty Company, Defendants. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 858

563 N.W.2d 858

1997 SD 63

Robert JACKSON, Plaintiff and Appellee, v. LEE'S TRAVELERS LODGE, INC., a South Dakota Corporation Defendant and Appellant and Darrell Nelson and Emma Nelson, jointly and severally; and Minnesota Mutual Fire & Casualty Company, Defendants.

No. 19645.

Supreme Court of South Dakota.

Considered on Briefs Feb. 20, 1997.

Decided June 4, 1997.

T.F. Martin, Brookings, for plaintiff and appellee.

Timothy M. Gebhart of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellant.

GILBERTSON, Justice.

¶1 Lee's Travelers Lodge [Lee's] appeals a partial summary judgment determining Robert Jackson's [Jackson] status as an employee and a final judgment of workers' compensation benefits in favor of Jackson. We affirm in part, reverse in part and remand in part.

FACTS AND PROCEDURE

¶2 Jackson was hired by Lee's through Job Service of South Dakota in May 1989 as a day laborer to do weeding, planting and trimming on the premises. Lee's, a South Dakota corporation, consists of a group of four boarding houses in Rapid City which houses retired and disabled veterans and is owned and operated by Darrel and Emma Nelson. The Nelsons reside in one of the four boarding houses.

¶3 Jackson did weeding and planting of flower beds as instructed by Emma Nelson. He used his own small shovel in this work and testified that he was instructed to come early in the morning but left at the end of the day or as he finished his work. Darrel Nelson testified Jackson arrived and left when he wanted to, telling Darrel he was finished for the day. It is undisputed Jackson was paid an hourly wage in cash, with no deductions, at the end of each day or two by Darrel. Neither party kept any records establishing the first or any of the days Jackson worked for Lee's, how many hours he worked, or the total amount of money he earned working for Lee's.

¶4 On June 29, Darrel asked Jackson if he could trim a tree on the property. Jackson said he could but, as it was late in the afternoon, would return to trim the tree the next day. The following day, Jackson arrived for work and set about to trim the dead branch Darrel had designated. The equipment Jackson used for this job, an extension ladder, bow saw, rope, and can of black paint, belonged to Lee's. After he had climbed the ladder but prior to completing the job, Jackson fell to the sidewalk below. He was knocked unconscious and taken by ambulance to the hospital where it was learned he suffered injuries to his jaw, ribs, and left arm.

¶5 After spending ten days in the hospital, Jackson returned to Lee's and did weeding from July 9 to August 19, 1989. The following Monday, August 21, 1989, Jackson was convicted of second degree burglary and sentenced to serve thirteen years in the state penitentiary. He was paroled on April 3, 1995. During the time Jackson was in the penitentiary, he underwent medical treatment and several operations as a result of his work-related injury, much of which, up to this point, has been at public expense because of his status as a penitentiary inmate.

¶6 Jackson brought suit for this injury, claiming he was an employee of Lee's and entitled to workers' compensation benefits under SDCL 62-3-11 or, alternatively, tort damages for negligence. ¹ The workers' compensation action was brought in circuit court pursuant to SDCL 62-3-11 which provides in part:

Any employee, who is employed by an employer who is deemed not to operate under this title in accordance with § 62-5-7, ... may elect to proceed against the employer in any action at law to recover damages for personal injury ... or may elect to proceed against the employer in circuit court under the provisions of this title, as if the employer had elected to operate thereunder ... and the measure of benefits shall be that provided by § 62-4-1 plus twice the amount of other compensation allowable under this title; provided that such employee ... shall not recover from both actions.

Lee's did not have workers' compensation coverage for its employees. ² Lee's claimed that Jackson was an independent contractor and, in response to Jackson's tort claim, denied it was negligent. The trial court granted Jackson's motion for partial summary judgment after determining Jackson was an employee of Lee's. A trial was held October 26, 1995 on the question of Jackson's entitlement to workers' compensation benefits. At the conclusion of this trial, Jackson was awarded permanent total disability benefits and medical expenses.

¶7 Lee's appeals raising the following issues:

1. Whether Jackson is an employee or independent contractor?

2. If Jackson is an employee, whether he is a domestic service worker and thus, exempt from coverage under the workers' compensation act?

