Acuity Mutual Insurance v. Olivas

2007 WI 12, 726 N.W.2d 258, 298 Wis. 2d 640, 2007 Wisc. LEXIS 12

• Court: Wisconsin Supreme Court
• Decided: January 25, 2007
• Docket: 2005AP685
• Status: Published

Opinions

SHIRLEY S. ABRAHAMSON, C.J.

¶ 1. This is a review of a published decision of the court of appeals affirming a judgment of the Circuit Court for She-boygan County, James J. Bolgert, Judge.¹ The circuit court ruled that the workers at issue satisfied the nine-part test for independent contractors set forth in Wis. Stat. § 102.07(8)(b) (2003-04) of the Worker's Compensation Act (the Act).² Accordingly, the circuit court dismissed Acuity Mutual Insurance Company's complaint against Miguel Olivas, holding that Olivas did not owe additional premiums for his worker's compensation insurance policy.

¶ 2. The court of appeals affirmed the order of the circuit court, basing its decision on different reasoning. According to the court of appeals, Acuity Insurance presented a "garden-variety breach-of-contract claim."³ Consequently the court of appeals applied common-law criteria to distinguish between independent contractors and employees and concluded that Acuity Insurance failed to demonstrate that the workers at issue⁴ were employees rather than self-employed contractors under the common law.

¶ 3. This case is not a traditional worker's compensation case in which the parties disagree whether an injured applicant qualifies for worker's compensation. This is a dispute between an insurance company and a policyholder about the calculation of the premium for the worker's compensation insurance policy.

¶ 4. This review requires the court to determine whether the workers at issue are, for purposes of setting a premium under Olivas' worker's compensation insurance policy, independent contractors or employees of Olivas. The test to determine whether the workers at issue are employees or independent contractors is found in Wis. Stat. § 102.07(8)(b), not in common-law criteria used to distinguish employees and independent contractors.

¶ 5. If the workers at issue are independent contractors under Wis. Stat. § 102.07(8)(b), they are not employees under the Act and they do not receive worker's compensation; Olivas would not owe any additional premiums to Acuity Insurance.

¶ 6. If the workers at issue are not independent contractors under Wis. Stat. § 102.07(8)(b), they are employees under the Act pursuant to Wis. Stat. § 102.07(8). The court must then address whether an employment relationship exists under the Act between these worker-employees and Olivas, the alleged employer. If such an employment relationship exists, the workers at issue are covered by Olivas' worker's compensation insurance policy and Acuity Insurance may recover additional premiums from Olivas.

¶ 7. For the reasons set forth, we affirm the decision of the court of appeals affirming the order of the circuit court. We agree with both parties and the nonparties who filed a brief that the Act, not the common law, governs whether the workers at issue are independent contractors or Olivas' employees.⁵ We further agree with Acuity Insurance that the workers at issue do not satisfy the nine-part test for independent contractors set forth in Wis. Stat. § 102.07(8)(b). Accordingly, the workers at issue are employees under Wis. Stat. § 102.07(8) of the Act.

¶ 8. We agree, however, with Olivas that the workers at issue are not employees in his service in the course of his trade, business, profession, or occupation. In other words, no employment relationship exists between the workers at issue and Olivas. Accordingly, Acuity Insurance could not take them into account in setting the premium for Olivas' worker's compensation insurance policy. We therefore affirm the decision of the court of appeals that the complaint must be dismissed.

¶ 9. First we set forth the facts (Part I), the standard of review (Part II), the allocation of the burden of proof (Part III), and the application of the policy, the Act and the common law (Part IV). There are two parts to resolving the merits of the issue presented: whether the workers at issue are independent contractors (Part V), and whether an employer-employee relationship exists between Olivas and the workers at issue (Part VI).

I

¶ 10. Both the relevant facts derived from the testimony and the circuit court's findings of fact are essentially undisputed.

¶ 11. Steve Tenpas, the owner of a drywall contracting and painting business named Tenpas Drywall, contracted with Olivas, a drywall installer, for Olivas to do drywalling. Desiring to minimize his own liability, Tenpas informed Olivas that before he would hire him as a subcontractor, Olivas would first have to secure his own worker's compensation and liability insurance.

¶ 12. To satisfy Tenpas, Olivas purchased a liability and worker's compensation insurance policy from Acuity Insurance in 2001. Olivas was a "named insured" in his capacity as a sole proprietor; no employees were named as additional insureds. Acuity Insurance initially calculated Olivas' annual premium payment to be $3,513, based on Olivas' estimated $25,000 annual earnings. Under the policy, Acuity Insurance reserved the right to conduct an audit and adjust the premium according to Olivas' actual remuneration.

¶ 13. When Acuity Insurance audited Olivas in April 2003, the auditor discovered that Olivas had received approximately $190,000 from Tenpas. Acuity Insurance substantially increased Olivas' premiums to reflect its exposure for worker's compensation for the workers at issue. Olivas did not pay the increased premium, the policy terminated, and Acuity Insurance brings this action for unpaid premiums in the amount of $32,192.30.

¶ 14. The case proceeded to trial on the single issue of whether the workers at issue were independent contractors or employees under the Act.

¶ 15. According to the record, Olivas is a drywall installer. Olivas obtained jobs from Tenpas, which he usually completed with five men. Olivas was the only worker who spoke some English, so he alone communicated with Tenpas.

¶ 16. Tenpas. paid Olivas on a "per job" basis. Tenpas alone decided the payment for each job, based on the size and the difficulty of the project. Olivas had no say about the amount of the payment. Tenpas did not use a competitive bidding process to parcel out the jobs.

¶ 17. Olivas and the workers at issue divided the payments from Tenpas among themselves, as they decided, based on the work each did and each worker's experience. Olivas asserted that he made no profit from the work of the others.

¶ 18. Olivas received one Form 1099 from Tenpas (which is in the record), and each worker received a Form 1099 from Olivas. These latter forms are not in the record.

¶ 19. Olivas testified that he and Tenpas entered this arrangement because the other five workers did not have "papers." An inference can be made from the testimony that the five workers at issue are undocumented aliens. Tenpas testified that he required all subcontractors to get their own liability and worker's compensation policies because he wanted to avoid large premiums on his own worker's compensation policy.

