Hill Trucking, L.L.C. v. Bradshaw

392 S.W.3d 520, 2013 WL 587468, 2013 Mo. App. LEXIS 196
CourtMissouri Court of Appeals
DecidedFebruary 15, 2013
DocketNos. SD 31338, SD 31339, SD 31340
StatusPublished

This text of 392 S.W.3d 520 (Hill Trucking, L.L.C. v. Bradshaw) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hill Trucking, L.L.C. v. Bradshaw, 392 S.W.3d 520, 2013 WL 587468, 2013 Mo. App. LEXIS 196 (Mo. Ct. App. 2013).

Opinion

GARY W. LYNCH, P.J.

Hill Trucking, LLC, (“Hill Trucking”) appeals three adverse determinations by the Labor and Industrial Relations Commission (“Commission”) that claimants Kevin Bradshaw and Charles Alcorn are entitled to wage credits based upon services performed for wages in employment by Hill Trucking (Commission decision no. WC-64-10/our Appeal No. SD31338 and Commission decision no. WC~20-10/our Appeal No. SD31339, respectively) and that claimant Alcorn is not disqualified from the receipt of unemployment benefits [521]*521because Hill Trucking discharged Alcorn, but not for misconduct connected with work (Commission decision No. 10-04058 R-A/our Appeal No. SD31840). The only-issue raised by Hill Trucking in these appeals is that it claims it is not an employer as defined in section 288.032, because it is exempt under subsection 3 of that statute.1 Finding that Hill Trucking’s status as an employer cannot be raised in these appeals of cases involving claimants and has been determined adversely to Hill Trucking by the Western District of this Court in related cases not involving any claimant, we affirm.

Factual and Procedural Background

Hill Trucking is a limited liability company organized in Missouri with Larry Hill and his wife, Patricia Hill, as its members.

Alcorn worked for Hill Trucking as a dump truck driver between late 2007 or early 2008 until November 8, 2009, when he was told to clean out his truck because there was no more work for the season. Alcorn applied for unemployment benefits on November 19, 2009, alleging that he was separated from employment with Hill Trucking because of a lack of available work. Hill Trucking protested Alcorn’s claim, alleging that Alcorn “was not employed by Hill Trucking LLC, but was a driver of an independent contractor who had a lease from Hill Trucking of the equipment that he was working on, and who worked at his own independent business beyond the control of Hill Trucking, LLC.” Alternatively, Hill Trucking protested Alcorn’s claim on the ground that Alcorn “quit without good eause[ ] attributable to ... his employer.” Hill Trucking contended that Alcorn was disqualified from receiving benefits and “ineligible for benefits because he is running his own business.”

In the course of processing Alcorn’s claim for benefits, the Division of Employment Security (“Division”) found that Hill Trucking had not reported any wages for Alcorn and other drivers, and an investigation was opened to determine whether Hill Trucking was an employer and subject to the Missouri Employment Security Law (“the Law”), see Chapter 288.

On December 1, 2009, the Division sent Hill Trucking a “notice of liability” advising that, in accordance with section 288.032, it had been determined that Hill Trucking became an employer subject to the Law beginning on January 1, 2008, in that Hill Trucking’s drivers “received remuneration for their services which constitutes wages as defined in Section 288.036[,]” and Hill Trucking had not shown that the drivers were independent contractors. Hill Trucking requested review of the determinations of employer liability and that named drivers were employees, rather than independent contractors, contending that each operated “under a lease arrangement where they were responsible for the equipment leased to them, and were working on a percentage of revenue produced by the truck leased to them.” Appeal to the Appeals Tribunal on these issues was designated as appeal no. E-44-10.

Also on December 1, 2009, the Division mailed Hill Trucking a Determination of Worker’s Wage Credits related to claimant Charles Alcorn. Therein, it was determined that Alcorn was entitled to certain wage credits in the calculation of his claim for unemployment benefits. Hill Trucking appealed this determination contending that Alcorn was working as an independent contractor and not entitled to wage credits. This appeal was designated as [522]*522appeal no. WC-20-10 (now before us as SD31339).

On January 21, 2010, a deputy’s determination concerning Alcorn’s claim for unemployment benefits was mailed, stating that Alcorn was not disqualified, in that “[t]he separation was not for misconduct connected with work.” Based in part on a credibility determination, the deputy found that Alcorn “was separated for reasons attributable to a lack of work because more work was not available.” Hill Trucking appealed the determination that Alcorn was eligible for unemployment benefits to the Appeals Tribunal contending that Al-corn “was a for hire driver and exempted from the employee classification in this case[,]” pursuant to section 288.023.3. Hill Trucking also contended that Alcorn quit without good cause attributable to employer or job and that Hill Trucking called him repeatedly to offer hauling opportunities throughout the month of November 2009, which Alcorn refused to accept. This appeal to the Appeals Tribunal was designated as appeal no. 10-04058 (now before us as SD31340).

Kevin Bradshaw was engaged as a driver by Hill Trucking and filed for unemployment benefits effective April 4, 2010. On April 8, 2010, the Division mailed Hill Trucking a Determination of Worker’s Wage Credits related to claimant Kevin Bradshaw. Therein, the Division determined that Bradshaw was entitled to certain wage credits in the calculation of his claim for unemployment benefits. Hill Trucking appealed this determination, alleging that Bradshaw was working as an independent contractor and was not an employee. This appeal was designated as appeal no. WC-64-10 (now before us as SD31338).

The Division further notified Hill Trucking, on April 20, 2010, of its Assessment for Contributions, Interest, and Penalties for the third and fourth quarters of 2009. Hill Trucking petitioned for reassessment and protested the amount assessed, contending that it did not have employees during the third and fourth quarters of 2009. This appeal was designated as appeal no. E-176-10.

Also on April 20, 2010, Larry Hill, as a member of Hill Trucking, was notified of his personal liability in the Division’s assessment for contributions, interest, and penalties for the first, second, and third quarters of 2008, and the second, third, and fourth quarters of 2009. Hill petitioned for reassessment and protested the amount assessed against him personally, contending he had no employees during those quarters of assessment and owed no contributions. Hill further alleged that if any assessment was owed, it was owed by Hill Trucking rather than Hill personally. This appeal was designated as appeal no. E-177-10.

All six of the preceding matters were consolidated for hearing before the Appeals Tribunal on September 8, 2010. Four witnesses testified on behalf of Hill Trucking; two witnesses testified on behalf of the Division; Charles Alcorn and another witness testified on his behalf; and Kevin Bradshaw testified.

In appeal no. E-44-10, the determination of liability as an employer, the Appeals Tribunal affirmed the deputy’s determination that Hill Trucking was liable as an employer and subject to the Law, pursuant to findings that Charles Alcorn and Kevin Bradshaw, in addition to other drivers, performed services for wages in employment by Hill Trucking, and Hill Trucking became an employer subject to the Law effective January 1, 2008. The Appeals Tribunal overruled Hill Trucking’s petitions for reassessment in appeal nos. E-176-10 (as to Hill Trucking) and E-177-10 (as to Larry Hill personally). The Ap[523]

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Bluebook (online)
392 S.W.3d 520, 2013 WL 587468, 2013 Mo. App. LEXIS 196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hill-trucking-llc-v-bradshaw-moctapp-2013.