{ "id": 1582438, "name": "Phillip DIBBLE, Plaintiff-Appellant, v. Lawrence A. GARCIA, J. J. & L. Corporation, Garcia Properties and Ramon L. Stright, Employers, and Transamerica Insurance Company, Insurer, Defendants-Appellees", "name_abbreviation": "Dibble v. Garcia", "decision_date": "1982-02-16", "docket_number": "No. 5247", "first_page": "21", "last_page": "27", "citations": [ { "type": "official", "cite": "98 N.M. 21" }, { "type": "parallel", "cite": "644 P.2d 535" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "70 N.M. 332", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2850768 ], "weight": 2, "year": 1962, "opinion_index": 0, "case_paths": [ "/nm/70/0332-01" ] }, { "cite": "83 N.M. 799", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5342502 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0799-01" ] }, { "cite": "511 P.2d 1061", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10552707 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "1063" } ], "opinion_index": 0, "case_paths": [ "/p2d/511/1061-01" ] }, { "cite": "38 N.M. 254", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559183 ], "weight": 2, "year": 1934, "opinion_index": 0, "case_paths": [ "/nm/38/0254-01" ] }, { "cite": "89 N.M. 436", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866789 ], "weight": 8, "opinion_index": 0, "case_paths": [ "/nm/89/0436-01" ] }, { "cite": "76 N.M. 127", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8500740 ], "weight": 5, "year": 1966, "pin_cites": [ { "page": "4" } ], "opinion_index": 0, "case_paths": [ "/nm/76/0127-01" ] }, { "cite": "77 N.M. 543", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802665 ], "weight": 3, "year": 1967, "opinion_index": 0, "case_paths": [ "/nm/77/0543-01" ] }, { "cite": "379 P.2d 44", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1963, "opinion_index": 0 }, { "cite": "71 N.M. 451", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5348477 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nm/71/0451-01" ] }, { "cite": "74 N.M. 665", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2802257 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0665-01" ] }, { "cite": "75 N.M. 174", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5377165 ], "weight": 2, "year": 1965, "opinion_index": 0, "case_paths": [ "/nm/75/0174-01" ] }, { "cite": "79 N.M. 485", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2745494 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/79/0485-01" ] }, { "cite": "81 N.M. 67", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5367147 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/81/0067-01" ] }, { "cite": "94 N.M. 425", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1573146 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/94/0425-01" ] }, { "cite": "74 N.M. 605", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804104 ], "weight": 2, "year": 1964, "opinion_index": 1, "case_paths": [ "/nm/74/0605-01" ] }, { "cite": "67 N.M. 72", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2717056 ], "weight": 3, "year": 1960, "opinion_index": 1, "case_paths": [ "/nm/67/0072-01" ] }, { "cite": "79 N.M. 727", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2737420 ], "weight": 2, "year": 1969, "opinion_index": 1, "case_paths": [ "/nm/79/0727-01" ] }, { "cite": "92 F.2d 255", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1014443 ], "year": 1937, "opinion_index": 1, "case_paths": [ "/f2d/92/0255-01" ] }, { "cite": "74 N.M. 174", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2800205 ], "weight": 5, "year": 1964, "opinion_index": 1, "case_paths": [ "/nm/74/0174-01" ] }, { "cite": "89 N.M. 67", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2865253 ], "weight": 3, "opinion_index": 1, "case_paths": [ "/nm/89/0067-01" ] }, { "cite": "38 N.M. 254", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1559183 ], "weight": 6, "year": 1934, "opinion_index": 1, "case_paths": [ "/nm/38/0254-01" ] }, { "cite": "89 N.M. 436", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2866789 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/89/0436-01" ] } ], "analysis": { "cardinality": 778, "char_count": 18081, "ocr_confidence": 0.8, "pagerank": { "raw": 1.949418486131372e-07, "percentile": 0.736535604971564 }, "sha256": "4ac25c5555f37ba79bccae77cbb722bfcbc3c2367f6e4c9fc68e87f774259d47", "simhash": "1:b90555121d834b6b", "word_count": 2994 }, "last_updated": "2023-07-14T19:13:49.367595+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "SUTIN, J., concurs.", "WALTERS, C. J., dissents." ], "parties": [ "Phillip DIBBLE, Plaintiff-Appellant, v. Lawrence A. GARCIA, J. J. & L. Corporation, Garcia Properties and Ramon L. Stright, Employers, and Transamerica Insurance Company, Insurer, Defendants-Appellees." ], "opinions": [ { "text": "OPINION\nLOPEZ, Judge.