¶ 20. Tenpas testified that he knew that Olivas had a "crew" assisting with the jobs and saw these workers at the job sites but otherwise had little interaction with them. Tenpas acknowledged that he did not check whether the workers had proper INS documentation. He stated that he investigates the backgrounds of the workers on his payroll but avoids investigating the backgrounds of others who work with the subcontractors.

¶ 21. Olivas testified further that he was not in control of the work group; that he did not control the hours that each person worked; and that he did not have the power to hire or fire any worker. Each worker was responsible for his own tools.

¶ 22. One of the workers, Jose Mireles, testified at trial and corroborated Olivas' testimony.

¶ 23. The circuit court found that each of the workers owned his own equipment; that each received a Form 1099 for tax purposes; that the workers agreed among themselves how Tenpas' payments would be distributed; that the payments were distributed according to the agreement; that each worker was equally responsible to complete the job satisfactorily; that each ran the same risk of nonpayment by Tenpas; and that the risk was minimal because Tenpas provided the supplies. On the basis of these findings of fact, the circuit court reached the legal conclusion that the workers were independent contractors under Wis. Stat. § 102.07(8)(b) and dismissed Acuity Insurance's complaint with prejudice.

( — I hH

¶ 24. The standard of review is not disputed. We review findings of fact made by the circuit court under Wis. Stat. § 805.17(2): "Findings of fact shall not be set aside unless clearly erroneous. .. ." The relevant historical facts set forth above essentially are not in dispute.

¶ 25. The parties disagree about the law and the application of the law to the facts. This case therefore requires us to interpret the insurance policy, the Act, and case law and apply them to the facts of the present case. Interpretation and application of an insurance policy, the Act, and case law are ordinarily questions of law that this court decides independently of the circuit court and court of appeals, but benefiting from their analyses.

III

¶ 26. We begin by stating the parties' legal arguments (which we will later discuss in turn) in order to allocate the burden of proof, that is, to allocate both the burden of production of evidence and the burden of persuasion.

¶ 27. Acuity Insurance argues that whether it is entitled to additional premiums turns on whether the workers at issue are independent contractors under the nine-part test for independent contractors set forth in Wis. Stat. § 102.07(8)(b). If the workers are not independent contractors, then according to Acuity Insurance, the workers are automatically employees under § 102.07(8)(a) and Acuity Insurance is entitled to additional premiums. To Acuity Insurance, the determination of the status of the workers as independent contractors or employees under § 102.07(8) begins and ends the case.

¶ 28. In contrast, Olivas argues that whether Acuity Insurance is entitled to additional premiums turns on whether an employer-employee relationship exists between him and the workers under Wis. Stat. § 102.07(4). If the workers are not Olivas' employees, then according to Olivas, Acuity Insurance is not entitled to additional premiums. To Olivas, the determination of the employer-employee relationship under § 102.07(4) begins and ends the case.

¶ 29. As we shall explain further, both parties have valid arguments. We conclude that for Acuity Insurance to succeed in its claim for additional premi-urns from Olivas, the workers at issue (1) cannot be independent contractors under Wis. Stat. § 102.07(8)(b), and (2) must have an employer-employee relationship with Olivas. This analysis is consistent with both Jarrett v. LIRC, 2000 WI App 46, 233 Wis. 2d 174, 607 N.W.2d 326, and Labor Ready, Inc. v. LIRC, 2005 WI App 153, 285 Wis. 2d 506, 702 N.W.2d 27.

¶ 30. Jarrett supports the proposition that whether a person is an employee or independent contractor must be determined under the statutory test for independent contractor status set forth in Wis. Stat. § 102.07(8). Labor Ready supports the proposition that a sufficient employment relationship between an employee and the alleged employer must exist before the Act will apply.⁶

¶ 31. The questions of who has the burden of proof of the status of the workers at issue as independent contractors and of their employment relationship to Olivas are questions of law.⁷ This court ordinarily decides questions of law independently of the circuit court or court of appeals.

¶ 32. Acuity Insurance acknowledges that it has the burden to establish its prima facie contract case, namely its rights under the contract and the breach of the contract. It argues, however, that it has met that burden by establishing the terms of the policy governing the calculation of the premium and the increase in Olivas' revenues over the $25,000 he estimated.

¶ 33. Acuity Insurance further asserts that given the broad definition of "employee" in the Act, and the presumption that a worker is an employee, it satisfied its burden to establish that the workers at issue are employees for purpose of the Act. Acuity Insurance relies on Scholz v. Industrial Commission, 267 Wis. 31, 41c, 65 N.W.2d 1 (1954), that the presumption of employee status exists and that the presumption constitutes prima facie proof that the workers at issue are employees.

¶ 34. The Scholz case and its progeny do not support Acuity Insurance's reasoning. The presumption that a person is an employee and that a relationship of employer and employee exists arises only when the person "was rendering service for the alleged employer."⁸ At issue in this case is whether the workers were rendering service for Olivas. Thus the presumption that the workers are employees plays no role in the present case.

¶ 35. Furthermore, the Scholz presumption is a rebuttable presumption that "ceases to have force and effect when evidence to the contrary is adduced."⁹ Evidence to the contrary has been adduced in the present case, and Acuity Insurance does not have the benefit of the presumption.

¶ 36. Acuity Insurance further asserts (without citation) that if an employer is trying to deny worker's compensation by contending that a person is an independent contractor, the employer has the burden to establish the facts supporting its position. Acuity Insurance then argues that it therefore follows that Olivas has the burden to prove that the workers at issue are independent contractors.

¶ 37. Older worker's compensation cases declare that the party seeking to defeat worker's compensation bears the burden to prove facts supporting its position.¹⁰ More recently the court has disavowed this declaration and has ruled that an applicant has the burden to prove that he or she is an employee¹¹ and that the issue whether the applicant might be an independent contractor does not present an affirmative defense.¹² There is no claimant for worker's compensation in the present case.

¶ 38. For the reasons set forth, we disagree with Acuity Insurance's analysis and are not persuaded by Acuity Insurance's view of who has the burden of proof.

