{ "id": 6142328, "name": "DAIRY FARMERS of AMERICA, INC., Liberty Mutual Insurance Company, and Bud Duncan Trucking v. Lonnie COKER", "name_abbreviation": "Dairy Farmers of America, Inc. v. Coker", "decision_date": "2007-04-25", "docket_number": "CA 06-769", "first_page": "400", "last_page": "409", "citations": [ { "type": "official", "cite": "98 Ark. App. 400" }, { "type": "parallel", "cite": "255 S.W.3d 905" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "28 Ark. App. 261", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140697 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/ark-app/28/0261-01" ] }, { "cite": "205 Ark. 752", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1488247 ], "weight": 2, "year": 1943, "opinion_index": 0, "case_paths": [ "/ark/205/0752-01" ] }, { "cite": "90 Ark. App. 388", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6141363 ], "weight": 4, "year": 2005, "pin_cites": [ { "page": "391-92" }, { "page": "287-88" } ], "opinion_index": 0, "case_paths": [ "/ark-app/90/0388-01" ] }, { "cite": "12 Ark. App. 66", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137466 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ark-app/12/0066-01" ] }, { "cite": "202 S.W.3d 532", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 6140482, 5461895 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/ark-app/89/0251-01", "/ark/360/0520-01" ] }, { "cite": "89 Ark. App. 251", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6140482 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/ark-app/89/0251-01" ] }, { "cite": "6 Ark. App. 193", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139711 ], "weight": 3, "year": 1982, "pin_cites": [ { "page": "196" }, { "page": "528" } ], "opinion_index": 0, "case_paths": [ "/ark-app/6/0193-01" ] }, { "cite": "49 Ark. App. 10", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6136076 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark-app/49/0010-01" ] }, { "cite": "339 Ark. 474", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 130684 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "478" }, { "page": "100" } ], "opinion_index": 0, "case_paths": [ "/ark/339/0474-01" ] }, { "cite": "347 Ark. 851", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 683187 ], "weight": 3, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/347/0851-01" ] }, { "cite": "82 Ark. App. 69", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6137140 ], "weight": 4, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark-app/82/0069-01" ] }, { "cite": "Ark. Code Ann. \u00a7 1", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 11-9-402", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 } ], "analysis": { "cardinality": 755, "char_count": 15890, "ocr_confidence": 0.763, "pagerank": { "raw": 1.3986915482959958e-07, "percentile": 0.6442624647228468 }, "sha256": "ea2aee9e272d8b1216d1f50f537b3d3b34c80bd48acda48c1b071cc122a0a044", "simhash": "1:adfb78d70c5957b5", "word_count": 2617 }, "last_updated": "2023-07-14T22:09:49.949226+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Gladwin and Bird, JJ., agree." ], "parties": [ "DAIRY FARMERS of AMERICA, INC., Liberty Mutual Insurance Company, and Bud Duncan Trucking v. Lonnie COKER" ], "opinions": [ { "text": "Larry D. Vaught, Judge.\nThe Arkansas Workers\u2019 Compensation Commission found that appellee Lonnie Coker sustained a compensable injury while in the course and scope of his employment as a milk hauler for Bud Duncan Trucking and that Duncan Trucking was a subcontractor of appellant Dairy Farmers of America (DFA). After determining that Duncan Trucking was an uninsured employer, the Commission held that DFA was Hable for Coker\u2019s benefits pursuant to Ark. Code Ann. \u00a7 ll-9-402(a) (Repl. 2002). We affirm.\nAt the hearing, Coker testified that on September 17, 2003, before he left his home, he was injured while working on a truck owned by his employer Duncan Trucking. He testified that he had parked his truck at his home the evening before his accident. The next morning, he began his work day by filling out some paperwork, replacing a headlight on the truck, and conducting a pre-trip inspection; he stated that his truck was already loaded with milk for delivery. Coker explained that each morning \u2014 prior to beginning his route \u2014\u25a0 he engaged in a routine of knocking loose a \u201csticky\u201d brake rod so that the truck could be \u201croll started.\u201d Coker stated that he \u201cwas underneath the truck, and the brake system failed\u201d and ran over him \u201cwith both sets \u25a0\u2014 both duals on the rear of the truck.\u201d After being run over by the truck, according to testimony, Coker was dragged a short distance. The medical records indicate that he sustained various injuries \u2014 including a collapsed lung and bladder, a spleen rupture, a crushed pelvis and tail bone, and several cracked ribs. The parties do not dispute the legitimacy of his injuries or treatment.