\nThe plaintiff appeals an adverse judgment in a workmen\u2019s compensation case. We affirm.\nThe decisive issue on appeal is whether the trial court erred in finding and concluding that plaintiff was an independent contractor.\nThe trial court found that the plaintiff suffered an accidental injury arising out of and in the course of his work for the defendant J.J. & L. This finding is not challenged by the plaintiff so it becomes a fact of the case on appeal.\nThe trial court found that the plaintiff was an independent contractor and was not covered under the Workmen\u2019s Compensation Act. The plaintiff challenges the following findings of fact:\n2. The relationship of Plaintiff and Defendant, J.J. & L. was that of contractor and subcontractor, the Plaintiff being the subcontractor.\n3. J.J. & L. contracted with the Plaintiff to do the framing work on a square foot rate; J.J. & L. exercised no control over the persons doing the actual work, nor over the work itself, except for a superintending control through Stright. The Plaintiff had control of who would do the work, when, how and what the workers would be paid, and Plaintiff could hire, fire, and substitute the workers at will.\n4. The Defendant Stright was an agent of J.J. & L. and had a subcontract to do the framing work on the house being built by J.J. & L.\n5. J.J. & L., acting through Stright, failed to inquire of Plaintiff as to whether the Plaintiff was a licensed contractor, and actually avoided the issue in order not to learn whether the Plaintiff was licensed.\n6. In relation to J.J. & L. the Plaintiff was an independent contractor.\nThe Plaintiff claims that the above findings are not supported by the evidence. He also argues that the trial court erred in denying his 71 requested findings of fact.\nWe review all the evidence in the record in the light most favorable to the prevailing party, and if there is substantial evidence to support the findings, they will not be set aside. Den-Gar Enterprises v. Romero, 94 N.M. 425, 611 P.2d 1119 (Ct.App.1980); Young v. Signal Oilfield Service, Inc., 81 N.M. 67, 463 P.2d 43 (Ct.App.1969); Lopez v. Schultz & Lindsay Construction Co., 79 N.M. 485, 444 P.2d 996 (Ct.App.1968); Geeslin v. Goodno, Inc., 75 N.M. 174, 402 P.2d 156 (1965); Mascarenas v. Kennedy, 74 N.M. 665, 397 P.2d 312 (1964); Yates v. Matthews, 71 N.M. 451, 379 P.2d 44 (1963).\nThe New Mexico Workmen\u2019s Compensation Act provides that an employee has the right to compensation for injuries arising out of and in the course of his employment, \u00a7 52-1-9, N.M.S.A.1978, and defines a workman as \u201cany person who has entered into the employment of or works under contract of service or apprenticeship, with an employer... . \u201d \u00a7 52-1-16, N.M.S. A.1978. To obtain benefits under the act, the plaintiff has the burden of establishing that he is an employee. Perea v. Board of Torrance County Commissioners, 77 N.M. 543, 425 P.2d 308 (1967).\nThe relationship between the plaintiff and J.J. & L. is a question of law to be determined by the court from the facts. Roybal v. Bates Lumber Co., 76 N.M. 127, 412 P.2d 555 (1966).\nOur appellate courts have established the following principles of law to guide us in determining the issue on appeal. 1. The words \u201cemployer and employee\u201d as used in the Workmen\u2019s Compensation Act are used in their natural sense and are intended to describe the conventional relationship between an employer who pays wages to an employee for his labor. Burton v. Crawford and Company, 89 N.M. 436, 553 P.2d 716 (Ct.App.1976). 2. The right to employ and discharge at will is a test considered in the creation of employer-employee relationship. Burton v. Crawford, supra. The right to control is also a test for determining an employer-employee relationship. Roybal v. Bates, supra. 4. The \u201crelative nature of the work\u201d test is another method for determining the relationship of the claimant and J.J. & L. Burton v. Crawford, supra.\n1. The conventional relationship between the plaintiff and J.J. & L.