¶ 39. Our case law sets forth criteria to be used in allocating the burden of proof.

¶ 40. The court has adopted, in State v. McFarren, 62 Wis. 2d 492, 499-502, 215 N.W.2d 459 (1974), a five-factor analysis to be applied in allocating the burden of proof.¹³ The five McFarren factors are: (1) the natural tendency to place the burden on the party desiring change; (2) special policy considerations such as those disfavoring certain defenses; (3) convenience; (4) fairness; and (5) the judicial estimate of probabilities.

¶ 41. We begin by applying these factors to the first issue in the present case: whether the workers are employees because they are not independent contractors under Wis. Stat. § 102.07(8)(b). The first McFarren factor favors placing the burden on Acuity Insurance as the party interested in changing the state of affairs between the parties. Acuity Insurance is attempting to collect additional funds and obtain judicial recognition of its claim.

¶ 42. The second factor about disfavored defenses is inapplicable.

¶ 43. The third factor relates to the ease of and access to proof. When facts lie peculiarly in the knowledge of a party, that party should ordinarily bear the burden of proof on that issue.¹⁴ At first glance, this factor favors placing the burden of proof of the status of the workers at issue on Olivas. He may know more about the workers than Acuity Insurance. Yet, McFarren cautions us not to overemphasize this factor: "Very often one must plead and prove matters as to which his adversary has superior access to the proof."¹⁵ For example, nearly all allegations required of a plaintiff in tort or breach of contract actions relating to the defendant's acts or omissions describe matters peculiarly within the defendant's knowledge.¹⁶ Additionally, with liberal discovery, parties are placed on more equal footing with regard to evidence. Olivas, Steve Tenpas, and the workers can provide Acuity Insurance with information.

¶ 44. The fourth factor, "fairness," has two component parts: (a) proof of exceptions and (b) proof of negatives. Proof of exceptions has been "defined as providing that one who relies on an exception to a general rule or statute has the burden of proving that the case falls within the exception."¹⁷ With regard to proof of negatives: "[T]he party asserting the negative has the burden to prove it unless the facts are peculiarly within the other party's knowledge or are much more difficult for the former to prove than the latter."¹⁸

¶ 45. No proof of exceptions is involved here. We go to proof of negatives.

¶ 46. For Acuity Insurance to prevail, it must affirmatively prove that the workers are employees under the Act. Proof that the workers at issue are employees is accomplished by proof that the workers at issue do not meet at least one part of the independent contractor test under Wis. Stat. § 102.07(8).

¶ 47. The argument that Acuity Insurance should not have to prove a negative is not persuasive. The commonly stated maxim that a party cannot be asked to prove a negative¹⁹ is not an invariable test, nor even always a significant circumstance. Parties frequently have to prove a negative. Wigmore explains that "the burden is often on one who has a negative assertion to prove; a common instance is that of a promisee alleging nonperformance of a contract."²⁰ A party can be required to aver and prove negative allegations, especially when the allegation is an essential part of the party's claim.²¹ For example, a party alleging nondelivery has the burden of proving that issue; a party alleging failure to perform has the burden of proof; a party alleging that a signature is a forgery has the burden of proving that the document was not signed by the purported signatory. Thus this fourth factor does not convince us that the burden of proof of independent contractor status should be on Olivas.

¶ 48. The fifth factor examines the judicial estimate of the probabilities. "The risk of failure of proof may be placed upon the party who contends that the more unusual event has occurred."²² It is not unusual for an insurance company to audit an insured under a worker's compensation policy and increase premiums. Similarly, it is not unusual for a dispute to arise about the status of persons as employees or independent contractors. This factor favors placing the burden on Acuity Insurance to show that Olivas failed to account for his employees.

¶ 49. Considering the relative weight of the McFarren factors, we conclude that the burden of proof on the issue of whether the workers at issue were independent contractors more appropriately lies with Acuity Insurance.

¶ 50. Similar considerations lead us to conclude that Acuity Insurance bears the burden of proof that an employment relationship exists between Olivas and the workers at issue. Again Acuity Insurance is the. party attempting to obtain judicial recognition of its claim and should bear the burden of proving why it is entitled to additional premiums. The second factor is not applicable. As to the third factor, as we explained previously, Acuity Insurance can gain access to the information it needs. The fourth factor is not relevant here. There are no exceptions or negatives involved in demonstrating the employment relationship.

¶ 51. Finally, with regard to the fifth factor, disputes about employment relationships are common in worker's compensation cases; the burden of proof should be on Acuity Insurance, which is attempting to obtain judicial recognition that the relationship exists.

¶ 52. For the reasons stated, we conclude that Acuity Insurance has the burden of proof on both issues that resolve the present case.

IV

¶ 53. Because this dispute involves an insurance policy, we examine the text of the policy to decide whether the policy, the Act, or the common law resolves the dispute.

¶ 54. The parties do not explore in detail the text of the policy. On this review the parties (and the nonparties who filed a brief) agree that the policy should be understood by reference to the Act and that the Act governs the resolution of the dispute.

¶ 55. We have examined the policy, and we agree with the parties that the text of the insurance policy directs us to the Act to resolve the issues presented.

¶ 56. Olivas purchased what appears to be a standard liability and worker's compensation insurance policy from Acuity Insurance. The policy lists only Olivas as a named insured. The policy explains that "if you [Olivas] are designated in the Declarations as ... [a]n individual, you and your spouse are insureds, but only with respect to the conduct of a business of which you are the sole owner." The policy also provides coverage for any employees of Olivas.

¶ 57. The policy requires Olivas to pay insurance premiums for any persons who subject Acuity Insurance to exposure to liability for worker's compensation. Under the policy, Acuity Insurance pays all benefits or compensation required of Olivas under the Act.

¶ 58. According to the policy, the premium is calculated on the following basis:

[P]ayroll and all other remuneration paid or payable during the policy period for the services of:

1. All your officers and employees engaged in work covered by this policy; and

2. All other persons engaged in work that could make us liable under Part One - Workers' Compensation Insurance of this policy.

