Miller v. Hirschbach Motor Lines, Inc.

• Decision Date: 29 May 1986
• Docket Number: No. 14010,14010
• Citation: 714 S.W.2d 652
• Parties: Edna MILLER, Plaintiff-Respondent, v. HIRSCHBACH MOTOR LINES, INC., Defendant-Appellant, and Carriers Insurance Company, Insurer, Defendant.
• Court: Missouri Court of Appeals

Page 652

714 S.W.2d 652

Edna MILLER, Plaintiff-Respondent, v. HIRSCHBACH MOTOR LINES, INC., Defendant-Appellant and Carriers Insurance Company, Insurer, Defendant.

No. 14010.

Missouri Court of Appeals,

Southern District,

Division Two.

May 29, 1986.

Motion for Rehearing or Transfer

Denied June 18, 1986.

Application to Transfer Denied Sept. 16, 1986.

David I. Hares, Strubinger, Dowd, Haseltine & Redmond, St. Louis, for defendant-appellant.

Raymond E. Whiteaker, Brad J. Fisher, Thomas Y. Auner, Woolsey, Fisher, Whiteaker, McDonald & Ansley, Springfield, for plaintiff-respondent.

HOGAN, Judge.

This is a Workers' Compensation case. The claimant, Edna Miller, was driving an over-the-road tractor-trailer loaded with boxed meat. The meat was being transported from "[n]ear Sioux City" (in Iowa) to Memphis. About 7 miles southeast of West Plains, Missouri, Edna struck a cow standing in the road. The impact caused the truck to overturn and go into the ditch. Edna sustained a severe fracture of her left femur, so severe that intramedullary pinning was eventually required. Edna was required to undergo three operations which required general anesthesia. Her treating physician testified that as of June 1983, she had some permanent loss of knee movement and that her left leg was one-half inch shorter than her right leg. This physician, a fully qualified orthopedic surgeon, rated her disability at 25 percent permanent partial disability. Edna has received an award of $26,522.28, of which $13,708.00 represents reasonable and necessary medical expense. The employer appeals.

I Scope of Review

The scope of appellate review in Workers' Compensation cases has recently been stated by this court in Page v. Green, 686 S.W.2d 528 (Mo.App.1985), and need not be restated. However, in connection with the Administrative Law Judge's quixotic determination headed "EDNA MILLER--EMPLOYEE OF HIRSCHBACH," which is cited marginally ¹ and upon which the employer relies, additional principles are to be borne in mind: Administrative agency decisions based on the agency's interpretation of law are matters for the independent judgment of the reviewing court. King v. Laclede Gas Co., 648 S.W.2d 113, 114 (Mo.banc 1983); Mo. Div. of Emp. Sec. v. Labor & Industrial Relations Commission, 637 S.W.2d 315 (Mo.App.1982). The determination that one is an "employee" involves a question of law no less than does the determination that one has suffered an "accident." Saxton v. St. Louis Stair Company, 410 S.W.2d 369, 375 (Mo.App.1966). Further, the rule which has been many times stated and which is controlling in this case is that decisions of the commission which are clearly the interpretation or application of the law, as distinguished from a determination of fact, are not binding upon us and fall within our province of review and correction. Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 296-97[1-7] (Mo.1965); Williams v. Anderson Air Activities, 319 S.W.2d 61, 65[3-5] (Mo.App.1958). The finding that the claimant was not an "employee" of Hirschbach clearly represented an application of the law, as distinguished from a finding of fact, and hence is subject to correction by this court.

II Choice of Law

This threshold observation made, it is appropriate to consider the employer's point I(B), which is that the law of Nebraska, not the law of Missouri, should be applied to the operating agreement between Richard Miller and Hirschbach Motor Lines.

The operating agreement, presented to the Commission as claimant's Exhibit "S," is before us in the record. The contract provides:

"35. This Agreement shall be governed by the laws of the State of Nebraska both as to interpretation and performance."

The writing itself, by the provisions of paragraph 3, plainly shows that the parties contemplated interstate transportation of commodities "subject to regulation by the Federal Government acting through the Interstate Commerce Commission and the Department of Transportation, and by various State and local governments...."

As a question of choice of law, Dean Leflar observes:

"It is understandable that at the inception of their contract the parties, particularly the employer, may wish to fix the governing law conclusively so that they can know what their rights or duties are, and so that compensation liability insurance can be taken out under the controlling state's system. To this end a clause is sometimes included in employment contracts specifying what law is to govern. Such a provision has been said to be valid, but most states give it little or no effect. Since compensation cases involve interests considerably beyond the desires of the immediate parties, the tendency is to hold that the rules for choice of law imposed by the state supersede the parties' stated intent, especially if the intent clause appears in a form contract prepared by the employer and merely acceded to by the other party."