\nThis principle applies where it is necessary to determine whether the claimant has earned wages in order to come within the Workmen\u2019s Compensation Act. It is very evident and clear that plaintiff was not paid wages. Lawrence Garcia, architect and contractor is the owner of Garcias Properties dba J.J. & L., Inc. Garcia planned the Alamogordo project for the construction of homes by estimating costs of all subcontracts on his project. All of the construction on the project was then' subcontracted to various independent contractors for painting, plumbing, roofing, framing, dry wall and insulation. The defendant Stright is shown as the framing subcontractor on the ledgers of J.J. & L. Stright was paid by Garcia for the framing subcontract. No payroll checks were issued by Garcia or J.J. & L. to the plaintiff and no social security was withheld from any subcontractor, including the plaintiff. The subcontractors were paid the contract price after the work was completed. In the case of the framing subcontract, Stright was paid 90 cents a square foot for framing. Then Stright in turn subcontracted the framing work to the plaintiff at 85 cents per square foot as lump sum contract. Stright had been approached to run the project and wanted to subcontract the framing at 85 cents per square foot. Stright was not aware that plaintiff did not have a contractor\u2019s license. He considered the plaintiff a subcontractor because all work on the project was done by subcontractors who were paid a lump sum contract price for their portion of the job, and because the plaintiff held himself out as willing to subcontract the work at 85 cents per square foot cash. None of the subcontractors, including plaintiff, were paid payroll checks made for withholding tax and social security. After the work was finished, plaintiff was paid a lump sum by Stright from Stright\u2019s own account. It is evident that plaintiff was not paid wages but rather was paid on a contractual basis. Under this test, the evidence is substantial that the plaintiff was an independent contractor and not an employee. Burton v. Crawford, supra.\n2. The right to control test.\nGarcia, acting for J.J. & L. never hired plaintiff, never saw him or his crew, and never even knew of his existence until after this suit was filed. Garcia had no authority to hire or fire plaintiff or his crew. Garcia subcontracted to Stright, and Stright then subcontracted to Dibble. Factors to be considered in determining whether the right to control exists are: 1. the right or exercise of control of the details of the work,. 2. the method of payment, 3. the furnishing of equipment and 4. the right to fire. Burton v. Crawford, supra; Perea v. Bd. of Torrance County Commissioners, supra.\nIn this case the evidence in the record is very clear that J.J. & L., through Garcia, did not control the details of the work being done by the plaintiff or his crew. The plaintiff, who had been a carpenter for about eight years, hired his own crew, could fire them, determine how much each was to be paid, and paid them. Stright was never aware how plaintiff paid his crew. Plaintiff supervised his crew\u2019s work, although Stright was responsible for the general supervision of the framing. The general supervision of the subcontractor does not transform the independent contractor into an employee. Roybal v. Bates, supra. There is evidence that Garcia, acting for J.J. & L., would supervise or inspect the final results of a framing project. However, this final supervision or inspection is not inconsistent with the status of an independent contractor. Roybal v. Bates, supra. Where the control is limited to the ultimate results to be achieved under the contract, the relationship is usually that of an independent contractor. Burruss v. B. M. C. Logging Co., 38 N.M. 254, 31 P.2d 263 (1934); Roybal v. Bates Lumber Co., supra.\nWe have already determined that the method of payment was by contract rather than by wages. The plaintiff also owned and furnished his own equipment. J.J. & L. had no right to fire the plaintiff and his crew. Therefore, we hold that under this test the plaintiff is an independent contractor.\n3. The right to employ and discharge at will test.\nWe have already determined that there is substantial evidence that J.J. & L. had no right to hire and fire the plaintiff or his crew, so under this test the plaintiff is an independent contractor. Burton v. Crawford, supra.\n4. The relative issue of the work test.\nIn Burton v. Crawford, supra, this court adopted the principle governing a relative nature of the work concept from Ostrem v. Alaska Workmen\u2019s Compensation Board, 511 P.2d 1061 (Alaska 1973) and from 1A Larson\u2019s Workmen\u2019s Compensation \u00a7 45.00 (1973). This court stated:\nThe \u201crelative nature of the work\u201d test has two parts: first, the character of the claimant\u2019s work or business; and second, the relationship of the claimant\u2019s work or business to the purported employer\u2019s business. Larson urges consideration of three factors as to each of these two parts. With reference to the character of claimant\u2019s work or business the factors are: (a) the degree of skill involved; (b) the degree to which it is a separate