\nBob Duncan, the owner of Duncan Trucking, confirmed that Coker was working on a truck owned by the company when he was injured and acknowledged that checking the truck before he departed \u201cwould be a part of his job.\u201d Duncan also corroborated Coker\u2019s claim that there was milk on the truck at the time of his injury and that he took the truck home at night because Duncan Trucking did not provide a convenient place to park the truck. Duncan also admitted that Duncan Trucking paid Coker\u2019s salary, withheld taxes from his paycheck, and supplied him a W-2 form at year\u2019s end.\nThe Commission found that Duncan Trucking was \u201cclearly in the hauling business\u201d and that Coker\u2019s \u201cwork as a truck driver was an integral part of that business.\u201d Based on the evidence, the Commission determined that Coker\u2019s injury arose out of and in the course of his employment with Duncan Trucking. The Commission also found that the uncontroverted evidence showed that Duncan Trucking failed to secure workers\u2019 compensation insurance as required by law. As such, the Commission turned its attention to the relationship between Duncan Trucking and DFA.\nThe Commission determined that DFA had contracted with its members to market the members\u2019 milk product. In support ofits conclusion, the Commission relied on language from two sample contracts, which were introduced at the hearing. Both contracts contained provisions obligating DFA \u201cto perform all services in connection with the hauling, handling and all other aspects of marketing Member\u2019s milk\u201d and giving DFA \u201cfull power and authority ... to collect and allocate funds in connection with the sale of its members\u2019 milk.\u201d The DFA\u2019s field representative, Elbert Qualls, offered testimony that corroborated the contractual duty that DFA owed its members.\nAs a point of interest, the contracts also contained language that DFA was authorized to \u201ctransport Member\u2019s milk or have Member\u2019s milk transported by a carrier [hauler] approved by DFA to the destinations directed by DFA.\u201d DFA argued that this provision established that the haulers were independent contractors and not subcontractors, thus DFA had no liability under Ark. Code Ann. \u00a7 11-9-402. On this point, Bud Duncan testified that he understood himself to be an independent contractor, with the freedom to contract with whomever he wanted. He acknowledged that he had been hired by DFA to haul milk for its members. However, Duncan noted that he hired and fired his own drivers, and if DFA had a problem with one of his drivers it discussed that problem with Duncan, not the driver. Duncan testified that he, not DFA, controlled Coker\u2019s daily activities and that Coker was not working for anyone else at the time of the accident.\nAs a final line of defense, DFA argued that it could not be considered a general contractor because it had no obligation to a third party. DFA claimed that it was a cooperative association that was indistinguishable from its membership. The Commission rejected this argument and found that DFA was an \u201centity distinct from its membership, with full power to contract with those members.\u201d\nAfter resolving these intermediary questions, the Commission ultimately concluded that DFA was a general contractor because it had a contractual obligation to haul milk for its members and that Duncan Trucking was a subcontractor because DFA \u201cfarmed out\u201d its milk-hauling duty to Duncan Trucking. Based on these findings, the Commission applied the statutory mandate that when \u201ca subcontractor fails to secure compensation required by this chapter, the prime contractor shall be liable for compensation to the employees of the subcontractor\u201d and required DFA to pay Coker\u2019s benefits. See Ark. Code Ann. \u00a7 1 l-9-402(a). It is from this decision that DFA appeals.\nIn appeals involving claims for workers\u2019 compensation, we review the evidence in a light most favorable to the Commission\u2019s decision and affirm the decision if it is supported by substantial evidence. Searcy Indus. Laundry, Inc. v. Ferren, 82 Ark. App. 69, 110 S.W.3d 306 (2003). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The court will not reverse the Commission\u2019s decision unless it is convinced that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Id.\nOn appeal, DFA first contends that at the time of his injury Coker was not acting within the course and scope of his employment. Its argument is twofold. First, DFA claims that classifying Coker\u2019s activities as falling within the \u201ccourse and scope of his employment\u201d would \u201copen the door to countless creative types of claims and lead to obscure results.\u201d Second, DFA alleges that the \u201cgoing and coming rule\u201d precludes recovery for Coker\u2019s injuries because 1) a witness speculated that Coker might be going to the bank on the day of the accident, and 2) the record was unclear, as to whether Coker was actually going to operate the truck to haul the milk or if he was going to \u201csubcontract\u201d the load to another person.