Wiley v. Armstrong Transfer & Storage Co., COA17-850

• Docket Nº: No. COA17-850
• Citation: 812 S.E.2d 915
• Case Date: May 01, 2018
• Court: Court of Appeal of North Carolina (US)

812 S.E.2d 915 (Table)

Kenneth B. WILEY, Employee, Plaintiff,
v.
ARMSTRONG TRANSFER & STORAGE COMPANY, Alleged Employer, The Phoenix Insurance Company, Alleged Carrier, Defendants.

No. COA17-850

Court of Appeals of North Carolina.

Filed: May 1, 2018

Brown Moore & Associates, PLLC, Charlotte, by Jon R. Moore, for plaintiff-appellant.

Hedrick Gardner Kincheloe & Garofalo LLP, Charlotte, by M. Duane Jones, for defendants-appellees.

ZACHARY, Judge.

The question presented is whether plaintiff was an employee of Armstrong Transfer & Storage Company within the meaning of the Workers' Compensation Act at the time plaintiff sustained his injury. For the reasons explained herein, we conclude that he was not an employee of Armstrong, and affirm the Full Commission's Opinion and Award.

Background

Defendant Armstrong Transfer & Storage Company is a moving company located in Charlotte, and is one of many affiliate companies of United Van Lines. Armstrong has two "company drivers" and over twenty "contract drivers" who drive its moving trucks to and from the moving sites. Armstrong's drivers are assisted by "lumpers," who help the drivers load and unload the moving trucks. Armstrong's "contract drivers" handle the majority of Armstrong's moves, and are paid according to the total revenue generated from each job. The drivers then pay themselves and the lumpers' wages out of that sum.

Armstrong's lumpers do not complete an employment application or enter into a formal employment agreement with Armstrong. However, lumpers must pass a criminal background check every three years in order to remain eligible to work on Armstrong's moving jobs. Once a lumper passes the background check, the lumper joins Armstrong's list of certified lumpers. When a customer hires Armstrong for a move, Armstrong assigns the job to a driver, and the driver determines how many lumpers will be needed. Drivers may only use lumpers who have been certified by Armstrong. Either Armstrong or the driver contacts the requisite number of lumpers, and tells the lumpers when and where to arrive for the job. Armstrong's lumpers are required to be in uniform while on the job. Lumpers are free to decline a job at any time.

In addition to providing lumpers for its own drivers, Armstrong either provides a list of eligible lumpers to, or advises eligible lumpers of jobs available with, drivers of moving companies affiliated with United Van Lines that are moving customers into the Charlotte area. Armstrong comptroller Jeffrey V. Wilson testified that those affiliated drivers will "be moving a shipment from City ‘A’ to Charlotte and they'll call a couple of days ahead to our dispatch function and say hey, I'm going to be there Wednesday, I need two helpers and as a—and our drivers receive the same help when they're away from Charlotte."

Plaintiff Kenneth B. Wiley was one of Armstrong's certified lumpers. On 16 July 2014, an Armstrong dispatcher contacted Wiley and told him that there was a job available unloading a moving truck for a driver named Russell Howe. Howe was a driver for Corrigan, one of the companies in the United network. Howe had contacted Armstrong as a part of the reciprocal exchange of lumpers.

Wiley injured his shoulder while unloading Howe's truck on 16 July 2014. It is undisputed that this constituted a compensable injury by accident for purposes of receiving benefits under the Workers' Compensation Act. On 9 September 2014, Wiley filed an Amended Form 18 "Notice of Accident to Employer and Claim of Employee," listing defendant Armstrong as Wiley's employer. Wiley also filed a Form 18 listing Howe as an employer. Howe admitted to the relationship, and "Howe and his insurer, VanLiner, accepted a claim of injury to [Wiley's] left shoulder and commenced payment of disability benefits and medical compensation to [Wiley] in a separate workers' compensation claim." This claim was settled and the settlement was approved by the Commission. However, Armstrong denied that an employment relationship existed with Wiley, and filed a Form 33 "Request That Claim Be Assigned For Hearing" before the Industrial Commission. On 13 June 2016, Deputy Commissioner David Mark Hullender entered a Corrected Opinion and Award denying Wiley's claim against Armstrong for benefits on the grounds that "the requisite employer-employee relationship was not present between Armstrong and [Wiley] as of the date of incident in this claim [.]" Wiley thereafter filed a Form 44 "Application for Review" in the Full Commission.

On 28 April 2017, the Full Commission entered its Opinion and Award concluding that Wiley was not an employee of Armstrong on 16 July 2014, and denying Wiley's claim for workers' compensation benefits. Wiley timely appealed to this Court. On appeal, Wiley argues that the Full Commission erred in concluding that no employee-employer relationship existed between Armstrong and him on the date of his injury,...