Loving Helicopters v. Kaufman

• Decision Date: 17 November 1971
• Docket Number: No. 188,188
• Citation: 13 Md.App. 418,283 A.2d 640
• Parties: LOVING HELICOPTERS et al. v. Helen G. KAUFMAN et al.
• Court: Court of Special Appeals of Maryland

Page 418

13 Md.App. 418

283 A.2d 640

LOVING HELICOPTERS et al. v. Helen G. KAUFMAN et al.

No. 188.

Court of Special Appeals of Maryland.

Nov. 17, 1971.

B. Ford Davis, Baltimore, with whom were Whiteford, Taylor, Preston, Trimble & Johnston, Baltimore, on the brief, for appellants.

Glenn C. Parker, Baltimore, with whom Theodore B. Cornblatt and Smith, Somerville & Case, Baltimore, on the brief, for appellees.

Argued before MORTON, CARTER, and GILBERT, JJ.

GILBERT, Judge.

A fiery helicopter crash on September 1, 1966 claimed the lives of Lesco Kaufman, the helicopter pilot, and Marie McDonald, a news broadcaster.

A claim was duly filed with the Workmen's Compensation Commission, on behalf of Mr. Kaufman's widow, against Loving Helicopters, a division of Loving Chevrolet, Inc., (Loving). Loving raised an issue as to whether or not the decedent was an employee of WWDC, Inc. A number of other issues were also raised before the Commission, but we are concerned here with only the one, viz., whose employee was Kaufman at the time of the accident?

The Commission decided the case adversely to Loving and at a rehearing, requested by Loving, the Commission affirmed its former decision.

Loving then appealed to the Superior Court of Baltimore City. The matter was submitted to Judge Meyer M. Cardin on the record of the proceedings before the Commission and he affirmed the decision of the Commission.

The testimony reveals that WWDC, Inc., a Washington, D. C. based radio station, acquired from Loving in 1965 a helicopter for use in broadcasting motor traffic information in and around the District of Columbia.

Loving contracted to maintain the helicopter and to supply a qualified pilot to fly it-both at the rate of $30.20 per hour. The traffic information flights were to take place on Monday through Friday during the hours of 6:00 a. m. to 9:00 a. m., and 4:00 p. m. to 6:30 p. m. If additional flight time was desired by WWDC, it was required to notify Loving at least 12 hours prior to the time of the desired use of the helicopter.

Kaufman had been a pilot for Loving for approximately nine months prior to his death. He was hired by Loving after they had determined his qualifications, and he was paid a regular monthly salary by Loving irrespective of the number of hours he actually flew. ¹ Only Loving had authority to terminate Kaufman's services. If WWDC had expressed dissatisfaction with Kaufman, Loving could have supplied any other qualified pilot to WWDC. The contract between Loving and WWDC provides in part that Loving will:

'(b) Provide as part of the personnel included in sub-paragraph (a) hereof a qualified helicopter pilot with a minimum of 1,000 hours of helicopter flight time, between the hours of 6:00 and 9:30 a. m. and 4:00 and 6:30 p. m., Monday through Friday of every week during the term of this contract, or for such part thereof as WWDC may from time to time designate.'

'(d) Have the aforesaid pilot and aircraft available for such additional flying time as WWDC shall request on 12 hours notice by WWDC to LOVING, and that LOVING shall use its best efforts to have the pilot and aircraft available on 1/2 hours notice from WWDC.'

Additionally, it was covenanted between the parties that:

'3. * * *

(b) LOVING shall not be required to operate HELICOPTER in violation of any Federal, State or Minicipal law or regulation and that LOVING or its designated pilot shall have the right of decision in all matters regarding safety of operation.'

Mr. Joseph K. Culver, the Secretary-treasurer of Loving, testified that as far as he knew, Kaufman flew the WWDC helicopter most of the time. He said that WWDC determined when the aircraft would be flown and where, and that the pilot, when he returned at the end of a day's flight, would '* * * give us a flight report that he flew four hours and a half or three hours and ten minutes and that was the basis for the billing to WWDC.' Payments by WWDC were made to Loving on the basis of the number of hours that the helicopter was utilized.

The testimony of representatives of WWDC was to the effect that the radio station made no decision regarding the flight plan or whether or not the weather was suitable for flying.

Loving argues that the helicopter was owned by WWDC, and that while it was operated by a loaned employee, it was, nevertheless, under the control of the broadcaster. They reason that the radio traffic report broadcaster must have directed the pilot's operation to various traffic sites. The radio station, however, denied any knowledge of such arrangement and there is nothing in the record to support Loving's hypothesis relative to the radio station's employee directing the pilot where to fly. ²

The decedent had duties delegated to him by Loving other than flying the helicopter, although the overwhelming majority of his working hours was spent flying the WWDC helicopter. Kaufman also flew other helicopters for Loving, including some charter flights unconnected with WWDC. Additionally, he endeavored to sell helicopters for Loving.

A decision of the Workmen's Compensation Commission is prima facie correct and the burden of proving otherwise rests upon the party attacking it. Uninsured Employers' Fund v. Merritt, 13 Md.App. 73, 281 A.2d 411, decided September 28, 1971; Zentz v. Peters & Taylor, Inc., 11 Md.App. 1, 272 A.2d 430 (1971); Symons v. R. D. Grier & Sons, 10 Md.App. 498, 271 A.2d 398 (1970). See also Thompson v. Paul C. Thompson & Sons, 258 Md. 391, 265 A.2d 915 (1970); Talley v. Dept. of Correction, 230 Md. 22, 24, 185 A.2d 352 (1962); Williams Construction Co. v. Bohlen, 189 Md. 576, 580, 56 A.2d 694, 696 (1948). 'However, * * * where the Commission has considered conflicting evidence of essential facts, and has drawn one of two different permissible inferences, there may be imposed upon the party attacking the decision of the Commission merely a burden of persuasion, and not necessarily a burden of additional proof.' Williams Construction Co., supra.

Judge Cardin, sitting without a jury, drew from the evidence the same inferences as the Commission, i. e., that Kaufman was Loving's employee, not WWDC's. In Thompson v. Paul C. Thompson & Sons, supra, the Court of Appeals said 'It is equally well settled that where the terms and manner of employment are disputed, and different inferences may be drawn...