calling or business; and (c) the extent to which it can be expected to carry its own accident burden. The relationship of the claimant\u2019s work or business to the proposed employer\u2019s business requires consideration of; (a) the extent to which claimant\u2019s work is a regular part of the employer\u2019s regular work; (b) whether claimant\u2019s work is continuous or intermittent; and (c) whether the duration is sufficient to amount to the hiring of continuing services as distinguished from contracting for the completion of the particular job. [511 P.2d at 1063],\nThe evidence in the record indicated that J.J. & L. subcontracted all of its production process. This included the framing project, which it subcontracted to Stright, and which Stright subcontracted to the plaintiff. Framing is a specialized and skilled area of construction. The plaintiff furnished his own power equipment for the job.\nThe plaintiff contracted with Stright to do a particular job on a particular project, and when that job was completed, he no longer had any employment in connection with the project. There is substantial evidence in the record to support a finding that the plaintiff was an independent contractor under this test.\nIn urging reversal of the trial court\u2019s judgment, the plaintiff argues that the court erred in its denial of his numerous requested findings of fact. He argues that the evidence supports his views. There was some contradiction and conflicting testimony regarding evidentiary facts. However, the duty to weigh the evidence and the credibility of the witnesses, and the duty to resolve conflict in the evidence rests within the province of the trial court and not with the appellate court. Lopez v. Schultz, supra; Lopez v. Phelps Dodge Corp., 83 N.M. 799, 498 P.2d 686 (Ct.App.1972). The fact that there may have been some evidence upon which the court might have found facts other than what it did is not sufficient for reversal. See Montano v. Saavedra, 70 N.M. 332, 373 P.2d 824 (1962).\nWe hold that all the findings of the trial court are supported by substantial evidence and that the findings support the conclusions of the court.\nThe judgment of the trial court is affirmed.\nIT IS SO ORDERED.\nSUTIN, J., concurs.\nWALTERS, C. J., dissents.", "type": "majority", "author": "LOPEZ, Judge." }, { "text": "WALTERS, Chief Judge,\ndissenting.\nI respectfully dissent.\nBased on mixed and contradictory findings of fact and conclusions of law, denominated \u201cfindings,\u201d the trial court concluded that Phillip Dibble was an independent contractor hired by J.J. & L., and therefore ineligible for workmen\u2019s compensation benefits.\nThe facts in this case are not unusual. Phillip Dibble and a framing crew he gathered together at the request of defendant Stright, J.J. & L.\u2019s \u201cagent\u201d and \u201cframing subcontractor\u201d (Finding 4), was hired by Stright to do framing work at the rate of approximately eighty cents per square foot. J.J. & L. carried workmen\u2019s compensation coverage. Stright supervised the framing work, paid Dibble and his crew from a personal account because he was unable \u201cto get hold of\u201d J.J. & L.\u2019s principal on payday, and paid for the entire amount of framing done by the crew in one check. The amount of the check was divided among the crew.\nOn the third day of work, plaintiff Dibble suffered an accidental injury on the job and was refused workmen\u2019s compensation benefits by Stright and J.J. & L. At trial Dibble claimed he was an employee; Stright and J.J. & L. contended he was a subcontractor and, therefore, an independent contractor who was not entitled to workmen\u2019s compensation coverage. The trial court concluded that Dibble was an independent contractor and dismissed his complaint.\nThe relationship of parties in a workmen\u2019s compensation proceeding is not to be determined from the name attached by them to the relationship, but from the consequences which the law imputes to their agreement, to prevent evasion of obligations which the Workmen\u2019s Compensation Act imposes on employers. Yerbich v. Heald, 89 N.M. 67, 547 P.2d 72 (Ct.App.1976). The basic purpose of the Act is to insure that industry carry the burden of personal injuries suffered by workmen in the course of their employment. Yerbich, supra. In determining whether a person is an employee or an independent contractor, the principal factor to be considered is the right to control. Burruss v. B. M. C. Logging Co., 38 N.M. 254, 31 P.2d 263 (1934). The right to control can be inferred by the type of authority exercised by the employer. In Burruss, supra, the court said:\nThe employee renders personal service. The independent contractor may or may not. In both cases, the employer exercises authority. Beyond doubt the character of such authority or control is the usual and generally accepted test. The result to be achieved by the independent contractor is controlled by the employer. But, when the control descends to the details or to the means and methods of performance, we have a servant or employee. This general test we find variously stated.