Simpkins v. Unigard Mutual Ins. Co.

• Decision Date: 07 January 1974
• Docket Number: No. 48672,No. 2,48672,2
• Citation: 130 Ga.App. 535,203 S.E.2d 742
• Parties: Harold J. SIMPKINS v. UNIGARD MUTUAL INSURANCE COMPANY et al
• Court: Georgia Court of Appeals

Page 742

203 S.E.2d 742

130 Ga.App. 535

Harold J. SIMPKINS v. UNIGARD MUTUAL INSURANCE COMPANY et al.

No. 48672.

Court of Appeals of Georgia, Division No. 2.

Jan. 7, 1974.

Rich, Bass, Kidd & Broome, Charles T. Bass, Dennis M. Hall, Decatur, for appellant.

Savell, Williams, Cox & Angel, John M. Williams, Elmer L. Nash, Atlanta, for appellees.

Syllabus Opinion by the Court

CLARK, Judge.

Once again we are confronted with the necessity of deciding if certain arrangements agreed upon between parties create a master-employee or an independent contractor relationship. Additionally, we must decide in this case if an estoppel existed whereby the insurer is prevented from denying workmen's compensation coverage.

Sanders was a small building contractor whose business consisted of building residences for resale purposes on land owned by him. His method of operation was to contract with independent concerns and individuals for the various items and work needed to complete the construction of each edifice. Thus, he orally agreed with Simpkins for the latter to do the cornice work and installation of siding on the building then being constructed. He agreed to pay a specific amount per foot to run the cornice work and $22 per square for siding. On the instant job he also agreed for Simpkins to do certain work on the gables which had not been completed by the subcontractor who was framing the house. He expressly denied he was to pay an hourly price for the work that Simpkins was to perform in completing the gables, acknowledging he would have been obligated to pay such price for that extra work as was charged to him at its completion. In fact a disagreement occurred as to the amount owed which dispute was settled by negotiation.

Simpkins had been working on the house only two days when he was injured as a result of a fall from a scaffold. The work was thereafter completed by a stepson who worked with Simpkins. When the work was completed Simpkins submitted a statement for the entire job and directed that two checks be issued. The total statement was $952.75. Simpkins directed that his bill be paid through two checks, one to his stepson for $543.75 and the balance of $409 to be paid to him. At the time of his injury $409 worth of work had not been done.

Sanders furnished the material and had the right to choose the kind of siding that he desired. (R. 23). He stated he did not have the right to control the time, manner or method of executing the work but had the right only to require certain results. He did not have the right to require Simpkins to remove work that had been performed if he did not like it and have it done again in accordance with new instructions. (R. 24). Nor did he have the right to hire additional men to speed up the job he had contracted for Simpkins to perform. 'When we agree on a job, as far as I am concerned, that is his job until it's completed.' (R. 25).

With reference to discharging an incompetent employee of the subcontractor Sanders testified 'He has control over who he hires, and, of course, I wouldn't go out on the job and talk to his guy when I hired someone else to do the job. I would talk to the man I hired, the man I had the agreement with.' (R. 26). This confirmed an earlier statement that he had no right of control over the subcontractor's employees.

With reference to the right of control over the work Sanders testified that he did not have such right pointing out that each siding contractor has his own system 'and I wouldn't have the authority to alter his system.' (R. 29). He further stated 'The only thing I am concerned with is the end product, how the men put it up I don't care so long as it looks right after it's finished.' (R. 29).

There was no withholding of income tax or social security or any control over either the number of men or the hours of work.

Simpkins considered himself to be a subcontractor and self-employed. (R. 52).

In a discovery deposition Sanders testified that he had the right to change the type of siding if he became dissatisfied with it during the course of the job. (Sanders' deposition, p. 18). He also had the right to terminate the contract if at any time he became dissatisfied with the quality of the work (Sanders' deposition, p. 20); and also a certain amount of supervision in that on one occasion Simpkins was instructed to use a different type of nail (Simpkins' deposition, p. 16); and on another occasion was told to take down some siding which he had installed (Simpkins' deposition, p. 12).

When the accident occurred Sanders took Simpkins to the hospital and assumed the medical expenses because of his belief that the Unigard Mutual Insurance Company policy which he had obtained covered the injured man. It later developed there was no coverage provided in the absence of a deduction of a percentage of the contract price and the payment of that premium to cover a particular subcontractor which was not the situation with Simpkins. (R. 37, 92). Furthermore, if such a premium had been paid there would have been no coverage to Simpkins because the policy covered only employees of the subcontractor and not the subcontractors.

The deputy director found 'as a matter of fact, claimant was a subcontractor and not an employee of Frank Sanders' and denied compensation. (R. 194). Upon appeal to the full Board the findings of fact of the deputy director were adopted and the denial made the award of the full board. The superior court ruled similarly. This appeal is from that judgment.

1. The courts on appeal are bound by the findings of the Board of Workmen's Compensation if supported by any evidence. Dill v. Ocean Acc., etc., Co., 95 Ga.App. 60, 96 S.E.2d 638; General Fire, etc., Co. v. Bellflower, 123 Ga.App. 864, 866, 182 S.E.2d 678; Fox v. Liberty Mutual Ins. Co., 125 Ga.App. 285, 288, 187 S.E.2d 305. 'This court in reviewing an award by the full board denying compensation, must accept that evidence most favorable to the employer; and if, so viewed, it authorizes an award denying...