Lathan Roof America, Inc. v. Hairston

• Decision Date: 08 March 2002
• Citation: 828 So.2d 262
• Parties: LATHAN ROOF AMERICA, INC. v. Frederic HAIRSTON.
• Court: Alabama Supreme Court

828 So.2d 262

LATHAN ROOF AMERICA, INC. v.Frederic HAIRSTON.

1001162.

Supreme Court of Alabama.

March 8, 2002.

Joe Carl"Buzz" Jordan, Mobile, for appellant.

Eaton G. Barnard, Mobile, for appellee.

HOUSTON, Justice.

Lathan Roof America, Inc.(hereinafter "Roof America"), appeals the Mobile Circuit Court's judgment entered on a jury verdict in favor of Frederic Hairston, stemming from Hairston's claim brought under the Employer's Liability Act, Ala. Code 1975, §§ 25-6-1 to -4.Roof America contends that at the time of his injury Hairston was an employee of The Lathan Company, not Roof America, and that, therefore, his sole remedy was against The Lathan Company and was limited to workers' compensation benefits.Roof America claims that the trial court erred in refusing to grant its motion for a judgment as a matter of law based on the insufficiency of the evidence at trial indicating that Hairston was an employee of Roof America.¹Roof America also claims that the trial court erred in refusing to allow Roof America to assert the defenses of contributory negligence and assumption of the risk.We affirm.

Except where otherwise indicated, the following facts are undisputed.The Lathan Company, a commercial/industrial roofing company, is one of two companies owned by Jerry Lathan; the other company is Roof America, which handles smaller, residential roofing projects.Jeff Barnacle and Jerry Lathan's brother, Joe Lathan, are vice presidents of both companies.

In early August 1997, The Lathan Company hired Frederic Hairston as a superintendent to supervise its construction of an office building.Hairston had several years of experience in the construction business.Hairston's employment with The Lathan Company was to last only as long as it took to complete the office building.In his role as a construction superintendent, Hairston was to hire and supervise subcontractors and to make sure that equipment and materials were ordered and delivered to the construction site.On August 28, 1997, Roof America entered into a contract with the Dauphin Surf Club ("the Surf Club") to reroof part of the Surf Club's condominium complex.When the Surf Club project began (in late September or early October 1997), Roof America had only one employee: Anthony George.However, George quit during the first week of October, and the responsibility for Roof America's various projects fell to Jeff Barnacle, who began to use The Lathan Company employees in order to continue servicing Roof America projects.Roof America reimbursed The Lathan Company for any time its employees spent working on a Roof America project.

After George quit, Hairston began performing various tasks at the Surf Club.Hairston approached Rich Jensen, a subcontractor, about performing some roofing work at the Surf Club project, and Jensen eventually agreed to do the work.According to Jensen, his agreement was with Hairston, and, while Jensen eventually met Jerry Lathan and Joe Lathan to work out the details, Jensen had already started his work before he met the Lathans.At his meeting with the Lathans (at which Hairston was present), the parties decided that Hairston would make sure that the materials for the roofing work were provided and that if any problems arose with the roofing project Jensen was to call Hairston.Furthermore, Jensen testified that Hairston was at the Surf Club site on a regular basis and that, while Jensen performed the roofing work, he and Hairston were in continual contact.

On October 31, 1997, Hairston was preparing to take a load of materials to the Surf Club site when a roof leak was reported at the site.According to Hairston, Jeff Barnacle told Hairston to "handle it."Hairston attempted to contact Jensen but was unable to reach him.Hairston then went to the site, found the leak, collected some materials, and ascended the roof in an attempt to fix the leak.It was raining at the time, and Hairston slipped, fell off the roof, and suffered severe damage to one of his feet, as well as various related complications.

The material factual dispute between the parties concerns Hairston's employment status at the time of his injury.Sometime in October 1997, Joe Lathan had had a conversation with Hairston that related to the possibility of Hairston's continued employment once the office building Hairston had been hired to supervise construction of was completed.Hairston claims that he was offered Anthony George's position with Roof America and that he was told if he took the position he would be in charge of the Surf Club project.However, Roof America claims that Hairston was not offered any position with Roof America; rather, it argues, Hairston was an employee of The Lathan Company and The Lathan Company sent him to perform some tasks at the Surf Club.

