Roberts v. Gator Freightways, Inc.

• Decision Date: 20 January 1989
• Docket Number: No. 87-170,87-170
• Citation: 14 Fla. L. Weekly 240,538 So.2d 55
• Parties: 14 Fla. L. Weekly 240 Roland ROBERTS, Appellant, v. GATOR FREIGHTWAYS, INC., Appellee.
• Court: Florida District Court of Appeals

Page 55

538 So.2d 55

14 Fla. L. Weekly 240

Roland ROBERTS, Appellant, v. GATOR FREIGHTWAYS, INC., Appellee.

No. 87-170.

District Court of Appeal of Florida First District.

Jan. 20, 1989.

Rehearing Denied Feb. 23, 1989.

David A. Snyder, Miami, for appellant.

Neal L. Ganon of Adams, Kelley & Kronenberg, Miami, and Earl M. Barker, Jr. of Slott & Barker, Jacksonville, for appellee.

PER CURIAM.

Claimant appeals from an order denying his workers' compensation claim. He contends that the deputy commissioner erred in ruling that (1) no employer-employee relationship existed between claimant and the putative employer, Gator Freightways, Inc. (Gator), and that (2) Gator was not a statutory employer of claimant under the provisions of Section 440.10, Florida Statutes (1985). We affirm the first ruling but reverse the second.

In June 1986, the claimant was making a delivery to the Ace Rudd Company. Claimant was driving a tractor leased to Gator by Lucious Reason, the owner and operator, and pulling a trailer owned by Gator that was loaded with freight being transported for Gator's customer pursuant to Gator's bills of lading. While unloading the trailer at Ace Rudd Company, claimant fell out of the trailer, injuring himself on the pavement.

Claimant filed a claim seeking various workers' compensation benefits against Lucious Reason and Gator. Lucious Reason was subsequently dismissed as a result of a settlement. Subsequent to the final hearing, the deputy commissioner entered the appealed order denying the claim, finding that the claimant was neither an "employee" nor a "statutory employee" of Gator.

We agree that claimant was not an employee of Gator. The determination of whether an individual is an employee so as to be entitled to benefits under the Florida Workers' Compensation Act turns on the element of control. The control over claimant in this case was exercised by Lucious Reason, not Gator. The claimant was hired and trained by Reason, paid exclusively by Reason, had withholding deducted by Reason, worked hours set by Reason, had an oral agreement with Reason and no agreement with Gator, and had his performance monitored by Reason. Reason also supplied the tractor truck used by claimant, paid the maintenance and repairs of the vehicle, and assigned claimant his route.

Claimant maintains that Reason was an employee of Gator, and because Reason's employment contemplated the help of others, Reason's employees would also be employees of Gator within the definition in section 440.02(11), Florida Statutes (1987). However, competent substantial evidence establishes that Reason was not an employee of Gator but rather an independent contractor. The test for determining what constitutes independent service lies in the control exercised, the decisive question being who has the right to direct what shall be done, and when, where and how it shall be done. See Magarian v. Southern Fruit Distributors, 146 Fla. 773, 1 So.2d 858 (1941); Hilldrup Transfer & Storage of New Smyrna Beach, Inc. v. State, Department of Labor and Employment Security, Division of Employment, 447 So.2d 414 (Fla. 5th DCA 1984); and La Grande v. B & L Services, Inc., 432 So.2d 1364 (Fla. 1st DCA 1983).

The contract between Reason and Gator specifically recites that Reason is an independent contractor. ¹ The contract provides in part that (1) neither Reason, as contractor, nor any of his drivers or employees shall be deemed to be employees of Gator; (2) if Reason hires employees for services under the contract, he is responsible for providing workers' compensation for his employees; and (3) Reason, as an independent contractor, is subject to the direction by the carrier merely as to the results to be accomplished and not as to the means and methods for accomplishing the results. Moreover, the actions of the parties in this case provide further evidence of Reason's status as an independent contractor. It is apparent that Reason was in charge of his operation. Reason set his own schedule for work, did not earn paid sick leave or vacation, and did not have Gator deduct for income tax, social security or for any other purpose. Reason was responsible for (1) hiring his own employees to help him if necessary; (2) paying all compensation, taxes and workers' compensation for his employees; (3) establishing his employees' schedules; (4) assigning routes for his employees; (5) providing his own vehicles as well as those for any drivers he employs; and (6) paying for the maintenance and repairs on those vehicles.

