Spencer v. Travelers Ins. Co.

• Citation: 133 S.E.2d 735,148 W.Va. 111
• Decision Date: 13 December 1963
• Docket Number: No. 12229,12229
• Court: Supreme Court of West Virginia
• Parties: Tracy N. SPENCER, Jr. v. The TRAVELERS INSURANCE COMPANY, a Corporation.

Page 735

133 S.E.2d 735

148 W.Va. 111

Tracy N. SPENCER, Jr. v. The TRAVELERS INSURANCE COMPANY, a Corporation.

No. 12229.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 24, 1963.

Decided Nov. 19, 1963.

Concurring Opinion Dec. 13, 1963.

Syllabus by the Court

1. The question as to whether a person is an employee or an independent contractor depends on the facts in any given case and all elements must be considered together. Among the elements to be considered are the manner of selection of the person who is to do the work, how the person is to be paid for such work, the right to hire and fire, and the right or power of control or supervision in connection with the work to be done, but the most important element is the one last mentioned.

2. If the right to control or supervise the work in question is retained by the person for whom the work is being done, the person doing the work is an employee and not an independent contractor, and the determining factor in connection with this matter is not the use of such right of control or supervision but the existence thereof in the person for whom the work is being done.

3. Where the evidence involving an independent contractor or employee is conflicting, or if not conflicting, where more than one inference can be derived therefrom, the question is one of fact for jury determination, but where the facts are such that only one reasonable inference can be drawn therefrom, the question is one of law for the court to decide.

4. Where the language of an insurance policy is clear and unambiguous, it will be given the plain meaning and effect of the language used.

5. In the absence of any misstatements or conduct amounting thereto in connection with the solicitation and writing of an insurance policy, the doctrine of estoppel is not applicable.

6. 'Parol evidence to contradict, add to, alter, enlarge, or explain a complete written agreement, which is clear and unambiguous, or to vary its legal effect, is inadmissible.' Point 1, syllabus, Shaffer v. Calvert Fire Insurance Company, 135 W.Va. 153 .

Poffenbarger & Bowles, Martin C. Bowles, John T. Poffenbarger, Charleston, for appellant.

Jackson, Kelly, Holt & O'Farrell, W. T. O'Farrell, Robert L. Elkins, Charleston, for appellee.

BERRY, President:

This is an action based on an insurance policy obtained by the plaintiff, Tracy N. Spencer, Jr., from the defendant, The Travelers Insurance Company, a corporation. The insurance policy in question protected the plaintiff against claims for injuries received by persons while on his premises for which he would be liable, but excluded injuries to any employee. An injury was received by a cleaning woman, Bertha Smith, while she was cleaning the plaintiff's offices in South Charleston. The defendant insurance company denied liability under its policy, on the ground that the injured person was an employee, and the plaintiff settled the claim with the cleaning woman at a cost to him of $4303.61. This action, which was instituted in the Common Pleas Court of Kanawha County, resulted in a jury verdict in favor of the plaintiff against the defendant in the amount of $4303.61, upon which judgment was entered in the Common Pleas Court of Kanawha County on December 5, 1961.

Upon application to the Circuit Court of Kanawha County a writ of error and supersedeas to the judgment of the Common Pleas Court of Kanawha County was granted by the Circuit Court acting as an intermediate appellate court, and on August 23, 1962, the Circuit Court reversed the judgment of the Common Pleas Court, set aside the verdict of the jury, awarded the defendant a new trial and remanded the case to the Common Pleas Court. Upon application to this Court, a writ of error and supersedeas was granted on April 1, 1963, to the judgment of the Circuit Court of August 23, 1962. This case was submitted for final decision on arguments and briefs at the September, 1963 term of this Court.

The insurance policy in question was obtained several years before Bertha Smith was injured, from an agent for the Travelers Insurance Company who had an office near the plaintiff's office in South Charleston. When the plaintiff requested a professional liability coverage policy for his office the insurance company wanted to write coverage on all of his property along with the professional liability policy. Such coverage was issued by the Travelers Insurance Company for all of his property. There was no discussion had at the time of the issuance of the policy as to whether such policy would cover anyone working for the plaintiff. The agent for the defendant stated that they recommended the policies written so as to cover the plaintiff adequately and fully, as far as they could write the insurance.

