Larson By and Through Larson v. Hometown Communications, Inc.
| Decision Date | 08 December 1995 |
| Docket Number | No. S-94-183,S-94-183 |
| Citation | 248 Neb. 942,540 N.W.2d 339 |
| Parties | Jennifer LARSON By and Through her father and next friend, David LARSON, Appellant, v. HOMETOWN COMMUNICATIONS, INC., and Hometown Operations, Inc., doing business as the Fremont Tribune, and Maryland Casualty Insurance Company, Appellees. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Workers' Compensation: Appeal and Error. A judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon the grounds that (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award.
2. Workers' Compensation: Appeal and Error. The workers' compensation review panel may reverse or modify the findings, order, award, or judgment of the original hearing only on the grounds that the judge was clearly wrong on the evidence or the decision was contrary to law.
3. Workers' Compensation: Appeal and Error. Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong.
4. Workers' Compensation: Appeal and Error. The single judge of the compensation court is the factfinding trial court, and the review panel performs the first level of appellate review.
5. Judgments: Appeal and Error. If there is sufficient competent evidence to support the findings of fact and such findings are not clearly wrong, the appellate court then determines whether the findings of fact support the judgment made by the trial court.
6. Employer and Employee: Master and Servant: Independent Contractor. Ordinarily, the parties' status as an employee or an independent contractor is a question of fact. However, where the inference is clear that there is, or is not, a master and servant relationship, the matter is a question of law.
7. Employer and Employee: Independent Contractor. In determining whether or not a worker is an employee, as distinguished from an independent contractor, there is no single test by which the determination may be made. Such a determination must be made from all the facts in the case.
8. Independent Contractor. The common-law test for independent contractors includes many factors which are to be considered and weighed in making the determination, no one of which may be conclusive.
9. Evidence: Appeal and Error. In testing the sufficiency of the evidence to support the findings of fact, the evidence must be considered in the light most favorable to the successful party, every controverted fact must be resolved in favor of the successful party, and the successful party will have the benefit of every inference that is reasonably deducible from the evidence.
10. Employer and Employee: Independent Contractor. There are 10 factors which are considered in determining whether a person is an employee or an independent contractor: (1) the extent of control which, by the agreement, the employer may exercise over the details of the work; (2) whether the one employed is engaged in a distinct occupation or business; (3) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (4) the skill required in the particular occupation; (5) whether the employer or the one employed supplies the instrumentalities, tools, and the place of work for the person doing the work; (6) the length of time for which the one employed is engaged; (7) the method of payment, whether by the time or by the job; (8) whether the work is part of the regular business of the employer; (9) whether the parties believe they are creating an agency relationship; and (10) whether the employer is or is not in business.
11. Employer and Employee: Independent Contractor: Contracts. Generally, control, or the right of control, is the chief criterion in determining whether someone acts as an independent contractor. However, even the employer of an independent contractor may, without changing the status, exercise such control as is necessary to assure performance of the contract in accordance with its terms.
12. Agency: Parties. Whether an agency exists depends on the facts underlying the relationship of the parties irrespective of the words or terminology used by the parties to characterize or describe their relationship.
13. Independent Contractor: Contracts. If there exists a written contract that labels a worker as an independent contractor, it must, of course, be considered and may be of prime importance. However, a writing which merely denominates the relationship may not be used to conceal the true arrangement.
14. Workers' Compensation: Contracts. Every person in the service of an employer who is engaged in any trade, occupation, business, or profession as described in Neb.Rev.Stat. § 48-106 (Reissue 1993) under any contract of hire, expressed or implied, oral or written, including aliens and also including minors, who for the purpose of making election of remedies under the Nebraska Workers' Compensation Act shall have the same power of contracting and electing as adult employees.
Robert T. Cannella, of Fitzgerald, Schorr, Barmettler & Brennan, P.C., and Stephen L. Gerdes, Omaha, for appellant.
Joseph W. Grant, of Gaines, Mullen, Pansing & Hogan, Omaha, and Walter E. Zink II, of Baylor, Evnen, Curtiss, Grimit & Witt, Lincoln, for appellees.
L. Michael Zinser, of Zinser & Domina, Nashville, TN, and Kenneth C. Stephan, of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, for amici curiae Nebraska Press Association, Nebraska Daily Publishers Association, Midwest Circulation Management Association, and Lincoln Journal Star.
Margaret C. Hershiser, of Koley, Jessen, Daubman & Rupiper, P.C., Omaha, for amicus curiae Omaha World-Herald.
Jennifer Larson sustained severe and permanent injuries while delivering newspapers. A trial judge of the Workers' Compensation Court found that Larson was an employee of the newspaper company and awarded workers' compensation benefits. A three-judge workers' compensation review panel reversed the findings of the trial judge. The Nebraska Court of Appeals reversed the decision of the review panel. Hometown Communications, Inc., and Hometown Operations, Inc., doing business as the Fremont Tribune, and Maryland Casualty Insurance Company (the defendants) filed a petition for further review, which we granted.
A judgment, order, or award of the compensation court may be modified, reversed, or set aside only upon the grounds that (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award. Neb.Rev.Stat. § 48-185 (Reissue 1993).
The workers' compensation review panel may reverse or modify the findings, order, award, or judgment of the original hearing only on the grounds that the judge was clearly wrong on the evidence or the decision was contrary to law. Neb.Rev.Stat. § 48-179 (Reissue 1993).
Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Shade v. Ayars & Ayars, Inc., 247 Neb. 94, 525 N.W.2d 32 (1994).
Hometown Communications, Inc., and Hometown Operations, Inc., publish and distribute the Fremont Tribune in Fremont, Nebraska. The Tribune is published 6 days per week. The Tribune instructs its carriers to deliver the newspapers by 5 p.m. on weekdays and before 7 a.m. on Saturdays and holidays. The carriers are charged 23.12 cents per paper, and they charge each customer $7 for 24 daily papers. In February 1991, the Tribune's circulation was 11,810 newspapers, of which 9,688 were home subscribers. Sixty-four percent of these subscribers received their papers via a carrier.
In July 1989, Valerie Brauner entered into an "Independent Carrier Agreement" with the Tribune. The agreement provided in part:
WHEREAS, the Company is the publisher of the Fremont Tribune, and the Carrier desires to engage in the independant [sic] business of purchasing the Company's newspapers and selling and distributing same, the parties therefore mutually agree as follows:
1. The Company agrees to furnish the Carrier with a delivery schedule, and the Carrier agrees to deliver complete newspapers to all points on such schedule.
2. The Company agrees to sell, and the Carrier agrees to purchase sufficient quantities of newspapers to cover the delivery schedule, together with such additional quantities of newspapers as the Carrier may require in conducting his independent business of selling and delivering the Company's newspapers.
3. The Carrier agrees to pay the Company the balance due for all newspapers supplied or delivered to the Carrier by the Eighth day of each billing period (a billing period is four weeks) at the then prevailing wholesale rates for such newspapers. The Company, upon 7 days notice, may change rates in accordance with a general increase or decrease of said wholesale rates.
4. It is understood that the carrier is free to engage in other business activities, but he agrees that the Company's newspapers will be delivered in a timely manner in accordance with said delivery schedule. The Carrier agrees that he will insert no foreign matter into such newspapers without the prior consent of the Company.
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