¶ 59. The policy does not define "employees" or "other persons engaged in work that could make [Acuity Insurance] liable under the Worker's Compensation Insurance of this policy."²³

¶ 60. The policy provides that the "terms of this insurance that conflict with the workers' compensation law are changed by this statement to conform to that law." The Act (Wis. Stat. § 102.31) also specifically provides that "[e]very contract for the insurance of compensation provided under this chapter or against liability therefor is subject to this chapter and provisions inconsistent with this chapter are void."

¶ 61. The policy obviously directs the courts to the Act to determine Acuity Insurance's exposure to liability for worker's compensation for the workers at issue and thus the premiums it can charge. We therefore conclude that the Act, not the common law, governs whether the workers at issue are independent contractors and whether the workers are Olivas' employees.

V

¶ 62. The parties agree, and so do we, that if the workers at issue are independent contractors under Wis. Stat. § 102.07(8)(b), they are not employees, and Acuity Insurance is not liable for them under the Act and the policy. Acuity Insurance therefore would not be entitled to additional premiums from Olivas.

¶ 63. The Act (Wis. Stat. § 102.07(8)(b)) establishes a nine-part test to determine whether a person is an independent contractor and not an employee for purposes of worker's compensation. Unless all parts of the nine-part test are met, the person is not an independent contractor exempt from the Act. To be an independent contractor, a person must meet all of the following conditions:

1. Maintains a separate business with his or her own office, equipment, materials and other facilities.

2. Holds or has applied for a federal employer identification number with the federal internal revenue service or has filed business or self-employment income tax returns with the federal internal revenue service based on that work or service in the previous year.

3. Operates under contracts to perform specific services or work for specific amounts of money and under which the independent contractor controls the means of performing the services or work.

4. Incurs the main expenses related to the service or work that he or she performs under contract.

5. Is responsible for the satisfactory completion of work or services that he or she contracts to perform and is liable for a failure to complete the work or service.

6. Receives compensation for work or service performed under a contract on a commission or per job or competitive bid basis and not on any other basis.

7. May realize a profit or suffer a loss under contracts to perforin work or service.

8. Has continuing or recurring business liabilities or obligations.

9. The success or failure of the independent contractor's business depends on the relationship of business receipts to expenditures.²⁴

¶ 64. Only if all nine parts of this test for independent contractors are met will the workers at issue fall within the definition of "independent contractor" and fall outside the definition of "employees" in the Act and therefore outside the- policy. Acuity Insurance insists that the workers at issue fail to meet one or more of this nine-part test.

¶ 65. We agree with Acuity Insurance that Wis. Stat. § 102.07(8)(b) provides the sole test for determining whether a person is an independent contractor exempt from the Act's coverage. Indeed, § 102.07(8)(b) was amended in 1989 to replace the then-used test for distinguishing between employees and independent contractors, a test that was based on common-law criteria for distinguishing between employees and independent contractors.

¶ 66. The nine-part test in Wis. Stat. § 102.07(8)03) was enacted to provide an easily understood and easily applied test to determine who is an exempt independent contractor under the Act.²⁵ The Worker's Compensation Advisory Council²⁶ stated that "[t]his redefinition is to eliminate the disputes involving cases where insurance companies have collected premiums for individuals where they may not have any liability and cases where they have not collected premiums from individuals for whom they are liable and employers who were or were not paying premiums under the mistaken notion that the individuals working for them were or were not employees."²⁷ The Advisory Council expected that "this proposed amendment would clarify and redefine the term independent contractor so that employers and their insurance companies will be able to identify which employees are covered by the Worker's Compensation Act."²⁸

¶ 67. As discussed earlier, Acuity Insurance has the burden to prove facts from which a court could reach the conclusion of law that the workers at issue fail to satisfy at least one part of the nine-part test and therefore are not independent contractors under Wis. Stat. § 102.07(8)(b). The determination of whether the facts fulfill a statutory standard is a question of law that this court determines independently of the circuit court and court of appeals.

¶ 68. In determining whether the workers at issue fail to meet at least one part of the nine-part test, we look to the record and to decisions of the Labor & Industry Review Commission (LIRC) for guidance on the interpretation and application of Wis. Stat. § 102.07(8)(b). LIRC is the administrative body that regularly reviews worker's compensation claims. Although we are not bound by LIRC's reasoning, conclusions, or interpretations of the law, LIRC's specialized knowledge and experience can help this court in applying the nine-part test in Wis. Stat. § 102.07(8)(b).²⁹

¶ 69. In James v. B&P Drywall, WC Claim No. 1999-051348 (LIRC July 28, 2000), LIRC had to decide whether a subcontractor who installed drywall was an independent contractor or an employee covered under the Act. The drywall installer was paid on a per-job basis for projects he accepted from other contractors. The drywall installer supplied his own tools, and the contractors provided the drywall sheets. Based on these facts, LIRC concluded that the drywall installer who applied for worker's compensation was not an independent contractor.³⁰

¶ 70. LIRC concluded that the drywall installer in James failed the seventh, eighth, and ninth parts of the test and therefore was not an independent contractor. The drywall installer had no continuing or recurring business liabilities or obligations or overhead. He had only a few tools that did not require frequent maintenance or replacement. LIRC opined that minor or trivial expenses like these could not result in the success or failure of the business, as envisioned by the ninth part of the test. Because the drywall installer's "business" consisted of providing services with no overhead, LIRC concluded that the drywall installer did not have recurring expenses that could cause him to take a loss on any individual project.

¶ 71. Applying the teachings of James and examining the record in the present case, we conclude that the workers in the present case failed the seventh and ninth parts of the test. Each worker in the present case supplied only labor and simple tools like hammers that do not require frequent repair or replacement. The workers at issue did not have to purchase their own drywall sheets. There was no risk that the workers would suffer a loss on any of the jobs. They were paid only for the labor they put in, and they did not control any of the other costs involved with the project. Their success was not related to the relationship of business receipts to expenditures, but rather to how much labor they were willing to provide.