\nCertainly, in order for an accidental injury to be compensable, it must arise \u201cout of and in the course of employment.\u201d Ark. Code Ann. \u00a7 ll-9-102(4)(A)(i) (Repl. 2002). A compensable injury does not include injuries \u201cinflicted upon the employee at a time when employment services were not being performed.\u201d Ark. Code Ann. \u00a7 ll-9-102(4)(B)(iii). And an employee is performing \u201cemployment services\u201d when he or she is \u201cdoing something that is generally required by his or her employer.\u201d Pifer v. Single Source Trans., 347 Ark. 851, 69 S.W.3d 1 (2002).\nWe use the same test to determine whether an employee was performing \u201cemployment services\u201d as we do when determining whether an employee was acting within \u201cthe course of employment.\u201d Id. The test is whether the injury occurred \u201cwithin the time and space boundaries of employment, when the employee was carrying out the employer\u2019s purpose or advancing the employer\u2019s interest either directly or indirectly.\u201d White v. Georgia-Pacific Corp., 339 Ark. 474, 478, 6 S.W.3d 98, 100 (1999).\nIn this case there was evidence, which the Commission deemed credible, that Coker was required to keep his milk-hauling truck at his home, that the truck had already been loaded with a quantity of milk, that before his accident he had already completed a compulsory pre-trip inspection and repairs to the truck, and that he was in the process of launching his truck when his injury occurred. Each of these activities directly benefitted Duncan Trucking. As such, because the Commission\u2019s finding that Coker was injured in the course and scope of his employment is easily supported by the substantial evidence presented at the hearing, we affirm on this point.\nFurther, despite DFA\u2019s repeated urging that the \u201cgoing and coming rule\u201d be applied to this case, we conclude that this rule does not lend itself to the facts and circumstances before us. The doctrine ordinarily precludes recovery for an injury sustained while an employee is going to or returning from his place of employment because the employee is not within the course and scope of his employment while traveling to and from his job. See Wentworth v. Sparks Reg\u2019l Med. Ctr., 49 Ark. App. 10, 894 S.W.2d 956 (1995). However, Coker was neither coming nor going from his place of employment. Instead, he was actively performing functions for the benefit of his employer. The fact that Coker performed these services while in the driveway of his home is irrelevant to the analysis.\nNext, we turn our attention to the more complex portion of this appeal \u2014 whether the Commission properly applied Ark. Code Ann. \u00a7 ll-9-402(a). After reading the briefs and the dissent filed by the Commission, we note a great deal of confusion surrounding the terms \u201csubcontractor,\u201d \u201cgeneral contractor,\u201d and \u201cindependent contractor.\u201d The effect of a misunderstanding involving one (or all) of these terms is further compounded by the fact that many workers\u2019 compensation awards either fall or stand based on which of these classifications an entity receives. Therefore, we take this opportunity to attempt to clarify these three terms.\nFirst, the most easily understood of the three is the term \u201csubcontractor.\u201d As we stated in Bailey v. Simmons, 6 Ark. App. 193, 196, 639 S.W.2d 526, 528 (1982):\nA subcontractor is one who enters into a contract with a person for the performance of work [that] such person has already contracted to perform. In other words, subcontracting is merely \u201cfarming out\u201d to others all or part of work contracted to be performed by the original contractor.\nTherefore, before there can be a \u201csubcontractor\u201d there must first be a \u201cprime contractor\u201d or a \u201cgeneral contractor.\u201d If a person or entity performs all or part of a contract that another party procured, it is a subcontractor. Whether the subcontracting party operates independently is of no consequence \u2014 an entity or party can be both an independent contractor and a subcontractor. Id. The singular requirement for one to be a subcontractor is to perform all or part of another\u2019s contractual obhgation to a third party.\nNext, we examine the term \u201cgeneral contractor,\u201d which is a synonym for \u201cprime contractor.\u201d The principal case relating to this classification is Garcia v. A&M Roofing, 89 Ark. App. 251, 202 S.W.3d 532 (2005). In Garcia, we determined that A&M Roofing was a general contractor, because it secured the job on which appellant was injured; was contractually obligated to a third person for the work being performed; and paid appellant to perform its contractual obligation. It was noted in Garcia that Mills, the owner of A&M Roofing, was a roofer and in the business of selling roofing materials. However, the fact that Mills (A&M Roofing) could have completed the contract that it was obligated to perform does not factor into its classification as a \u201cgeneral contractor.