Larson By and Through Larson v. Hometown Communications, Inc.

• Decision Date: 24 January 1995
• Docket Number: No. A-94-183,A-94-183
• Citation: 526 N.W.2d 691,3 Neb.App. 367
• 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 Court of Appeals

Page 691

526 N.W.2d 691

3 Neb.App. 367

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.

No. A-94-183.

Court of Appeals of Nebraska.

Jan. 24, 1995.

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 2. Workers' Compensation: Appeal and Error. The Workers' Compensation Court review panel is bound to employ the same standard of review of the trial court's decisions as applied by the Supreme Court and the Court of Appeals.

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 award.

3. Employer and Employee: Independent Contractor. In some situations, a newspaper carrier can be an independent contractor as a matter of law; in others, an employee as a matter of law; and in still others, the status of the newspaper carrier to the newspaper is a factual issue.

4. Workers' Compensation: Independent Contractor. Where a written contract between the claimant and alleged employer exists which not only denominates the relationship as that of independent contractor but also describes that kind of relationship, and nothing in the manner of performance by the parties is inconsistent with the relationship described, then the independent contractor is, as a matter of law, bound by the contract and is not to be deemed an employee within the meaning of the workers' compensation statutes.

5. Employer and Employee: Independent Contractor: Appeal and Error. The determination of status as an employee, on the one hand, or as an independent contractor, on the other, is a fact question for the trier of fact. The review is to see if sufficient competent evidence warrants the factfinder's conclusion. Such a conclusion will not be set aside unless clearly wrong.

6. Workers' Compensation: Employer and Employee. A person working as a substitute for another may be an employee under the Workers' Compensation Act, at least where the employer knows of, and acquiesces in, the substitution, and if an employer expressly or impliedly assents to an employee's hiring an assistant or substitute, the assistant occupies the position of an employee of the employer.

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.

Kenneth C. Stephan, of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, and L. Michael Zinser, of Zinser and Domina, Nashville, TN, for amici curiae Nebraska Press Ass'n and Nebraska Daily Press Ass'n.

SIEVERS, C.J. and HANNON and MUES, JJ.

HANNON, Judge.

Jennifer Larson, a 12-year-old girl, was struck by an automobile while she was delivering daily newspapers for Hometown Communications, Inc., the publisher of the Fremont Tribune. As a result of the accident, Jennifer is in a persistent vegetative state. Through her father and next friend, David Larson, Jennifer filed an action to recover workers' compensation benefits. At the initial hearing before a single judge of the Workers' Compensation Court, the only issue tried was whether Jennifer was an employee or an independent contractor of the Fremont Tribune when she delivered the papers. The trial judge analyzed the evidence in a lengthy opinion and concluded that the control exercised by the Fremont Tribune over its newspaper carriers was sufficient to make Jennifer an employee. The review panel reversed the order of the trial judge, and Jennifer appeals to this court. We conclude that there is sufficient evidence to support the trial judge's finding. Accordingly, we reverse the judgment of the review panel and order the trial judge's award to be reinstated.

STATEMENT OF FACTS

The Fremont Tribune newspaper is published 6 days a week, Monday through Saturday. In February 1991, its circulation was 11,810 newspapers with 9,688 home subscribers. Sixty-four percent of the home subscribers had their paper delivered by a carrier The newspaper route Jennifer was working on February 22, 1991, was nominally Valerie Brauner's route. However, as will be explained, the girls had divided the route with the blessing of the Fremont Tribune.

on foot or bicycle. The evidence shows that between 25 and 52 percent of subscribers paid in advance to the Fremont Tribune, rather than paying the carrier, who collected from house to house once a month.

On July 20, 1989, Valerie executed an agreement with the Fremont Tribune to deliver papers along the route in Cedar Bluffs, Nebraska. The agreement was entitled "Independent Carrier Agreement" and stated:

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.

....

... 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 Fremont Tribune furnished Valerie with a "Carrier Hand Book," a subscription receipt card to keep track of collections from customers, a collection calendar which set forth the days when collections must be made by carriers and the date upon which a carrier's balance for newspapers must be paid to the Fremont Tribune, and a "Vacation Handbook for Your Substitute."

The Carrier Hand Book states that "you are not an employee of the Tribune but an Independent Contract Merchant." The handbook states duties and requirements the carrier must follow. For example, the handbook states that "[t]he Fremont Tribune guarantees its customers home delivery of their paper before 5 p.m. ... Papers should be delivered before 5 p.m. daily and before 7 a.m. on Saturdays and Holidays." In addition, the handbook states that the carriers are required to deliver "Shoppers" to all nonsubscribers along their route on Tuesdays, for which the carriers are paid on a per-piece basis. In addition, the carriers were told that it was possible that on certain days the carriers would receive inserts and that "[t]hese need to be put inside your papers before you deliver them." The handbook states that a carrier must "[n]ever let papers pile up!!! If you notice papers piling up for more than 3 days, call in a stop." Finally, the handbook states:

Going on vacation and can't do your route? Find a substitute to do it for you.

The paper route is your business, if you can't be there to take care of it find a friend to take care of it while you are gone.

Call the office with the substitute's name, address and phone number so we know who is in charge while you are gone.

The Vacation Handbook for Your Substitute states:

Any time while you're on vacation it is very important that a well trained substitute properly manages your route. This booklet is designed to provide your substitute with basic information about managing a Tribune Newspaper Route while you're vacationing. Review the entire booklet with your substitute step by step[.]

Valerie testified at trial that because she had difficulty completing the route on Tuesdays and Wednesdays because of personal obligations, and because she was tired of managing the entire route by herself, she asked Jennifer to split the route with her. Valerie and Jennifer, along with their mothers, agreed that Jennifer and Valerie each would deliver half the route on Tuesdays and Wednesdays, and then each would deliver the entire route every other week on Mondays, Thursdays, Fridays, and Saturdays. Valerie agreed to handle collecting the cost of subscriptions from all the customers, in exchange for which she would be entitled to the $10 per month the Fremont Tribune automatically billed her and placed in a bank account. The $10 per month was retained by the Fremont Tribune as a deposit to cover any indebtedness carriers may incur, and the balance in the bank account was returned to the carriers when they surrendered their route to the Fremont Tribune. Valerie's mother wrote to the Fremont Tribune in Kathy Brown, the district sales manager for the Fremont Tribune's out-of-town routes, testified that as part of her duties she was required to supervise over 70 carriers. Brown had the power to reconfigure the routes and add and subtract subscribers. If there was a route for which the Fremont Tribune did not have a carrier, it was Brown's duty to deliver the papers on that route herself. In addition, if a customer received a paper which was wet, the customer was provided with a replacement paper, for which the responsible carrier was not charged.

August 1990, notifying the paper that Jennifer and Valerie would be sharing the route. In addition, a flier was given to each subscriber on Valerie's route, informing them that Jennifer and Valerie would be responsible for splitting the route.

Brown testified that carriers were told what to charge the subscribers and what the Fremont Tribune would charge the carriers for the newspapers. When the carriers collected the subscription price, they were told by the paper to tell the subscriber "you are from the Fremont Tribune." If a customer refused to pay the carrier, Brown would call the customer to find out if there was a problem. If Brown determined that the customer had refused to pay without...