¶ 72. In reaching this conclusion of law, we disagree with the conclusion of law the circuit court reached. The circuit court did not analyze the facts with respect to each part of the nine-part test in reaching its conclusion of law that the workers at issue are independent contractors. The circuit court supported its conclusion of law with the following facts: each of the workers at issue owned his own equipment; each received a Form 1099 for tax purposes; the workers at issue agreed on how compensation would be distributed; the compensation was distributed according to the agreement; each worker at issue was equally responsible to complete the job satisfactorily; each ran the same risk of nonpayment (which is minimal) because Tenpas provided the supplies; the only risk was nonpayment by Tenpas.

¶ 73. Even drawing inferences from the record to support the circuit court's conclusion of law that the workers at issue were independent contractors, we conclude that the workers failed at least one of the nine parts of the test.

¶ 74. We therefore conclude that Acuity Insurance satisfied its burden to prove that the workers at issue failed to meet at least one part of the nine-part test and therefore do not qualify as independent contractors. The workers are employees under Wis. Stat. § I02.07(8)(a).³¹

¶ 75. Acuity Insurance argues, based on Jarrett v. LIRC, 2000 WI App 46, 233 Wis. 2d 174, 607 N.W.2d 326, that the conclusion that the workers at issue are not independent contractors ends the inquiry and Acuity Insurance wins the case.

¶ 76. In Jarrett, 233 Wis. 2d 174, ¶ 17, the court of appeals concluded that "Wis. Stat. § 102.07(8)(b) was intended to provide the sole test for determining whether a worker is an independent contractor under the Act. . . . [T]he legislature intended § 102.07 to create two classes of persons, employees and independent contractors, and to provide the method for determining whether a person is an independent contractor."

¶ 77. Jarrett, however, cannot be interpreted, as Acuity Insurance urges, as ending the inquiry in the present case and completely resolving the dispute. Jarrett is inapposite.

¶ 78. In Jarrett, Jarrett was held to be an independent contractor, not an employee. Consequently, in Jarrett neither LIRC nor the court of appeals had to examine whether an employment relationship existed under the Act between Jarrett and his alleged employer, that is, whether Jarrett's injury was sustained while he was in the service of the alleged employer. In Jarrett, the inquiry under Wis. Stat. § 102.07(8)(b) was the end of the inquiry under the circumstances of that case.

¶ 79. In the present case, after determining that the workers are employees, not independent contractors, we must proceed to decide whether an employment relationship exists between the workers and the alleged employer, an issue that did not arise in Jarrett.32

¶ 80. Simply concluding that the workers at issue are employees and not exempt independent contractors within the Act does not mean that Acuity Insurance can collect additional insurance premiums from Olivas for the workers at issue. The next question we must address is whether these workers are employees of Olivas.

VI

¶ 81. Even if the workers at issue are employees (and not independent contractors under the Act), Olivas argues that Acuity Insurance is not liable for these workers under Olivas' policy unless Acuity Insurance proves that the workers are Olivas' employees, that is, unless Acuity Insurance proves that an employer-employee relationship exists between the workers at issue and Olivas.

¶ 82. The Act defines an employee in Wis. Stat. § 102.07. Subsection (4)(a) defines an employee as a "person in the service of another under any contract of hire, express or implied ... if employed with the knowledge, actual or constructive, of the employer ...." Subsection (4)(a)2. excludes as an employee "[a]ny person whose employment is not in the course of a trade, business, profession or occupation of the employer ...."

¶ 83. The concept that an employee is in the service of another in the course of a trade, business, profession, or occupation of an employer also appears in Wis. Stat. § 102.07(8)(a), which provides that a worker who does not satisfy any part of the nine-part test for independent contractors is an "employee of any employer under this chapter for whom he or she is performing service in the course of the trade, business, profession or occupation of such employer .. . ."

¶ 84. Key to defining an employee under the Act, then, is the concept that an employee is "in the service of another in the course of a trade, business, profession or occupation of an employer." Clearly the Act does not impose worker's compensation liability on an employer when the employer does not have an employer-employee relationship with an injured person. The Act governs employers and their employees. "The foundation of the Workmen's Compensation Act is the existence of an actual employer-employe [sic] relationship." Wendlandt v. Indus. Comm'n, 256 Wis. 62, 67, 39 N.W.2d 854 (1949).

¶ 85. A sufficient nexus must exist between Olivas and the workers at issue to enable this court to conclude that these workers are in the service of Olivas in the course of Olivas' trade, business, or occupation. Olivas' worker's insurance policy does not cover every person who is an employee of some employer; it covers only employees in the service of Olivas.

¶ 86. The most recent case interpreting Wis. Stat. § 102.07(4)(a) and its definition of "employee" is Labor Ready, Inc. v. LIRC, 2005 WI App 153, 285 Wis. 2d 506, 702 N.W.2d 27. Labor Ready was a temporary help agency that operated as a hiring hall. The applicant for worker's compensation was injured at Labor Ready's facilities, while the applicant was awaiting a possible job assignment. The court of appeals affirmed LIRC's decision that the applicant was an employee of Labor Ready under § 102.07(4)(a) when he was injured.

¶ 87. In determining the existence of an employer-employee relationship under the Act, the court of appeals applied the test established in Kress Packing Co. v. Kottwitz, 61 Wis. 2d 175, 182, 212 N.W.2d 97 (1973). Although the Kress Packing test has been supplanted by Wis. Stat. § 102.08(b) for deciding independent contractor status for purposes of the Act,³³ the Labor Ready case demonstrates that the Kress Packing test continues to have vitality in determining whether a person is an employee under Wis. Stat. § 102.07(4)(a).