\n\u201cThe chief consideration which determines one to be an independent contractor is the fact that the employer has no right of control as to the mode of doing the work contracted for.\u201d [Citation omitted.]\n[A]ll agree, in statement if not in application, that it is the right to control, not the exercise of it, that furnishes the test.\nThe cases on this question of control agree that facts showing control are (1) control respecting the manner in which the details of the work are to be executed; (2) the right to discharge; and (3) the method of payment. Yerbich, Burruss, supra.\nIn addition to control, a second influencing \u201cultimate\u201d factor, stated in Shipman v. Macco Corp., 74 N.M. 174, 392 P.2d 9 (1964), is: Whose is the work being done? The court in Shipman, supra, quoted from Jones v. George F. Getty Oil Co., 92 F.2d 255 (10th Cir. 1937):\nIn determining whose work is being done, the question of power to control the work is of great importance, but is not conclusive. [Citations omitted.] The indentity of the person who, in fact, directs the details of the work and gives the immediate instructions to the workmen is of comparatively small importance, the power of control referred to being the power to control the undertaking as a whole. . . .\nA third inquiry was made in Burton v. Crawford & Co., 89 N.M. 436, 553 P.2d 716 (Ct.App.1976): What is the relative nature of the work? It was suggested there that the considerations necessary to answer that question are: (1) the degree of skill involved; (2) the degree to which it is a separate calling or business; and (3) the extent to which it [claimant\u2019s work] can be expected to carry its own accident burden.\nNo findings of fact were made on the latter two questions.\nI am unable to agree with the majority reason for the following reasons:\n1. Findings 2 and 6 concerning the relationship between J.J. & L. and Dibble are conclusions of law. Creley v. Western Constructors, Inc., 79 N.M. 727, 449 P.2d 329 (1969); Latta v. Harvey, 67 N.M. 72, 352 P.2d 649 (1960). The remaining \u201cfindings\u201d are inadequate to support such a conclusion. Board of County Comm\u2019rs of Dona Ana Cty. v. Little, 74 N.M. 605, 396 P.2d 591 (1964).\n2. Power to discharge is a determinative factor, according to Burruss, supra. Although there is no finding regarding Stright\u2019s power to discharge Dibble, the evidence in the record is that Stright had the power to discharge not only Dibble, but also the members of the crew.\n3. Dibble\u2019s relationship to other members of the crew is not determinative of Dibble\u2019s relationship to J.J. & L. See Latta v. Harvey, supra, where the claimant who provided a crew, material, and equipment for well drilling was held to be an employee, not an independent contractor.\n4. The trial court and the majority opinion disregard the analysis of Justice Moise in Shipman v. Macco Corp., supra, and particularly do they disregard Shipman\u2019s significant reliance on the manner in which defendant Maceo handled employment arrangements with other entities and employees, as opposed to Shipman, as affecting the result reached in that case.\n5. The evidence in this case discloses that defendants\u2019 arrangement with claimant Dibble was no different from the arrangements with the claimants in Burruss and Shipman, supra, and the authority of Stright was no different from that retained by the logging company in Burruss, supra, or the construction company in Shipman, supra.", "type": "dissent", "author": "WALTERS, Chief Judge," } ], "attorneys": [ "Louis Marjon, Albuquerque, for plaintiff-appellant.", "Kathleen Davison Lebeck, Civerolo, Hansen & Wolf, P. A., Albuquerque, for defendants-appellees." ], "corrections": "", "head_matter": "644 P.2d 535\nPhillip DIBBLE, Plaintiff-Appellant, v. Lawrence A. GARCIA, J. J. & L. Corporation, Garcia Properties and Ramon L. Stright, Employers, and Transamerica Insurance Company, Insurer, Defendants-Appellees.\nNo. 5247.\nCourt of Appeals of New Mexico.\nFeb. 16, 1982.\nCertiorari Denied April 16, 1982.\nLouis Marjon, Albuquerque, for plaintiff-appellant.\nKathleen Davison Lebeck, Civerolo, Hansen & Wolf, P. A., Albuquerque, for defendants-appellees." }, "file_name": "0021-01", "first_page_order": 59, "last_page_order": 65 }