Claimant's alleged status as an employee of Gator Freightways was essentially a disputed matter of fact for the deputy commissioner to decide. The deputy commissioner's decision that claimant was not an employee of Gator Freightways is supported by substantial competent evidence. We find no error in the deputy's ruling that claimant was an employee of Reason who, in turn, was an independent contractor vis-a-vis Gator.

We now turn to claimant's second point on appeal that Gator was his statutory employer pursuant to section 440.10(1), Florida Statutes (1987). That section provides in pertinent part:

(1) In case a contractor sublets any part or parts of his contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment; and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

To be regarded as a "contractor" under the statutory employer provisions of this section, it has been said that the company's primary obligation in performing a job or providing a service must arise out of a contract. National Union Fire Insurance Company v. Underwood, 502 So.2d 1325 (Fla. 4th DCA 1987); Southern Sanitation v. Debrosse, 463 So.2d 420 (Fla. 1st DCA 1985); and Florida Power and Light Company v. Brown, 274 So.2d 558 (Fla. 3d DCA 1973).

Appellant contends that the result in his case should be controlled by our decision in Barrow v. Shel Products, Inc., 466 So.2d 281 (Fla. 1st DCA 1985). In Barrow, the claimant was driving a tractor-trailer rig that had been leased to Shelton Trucking by Forrest Elder, the owner-operator of the tractor-trailer, who was also in the truck at the time. Elder and the claimant had delivered a load of dog food to a store in Miami and were apparently on their way to pick up another load (although not for Shelton Trucking) when the accident occurred. This court held that Shelton Trucking was a section 440.10 statutory employer of the driver-claimant.

Gator argues that Barrow is distinguishable because it involved a contract carrier, whereas Gator is a common motor carrier required to serve the general public by providing transportation or service upon reasonable request pursuant to 49 U.S.C. §§ 10922 and 11101 et. seq. and therefore is controlled by regulations of the federal Interstate Commerce Commission and the Department of Transportation. Thus, Gator argues, its business is distinctively different from that of contract motor carriers, which enter into a continuing contract with particular shippers and provide services and equipment to meet their special needs, citing American Trucking Associations, Inc. v. I.C.C., 659 F.2d 452 (5th Cir.1981). From this premise, Gator continues, its primary obligation to perform transport services arises not from contracts with its customers but from its statutory obligation as a common carrier to provide transportation and service to the general public pursuant to Chapter 49, United States Code.

Gator relies primarily upon Florida Power and Light Company v. Brown, 274 So.2d 558 (Fla. 3rd DCA 1973). In Brown, FP & L had entered into a contract with a shopping mall owner to supply electricity to the shopping mall's power lines. In order to fulfill its contract, it was necessary for FP & L to contract with an electrical contractor to do some of the work necessary to install the FP & L equipment and make the electrical connections. In the course of this work, one of the subcontractor's employees suffered electrical burns and brought suit against FP & L. Notwithstanding the existence of a specific contract to provide electrical power, the court reasoned that FP & L's primary obligation arose, not from the contract with the mall owner, but rather from Section 366.03, Florida Statutes, which imposed a duty on public utilities to serve the general public, and accordingly held that FP & L was not a "contractor" within the meaning of Section 440.10. Gator also relies on National Union Fire Insurance Company v. Underwood, 502 So.2d 1325 (Fla. 4th DCA 1987), in which the court followed the Brown case and Williams v. Pan American World Airways, Inc., 448 So.2d 68 (Fla. 3d DCA 1984). In the latter case, Pan American World Airways was held not to be a "contractor" under section 440.10 because its " 'primary obligation' in transporting their luggage arises not out of its countless individual contracts, that is, the tickets, with its passengers, but from generalized statutory and common law requirements that it do so. [citations omitted]" Id. at 69.

We are unable to discern the logic and factual basis for creating a distinction between "common carriers" and "contract carriers" as the sole legal basis for exempting Gator Freightways from the status of a statutory contractor under section 440.10, as construed in Barrow v. Shel Products, Inc. Neither claimant nor his employer Reason was engaged in the business of a common carrier; Gator Freightways held that license, and the license merely required Gator to offer its transportation services to the public generally. That license did not displace the contract of carriage necessarily created between Gator and its customers whenever Gator accepted goods for transport. The...