Little Donkey Enterprises, Inc. v. State Acc. Ins. Fund
| Decision Date | 11 August 2001 |
| Citation | 812 P.2d 25,107 Or.App. 400 |
| Parties | LITTLE DONKEY ENTERPRISES, INC., Petitioner, v. STATE ACCIDENT INSURANCE FUND, Respondent. 8 |
| Court | Oregon Court of Appeals |
Montgomery W. Cobb, Portland, argued the cause for petitioner. With him on the brief were David R. Simon and Tooze, Shenker, Holloway & Duden, Portland.
John T. Bagg, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before WARREN, P.J., and RIGGS and EDMONDS, JJ.
Petitioner seeks review of the final order of the Department of Insurance and Finance that ordered petitioner to pay workers' compensation premiums assessed by SAIF. We review for substantial evidence and errors of law, ORS 183.480; ORS 183.482, and conclude that substantial evidence supports the department's factual findings and that it did not err in determining that the workers in question are employees rather than independent contractors. However, the department failed to consider whether those employees are exempt as non-subject workers under ORS 656.027.
Petitioner argues that the department erred in finding that the testimony of petitioner's witnesses lacked credibility; in finding that OAR 836-43-110(3) does not apply to the audit; in finding that the workers are petitioner's employees rather than independent contractors; and in failing to consider whether the workers are exempt under ORS 656.027. Only the last contention merits discussion.
Petitioner characterizes itself as a transportation management company. It enters into contracts with persons who own and operate trucks (owner-operators) and arranges loads for them to transport. It collects payments from the shippers for the transportation provided and pays the owner-operators a percentage of that amount. It also handles the accounting for the owner-operators.
SAIF provided petitioner workers' compensation coverage from November 11, 1986, through December 31, 1987. After an audit, SAIF adjusted the premiums for that period, because it considered the owner-operators under written contract with petitioner to be employees subject to the Workers' Compensation Law. Petitioner was assessed additional premiums of $43,000.
Petitioner requested review of the assessment. At the hearing, the department found that petitioner's relationships with the owner-operators involved three types of operations: common-carrier, broker-carrier and trip-leasing. The department found that, under the contract for common-carrier operations, petitioner retains the right to control the owner-operators' duties and responsibilities and that, therefore, they are petitioner's employees.
The department did not address petitioner's contention that the owner-operators are exempt under ORS 656.027. SAIF argues that the department was not obliged to discuss the statutory exemptions because, to be exempt under the current version of ORS 656.027(7), a sole proprietor must qualify as an independent contractor and the department had already determined that the owner-operators do not qualify. The language on which SAIF relies, that "the sole proprietor must qualify as an independent contractor," was added in 1989. Or.Laws 1989, ch. 762, § 41. The same language was also added to the...
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Sheffield v. State, CR–15–1467
...that a reasonable person in her position would not have said them if she believed that they were untrue." 107 Or. App. at 393-94, 812 P.2d at 25.In a more recent decision, State v. Kaino-Smith, 277 Or. App. 516, 371 P.3d 1256 (2016), the Court of Appeals of Oregon held that a husband's stat......
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Sheffield v. State, CR-15-1467
...that a reasonable person in her position would not have said them if she believed that they were untrue."107 Or. App. at 393-94, 812 P.2d at 25. In a more recent decision, State v. Kaino-Smith, 277 Or. App. 516, 371 P. 3d 1256 (2016), the Court of Appeals of Oregon held that a husband's sta......
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Little Donkey Enterprises, Inc. v. State Acc. Ins. Fund
...seeks review of an order of the Department of Insurance and Finance (DIF) on remand after our decision in Little Donkey Enterprises, Inc. v. SAIF, 107 Or.App. 400, 812 P.2d 25 (1991). We restate the facts for convenience. Petitioner is a transportation management company. It does not own an......
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Little Donkey Enterprises, Inc. v. State Acc. Ins. Fund
...118 Or.App. 54, 845 P.2d 1298 (1993) (Little Donkey II ). We also reconsidered our opinion in Little Donkey Enterprises, Inc. v. SAIF, 107 Or.App. 400, 812 P.2d 25 (1991) (Little Donkey I ), and held that a person may simultaneously function as the sole proprietor of a business and as an em......