West v. Posten Const. Co., 73199

• Decision Date: 05 March 1991
• Docket Number: No. 73199,73199
• Citation: 804 S.W.2d 743
• Parties: Roger C. WEST, Claimant-Appellant, v. POSTEN CONSTRUCTION COMPANY and Insurance Company of North America, Employer and Insurer-Respondents.
• Court: Missouri Supreme Court

Page 743

804 S.W.2d 743

Roger C. WEST, Claimant-Appellant, v. POSTEN CONSTRUCTION COMPANY and Insurance Company of North America, Employer and Insurer-Respondents.

No. 73199.

Supreme Court of Missouri En Banc.

March 5, 1991.

Russell C. Still, Columbia, for claimant-appellant.

William W. Francis, Jr., Springfield, for employer and insurer-respondents.

HIGGINS, Judge.

Claimant appeals the Commission's "Final Award Denying Compensation" based on findings that claimant was not Posten's "employee" under section 287.020, RSMo 1986; that claimant was a "statutory employee" under section 287.040.1, RSMo 1986; and that although claimant was Posten's statutory employee, Posten was exempt from worker's compensation liability as an "owner" under section 287.040.3, RSMo 1986. The Missouri Court of Appeals, Southern District, reversed the Commission's decision and this Court granted transfer because of conflict between decisions of the Southern and Eastern Districts. The question is whether one who is contemporaneously an owner and his own general contractor is liable to his independent contractor-statutory employee for workers' compensation benefits. This Court also reverses the Commission's decision and remands the cause for further proceedings.

This Court draws freely from the majority opinion of the Honorable George M. Flannigan, Chief Judge of the Southern District.

David Posten, d/b/a Posten Construction Company, is a general contractor for construction of new buildings and remodeling of existing buildings. Roger C. West is an independent plumber and electrician injured while doing work for Posten at a new house he was building in Richland, Missouri, for his personal home. Posten was using his usual construction crews and independent contractors, including claimant, to build his new home. Claimant's left eye was injured when struck by an allen key attached to a saw he was using.

Claimant contends that he was an "employee" of Posten under section 287.020; that if not such an employee he was a statutory employee of Posten under section 287.040; and that Posten was not entitled to an exemption as an owner under section 287.040.3 with respect to claimant as Posten's statutory employee.

This Court's review of fact questions considers the evidence in the light most favorable to the findings of the Commission. Sellers v. Trans World Airlines, Inc., 752 S.W.2d 413, 415 (Mo.App.1988). Decisions of the Commission in workers' compensation proceedings that are clearly an interpretation or application of law, as distinguished from a determination of fact, are not binding upon this Court and fall within this Court's province of review and correction. Merriman v. Ben Gutman Truck Service, Inc., 392 S.W.2d 292, 296-97 (Mo.1965).

The evidence shows Posten operated a general contracting business and hired claimant in 1987 to do the electrical and plumbing work on two houses, one in Waynesville and one in Richland. Other than one electrical job, claimant worked for nobody but Posten in 1987. Posten and claimant had no written agreement regarding claimant's compensation but understood that claimant charged $450.00 for a "straight house" with a basement, $500.00 if it did not have a basement, and more for a split level house. Posten supplied all the materials used in claimant's work. Claimant furnished his own tools, set his own work schedule, paid two assistants from his own earnings, and filed income tax returns as a self-employed person. Posten had other employees working on the homes who worked regularly scheduled hours and were paid hourly wages. Posten identified the Richland house as "my new home," stated that he intended to move into it upon its completion, and acknowledged that the work claimant performed was not outside the usual work of Posten and his regular employees.

Although evidence exists to support claimant's contention he was Posten's "employee" under section 287.020, see Cline v. Carthage Crushed Limestone Co., 504 S.W.2d 102 (Mo.1973), and Ceradsky v. Mid-America Dairymen, Inc., 583 S.W.2d 193 (Mo.App.1979), there is competent and substantial evidence to support the Commission's finding that claimant was an independent contractor.

The competent and substantial evidence also qualifies claimant as a statutory employee of Posten as found by the Commission. Section 287.040.1 provides that "[a]ny person who has work done under contract on or about his premises which is an operation of the usual business which he there carries on shall be deemed an employer and shall be liable under this chapter to such contractor, his subcontractors, and their employees, when injured or killed on or about the premises of the employer while doing work which is in the usual course of his business." This Court has held that section 287.040.1 extends coverage of the Workers' Compensation Act to employers who have work done by contract in order "to prevent an employer from evading workmen's compensation liability by hiring independent contractors to perform the usual and ordinary work which his own employees would otherwise perform." McGuire v. Tenneco, Inc., 756 S.W.2d 532, 534 (Mo. banc 1988), quoting Miller v. Municipal Theatre Association of St. Louis, 540 S.W.2d 899, 906 (Mo.App.1976). The Commission properly found the three requisites necessary for finding claimant to be a statutory employee, as enunciated in McGuire, 756 S.W.2d at 534, to be present in this case: his work was being performed pursuant to a contract with Posten, which "includes those contracts which are express or implied, oral or written," id. at 535; his injury occurred on premises under Posten's exclusive control; and he was injured while performing work that was in the usual course of Posten's business.

The Commission's basis for denying compensation to claimant was its application of section 287.040.3, which provides that "[t]he provisions of this section shall not apply to the owner of premises upon which improvements are being erected ... by an independent contractor but such independent contractor shall be deemed to be the employer of the employees of his subcontractors and their subcontractors when employed on or about the premises where the principal contractor is doing work." The Commission, citing Huff v. Union Electric Co., 598 S.W.2d 503 (Mo.App.1980), held that because Posten owned the premises upon which claimant, an independent contractor, was injured while erecting improvements, Posten was exempted from workers' compensation liability to claimant by section 287.040.3.

Claimant argues that section 287.040.3 does not protect Posten from liability because no evidence exists showing Posten owned the premises where claimant was injured. Posten, however, testified that the house was "my new home" and that he intended to move into it upon completion. Claimant's assertion that evidence of record title was required is misplaced because of his failure to challenge the evidence of Posten's ownership of the home at trial.

Although claimant does not challenge the Commission's application of section 287.040.3 to Posten on the specific ground that this section does not apply to the owner of premises who simultaneously acts as an independent contractor and the principal contractor, erecting improvements upon those premises, "[p]lain errors affecting substantial rights may be considered on appeal, in the discretion...