¶ 88. Kress Packing established the primary test for determining an employer-employee relationship: Does the alleged employer have a right to control the details of the work?³⁴ In assessing the right to control, four secondary factors are considered: (1) direct evidence of the exercise of the right of control, (2) method of payment of compensation, (3) furnishing of equipment or tools for the performance of the work, and (4) right to fire or terminate the employment relationship.³⁵

¶ 89. The Kress Packing test is fact-specific. Carefully examining the record, the court of appeals concluded in Labor Ready that the applicant was an employee of Labor Ready because Labor Ready had exercised control of the applicant even before the applicant was assigned to a job. The court of appeals emphasized that Labor Ready provided the facility at which the applicant was required to appear and wait. Furthermore, Labor Ready documented the applicant's status as an employee. The forms prepared by Labor Ready and signed by the applicant referred to the applicant as an employee; the applicant completed an Employee Withholding Allowance Certificate (W-4) for income tax purposes; the applicant was paid by Labor Ready, not the customer to whom the applicant would be assigned. All these facts led the court of appeals to conclude that the "parties have sufficient relevant indicia of an employer-employee relationship ... [and] for purposes of worker's compensation statutes, [the applicant] was Labor Ready's employee at the time he was injured. See Wis. Stat. § 102.07(4)(a)."³⁶

¶ 90. LIRC cases also demonstrate that the Kress Packing test continues to have vitality in determining whether a sufficient employer-employee relationship exists under the Act between an applicant and an alleged employer.

¶ 91. For instance, in Nickell v. County of Kewaunee, WC Claim No. 94064155 (LIRC Sept. 24, 1996), LIRC addressed the worker's compensation claim of a caregiver who was indisputably an employee under the Act. The issue to be decided was in whose service the caregiver-employee was for purposes of worker's compensation. In answering this question, LIRC examined the Kress Packing secondary factors, focusing on who hired the caregiver, who had the ability to fire the caregiver, and who ultimately paid the caregiver's wages. Acknowledging that "this case is not so clear-cut," LIRC concluded that the factors weighed in favor of holding that an employee-employer relationship existed between the caregiver and the county, not between the caregiver and the person cared for. The county arranged the general terms of employment and ultimately paid for the caregiver's services, even though the caregiver's direct services were not rendered to the county.³⁷

¶ 92. With the Kress Packing test in mind and these examples of the application of the test, we review the facts of the present case to consider whether there are sufficient indicia of an employer-employment relationship under the Act between Olivas and the workers at issue.

¶ 93. Olivas argues that the record demonstrates he was a go-between, middleman, or broker and that the workers at issue were not in his service.

¶ 94. According to Acuity Insurance, Olivas occupied a significant leadership role among the workers at issue. Acuity Insurance points to the fact that Olivas communicated with contractors about work opportunities and about the details of each assignment— information which he then relayed to the workers at issue; Olivas also received payment on behalf of the workers at issue and received the 1099 tax form from Tenpas.

¶ 95. The circuit court, the court of appeals, and this court do not agree with Acuity Insurance's characterization of the record. The courts accept Olivas' position that the facts prove he was just a go-between, middleman, or broker.³⁸

¶ 96. According to Olivas' and a worker's testimony (which the circuit court apparently found credible), the workers at issue were drywall installers. Olivas got the jobs on behalf of the workers at issue because he was able to speak English. He did not control the details of the workers' work. He did not order the workers at issue to hang a certain number of drywall sheets. He did not set their working hours.³⁹ He did not set their compensation. He did not pay them an hourly wage. The group decided the distribution of the per-job payment.

¶ 97. Olivas did not exercise the level of control that one would ordinarily expect from an employer. Indeed, he apparently did not have a right to control the workers. Thus, Olivas does not satisfy the Kress Packing primary control test.

¶ 98. Nor does Olivas satisfy the Kress Packing secondary factors. As to the first factor, Olivas did not exercise control over the details of the workers' work. Admittedly, Olivas did help train two of his colleagues who lacked prior experience in drywall hanging. This factor alone, however, will not create an employer-employee relationship between the parties without other evidence of "control."

¶ 99. Second, Tenpas, not Olivas, determined how much would be paid for each job, based on the size and complexity of the job. Then the workers at issue and Olivas, not Olivas alone, determined how the proceeds from the job would be distributed. According to the record, the workers and Olivas agreed that those with the most experience, who could hang more drywall sheets, would receive greater compensation. Olivas did not pay the workers until Tenpas paid Olivas.⁴⁰

¶ 100. Third, each worker supplied his own equipment, like hammers and other tools, as necessary. Olivas, like the other workers, brought equipment only for himself. Tenpas — not Olivas — supplied the drywall sheets for each project.

¶ 101. Fourth, Olivas had no individual right to hire or fire any of the workers at issue. Just as the workers at issue and Olivas collectively decided their compensation arrangement, so, too, they decided whether they would permit others to work with them. Sometimes they allowed others to assist them on larger projects; Olivas did not control that decision.⁴¹ The workers at issue had not fired anyone, and instead, each worker could decide for himself whether he wished to work on a project. Workers had quit jobs, on their own terms and without need of Olivas' permission. There was no contract, express or implied, binding these workers to Olivas or Olivas to these workers.

¶ 102. Although under Kress Packing "a benefit conferred does not necessarily point to an employee-employer relationship,"⁴² we may consider in determining whether the workers at issue were in the service of Olivas whether they conferred a benefit upon Olivas. Olivas received no pecuniary gain from his relationship to the workers. Each worker at issue, and Olivas, received remuneration according to a decision of the group. Olivas distributed Tenpas¹ payment without taking an extra share. At trial, Olivas explained he "did not have any gains" or profit from his role.

¶ 103. Olivas' prominent position emerges from the stark scenario that he is the only one with sufficient English skills to handle these matters and perhaps the only person legally entitled to work.⁴³ Olivas, it appears, was the translator, not the employer, and his role as translator should not saddle him with obligations under worker's compensation.

¶ 104. The factors relied on by Acuity Insurance's auditor to conclude there was an employer-employee relationship between Olivas and the workers at issue are legally insufficient. The auditor testified at trial that she believed that Olivas oversaw the work of the group solely because the group was working together. The auditor also testified that she believed Olivas was the employer because he was the only one that actually got paid and he was getting the jobs. Under the totality of the circumstances of the present case, these facts upon which the auditor relied are consistent with the conclusion that Olivas occupied a leadership role with the workers at issue, not that the workers at issue were his employees.