3. Whether Jackson proved his benefit rate?

4. Whether Jackson was entitled to disability benefits while incarcerated?

5. Whether Jackson was entitled to an award of medical expenses and prejudgment interest absent a showing he had paid or was responsible for those expenses?

6. Whether Jackson is permanently and totally disabled?

ANALYSIS AND DECISION

¶8 1. Whether Jackson is an employee or independent contractor?

¶9 The question of whether an individual is an employee or independent contractor presents a mixed question of fact and law fully reviewable by this Court. Shoppers Guide v. S.D. Dep't of Labor, 1996 SD 92, p 10, 551 N.W.2d 584, 586 (citing Midland Atlas v. Dep't of Labor, 538 N.W.2d 232, 235 (S.D.1995)). As such, we give no deference to the decision of the administrative agency or trial court. Id.

¶10 SDCL 62-1-3 defines "employee" under the workers' compensation statutes, in pertinent part, as "every person, including a minor, in the services of another under any contract of employment, express or implied...." In Egemo v. Flores, 470 N.W.2d 817, 821 (S.D.1991), we recognized the statutory presumption that an individual is an employee until his status as an independent contractor is established. SDCL 61-1-11 provides guidance for distinguishing between employee and independent contractor status in workers' compensation cases. Davis v. Frizzell, 504 N.W.2d 330, 332 (S.D.1993). The statute provides:

Service performed by an individual for wages is employment subject to this title unless and until it is shown to the satisfaction of the department of labor that:

(1) The individual has been and will continue to be free from control or direction over the performance of the service, both under his contract of service and in fact; and

(2) The individual is customarily engaged in an independently established trade, occupation, profession or business.

¶11 The burden is on the employer to prove the individual is an independent contractor under the elements of SDCL 61-1-11, and both elements must be established, i.e., that the individual is performing services free of direction and control and that the individual is customarily engaged in an independently established occupation or business. Shoppers Guide, 1996 SD 92, p 8, 551 N.W.2d at 586 (citing Appeal of Hendrickson's Health Care, 462 N.W.2d 655, 658 (S.D.1990)).

¶12 We have previously stated that "each case must be determined on its own facts, with all the features of the relationship considered." Davis, 504 N.W.2d at 331. The facts of the present case indicate that Jackson performed services for hourly wages, was not free from control or direction, and was provided the items of equipment necessary for performing these services, save the small shovel, which he kept in his knapsack. Jackson's deposition testimony resolves the question of Lee's right to terminate the employment relationship at will and without liability. Jackson stated therein that, although he decided at what hour he would leave for the day, Emma Nelson had instructed him on the work she wanted done and "you either stayed there or she fired you, take your choice." Emma Nelson demonstrated a similar belief when she testified by deposition testimony that although she did not know how long it would take Jackson to perform the work she asked, and that he had indicated to her he could not work every day, if it would have taken him two months, she "would have fired him." She and Darrel both testified that they believed if they did not want Jackson to come back anymore they could have told him so.

¶13 As to the second element of the test under SDCL 61-1-11, we find Jackson was not customarily engaged in an independently established trade or business. Jackson did not hold himself out as an independent business person, nor did he advertise his services, provide printed business cards, or have business premises. See Hendrickson's Health Care Service, 462 N.W.2d at 659. The fact that Jackson was hired through a labor broker, here, South Dakota Job Service, also undermines a finding that Jackson was an independent contractor. As a day laborer, Jackson had no enterprise created and existing separate and apart from his relationship with Lee's that would survive the termination of this relationship. See Egemo, 470 N.W.2d at 822.

¶14 We affirm the trial court's determination that Jackson was an employee of Lee's at the date of his injury.

¶15 2. If Jackson is an employee, whether he is a domestic service worker and thus, exempt from coverage under the workers' compensation act?

¶16 SDCL 62-3-15(1) specifically exempts domestic servants from workers' compensation coverage "unless working for an employer for more than twenty hours in any calendar week and for more than six weeks in any thirteen-week period." Defining the scope of the term "domestic servants" presents a question of first impression in this state. Statutory interpretation is reviewed under a de novo standard. Wharf Resources v. Farrier, 1996 SD 110, p 5, 552 N.W.2d 610, 612.

¶17 The trial court found that, at the time of the injury, Jackson had worked for Lee's for more than six weeks and for more than twenty hours during the calendar...