Trabosh v. Washington County

• Decision Date: 17 April 1996
• Citation: 140 Or.App. 159,915 P.2d 1011
• Parties: Victoria TRABOSH, Personal Representative of the Estate of Charlene Jensen, for the benefit of her estate, Appellant, v. WASHINGTON COUNTY, a public body, Respondent. C930095CV; CA A84206.
• Court: Oregon Court of Appeals

Page 1011

915 P.2d 1011

140 Or.App. 159

Victoria TRABOSH, Personal Representative of the Estate of Charlene Jensen, for the benefit of her estate, Appellant, v. WASHINGTON COUNTY, a public body, Respondent.

C930095CV; CA A84206.

Court of Appeals of Oregon.

Argued and Submitted Sept. 13, 1995.

Decided April 17, 1996.

Appeal from Circuit Court, Washington County, Holger M. Pihl, Jr., Judge.

Lawrence Baron, Portland, argued the cause for appellant. With him on the opening brief were Kimberley Chaput and Pozzi Wilson Atchison.

Michael A. Lehner, Portland, argued the cause for respondent. With him on the brief was Lehner, Mitchell, Rodrigues & Sears.

Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.

WARREN, Presiding Judge.

Plaintiff, the personal representative of the estate of Charlene Jensen (Jensen), appeals from the trial court's grant of judgment for defendant in this wrongful death action. The issue is whether, at the time of her death, Jensen was a subject worker ¹ under the Workers Compensation Act. If she was a subject worker, defendant, a public body, is immune from liability. ORS 30.265(3)(a). The trial court held that Jensen was a subject worker. We reverse.

Jensen and Robert Jensen (Robert), her husband, operated Baseline Belgians, a business that showed horses at fairs and provided hayrides to individuals, groups, and businesses. During the Washington County Fair in 1992, the fair ² provided a hayride shuttle service from the parking lot to the main gate of the fairgrounds, using the services of those fair exhibitors who wished to participate (the teamsters). On July 31, 1992, while the Jensens were working in the shuttle service, their horses bolted, a pin that secured the connection between the wagon and the horses popped out, and they were both thrown to the ground. Jensen was killed and Robert was injured. When Robert submitted Jensen's medical and burial expenses to defendant for payment, it treated the submission as a workers' compensation claim, which it denied on the ground that Jensen was an independent contractor and thus not a subject worker. Robert did not request a hearing on that decision.

Plaintiff filed this action in March 1993, seeking damages for Jensen's death. Defendant alleged a number of affirmative defenses, including that it was immune because Jensen was entitled to workers' compensation benefits. Both parties moved for summary judgment on that issue; the court denied both motions on the ground that there were issues of fact that precluded summary judgment. It thereafter granted defendant's motion for a separate trial to the court on the workers' compensation issue. At that trial the parties relied on the factual record developed for the summary judgment motions; the trial itself consisted solely of the arguments of counsel and the court's decision. The court concluded that Jensen was a subject worker and dismissed the case.

Under the Workers' Compensation Law, a subject worker is a person whom the law defines as a worker and who does not satisfy one of the exceptions described in ORS 656.027. A worker is a person "who engages to furnish services for a remuneration, subject to the direction and control of an employer[.]" ORS 656.005(30) (emphasis supplied). ³ In the trial court, plaintiff relied on the exception for the partners of a partnership to the general rule that all workers are subject workers. ORS 656.027(8). Under that exception, if the partnership performs labor or services under a contract, it must qualify as an independent contractor under ORS 670.600 in order for its partners to be exempt. Because of an intervening Supreme Court decision that we discuss below, on appeal plaintiff correctly relies primarily on the argument that Jensen did not fit the definition of a worker. ⁴

The legislature adopted ORS 670.600 in 1989 to establish a uniform test for independent contractor status under the personal income tax, workers' compensation, unemployment insurance, and construction contractor laws. At the time of the trial our decisions assumed that the statutory criteria provided the only appropriate test for independent contractor status and that the statute had superseded the "right to control" and "nature of the work" tests that the Supreme Court described in Woody v. Waibel, 276 Or. 189, 554 P.2d 492 (1976). S-W Floor Cover Shop v. Natl. Council on Comp. Ins., 121 Or.App. 402, 405-07, 854 P.2d 944 (1993), ⁵ rev'd 318 Or. 614, 872 P.2d 1 (1994). For that reason, the parties focussed their arguments at the trial court on the criteria of ORS 670.600. Those criteria generally include the criteria that are relevant to the right to control test but make them conclusive rather than factors to be weighed.