¶ 105. Examining the record as a whole, we conclude that there were not sufficient indicia of an employer-employee relationship between Olivas and the workers. We conclude that the facts and the reasonable inferences therefrom lead to the conclusion of law that the workers were not performing work in Olivas' service. We thus hold that Acuity Insurance cannot require Olivas to pay additional insurance premiums for these workers.⁴⁴

* * * *

¶ 106. For the reasons set forth, we affirm the decision of the court of appeals affirming the order of the circuit court. We agree with both parties and the non-parties that the Act, not the common law, governs whether the workers at issue are independent contractors and Olivas' employees. We further agree with Acuity Insurance that the workers at issue do not satisfy the nine-part test for independent contractors set forth in Wis. Stat. § 102.07(8)(b). Accordingly, the workers at issue are employees under Wis. Stat. § 102.07(8) of the Act.

¶ 107. We agree, however, with Olivas that the workers at issue are not employees in his service in the course of his trade, business, profession, or occupation. In other words, no employment relationship existed between the workers at issue and Olivas. Accordingly, Acuity Insurance could not take these workers into account in setting the premium under Olivas' worker's compensation insurance policy. We therefore affirm the decision of the court of appeals affirming the order of the circuit court that the complaint must be dismissed.

By the Court. — The decision of the court of appeals is affirmed.

1 Acuity Mut. Ins. Co. v. Olivas, 2006 WI App 45, 289 Wis. 2d 582, 712 N.W.2d 374.

2 All references to the Wisconsin Statutes are to the 2003-04 version of the statutes unless otherwise noted.

3 Olivas, 289 Wis. 2d 582, ¶ 14.

4 The word "workers" and the phrase "workers at issue" are used to refer to the men working on the Tenpas jobs with Olivas; the phrase does not usually include Olivas.

5 Both parties and the Wisconsin Insurance Alliance and the Wisconsin Compensation Rating Bureau, which filed a non-party brief, disagree with the court of appeals' decision that the case is governed by the common law. The court agrees with the parties and the nonparties that the case is governed by the Act.

6 For a similar discussion of the relationship between these two propositions, see St. John v. The Last Detail, WC Claim No. 1995007051 (LIRC Feb. 28, 2000).

7 See, e.g., State v. Armstrong, 223 Wis. 2d 331, 344, 588 N.W.2d 606 (1999); State v. Big John, 146 Wis. 2d 741, 755, 432 N.W.2d 576 (1988); State v. McFarren, 62 Wis. 2d 492, 499, 215 N.W.2d 459 (1974); Long v. Ardestani, 2001 WI App 46, ¶ 36, 241 Wis. 2d 498, 624 N.W.2d 405.

8 Revels v. Indus. Comm'n, 36 Wis. 2d 395, 400, 153 N.W.2d 637 (1967).

9 Revels, 36 Wis. 2d at 402 (citing Conrad v. Indus. Comm'n, 254 Wis. 574, 578, 37 N.W.2d 60 (1949)). See also Scholz v. Indus. Comm'n, 267 Wis. 31, 41b, 65 N.W.2d 1 (1954).

10 See, e.g., Huebner v. Indus. Comm'n, 234 Wis. 239, 243, 290 N.W. 145 (1940) ("[I]t will be presumed, for the purposes of the compensation act, that the person was an employee and therefore the burden to prove otherwise rests upon him who seeks to defeat compensation."); Connor Lumber & Land Co. v. Indus. Comm'n, 203 Wis. 85, 87, 233 N.W. 559 (1930); Habrich v. Indus. Comm'n, 200 Wis. 248, 254, 227 N.W. 877 (1929).

11 Beecher v. LIRC, 2004 WI 88, ¶ 52, 273 Wis. 2d 136, 682 N.W.2d 29 ("As a general matter, the burden of proof in a worker's compensation case lies with the claimant."); Leist v. LIRC, 183 Wis. 2d 450, 457, 515 N.W.2d 268 (1994) ("[T]he claimant has the burden of proving beyond a legitimate doubt all the facts essential to the recovery of compensation.").

12 Scholz, 267 Wis. at 41c.

13 These five factors were adopted from Charles T. McCormick, McCormick's Handbook of the Law of Evidence, § 337, at 787-89 (2d ed. 1972). See also 2 Charles T. McCormick, Handbook of the Law of Evidence, § 337, at 411-15 (5th ed. 1999). The McFarren factors were used, for example, in State v. Big John, 146 Wis. 2d 741, 756, 432 N.W.2d 576 (1988).

14 McFarren, 62 Wis. 2d at 500.

15 Id. (quoting Charles T. McCormick, McCormick's Handbook of the Law of Evidence, § 337, at 787 (2d ed. 1972)).

16 2 Charles T. McCormick, Handbook of the Law of Evidence, § 337, at 413 (5th ed. 1999).

17 Big John, 146 Wis. 2d at 756.

18 McFarren, 62 Wis. 2d at 503.

19 "Statements are found primarily in older cases to the effect that even though a party is required to plead a fact, it is not required to prove that fact if its averment is negative rather than affirmative in form." 2 McCormick, Handbook of the Law of Evidence, § 337, at 412 (5th ed. 1999).

²⁰

IX Wigmore on Evidence, § 2486, at 288 (Chadbourn rev. 1981).

21 Id.

22 2 McCormick, Handbook of the Law of Evidence, § 337, at 413 (5th ed. 1999).

23 The policy states only that" 'Employee' includes a leased worker. Employee does not include a temporary worker." "Leased worker" and "temporary worker" are defined by the policy, but these definitions are not relevant here.

24 Wisconsin Stat. § 102.07(8)(b) provides: "(b) An independent contractor is not an employee of an employer for whom the independent contractor performs work or services if the independent contractor meets all of the following conditions:"

25 Jarrett v. LIRC, 2000 WI App 46, ¶ 17, 233 Wis. 2d 174, 607 N.W.2d 326.

26 The Worker's Compensation Advisory Council is a council created by statute, Wis. Stat. § 15.227(4). It consists of the following persons appointed by the Secretary of Workforce Development: a designated employee of the Department of Workforce Development as chairperson, five representatives of employers, and five representatives of employees. The Secretary of Workforce Development also appoints three representatives of insurers authorized to do worker's compensation insurance business in this state as nonvoting members of the council. Wisconsin Stat. § 102.14(2) requires the Advisory Council to "advise the department in carrying out the purposes of this chapter. Such council shall submit its recommendations with respect to amendments to this chapter to each regular session of the legislature and shall report its views upon any pending bill relating to this chapter to the proper legislative committee."

