{ "id": 11221074, "name": "ROY J. WILLIAMS, Employee, Plaintiff-Appellee v. ARL, INCORPORATED, NON-INSURED, Employer, Defendant-Appellant", "name_abbreviation": "Williams v. Arl, Inc.", "decision_date": "1999-06-15", "docket_number": "No. COA98-1011", "first_page": "625", "last_page": "631", "citations": [ { "type": "official", "cite": "133 N.C. App. 625" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "511 S.E.2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1999, "pin_cites": [ { "page": "13", "parenthetical": "citing Hayes, supra" }, { "page": "12" } ], "opinion_index": 0 }, { "cite": "132 N.C. App. 74", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11236955 ], "year": 1999, "pin_cites": [ { "page": "79", "parenthetical": "citing Hayes, supra" } ], "opinion_index": 0, "case_paths": [ "/nc-app/132/0074-01" ] }, { "cite": "246 S.E.2d 839", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "37 N.C. App. 638", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554450 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/37/0638-01" ] }, { "cite": "29 S.E.2d 137", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1944, "opinion_index": 0 }, { "cite": "224 N.C. 11", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8594820 ], "year": 1944, "opinion_index": 0, "case_paths": [ "/nc/224/0011-01" ] }, { "cite": "73 S.E.2d 488", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "pin_cites": [ { "page": "494" } ], "opinion_index": 0 }, { "cite": "236 N.C. 435", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626252 ], "year": 1952, "pin_cites": [ { "page": "444" } ], "opinion_index": 0, "case_paths": [ "/nc/236/0435-01" ] }, { "cite": "408 S.E.2d 853", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "quoting Greene v. Spivey, 236 N.C. 435, 444, 73 S.E.2d 488, 494 (1952)" } ], "opinion_index": 0 }, { "cite": "330 N.C. 113", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2510155 ], "year": 1991, "pin_cites": [ { "parenthetical": "quoting Greene v. Spivey, 236 N.C. 435, 444, 73 S.E.2d 488, 494 (1952)" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0113-01" ] }, { "cite": "401 S.E.2d 831", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "833", "parenthetical": "quoting Greene v. Spivey, 236 N.C. 435, 444, 73 S.E.2d 488, 494 (1952)" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 269", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523335 ], "year": 1991, "pin_cites": [ { "page": "272", "parenthetical": "quoting Greene v. Spivey, 236 N.C. 435, 444, 73 S.E.2d 488, 494 (1952)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0269-01" ] }, { "cite": "458 S.E.2d 190", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "340 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 790218, 790157, 790191, 790066, 790233 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/nc/340/0360-02", "/nc/340/0360-03", "/nc/340/0360-01", "/nc/340/0360-04", "/nc/340/0360-05" ] }, { "cite": "454 S.E.2d 666", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "667" } ], "opinion_index": 0 }, { "cite": "118 N.C. App. 156", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11917121 ], "year": 1995, "pin_cites": [ { "page": "159" } ], "opinion_index": 0, "case_paths": [ "/nc-app/118/0156-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-19", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "305 S.E.2d 749", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "63 N.C. App. 542", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525724 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/63/0542-01" ] }, { "cite": "348 S.E.2d 595", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "318 N.C. 410", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4739334 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc/318/0410-01" ] }, { "cite": "340 S.E.2d 501", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "79 N.C. App. 696", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523194 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/79/0696-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 97-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(1)" } ], "opinion_index": 0 }, { "cite": "174 S.E.2d 297", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "8 N.C. App. 309", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551231 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc-app/8/0309-01" ] }, { "cite": "296 S.E.2d 3", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "59 N.C. App. 165", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525943 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/nc-app/59/0165-01" ] }, { "cite": "473 S.E.2d 421", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "123 N.C. App. 383", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11913381 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc-app/123/0383-01" ] }, { "cite": "42 S.E.2d 71", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1947, "opinion_index": 0 }, { "cite": "227 N.C. 299", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624428 ], "year": 1947, "opinion_index": 0, "case_paths": [ "/nc/227/0299-01" ] }, { "cite": "392 S.E.2d 758", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "759", "parenthetical": "citing Youngblood, supra" } ], "opinion_index": 0 }, { "cite": "99 N.C. App. 307", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522457 ], "year": 1990, "pin_cites": [ { "page": "309", "parenthetical": "citing Youngblood, supra" } ], "opinion_index": 0, "case_paths": [ "/nc-app/99/0307-01" ] }, { "cite": "364 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2571983 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0380-01" ] }, { "cite": "498 S.E.2d 377", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "347 N.C. 573", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551340, 551216, 551346, 551385, 551067 ], "year": 1998, "opinion_index": 0, "case_paths": [ "/nc/347/0573-01", "/nc/347/0573-02", "/nc/347/0573-05", "/nc/347/0573-03", "/nc/347/0573-04" ] }, { "cite": "492 S.E.2d 356", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "127 N.C. App. 604", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11799071 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc-app/127/0604-01" ] }, { "cite": "139 S.E.2d 645", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 295", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569779 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0295-01" ] } ], "analysis": { "cardinality": 658, "char_count": 13241, "ocr_confidence": 0.746, "pagerank": { "raw": 1.217933563627977e-07, "percentile": 0.597541014939481 }, "sha256": "033265fa421fa6abb6596cdd525776d4e16f82de5a62b5aab87369a4778a851d", "simhash": "1:dd2507ac57502cde", "word_count": 2097 }, "last_updated": "2023-07-14T19:41:36.377256+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and McGEE concur." ], "parties": [ "ROY J. WILLIAMS, Employee, Plaintiff-Appellee v. ARL, INCORPORATED, NON-INSURED, Employer, Defendant-Appellant" ], "opinions": [ { "text": "MARTIN, Judge.\nDefendant appeals from an opinion and award of the North Carolina Industrial Commission awarding plaintiff compensation for temporary total disability, permanent partial disability, and medical expenses for frostbite injuries to both hands. Defendant challenges the Commission\u2019s jurisdictional findings and conclusions that an employment relationship within the meaning of the Workers\u2019 Compensation Act existed between plaintiff and defendant, as well as the Commission\u2019s conclusion that plaintiff sustained an injury by accident arising out of his employment.\nAs pertinent to the issues raised by this appeal, the evidence before the Commission showed that at the time of his injury on 1 February 1993, plaintiff worked as a long-haul truck driver for B.J. Transportation, a freight hauling business. B.J. Transportation had a contract with defendant, ARL, Inc., to haul freight. Under the terms of the contract, B.J. Transportation was an independent contractor, and ARL, Inc., was a \u201ccarrier\u201d under Interstate Commerce regulations, leasing trucks from B.J. Transportation which were then operated under defendant\u2019s ICC certification. The contract required that B.J. Transportation provide drivers for its trucks, who were to be considered employees of B.J. Transportation; that B.J. Transportation would provide workers\u2019 compensation insurance for its employees; and that defendant would have no responsibility for B.J. Transportation\u2019s liability under workers\u2019 compensation laws. Plaintiff was compensated on a rate per mile basis by B.J. Transportation, which issued his paychecks, withheld social security, federal and state taxes from his pay, and provided him with a W-2 wage and tax statement.\nThough an appendix to the contract provided that defendant was to \u201chave the exclusive possession, control and use of the equipment,\u201d the contract provided that defendant would have no direction or control over B.J. Transportation\u2019s drivers; that B.J. Transportation would have the right to refuse any load of freight tendered by defendant; and that B.J. Transportation would determine how the freight was loaded, hauled, and unloaded, subject only to the shipper\u2019s requirements and pick-up and delivery timetables. Plaintiff was permitted to choose the route which he would take, as well as his stops, and was required only to submit a daily log to defendant.\nPlaintiff hauled a load of lumber to Lowville, N.Y. for defendant on 31 January 1993. He was injured when he suffered frostbite while unloading the lumber in extremely cold conditions on 1 February 1993. He remained out of work until 9 June 1993.\nThe Commission found and concluded that plaintiff had sustained an injury by accident arising out of and in the course of his employment, for which he was entitled to compensation for temporary total disability as well as for a 5% permanent partial impairment of his left hand, and a 17% permanent partial impairment of his right hand. The Commission also found and concluded that plaintiff was an employee of defendant ARL, Inc., while operating the truck and unloading the lumber, and that defendant was also liable for compensation under G.S. \u00a7 97-19 because it had not obtained a certificate from B.J. Transportation showing proof of workers\u2019 compensation insurance coverage on its drivers, including plaintiff.