King v. Epes Transport Systems, Inc.

2. The following documents were stipulated into evidence:

a. All medical records of plaintiff including emergency room notes and records; medical notes from Dr. Cliff Faull including a 30% disability rating; and medical records from Dr. Lacy Thornburg.

All answers, responses and documents supplied through discovery.

Transcript of recorded statement on April 17, 2000 between plaintiff and Cindy Chitwood.

Independent contractor agreement between plaintiff

3. The remaining medical bills include $1,295.00 to Sylva Orthopaedic, $158.00 to SOMA Group, and $1,281.00 to Harris Regional, for a total of $2,734.98.

2. Plaintiff earned an average weekly wage of $709.24, resulting in a compensation rate of $472.85 per week.

3. Plaintiff returned home from hauling a load to Bloomington, Indiana, on April 1, 2000. Plaintiff's logs for April 1 and 2, 2000 show that he was "off duty" from driving from the time of his arrival at home on April 1, 2000 through April 8, 2000.

4. Plaintiff testified that while he was traveling home through Tennessee on April 1, 2000, he declined a trip to Texas because he needed to make some repairs to his truck. Upon arrival home, plaintiff intended to take the entire week of April 2, 2000 "off" in order to work on his truck and had not at any time during the week of April 2, 2000 been dispatched on a trip for that week or the next.

5. Plaintiff was injured on Saturday, April 8, 2000. Plaintiff had replaced the water pump on his truck and was working on the power steering pump. Because it was snowing, plaintiff worked under cover of a tarpaulin extending from the side of his house to the truck. The tarpaulin came loose from the house, and plaintiff climbed a ladder to re-attach the tarpaulin to the house. The wind caught the tarpaulin, causing plaintiff to fall from the ladder, injuring his nose, wrist, elbows and knees.

6. The Independent Contractor Agreement between plaintiff and defendant-employer states that plaintiff, as owner and independent contractor, is responsible for all parts, accessories and repairs necessary to provide the contracted for services.

7. The work plaintiff was performing on his tractor at the time of his injury was in the nature of general maintenance as required by defendant-employer, but was not in preparation for a specific trip for defendant-employer.

8. On April 8, 2000, the date of plaintiff's injury, he was not "under load" but had taken off the week of April 2, 2000 in order to make general repairs to his truck.

2. Whether plaintiff is entitled to workers' compensation benefits turns on the determination of: (1) which "hat" plaintiff was wearing at the time he was injured, and (2) if he was wearing the "hat" of an employee-driver, and not that of an owner-lessor and independent contractor, whether this type of repair work fell within the scope of his employment as a driver. Plaintiff is only entitled to recover benefits if, at the time he was injured, he was both wearing the employee-driver "hat" and the repairs fell within the scope of his employment as driver. Hoffman v. TruckLines, Inc., 306 N.C. 502 at 508; 293 S.E.2d 807 at 811 (1982).

3. When a plaintiff performs necessary repairs after he is under load or or if he makes repairs in preparation for a specific job for the defendant-employer, the courts have found that plaintiff was acting in his role of driver-employee at the time he was injured and therefore is entitled to workers' compensation benefits. Hoffman v. Truck Lines, Inc., supra; Thompson v.Transport Co., 32 N.C. App. 693, 236 S.E.2d 312 (1977). 4. In the instant case, plaintiff was acting in the role of owner-lessor in performing general maintenance on his tractor when he was injured. Plaintiff was not under load and was not preparing for a specific job for defendant-employer, as he was off-duty for the entire week. Based on the totality of the circumstances, plaintiff was not acting in his position as an employee-driver for defendant-employer at the time of his injury, rather he was engaged in his duties as an independent contractor. Therefore, plaintiff's injury by accident was not within the course of his employment and is not compensable under the Workers' Compensation Act. Hoffman v. Truck Lines, Inc., supra; Thompsonv. Transport Co., supra.

Each side shall bear its own costs.

This _____ day of February, 2002.

S/_____________________________ LAURA KRANIFELD MAVRETIC COMMISSIONER

CONCURRING:

S/_____________________________ BUCK LATTIMORE CHAIRMAN

S/_____________________________ THOMAS J. BOLCH COMMISSIONER

I must respectfully dissent. The issue is one of law and not of fact and is thus fully reviewable by the Court of Appeals. The issue is whether, under the uncontroverted facts of this case, plaintiff was about the business of Epes Transport when he was injured and thus whether the workers compensation policy paid for by plaintiff by deductions from his pay provided coverage to him. To me, the facts show that plaintiff was about the business of Epes when his injuries occurred.

Plaintiff felt his power steering pump going bad while hauling a load to Trenton, Ohio for defendant. After plaintiff unloaded his goods, he was dispatched to Bloomington, IN by John Martin via the Epes Transport Systems, Qualcom Internet E-Mail System. Plaintiff was then dispatched to another site when he advised the dispatcher via the Qualcom system that he needed to make repairs on his truck and needed to go home. Plaintiff then drove empty from Bloomington, IN to Dandridge, TN, where he spent the night. He woke the next morning to the sound of the Qualcom dispatch. Plaintiff was asked to switch trailers with another driver who was ill and to take the load to Texas. Plaintiff again advised that he needed to make the repairs and drove on to Sylva. But for the repairs that were needed to be performed on his truck, plaintiff would not have been home the week of April 2 through April 8. Plaintiff did not schedule this "time off" ahead of time.

The majority erred in finding this necessary repair to be "general maintenance." This repair became necessary while plaintiff was under load. He had to refuse further loads because of the urgency of the needed repairs. Under these circumstances, plaintiff was going about the business of Epes when he was injured and was not doing "general maintenance."

At hearing, it was determined that had plaintiff not needed repairs, he would have been on the road hauling for Epes. Both plaintiff and Epes employee Bobby Joyce testified that part of plaintiff's job duties is to provide service, inspection and maintenance. Both further testified that plaintiff is to supply the service, inspection and maintenance records to Epes on a monthly basis so that Epes can verify that the truck is being operated in a safe and good working order. Joyce testified that while a person is off-duty waiting to be dispatched, he is insured under the contract while performing maintenance and inspection of his truck.

Thompson v. Transport Company, 32 N.C. App. 693, 236 S.E.2d 312 (1977); Guest v. Brenner Iron Metal Co., 41 N.C. 448,85 S.E.2d 596 (S.Ct. 1955); and Hoffman v. Truck Lines, Inc. 306 N.C. 502,293 S.E.2d 807 (S.Ct. 1982 require a different result.

This 18th day of March 2002.

S/_____________________________ THOMAS J. BOLCH COMMISSIONER