Fox v. National Carrier

709 P.2d 1050

• Court: Supreme Court of Oklahoma
• Decided: December 3, 1985
• Docket: 61358
• Status: Published

Opinions

DOOLIN, Vice Chief Justice.

The claimant, Marvin Fox, was hired by James Anderson (an independent contractor) as a relief truck driver to assist him in driving a truck. Anderson leased the truck to National Carrier (National) a transportation company, to haul National’s trailers to various locations across the United States. Anderson and the claimant hauled a trailer to Liberal, Kansas, where they dropped it off. They stayed overnight in Liberal because they were to pick up another trailer the following day. The next morning claimant choked on a piece of sausage and started gagging. He then began vomiting so violently he ruptured a cervical disk. He later underwent surgery for these injuries.

Claimant sought compensation benefits from National for the injury sustained to his neck. National and its insurance carrier, Hartford Insurance Company (Hartford), denied an employer-employee relationship existed between National and the claimant. The trial judge found (1) the claimant was not an employee of National; (2)the claim was barred by the statute of limitations; and (3) the accident did not arise out of and in the course of employment. The Court of Appeals affirmed the trial judge’s order on the sole ground that claimant was not an employee of National.

We hold that the Court of Appeals and the trial judge’s opinions were in error for the following reasons.

Title 85 O.S. 1981, § 11(2) provides that the principal employer is liable for benefits to the employee of an independent contractor or sub-contractor, if such subcontractor has not provided Workers’ Compensation insurance. Under this provision it is irrelevant whether or not claimant was in fact an employee of National. The relevant inquiry, in this case, is whether or not the independent contractor provided the requisite Workers’ Compensation coverage.¹ The record reveals that Anderson did not provide Workers’ Compensation coverage.

The record reflects that National provided the Workers’ Compensation coverage because Anderson did not. The record also shows that National paid the premiums and deducted the amount of the premiums from the remuneration National paid Anderson. The fact that National charged Anderson for the amount of the premiums does not allow National to escape liability. To allow National and Hartford (who accepted premiums) to escape liability in this case would violate both the spirit and the letter of § 11(2) of the Workers’ Compensation Act.

An earlier order of the Workers’ Compensation Court sitting en banc declared Hartford estopped from denying coverage to the claimant. It determined that the claimant though an immediate employee of Anderson, was covered by Hartford because National paid premiums to Hartford based on claimant’s wages.² We agree with this finding and affirm the court’s en banc holding.

Section 11(2) allows the claimant to proceed directly against such principal employer without regard to the liability of the independent contractor when it appears that the independent contractor did not provide Workers’ Compensation coverage.

The second issue is whether or not the claim is barred by the Statute of Limitations. We hold that the Statute of Limitations was tolled by the application of 85 O.S. 1981, § 8. Section 8 requires the employer to advise the injured employee of the right to file a claim under the Workers’ Compensation Act. In the event that the employer neglects to give notice the statute of limitations is tolled.³ There is no question that no § 8 notice was given, and on the contrary, National informed the claimant that he was not entitled to Workers’ Compensation benefits. For this reason we hold that the claim was timely filed.

The final issue on appeal is whether the claimant’s injuries arose out of and during the course of his employment. This Court follows the rule as set down by A. Larson, Workmen’s Compensation Law, Vol. 1A, § 25.21:

Employees whose work entails travel away from the employer’s premises are held in the majority of jurisdictions to be within the course of their employment continuously during the trip, except when a distinct departure on a personal errand is shown. Thus injuries arising out of the necessity of sleeping in hotels or eating in restaurants away from home are usually held compensable.

Work-connected activity reaches beyond direct services performed and includes ministration to personal comfort and needs of employees.⁴

In Bayless v. Sparkman Livestock Sales⁵ this Court said:

As a general rule, a commercial traveler is regarded as acting within the course of his employment during the entire period of his travel upon his employer’s business. His acts in traveling, procuring food (emphasis added) and shelter are all incidents of the employment,, and where injuries are sustained during the course of such activities, the Workers’ Compensation Act applies.

We hold that since eating is necessarily incidental to the work of a traveling employee, injuries arising thereof are compensable.⁶

Opinion of the Court of Appeals VACATED, CAUSE REMANDED to Workers’ Compensation Court to fix the amount of award.

HODGES, WILSON and KAUGER, JJ., concur.

1 .This does not challenge the well-settled rule that the employee of the independent contractor must be engaged in work that was a necessary and integral part of general contractor’s business. (W.P. Atkinson Enter Enterprises, Inc. v. Dist. Ct. of Okl. Cty., 516 P.2d 541 (Okl.1973).

2 . 85 O.S. 1981, §§ 65.2, 65.3.

3 . Harris v. Osborne. Electric Co., 654 P.2d 1086 (Okl.App.1982). Section 8 of Title 85 O.S. 1981 repealed, see Chap. 266 Session Laws 1985.

4 . Richey v. Commander Mills, Inc., 521 P.2d 805 (Okl.1974); Lewis v. Western Electric Co., Inc., 671 P.2d 1162 (Okl.1983).

5 . 350 P.2d 233 (Okl.1960), death resulting by asphyxiation while acting as truck driver for employer; see also, Matter of the Death of Lewis, 671 P.2d 1162 (Okl.1983), where employee, on temporary assignment in Tulsa, was murdered en route or returning from a restaurant. In both cases employee was a commercial traveler.

6 .Cases where choking induced trauma has been held compensable include: Snyder v. General Paper Corp., 277 Minn. 376, 152 N.W.2d 743 (1967); Cole v. Union Carbide Corp., 50 A.D.2d 623, 374 N.Y.S.2d 741 (1975), Traveler’s Ins. Co. v. McJerski, 531 S.W.2d 765 (Mo.1975).