After the trial court entered judgment for defendant and after the time for plaintiffs to seek a new trial had passed, the Supreme Court reversed our decision in S-W Floor Cover Shop in an opinion that made the criteria of ORS 670.600 essentially irrelevant to determining whether a person is a worker under the Workers' Compensation Law. S-W Floor Cover Shop v. Natl. Council on Comp. Ins., 318 Or. 614, 872 P.2d 1 (1994). It pointed out that the issue of whether a person is a subject worker under ORS 656.027 can arise, and thus the criteria of ORS 670.600 can become relevant, only if the person is a worker under ORS 656.005(30). 318 Or. at 622, 872 P.2d 1. Because the definition of worker incorporates the right to control test without using the term "independent contractor" or otherwise referring to ORS 670.600, the traditional test of an independent contract remains the operative one; the exemptions of ORS 656.027, with their incorporation of ORS 670.600, never come into play. 318 Or. at 630-31, 872 P.2d 1.

Since the Supreme Court's decision, we have applied the right to control and nature of the work tests to determine a person's status under the Workers' Compensation Law without reference to ORS 670.600 and without apparent regard to how the parties argued the case below. See, e.g., Kaiel v. NCE Cultural Homestay Institute, 129 Or.App. 471, 475, 879 P.2d 1319, rev. den. 320 Or. 543, 887 P.2d 792 (1994); Cy Investment, Inc. v. Natl. Council on Comp. Ins., 128 Or.App. 579, 582-83, 876 P.2d 805 (1994). When, as in this case, the essential facts are undisputed, the question of plaintiff's status is one of law for the court. ⁶ Woody, 276 Or. at 192 n. 3, 554 P.2d 492; Kaiel, 129 Or.App. at 471, 879 P.2d 1319. ⁷ The court first applies the right to control test; if that test proves inconclusive, it moves to the nature of the work test. Id.

The primary elements of the right to control test are "(1) direct evidence of the right to, or the exercise of, control; (2) the method of payment; (3) the furnishing of equipment; and (4) the right to fire." Castle Homes, Inc. v. Whaite, 95 Or.App. 269, 272, 769 P.2d 215 (1989). Determining Jensen's status under that test requires a more extended statement of the relevant facts.

A number of horse owners normally attend the fair in order to show their horses and compete in various contests. At the suggestion of a fair employee, around 1990 some of them began providing the hayride shuttle service. At the employee's request, two of the exhibitors coordinated the shuttle, receiving no pay for doing so. They generally arranged each day's schedule by allowing the teamsters to volunteer for particular times on a first-come-first-served basis, making sure that there was sufficient coverage for all periods. ⁸ Those who participated received $20 for each hour that they actually provided rides; they were expected to have their own liability insurance. They did not receive any benefits or other compensation, and the fair did not withhold any amounts from their checks. The teamsters used their own horses; they could either use their own wagons or choose one of the wagons that the fair made available. The fair did not own those wagons; rather, various horse owners lent them to the fair for its duration.

The first year that the Jensens participated in the shuttle service, they used their own wagon. After that they used one of the wagons that the fair provided, primarily because they did not need to bring their own hayride wagon to the fair. The wagon that they used on the day of the accident was one that they had used previously and with which they were satisfied. All parties--the fair, the volunteer coordinators, and the teamsters--believed that those providing the rides were independent contractors. The fair did not tell the teamsters how to conduct the rides, but it expected them to use good sense in doing so.

These facts give us a basis for evaluating the factors of the right to control test. First, the fair exercised some control over the Jensens' work by establishing the hours for them to perform and the physical limits of the performance. Although they could express their wishes for a particular time, the fair had to coordinate all those involved to make sure that there was adequate coverage at all times. That, however, is not control over the method of the performance; rather, it establishes the result to be achieved, which is consistent with independent contractor status. Cy Investment, Inc., 128 Or.App. at 583, 876 P.2d 805. The very nature of the work required that it be done at times when the fairgoers needed rides. ⁹ Defendant's control over timing, thus, reflects more the task to be done than the status of those who did it. In this respect the case is similar to Bell v. Hartman, 44 Or.App. 21, 604 P.2d 1273, rev'd on other grounds 289 Or. 447, 615 P.2d 314 (1980), in which we held that a jockey who rode for several owners was an independent contractor and, thus, was not a worker. Jockeys are engaged for a particular race. Although the horse's owner may give the jockey instructions on how to ride it, those instructions "no more make[ ] the jockey the owner's employee than a patient's informed consent to a...