McCown v. Hines

• Decision Date: 07 November 2000
• Docket Number: No. COA99-1120.,COA99-1120.
• Citation: 537 S.E.2d 242,140 NC App. 440
• Court: North Carolina Court of Appeals
• Parties: Tammy Lynn McCOWN, Administratrix of the Estate of James Robert McCown, Deceased Employee, Plaintiff, v. Curtis HINES, Employer, Defendant, and Mike Hines d/b/a Mike Hines Heating and Air Conditioning, Employer, and N.C. Home Builders Self-Insured Fund, Inc., Defendants.

537 S.E.2d 242

140 NC App. 440

Tammy Lynn McCOWN, Administratrix of the Estate of James Robert McCown, Deceased Employee, Plaintiff, v. Curtis HINES, Employer, Defendant, and Mike Hines d/b/a Mike Hines Heating and Air Conditioning, Employer, and N.C. Home Builders Self-Insured Fund, Inc., Defendants.

No. COA99-1120.

Court of Appeals of North Carolina.

November 7, 2000.

The Jernigan Law Firm, by Leonard T. Jernigan, Jr. and Tivey E. Clark, Raleigh

and Wilkins & Wellons, by Allen Wellons, Smithfield, for the plaintiff-appellee.

Cranfill, Sumner & Hartzog, L.L.P., by Susan K. Burkhart, Raleigh, for the defendant-appellants.

LEWIS, Judge.

Defendants Mike Hines d/b/a Mike Hines Heating and Air Conditioning and N.C. Home Builders Self-Insured Fund, Inc. appeal from an Opinion and Award of the North Carolina Industrial Commission granting plaintiff James Robert McCown permanent and total disability compensation. Defendants contend the Commission erred in (1) classifying plaintiff as an employee rather than an independent contractor, and (2) setting plaintiff's average weekly wage at $400. We reverse the decision of the Industrial Commission.

On 8 April 1996, plaintiff James McCown was re-roofing a rental house on Sixth Street in Smithfield, North Carolina. As he attempted to leave the roof by a ladder leaning against the house, he fell, suffering a spinal cord injury which paralyzed him from the waist down. Although Mike Hines owned the rental house on Sixth Street, plaintiff had been contacted by defendant Curtis Hines, Mike Hines' father, to do the roofing work. Plaintiff had installed several roofs for Curtis Hines in 1995, and in 1995 and 1996, did roofing work for numerous persons in the Smithfield area. At the time of the accident, plaintiff had been in the construction business for twenty years, and roofing work for ten.

Following his injury, plaintiff filed a Workers' Compensation claim with the Industrial Commission in March 1997, ultimately seeking coverage from the defendants. On 5 March 1998, a compensation hearing was held before Deputy Commissioner Edward Garner, Jr. At the parties' request, the Deputy Commissioner ruled only on the issue of compensability and not on the issue of plaintiff's medical condition. On 19 June 1998, the Deputy Commissioner filed an Opinion and Award dismissing plaintiff's claim for lack of jurisdiction. In his opinion, the Deputy made findings of fact and concluded as a matter of law, that plaintiff was not an employee of Curtis Hines, Mike Hines or Mike Hines Heating and Air Conditioning at the time of the accident. Plaintiff appealed to the Full Commission. On 18 May 1999, the Full Commission reversed this determination, finding that Mike Hines' heating and air conditioning business and his rental properties were one company, that Curtis Hines was an agent of Mike Hines, that defendants retained the right to control the details of plaintiff's work, and concluding plaintiff was an employee of Mike Hines d/b/a Mike Hines Heating and Air Conditioning.

Defendants first contend the Commission erred in concluding that, at the time of the accident, plaintiff was as an employee rather than an independent contractor. It is well established that in order to for a claimant to recover under the Workers' Compensation Act, an employer-employee relationship must exist at the time of the claimant's injury. Askew v. Tire Co., 264 N.C. 168, 170, 141 S.E.2d 280, 282 (1965).

Whether an employer-employee relationship exists is a jurisdictional issue and unlike most findings by the Commission, "findings of jurisdictional fact ... are not conclusive, even when supported by competent evidence." This Court thus must "review the evidence of record" and make an independent determination of plaintiff's employment status, guided "by the application of ordinary common law tests."

Barber v. Going West Transp., Inc., 134 N.C.App. 428, 430, 517 S.E.2d 914, 917 (1999) (citations omitted). Thus, this Court "has the right, and the duty, to make its own independent findings of such jurisdictional facts from its consideration of all the evidence in the record." Lucas v. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976). The burden of proof on this issue falls on the claimant. Id.

