Rush v. Employers Nat. Ins. Co.

• Decision Date: 14 April 1992
• Docket Number: No. 91-CA-1433,91-CA-1433
• Citation: 598 So.2d 603
• Parties: Kermit RUSH v. EMPLOYERS NATIONAL INSURANCE COMPANY, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 603

598 So.2d 603

Kermit RUSH v. EMPLOYERS NATIONAL INSURANCE COMPANY, et al.

No. 91-CA-1433.

Court of Appeal of Louisiana Fourth Circuit.

April 14, 1992.

Rehearing Denied June 17, 1992.

Eric A. Bopp, Edward S. Bopp, A Law Corp., Arabi, for plaintiff/appellant.

Esmond Phelps, II, Stone, Pigman, Walther, Wittman & Hutchinson, New Orleans, for defendants/appellees.

Before WARD and ARMSTRONG, JJ., and RUDY EASON, J. Pro Tem.

ARMSTRONG, Judge.

Plaintiff, Kermit Rush, appeals a trial court judgment in favor of defendants, Joseph Barreca and his insurer, Employees National Insurance Company, dismissing his suit for personal injuries, finding him entitled only to worker's compensation benefits under the Louisiana Worker's Compensation Act (LWCA). ¹ We now affirm.

This suit arose out of an accident which occurred on August 30, 1984 in which the plaintiff suffered permanent damage to his left arm. Plaintiff was hired by Joseph Barreca, d/b/a Imperial Tile Company, Inc., to perform some work on a duplex owned by Barreca at 2327 Liccardi Lane in St. Bernard Parish. Plaintiff stated that he was hired to paint the interior walls of the duplex and sweep the floors. On the date of accident, plaintiff was painting the kitchen of the duplex. He had positioned a five foot bench, provided by Barreca, next to some kitchen cabinets. He was standing with one foot on the bench and the other on the kitchen counter in order to paint a top corner area of the wall. Suddenly, the bench began shaking and plaintiff lost his balance and fell through a glass door situated behind the bench. The muscles in plaintiff's left arm were severely cut and rendered disabled.

Plaintiff was hired by Barreca two days before the accident, August 28, 1984. In connection with his employment, Barreca's bookkeeper filled out a W-2 form in plaintiff's name and returned it to Barreca. Plaintiff was to be paid $5.00 per hour for the job on Liccardi Lane. He was eventually paid $100 for working 20 hours on the job prior to his accident. He was paid by check which was drawn on the Imperial Tile Co. account. Barreca was president of Imperial Tile Co. at the time. He had taken out two insurance policies issued to himself, d/b/a Imperial Tile Co. One of the insurance policies was written by the St. Bernard Insurance Agency as the Westmoreland Casualty, a worker's compensation policy issued to Joseph Barreca, d/b/a Imperial Tile Co., Inc.

At trial, plaintiff sought to characterize himself as an independent contractor not engaged in work which was part of Barreca's trade, business, or occupation, and thus entitled to recover tort damages from Barreca. In its reasons for finding in favor of defendants the trial court stated:

In the instant case, there is no question that the plaintiff was clearly working with his hands in the employment of Joseph Barreca d/b/a Imperial Tile Company, Inc., who was also engaged in other businesses. Mr. Rush was employed in the course and scope of his employment, therefore, his exclusive means of recovery remains in Workman's [sic] Compensation.

The Court feels that the employment of Mr. Rush was one in the usual trade, business and occupation of Imperial Tile Company, Inc. Subsequently, his argument to avoid the exclusivity of Worker's Compensation is without merit.

On appeal, plaintiff raises three assignments of error. He contends that the trial court erred:

1) in finding that plaintiff was an employee of Barreca;

2) in finding that the employment of plaintiff was one in the usual trade, business, or occupation of Imperial Tile Works, Inc.; and

3) in concluding that plaintiff's sole remedy for his injury fell exclusively within the provisions of the Louisiana Worker's Compensation Act.

In reviewing worker's compensation cases a court should construe the LWCA with an end to including a worker within its ambit of protection. This principle must be "equally applied" when an injured person seeks exclusion from the act in order to recover damages in tort. Munday v. Department of Health and Human Resources, 580 So.2d 493 (La.App. 4th Cir.1991), reversed on other grounds, 593 So.2d 346 (La.1992); Schmolke v. Krauss Company, Ltd., 217 So.2d 789 (La.App. 4th Cir.1969). At the time of plaintiff's accident and injury, La.R.S. 23:1031 provided that an employee is entitled to worker's compensation benefits if he "receives personal injury by accident arising out of and in the course and scope of his employment." If covered under the LWCA, compensation benefits are the employee's sole remedy against his employer. La.R.S. 23:1032.

Plaintiff seeks exclusion from coverage under the LWCA as an independent contractor, which La.R.S. 23:1021(6) defines as:

[A]ny person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of this principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the worktime of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.

Under La.R.S. 23:1021(6), an independent contractor is covered under the LWCA only when a substantial part of his work time is spent in manual labor carrying out the terms of his contract with the principal and the work performed by him is a part of the principal's trade, business or occupation. Lushute v. Diesi, 354 So.2d 179 (La.1977).

It is difficult to ascertain from the trial court's reasons for judgment whether it found that plaintiff was an employee of Barreca, or whether it found that plaintiff was an independent contractor engaged in manual labor and, pursuant to La.R.S. 23:1021(6), still covered under the LWCA.

To determine whether the relationship between a worker and a principal is that of an employee or an independent contractor, each case must be decided on its own facts, taking into consideration the total economic relationship between the parties. Pitcher v. Hydro-Kem Services, Inc., 551 So.2d 736, 738 (La.App. 1 Cir.1989), writ denied, 553 So.2d 466 (La.1989). The inquiry hinges on "the right to control" the work. It is the right of control that is the essence of the employment relationship. Pitcher, 551 So.2d at 738. In contrast, the term "independent contractor" connotes a freedom of action and choice with respect to the undertaking in question, as well as a legal responsibility on the part of the contractor in the event the agreement is not fulfilled in accord with its covenants. Fuller v. United States Aircraft Insurance Group, 530 So.2d 1282 (La.App. 2nd Cir.1988), writ denied, 534 So.2d 444 (La.1988), cert. denied, 490 U.S. 1046, 109 S.Ct. 1954, 104 L.Ed.2d 424 (1989); Prince v. Baton Rouge General Hospital, 449 So.2d 90 (La.App. 1st Cir.1984), writ denied, 450 So.2d 966 (La.1984).

In Pitcher, the court considered four factors in determining whether an employer-employee relationship or independent contractor status existed: (1) selection and engagement; (2) payment of wages; (3) power of dismissal; and (4) control. Within each category, there are a number of factors which may be taken into account, weighing either in favor of employee status or independent contractor status.

As to the first factor, selection and engagement, the ultimate power of selection is determinative of status. In this case, that power rested with Joseph Barreca, who was the President of Imperial Tile Co. Thus, since the plaintiff was hired by a company official, employee status would be indicated.

The second factor, payment of wages, turns on whether the individual was paid an hourly wage or on a time basis as opposed to a completed project basis. Fuller, 530 So.2d at 1290. Payment on an hourly rate is a strong indicator of employee status. In this case, plaintiff was paid $5.00 per hour until he completed the job, not a general standard fee for the entire job. In addition, the manner in which the worker is carried on the payroll is also a factor to be taken into consideration. For example, the failure to withhold income taxes, a factor which does not by itself...