\nWe consider first the jurisdictional question of whether an employer-employee relationship within the meaning of the Workers\u2019 Compensation Act, G.S. \u00a7\u00a7 97-1 et seq. (\u201cthe Act\u201d), existed between plaintiff and defendant, ARL, Inc., at the time of the injury. An injured person is entitled to workers\u2019 compensation benefits under the Act only if he is an employee of the party from whom compensation is sought. Richards v. Nationwide Homes, 263 N.C. 295, 139 S.E.2d 645 (1965); Boone v. Vinson, 127 N.C. App. 604, 492 S.E.2d 356 (1997), disc. review denied, 347 N.C. 573, 498 S.E.2d 377 (1998). Thus, the issue of plaintiffs employment status in relation to defendant is a jurisdictional issue; the Commission has no jurisdiction to apply the Act to a party who is not subject to its provisions. Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 364 S.E.2d 433 (1988). When issues of jurisdiction arise, \u201cthe jurisdictional facts found by the Commission, though supported by competent evidence, are not binding on this Court,\u201d and we are required to make independent findings with respect to jurisdictional facts. Cook v. Norvell-Mackorell Real Estate Co., 99 N.C. App. 307, 309, 392 S.E.2d 758, 759 (1990) (citing Youngblood, supra).\nThe Commission first found that while plaintiff was operating the truck and performing other duties incidental thereto, including unloading the freight, he was defendant\u2019s employee. The Commission relied, inter alia, upon Brown v. L.H. Bottoms Truck Lines, 227 N.C. 299, 42 S.E.2d 71 (1947), which established that owner-drivers who operate in interstate commerce under the license tags and authority granted to a franchise carrier by the ICC are deemed employees of the carrier for the duration of the trip. See Parker v. Erixon, 123 N.C. App. 383, 473 S.E.2d 421 (1996). Here the evidence showed that defendant provided the ICC certification necessary for B.J. Transportation to operate in interstate commerce.\nHowever, for an employer be bound by the Act, the employer must regularly employ an established number of employees as set by the Act. Durham v. McLarnb, 59 N.C. App. 165, 296 S.E.2d 3 (1982); Cousins v. Hood, 8 N.C. App. 309, 174 S.E.2d 297 (1970). G.S. \u00a7 97-2(1) defines the parameters of \u201cemployment\u201d as including all \u201cprivate employments in which three or more employees are regularly employed in the same business or establishment.\u201d N.C. Gen. Stat. \u00a7 97-2(1). The question of whether plaintiff was in the employment of an entity employing three or more regular employees is a jurisdictional issue as to which this Court must make an independent determination. Cain v. Guyton, 79 N.C. App. 696, 340 S.E.2d 501, affirmed, 318 N.C. 410, 348 S.E.2d 595 (1986); Wiggins v. Rufus Tart Trucking Co., 63 N.C. App. 542, 305 S.E.2d 749 (1983). Assuming, arguendo, that the rule in Brown applies so that plaintiff could be considered an employee of defendant ARL, Inc., as well as B.J. Transportation, there is no evidence in the record from which this Court can find that defendant ARL, Inc., regularly employs three or more employees so as to be subject to the provisions of the Act.\nThe Commission also applied G.S. \u00a7 97-19, the \u201cstatutory employer\u201d provision of the Act, to find that defendant is within the jurisdiction of the Act for the purposes of plaintiffs claim. G.S. \u00a7 97-19, as in effect at the time of plaintiffs injury, provides in pertinent part:\nAny principal contractor, intermediate contractor, or subcontractor who shall sublet any contract for the performance of any work without requiring from such subcontractor or obtaining from the Industrial Commission a certificate, issued by a workers\u2019 compensation insurance carrier, or a certificate of compliance issued by the Department of Insurance to a self-insured subcontractor, stating that such subcontractor has complied with G.S. 97-93 hereof, shall be liable ... to the same extent as such subcontractor would be if he were subject to the provisions of this Article for the payment of compensation and other benefits under this Article on account of the injury or death of . . . any employee of such subcontractor due to an accident arising out of and in the course of the performance of the work covered by such subcontract.\nN.C. Gen. Stat. \u00a7 97-19. The statute is an exception to the general definitions of \u201cemployment\u201d and \u201cemployee\u201d set forth in G.S. \u00a7 97-2, and provides that a principal contractor, intermediate contractor, or subcontractor may be held liable as a statutory employer where two conditions are met: (1) \u201cthe injured employee must be working for a subcontractor doing work which has been contracted to it by a principal contractor,\u201d and (2) \u201cthe subcontractor does not have workers\u2019 compensation insurance coverage covering the injured employee.