Our courts have defined an independent contractor as "one who exercises an independent employment and contracts to do certain work according to his own judgment and method, without being subject to his employer except as to the result of his work." Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 384, 364 S.E.2d 433, 437 (1988). Where the party for whom the work is being done retains the right to control and direct the manner in which the details of the work are to be performed, the relationship is one of employer and employee. Id. There are generally eight factors which indicate classification as an independent contractor:

The person employed (a) is engaged in an independent business, calling, or occupation; (b) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he may think proper; (g) has full control over such assistants; and (h) selects his own time.

Hayes v. Elon College, 224 N.C. 11, 16, 29 S.E.2d 137, 140 (1944). No one factor is determinative. Id. Considering several of the foregoing factors in light of this case, we conclude plaintiff was an independent contractor at the time of the accident.

Most notably, plaintiff's occupation as a roofer required special skill and training, and plaintiff had independent use of his skill and training in the execution of his work. Neither Curtis nor Mike Hines had any personal experience in the installation of roofs, and plaintiff was given almost no instruction to that effect. Although Curtis Hines required plaintiff to use mismatched shingles and instructed him as to the placement of these shingles, "the fact that a worker is supervised to the extent of seeing that his work conforms to plans and specifications does not change his status from independent contractor to employee." Ramey v. Sherwin-Williams Co., 92 N.C.App. 341, 345, 374 S.E.2d 472, 474 (1988). In all, supervision over the plaintiff's work was minimal. Plaintiff had "very little" conversation with Mike Hines before and during the roofing project. He was allowed full discretion as to placement of tow boards, the correct number and positioning of the nails into the shingles and the proper overlapping of the shingles. While Curtis Hines viewed plaintiff's work from the ground, neither Curtis nor Mike ever got on the roof to inspect plaintiff's work.

Additionally, although Curtis Hines provided nails and tarpaper, plaintiff furnished his own truck, ladder, and several tools, including a hammer and nail apron, for the job. See, e.g., Barber, 134 N.C.App. at 432,

517 S.E.2d at 918 ("When valuable equipment is furnished for use of a worker, an employee relationship almost `invariably' is established.") (citation omitted).

As to payment for the roofing job, plaintiff failed to establish he was paid on a per hour basis. See, e.g., Youngblood, 321 N.C. at 384,

364 S.E.2d at 437 ("[P]ayment by a unit of time ... is strong evidence that [plaintiff] is an employee."). Plaintiff testified he "would assume that [he and Curtis Hines] probably did not" discuss payment. (Tr. at 39.) Mike Hines also maintained there was no discussion as to payment. Mike Hines ultimately compensated plaintiff in the amount of $170 for 17 hours of work; however, there was never any discussion as to the derivation of this amount. Significantly, in the past, plaintiff had been consistently compensated on a per square or flat fee basis in performing roofing work for Curtis Hines and others in the community. Gary Beasley, who completed the roofing job after plaintiff's accident, was paid on a per square basis.

Additionally, plaintiff essentially set his own hours and determined his own working schedule. Defendants set forth no requirements that plaintiff be present at certain times or on certain days. Neither has plaintiff made any showing that he was in the regular employment of either Mike or Curtis Hines. Although plaintiff performed flooring and roofing work for Curtis Hines in 1995, Curtis Hines paid plaintiff on a per square basis and there was no indication that Curtis Hines retained the right of control over plaintiff during the course of these projects.

Absent any other direct evidence of control over plaintiff, we conclude plaintiff has failed to meet his burden of establishing that an employer-employee relationship existed at the time of the accident. Accordingly, the Opinion and Award of the Industrial Commission is reversed. We need not address defendant's remaining arguments.

Reversed.

Judge HUNTER concurs.

Judge WALKER dissents.

WALKER, Judge, dissenting.

I respectfully dissent from the majority opinion concluding that plaintiff was an independent contractor at the time of the accident. While there are some factors under Hayes v. Board of Trustees, 224 N.C. 11, 29 S.E.2d 137 (1944) which would establish that plaintiff was an independent contractor, I believe the greater weight of the evidence supports an employer and employee relationship.

The majority correctly states that whether a worker is an independent contractor or employee depends on the employer's retaining "the right to control and direct the manner in which the details of the work are to be executed" and one who is accountable to his employer only for the result of his work and not his judgment or methods used. Youngblood v. North State Ford Truck Sales, 321 N.C. at 380, 384, 364 S.E.2d at 433,...