\u201d There is no requirement that in order for an entity to have an obligation to a third party, it must be able to actually complete the obligation. Instead, the \u201cgeneral contractor\u201d test is simply whether a duty to a third party exists and whether all or part of the performance of that duty is subcontracted to another entity or party.\nFinally, the concept of \u201cindependent contractor\u201d is in need of explanation more than definition. This term most commonly relates to whether an employer can be considered a \u201cstatutory employer\u201d for purposes of workers\u2019 compensation coverage. See Franklin v. Ark. Kraft, Inc., 12 Ark. App. 66, 670 S.W.2d 815 (1984). In Riddell Flying Service v. Callahan, 90 Ark. App. 388, 206 S.W.3d 284 (2005), we set out numerous factors that may be considered in determining whether an injured person is an employee or an independent contractor for coverage purposes. Included in these factors are:\n(1) the right to control the means and the method by which the work is done;\n(2) the right to terminate the employment without liability;\n(3) the method of payment, whether by time, job, piece or other unit of measurement;\n(4) the furnishing, or the obligation to furnish, the necessary tools, equipment, and materials;\n(5) whether the person employed is engaged in a distinct occupation or business;\n(6) the skill required in a particular occupation;\n(7) whether the employer is in business;\n(8) whether the work is an integral part of the regular business of the employer; and\n(9) the length of time for which the person is employed.\nId. at 391\u201492, 206 S.W.3d at 287\u201488. The ultimate question in determining whether a person or entity is an independent contractor is not whether the employer actually exercises control over the doing of the work, but whether he has the right to control the work. See Irvan v. Bounds, 205 Ark. 752, 170 S.W.2d 674 (1943); Wright v. Tyson Foods, Inc., 28 Ark. App. 261, 773 S.W.2d 110 (1989). However, the terms independent contractor and subcontractor are not mutually exclusive \u2014 a party or entity can be both an independent contractor and a subcontractor.\nTherefore, in analyzing whether there is substantial evidence to support the Commission\u2019s decision that DFA is obligated to pay Coker workers\u2019 compensation, the seminal question we must answer is whether DFA had a contractual obligation to a third party. We do not find merit in DFA\u2019s schizophrenic attempt to identify itself as both the third party and the contractor. The contracts admitted at the hearing demonstrate that DFA \u2014 in its capacity as a corporate entity with a board of directors making decisions on its behalf \u2014 entered into numerous contractual agreements with milk producers to haul their milk. Therefore, we hold that DFA was contractually obligated to a third party \u2014 the milk producers.\nThe evidence also shows that DFA subcontracted with Duncan Trucking, which was uninsured, to perform all or part of its contractual obligation to the milk producers. The testimony also established that Duncan Trucking was an independent contractor and not an employee of DFA because Duncan Trucking exercised control over the work being done \u2014 it hired and fired its own drivers; it arranged its own methods and means of hauling the milk; and it owned its own trucks. However, Duncan Trucking\u2019s status as an independent contractor has no bearing on its subcontractor relationship with DFA. Duncan Trucking is both an independent contractor and a subcontractor.\nTherefore, because DFA was a prime contractor that farmed out a portion of its contractual obligation to an uninsured subcontractor (Duncan Trucking), it is liable for the injuries Coker sustained in the course and scope of his employment with Duncan Trucking. As such, the Commission did not err by holding DFA responsible for Coker\u2019s workers\u2019 compensation benefits pursuant to Ark. Code Ann. \u00a7 ll-9-402(a) (2005). The decision of the Commission is affirmed in its entirety.\nAffirmed.\nGladwin and Bird, JJ., agree.", "type": "majority", "author": "Larry D. Vaught, Judge." } ], "attorneys": [ "Rieves, Rubens & May ton, by: David C. Jones, for appellants.", "The Brad Hendricks Law Firm, by: Lamar Porter, for appellee." ], "corrections": "", "head_matter": "DAIRY FARMERS of AMERICA, INC., Liberty Mutual Insurance Company, and Bud Duncan Trucking v. Lonnie COKER\nCA 06-769\n255 S.W.3d 905\nCourt of Appeals of Arkansas\nOpinion delivered April 25, 2007\nRieves, Rubens & May ton, by: David C. Jones, for appellants.\nThe Brad Hendricks Law Firm, by: Lamar Porter, for appellee." }, "file_name": "0400-01", "first_page_order": 430, "last_page_order": 439 }