R. Leflar, American Conflicts Law § 160, p. 330 (3d ed. 1977). Richard testified that Hirschbach prepared the "operating agreement"; there was no negotiation. The contract is nothing if not a contract of adhesion. Bearing in mind that Edna was not a party to this contract and that her status as Richard's spouse is in no event determinative of her status as an "employee," we further observe that the Restatement (Second) of Conflict of Laws deals specially with choice-of-law questions in workers' compensation cases. Restatement (Second) of Conflict of Laws §§ 181-185 (1971). Section 181 would allow the forum state to apply its own workers' compensation law if any of a number of contacts were present, including injury to the claimant in the state and domicile of the injured worker within the state. Restatement (Second) of Conflict of Laws § 181(a) and comment (b)(1). Generally, an agreement by the parties to have a particular state's law apply will not deprive another state's court of the power to apply the law of the forum "... if such application is required either by the terms of the statute or by its underlying policy." Restatement (Second) of Conflict of Laws § 181, comment a; 4 A. Larson, Workmen's Compensation Law § 87.71 (1986). Section 287.110.2, RSMo 1978, ² in effect when the claimant was injured, provided: "This chapter shall apply to all injuries received ... in this state, regardless of where the contract of employment was made...." The claimant was a Missouri resident and the injury was sustained in Missouri. There was no error in applying Missouri law to this case.

III Richard's Employment Status

Richard Miller, the claimant's spouse, had been a truck driver since 1973, when he began driving a truck for Edna's father. In 1976 he began working for Hirschbach. At that time, and at all times here material, Richard was "DOT qualified," that is, licensed by the Department of Transportation as an over-the-road driver. Edna was qualified as a "driver trainee" by Hirschbach. She was given a certificate, after examination, which authorized her to drive and ride in a truck either owned by or leased to Hirschbach.

From 1976 to 1981, Richard was employed as a company driver, or as Mr. Hodges, Hirschbach's Safety Director characterized his position, an "employee type driver." On June 11, 1980, Hirschbach and Richard executed a "Contractor Operating Agreement." This agreement was heavily relied on by Hirschbach to establish that Richard was not an employee within the meaning of § 287.020.1, but was instead an independent contractor.

The term "independent contractor" is not defined by our Workers' Compensation statute. However, it has been given judicial definition:

"An 'independent contractor' is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, without being subject to the control of his employer, except as to the result of his work."

Vaseleou v. St. Louis Realty & Securities Co., 344 Mo. 1121, 1126, 130 S.W.2d 538, 539[2-4] (1939). The decisions hold without exception that whether the work status is that of employee or independent contractor depends on the facts in the particular case. Rutherford v. Tobin Quarries, 336 Mo. 1171, 1177, 82 S.W.2d 918, 921 (1935).

By contrast, the Workers' Compensation Law, § 287.020.1, at the time in question, defined the word "employee" to mean:

"... every person in the service of any employer ... under any contract of hire, express or implied, oral or written, or under any appointment or election ...."

The employer-employee relationship by the statutory definition rests on service, construed by judicial definition to mean controllable service. Ceradsky v. Mid-America Dairymen, Inc., 583 S.W.2d 193, 197 (Mo.App.1979). And, while the contractual designation of the work status of a person is not to be brushed aside or ignored, it is not conclusive when there is evidence to overcome that designation. Talley v. Bowen Construction Company, 340 S.W.2d 701, 705 (Mo.1960); Reichert v. Jerry Reece, Inc., 504 S.W.2d 182, 185[1-3] (Mo.App.1973). We therefore note some contract provisions, bearing in mind that this is not a case like Ceradsky, a case in which the right to control the work performance was not readily demonstrable from the evidence. We do not rely on the general law except to take cognizance of Professor Larson's observation that "... there is a growing tendency to classify owner-drivers of trucks as employees when they perform continuous service which is an integral part of the employer's business...." 1C Larson, Workmen's Compensation Law, § 44.34(e), pp. 8-143, 8-144 (1986).

Looking briefly to the contract, Paragraph 2 thereof very specifically states that "The CONTRACTOR, the CONTRACTOR'S employees and the EQUIPMENT operators are not to be considered the employees, agents or servants of the CARRIER at any time, under any circumstances, or for any purpose." However, the next paragraph imposes on the contractor (Richard) the duty "subject at all...