27 This explanatory language from the Worker's Compensation Advisory Council can he found in a document entitled "Plain Language Analysis of Independent Contractor Recommendation" contained in the legislative file for 1989 Wis. Act 64, on file with the Legislative Reference Bureau, Madison, WI. See also Jarrett, 233 Wis. 2d 174, ¶ 17.

28 Id. This legislative history is set forth in greater detail in Jarrett, 233 Wis. 2d 174, ¶ 17, and in the nonparties' brief.

29 For a discussion of the deference due to administrative decisions on questions of law, see Racine Harley-Davidson, Inc. v. Wis. Div. of Hearings & Appeals, 2006 WI 86, ¶¶ 8-20, 292 Wis. 2d 549, 717 N.W.2d 184.

30 LIRC determined that the first part of the nine-part test, that is, that the worker maintains a separate business with his or her own office, equipment, materials, and other facilities, was not met in James. According to the evidence presented, the drywall installer kept his supplies in a bucket in the basement, did not have an office or home office, did not have a business card, did not set aside any space for business purposes, did not have a business phone line or office equipment, and did not keep any records except those needed for income tax purposes.

In the present case, in contrast to James, no evidence was presented regarding whether the workers maintained a separate business, where they kept their tools, and what facilities they maintained. We cannot just assume, without any evidence, that, like in James, these workers kept their tools in a bucket at their homes and did not have any equipment associated with running one's own business.

In an unpublished decision, the court of appeals affirmed LIRC's decision that the drywall installer was not an independent contractor under Wis. Stat. § 102.07(8)(b). B&P Drywall v. LIRC, 2001AP1422, unpublished slip op. (Wis. Ct. App. May 7, 2002).

31 Wisconsin Stat. § 102.07(8)(a) provides that "every independent contractor [who does not satisfy the nine-part test under § 102.07(8)(b)] is an employee of any employer under this chapter for whom he or she is performing service in the course of the trade, business, profession or occupation of such employer at the time of the injury."

32 After examining Jarrett, LIRC has recently concluded that the approach we use is the correct one, namely, a decision is made under Wis. Stat. § 102.07(8)(b). Then, when the issue is posed, a decision is made under Wis. Stat. § 102.07(4) regarding the employer-employee relationship. St. John v. The Last Detail, WC Claim No. 1995007051 (LIRC Feb. 28, 2000).

33 See Jarrett, 233 Wis. 2d 174, ¶ 17 ('Wisconsin Stat. § 102.07(8)(b)... replaced the previous criteria for determining independent contractor status under the Act.").

34 Kress Packing Co. v. Kottwitz, 61 Wis. 2d 175, 182, 212 N.W.2d 97 (1973).

³⁵

36 Labor Ready, Inc. v. LIRC, 2005 WI App 153, ¶ 17, 285 , 702 N.W.2d 27. The court of appeals went on to conclude that the applicant-employee was performing service growing out of and incidental to his or her employment under Wis. Stat. § 102.03(1).

37 In Day v. Village of Greendale, WC Claim No. 94005719 (LIRC May 18, 1995), an applicant for worker's compensation was injured during a physical agility test before being hired. In determining whether the person qualified for worker's compensation, LIRC relied on the Kress Packing factors in assessing the employment relationship between the parties. LIRC refused to adopt the applicant's argument that the potential employer "controlled" the performance of the test. LIRC concluded that the agility test was voluntary and that the Kress Packing test was not satisfied.

In Ambrose v. Harley Vandeveer Trust, WC Claim No. 86-39393 (Feb. 28, 1989), LIRC applied the Kress Packing test to determine whether an employee-employer relationship existed between a caregiver and a trust for the benefit of the person for whom care was provided. LIRC held that the person for whom care was provided administered her own affairs and reserved the right to control the details of the caregiver's employment and to terminate the caregiver's employment. The trust, according to LIRC, was a conduit for compensation. The caregiver was not an employee of the trust under Wis. Stat. § 102.07(4). This decision was affirmed by the court of appeals in an unpublished decision. Ambrose v. LIRC, 1990AP440, unpublished slip op. (Wis. Ct. App. Oct. 23, 1990).

38 For a LIRC case in which LIRC had to decide whose employee the applicant was after it determined the applicant was not an independent contractor under Wis. Stat. § 102.07(8)(b), see St. John v. The Last Detail, WC Claim No. 1995007051 (Feb. 28, 2000). In that case, Reed (who was in the construction business) arranged a garage remodeling project as a favor to his in-laws. The roofer working on the garage was injured. Reed argued that he did not have an employer-employee relationship with the roofer. LIRC concluded that Reed was not a middleman and that when he was injured, the roofer was performing services for Reed.

39 At trial, Olivas testified to the following: "Q. Did you tell the other workers what hours they had to work? A. No, I never said anything to them."

40 When asked at trial "Does Miguel [Olivas] ever pay you when Steve [Tenpas] doesn't pay him?," one of the coworkers answered "No."

41 At trial, Olivas testified to the following: "Q. Did you ever add people to the group? A. When it was a bigger job, we would all agree to bring one other person. It would depend on the job that we were doing. Q. And the decision was made by the group? A. Yes. Q. It wasn't made by you? A. No."

42 Kress Packing, 61 Wis. 2d at 181. Whether the worker provides a "benefit" to the alleged employer is not the dispositive factor in establishing an employer-employee relationship between the parties. Lange v. DILHR, 40 Wis. 2d 618, 162 N.W.2d 645 (1968) ("something more than an incidental benefit to the claimed employer must he found to link the asserted employer and asserted employe [sic]").

43 At trial, Olivas testified that Tenpas would relate to him the details of each assignment "because the other ones didn't speak English."

44 This case does not require us to determine who had an employer-employee relationship with the workers at issue. We do not address this question.

1 All references to the Wisconsin Statutes are to the 2003-04 version of the statutes unless otherwise noted.