Rustler Lodge v. Industrial Commission

• Decision Date: 16 March 1977
• Docket Number: No. 14616,14616
• Parties: RUSTLER LODGE and State Insurance Fund, Plaintiffs, v. INDUSTRIAL COMMISSION of Utah and Rayel Jensen, Defendants.
• Court: Utah Supreme Court

Page 227

562 P.2d 227

RUSTLER LODGE and State Insurance Fund, Plaintiffs, v. INDUSTRIAL COMMISSION of Utah and Rayel Jensen, Defendants.

No. 14616.

Supreme Court of Utah.

March 16, 1977.

Robert D. Moore, Rawlings, Roberts & Black, Gregory C. Diamond, Salt Lake City, for plaintiffs.

Vernon B. Romney, Atty. Gen., Robert J. Shaughnessy, Asst. Atty. Gen., Salt Lake City, for defendants.

HALL, Justice:

The Industrial Commission ruled that Rayel Jensen, hereinafter called 'Jensen' was an employee of Rustler Lodge, rather than an independent contractor, on the following facts. Jensen was a skilled drywall applicator operating a business with an associate under the name of Triangle Drywall. The lodge initially contacted Triangle to get this particular job done, however, Triangle was not interested and suggested Jensen might handle it individually. The lodge negotiated with Jensen pointing out the scope of the work, and an agreement was made under the terms of which Jensen was to furnish materials necessary to drywall a storage area and the ceiling of a conference room but to be paid for by the lodge. Jensen was to furnish his own special tools and the lodge to furnish a protective drop cloth and a ladder. It was further agreed that Jensen would be paid at the hourly rate of $8.

The lodge is in the lodging and restaurant business and in connection therewith conducts its own maintenance and repairs with a handyman crew hired for that purpose.

Jensen fell on a stairway while performing his services at the lodge and suffered injuries necessitating surgery.

The question of whether or not one engaged in a service for another is an employee or an independent contractor, within the meaning of the Workmen's Compensation Act, is a jurisdictional question which requires this court to determine the status from the facts submitted, by a preponderance of the evidence. ¹ But where, as here, the evidence in the case is largely uncontradicted, the problem is not so much one of examining the record to determine whether the evidence preponderates for or against the conclusion of the Commission, but rather of determining whether the Commission drew the correct legal conclusion therefrom. ²

The question of when one is an employee or an independent contractor has been before this court since 1912, beginning with the case of Callahan v. Salt Lake City, 41 Utah 300, 125 P. 863, and in the case of Ludlow v. Industrial Commission, 65 Utah 168, 235 P. 884, Mr. Justice Thurman, speaking for the court, says:

An independent contractor can employ others to do the work and accomplish the contemplated result without the consent of the contractee, while an employee cannot substitute another in his place without the consent of the employer, . . .

The determination of the status of an employee is based on various factors and of primary concern is the control, direction, supervision, or the right to control, direct or supervise on behalf of the employer. When the employer retains supervision and control of the work to be performed, the workmen are employees, ³ and in Sommerville v. Industrial Commission, 113 Utah 504, 196 P.2d 718, 720 (1948), this court said:

It is now well settled in this jurisdiction that the crucial factor in determining whether an applicant is an employee or an independent contractor is whether or not the person for whom the services are performed had a right to control the execution of the work. (Emphasis added.)

In the case of Sutton v. Industrial Commission ⁴ we referred to our previous adoption of the criteria set forth in the Restatement of Agency, Sec. 220, p. 485, for making the distinction between the two relationships ⁵ and stated the following:

While the elements of control by the employer and the intent of the parties are the most important ones, none of the factors separately is controlling. It is from consideration of all of them together that determination is to be made whether the relationship is in essence that of...