The agent, Dallas Ogden, testified that when the accident was reported to him by the nurse employed by Dr. Spencer he thought that possibly such accident could be covered and later so told the doctor, but that the claim was turned over to the Travelers Insurance Company and the decision left up to it. All of the evidence relative to the conversations between the agent, Ogden, and Dr. Spencer, relative to the coverage in the insurance policy was objected to by the defendant as a violation of the parol evidence rule, but was admitted by the trial court for the consideration of the jury.

The main issue involved in this case is whether the cleaning woman was an employee of the plaintiff or whether she was an independent contractor. The provisions in the policy upon which this question rests read as follows:

'INSURING AGREEMENTS

'1. Coverage A--Bodily Injury Liability.

'To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the hazards hereinafter defined.

'DEFINITIONS OF HAZARDS

'Division 1. Premises--Operations. The ownership, maintenance or use of the premises, and all operations necessary or incidental thereto.

'Division 2. Elevators. The ownership, maintenance or use of any elevator designated in the declarations.

'Division 3. Structural Alterations, New Construction, Demolition. Structural alterations which involve changing the size of buildings or other structures, new construction and demolition, if the accident occurs in the course of such operations at the premises by the named insured or his contractors or their sub-contractors.

'Division 4. Products--Completed Operations.

* * *

* * *

'EXCLUSIONS

'This policy does not apply: * * *

'(d) under divisions 1, 2 and 3 of the Definition of Hazards, to liability assumed by the insured under any contract or agreement;

* * *

* * *

'(j) under Coverage A, to bodily injury to or sickness, disease or death of any employee of the insured arising out of and in the course of his employment by the insured; * * *.' [emphasis supplied]

In May, 1959, while the plaintiff was away for a few days on vacation, his nurse and secretary, Mrs. Evelyn Leighty, engaged a cleaning woman, Mrs. Bertha Smith, to clean and walls and furniture in the plaintiff's office. The plaintiff had never seen the cleaning woman, although she had worked at the offices on other occasions over a period of two years, apparently having been engaged by the nurse. The plaintiff testified that his secretary had the authority to make arrangements for the cleaning of his offices and to pay for such cleaning out of his funds. He also stated that Mrs. Leighty had the authority to hire and fire the cleaning personnel, and in answer to a question as to whether she had the authority to control and direct the cleaning woman as to what and how to do the work, replied, 'I suppose so'. The plaintiff's secretary transported the cleaning woman to work, furnished her with cleaning materials to be used in such work. Her testimony as to what was to be done is, 'Well, Thursday we were going to wash walls and Friday I had thought we would do the furniture * * *.' After discussing this matter, Mrs. Leighty went to her desk to work on the books, leaving the cleaning woman standing 'about three rooms away'. Mrs. Leighty said she did not tell the cleaning woman how to do the work and did not exercise any supervision over her, 'except I was there is she needed me'. She further stated that the cleaning woman was not carried on the payroll as an employee, that no social security nor income tax was withheld, and that she was paid six dollars a day at the end of her day's work, but that if she completed the work before the full day's time, which she, Mrs. Leighty, thought she would do, she would be paid the day's pay of six dollars anyway. Soon after the cleaning woman went into the back room, she fell and injured herself. Mrs. Smith was transported to the hospital in an ambulance and Mrs. Leighty followed in her automobile.

It is the contention of the plaintiff that the cleaning woman was an independent contractor, and the Circuit Court erred in holding, under the evidence in this case, that she was an employee and that the policy in question excluded such coverage.

The defendant cross-assigned error in in this Court asserting that it was error on the part of the trial court to admit parol evidence on the part of the agent for The Travelers Insurance Company, over its objection, relative to the injury received by the cleaning woman being covered, notwithstanding the clean provisions of the policy excluding such coverage.

The question as to whether a person is an employee or an independent contractor depends on the facts in any given case and all elements must be considered together. 27 Am.Jur., Independent Contractor, § 5, page 485. Among the elements to be considered are the manner of selection of the person who is to do the work, how the person is to be paid for such work, the right to hire and to fire, and the right or...