Kinne v. Industrial Commission, 16447

Citation609 P.2d 926
Decision Date05 March 1980
Docket NumberNo. 16447,16447
PartiesCharles KINNE, Plaintiff, v. INDUSTRIAL COMMISSION, Defendant.
CourtSupreme Court of Utah

Brian R. Florence, Ogden, for plaintiff.

Robert B. Hansen, Atty. Gen., Frank V. Nelson, Asst. Atty. Gen., M. David Eckersley of Black & Moore, Andrew R. Hurley of Lowe & Hurley, Salt Lake City, for defendant.

STEWART, Justice:

Plaintiff, Charles Kinne, sought review of an order of the State Industrial Commission which found joint and several liability on the part of Kinne and Freeport Transport, Inc., as employers of Max L. Wynn, who was killed in a tractor accident. Kinne contends the facts do not support the Commission's findings (1) that Wynn's accident occurred in the course of his employment and (2) that Kinne was Wynn's employer.

In May 1976 Kinne entered into an agreement with Freeport Transport, Inc., providing for the lease of a tractor owned by Kinne to Freeport. Pursuant to the written agreement, Kinne was to be responsible, inter alia, for the direction, control, salaries, and workmen's compensation coverage of his employees. Freeport assumed liability for injuries resulting from the negligent operation of the vehicle involving others than Kinne or his employees. Kinne failed to provide workmen's compensation coverage.

In November 1976, Max L. Wynn, who had been hired by Kinne as a driver, took the tractor home during an interruption in a trip from Colorado to California. When he was en route from his home to Freeport's place of business in Clearfield, Utah, to pick up a trailer and commence the final portion of the trip, the tractor was struck by a train and Wynn was killed.

Wynn's widow filed for workmen's compensation benefits. In July 1978 the Industrial Commission's administrative law judge determined that Wynn was not in the scope and course of his employment at the time of the accident, and compensation benefits were therefore denied. The judge also found that Wynn was an employee of Freeport and not of Kinne. In February 1979 the Commission granted Mrs. Wynn's motion for review and held that Wynn was in the course of his employment when he was killed and that Mrs. Wynn was entitled to benefits. In response to an inquiry as to joint liability by the State Insurance Fund, Freeport's insurer, the Commission by supplemental order held that Wynn was an employee of Kinne under the terms of the lease agreement and that Kinne was therefore jointly and severally liable with Freeport for the compensation award. Kinne's appeal is from that order.

An order of the Industrial Commission will stand unless it is contrary to law or unsupported by substantial evidence, § 35-1-84 U.C.A. (1953), as amended. Kinne argues that the Commission erred in its findings that Wynn was in the course of his employment at the time of the fatal accident and that Kinne was Wynn's employer for purposes of workmen's compensation coverage.

Whether an accidental injury arises out of or within the scope of employment depends upon the particular circumstances of each case, Moser v. Industrial Commission, 21 Utah 2d 51, 440 P.2d 23 (1968). This case, like Moser, is distinguishable from the usual case of going to, or coming from, work, which is not generally within the scope of employment, Wilson v. Industrial Commission, 116 Utah 46, 207 P.2d 1116 (1949).

The Commission in the instant case found Wynn's practice was to take the tractor to his home, where he cleaned and serviced it to keep it in proper running condition. It was understood that this maintenance work was...

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12 cases
  • In re Fedex Ground Package System, Inc., This Document Relates To: 3:05-CV-596 (Slayman-Oregon)
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
    • July 27, 2009
    ...element underlying an employment relationship.'" Mitchell v. Rice, 885 P.2d 820, 821 (Utah App.1994) (citing Kinne v. Indust. Comm'n, 609 P.2d 926, 928 (Utah 1980)). FedEx contends that even if the "right to control" test applies, it requires individualized determinations, pointing to the f......
  • Bliss v. Ernst Home Center, Inc., Civ. No. 93-NC-138W.
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • November 7, 1994
    ...has explicitly acknowledged that "an employee, for the purpose of workers' compensation, may have two employers." Kinne v. Industrial Comm'n, 609 P.2d 926, 928 (Utah 1980). Either employer may invoke the exclusive remedy provision if an employer-employee relationship (as that relationship i......
  • Ghersi v. Salazar, 930243
    • United States
    • Supreme Court of Utah
    • October 28, 1994
    ...from asserting a negligence action against Huish. An employee may have two employers for purposes of the Act. Kinne v. Industrial Comm'n, 609 P.2d 926, 928 (Utah 1980); Blacknall v. Westwood Corp., 307 Or. 113, 764 P.2d 544, 547 (1988). Even though Adia was Ghersi's employer and paid worker......
  • State (Tax Com'n) v. Industrial Com'n of Utah, 19668
    • United States
    • Supreme Court of Utah
    • July 6, 1984
    ...or not the injury arises out of or within the scope of employment depends upon the particular facts of each case. Kinne v. Industrial Commission, Utah, 609 P.2d 926 (1980). The injury has been held compensable where transportation was furnished by the employer to the benefit of the employer......
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