\u201d Rich v. R.L. Casey, Inc., 118 N.C. App. 156, 159, 454 S.E.2d 666, 667, disc. review denied, 340 N.C. 360, 458 S.E.2d 190 (1995). This statutory exception \u201c \u2018is not applicable to an independent contractor as distinguished from a subcontractor of the class designated by the statute.\u2019 \u201d Mayhew v. Howell, 102 N.C. App. 269, 272, 401 S.E.2d 831, 833, affirmed, 330 N.C. 113, 408 S.E.2d 853 (1991) (quoting Greene v. Spivey, 236 N.C. 435, 444, 73 S.E.2d 488, 494 (1952)).\nHere, the contract between B.J. Transportation and defendant expressly provided that B.J. Transportation was an \u201cindependent contractor.\u201d Notwithstanding, however, how the parties may have designated their relationship, the actual relationship created by the agreement is a legal question. Hayes v. Board of Trustees of Elon College, 224 N.C. 11, 29 S.E.2d 137 (1944); Robinson v. Whitley Moving & Storage, Inc., 37 N.C. App. 638, 246 S.E.2d 839 (1978). The question of whether a relationship is one of employer-employee or independent contractor turns upon \u201cthe extent to which the party for whom the work is being done has the right to control the manner and method in which the work is performed.\u201d Fulcher v. Willard\u2019s Cab Co., 132 N.C. App. 74, 79, 511 S.E.2d 9, 13 (1999) (citing Hayes, supra). There are generally eight factors to be considered in determining the degree of control exercised by the hiring party, including whether the employed,\n(a) is engaged in an independent business, calling or occupation; (b) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he may think proper; (g) has full control over such assistants; and (h) selects his own time.\nId. at 77, 511 S.E.2d at 12. No one factor is determinative. Id.\nIn the present case, B.J. Transportation is engaged in the independent business of freight-hauling. Under its contract with defendant, B.J. Transportation was responsible for hiring, training, and compensating its truck drivers, and defendant was afforded no direction or control over the drivers except in the result to be obtained. Plaintiff, a B.J. Transportation employee, had discretion to choose his delivery routes and to make as many stops as he desired. B.J. Transportation had the right to refuse any load of freight it did not wish to haul for defendant, and, with respect to those loads which it hauled, had discretion as to how the freight was loaded, hauled, and unloaded, subject only to delivery and pick-up timetables. The contract provided for defendant to compensate B.J. Transportation on a quantitative basis. The greater weight of the evidence discloses that B.J. Transportation retained the right to control the manner in which it performed the work for which it contracted with defendant and, thus, B.J. Transportation was an independent contractor to defendant. G.S. \u00a7 97-19 therefore does not apply to bring defendant within the jurisdiction of the Workers\u2019 Compensation Act, see Mayhew, supra, and the Commission had no jurisdiction to enter an award against defendant. Accordingly, the Commission\u2019s opinion and award in this case must be reversed.\nIn view of our decision, it is unnecessary to address the issues raised by defendant\u2019s remaining assignments of error.\nReversed.\nJudges GREENE and McGEE concur.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "Robert L. White for plaintiff-appellee.", "Cranfill, Sumner & Hartzog, L.L.P, by Scott J. Lasso and Jaye E. Bingham, for defendant-appellant." ], "corrections": "", "head_matter": "ROY J. WILLIAMS, Employee, Plaintiff-Appellee v. ARL, INCORPORATED, NON-INSURED, Employer, Defendant-Appellant\nNo. COA98-1011\n(Filed 15 June 1999)\nWorkers\u2019 Compensation\u2014 employer-employee relationship\u2014 jurisdiction\nA Workers\u2019 Compensation award was reversed where plaintiff was a truck driver who suffered frostbite while unloading a truck and the Industrial Commission found that he had sustained an injury by accident arising out of and in the course of his employment. The company for which plaintiff worked, B.J. Transportation, had contracted with defendant, and, assuming that plaintiff could be considered an employee of defendant as well as of B J. Transportation, there was no record evidence from which to find that defendant regularly employed three or more employees, so as to be subject to the provisions of the Workers\u2019 Compensation Act. As to the \u201cstatutory employer\u201d provisions of N.C.G.S. \u00a7 97-19, the greater weight of the evidence discloses that B.J. Transportation retained the right to control the manner in which it performed the work for defendant as an independent contractor; N.C.G.S. \u00a7 97-19 therefore does not apply to bring defendant within the jurisdiction of the Workers\u2019 Compensation Act.\nAppeal by defendant from opinion and award of the North Carolina Industrial Commission entered 8 April 1998. Heard in the Court of Appeals 20 April 1999.\nRobert L. White for plaintiff-appellee.\nCranfill, Sumner & Hartzog, L.L.P, by Scott J. Lasso and Jaye E. Bingham, for defendant-appellant." }, "file_name": "0625-01", "first_page_order": 655, "last_page_order": 661 }