Hairston sued Roof America, The Lathan Company, Jerry Lathan, Joe Lathan, and Jeff Barnacle, asserting claims against all defendants under both the Employer's Liability Act(alleging negligence and wantonness) and under the Alabama Workers' Compensation Act,Ala.Code 1975, §§ 25-5-1 et seq.Roof America and The Lathan Company filed a motion to dismiss.After a hearing, the trial court dismissed all claims against The Lathan Company, Joe Lathan, and Jeff Barnacle, as well as the workers' compensation claim against Jerry Lathan and Roof America.The case went to trial on the negligence and wantonness claims against Roof America and Jerry Lathan brought under the Employer's Liability Act.

At the end of Hairston's case-in-chief, the trial court granted Jerry Lathan's motion for a judgment as a matter of law.However, the trial court denied Roof America's motion for a judgment as a matter of law submitted at the end of Hairston's case-in-chief and granted Roof America's similar motion filed at the close of all of the evidence as to Hairston's claim alleging wantonness under the Employer's Liability Act.The trial court allowed the case to go to the jury on the remaining negligence claim against Roof America under the Employer's Liability Act.The jury returned a verdict in favor of Hairston for $500,000,² and the trial court denied Roof America's postverdict motion for a judgment as a matter of law, or in the alternative, for a new trial.

A.

Roof America argues that the trial court erred in refusing to grant Roof America's motions for a judgment as a matter of law submitted both at the close of all the evidence and after the verdict had been rendered.Roof America contends that its motions should have been granted because, it says, Hairston failed to prove an essential element of his Employer's Liability Act claim: that he was an employee of Roof America.

We recently summarized our procedure for reviewing a ruling on a motion for a judgment as a matter of law as follows:

"`The standard of review applicable to a ruling on a motion for [a judgment as a matter of law] is identical to the standard used by the trial court in granting or denying [that] motion.Thus, in reviewing the trial court's ruling on the motion, we review the evidence in a light most favorable to the nonmovant, and we determine whether the party with the burden of proof has produced sufficient evidence to require a jury determination.

"`. . . .

"`. . . In ruling on a motion for a [judgment as a matter of law], the trial court is called upon to determine whether the evidence was sufficient to submit a question of fact to the jury; for the court to determine that it was, there must have been "substantial evidence" before the jury to create a question of fact."[S]ubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved."'"

Congress Life Ins. Co. v. Barstow,799 So.2d 931, 936(Ala.2001)(quotingAmerican Nat'l Fire Ins. Co. v. Hughes,624 So.2d 1362, 1366-67(Ala.1993)).The question, therefore, is whether, when the evidence is examined in the light most favorable to Hairston, there was "substantial evidence" before the jury to create a question of fact as to Hairston's employment status with Roof America.We answer this question in the affirmative.

Several factors are relevant in determining whether an individual is an employee of another.Obviously, one of the most important factors is whether there is evidence of an offer of employment and an acceptance of that offer.Another important factor is "the degree of control the alleged [employer] retains over the alleged [employee]."Gossett v. Twin County Cable T.V., Inc.,594 So.2d 635, 639(Ala.1992)(also stating that "`[i]t is the reserved right of control rather than its actual exercise that furnishes the true test of whether the relation between the parties is that of an independent contractor or of employer and employee—master and servant'"(quotingHodges & Co. v. Albrecht,288 Ala. 281, 284, 259 So.2d 829, 830(1972))).Other factors include "the method by which one receives payment, the furnishing of equipment, ... and whether one had the right to terminate the employment of the worker."Boyd v. Hinkle Roofing & Sheet Metal, Inc.,596 So.2d 947, 949(Ala.Civ.App.1992).Other factors are certainly relevant.For example, the exercise of—or the failure to exercise— prerogatives inherent in the alleged employee status give some indication as to whether a person actually holds (or believes that he or she holds) that status.

We must determine whether "substantial evidence" was presented from which a jury could reasonably have inferred that Hairston's relationship to Roof America was one of employee to employer.

Hairston testified that, soon after Anthony George quit, Joe Lathan approached Hairston about taking over George's position with Roof America.According to Hairston, Joe Lathan stated that Lathan realized that the supervision of the office-building construction did not occupy a great deal of Hairston's time and...