Johnson v. Bonds Fertilizer, Inc.

289 S.W.3d 431, 375 Ark. 224, 2008 Ark. LEXIS 712
CourtSupreme Court of Arkansas
DecidedDecember 11, 2008
Docket08-269
StatusPublished
Cited by10 cases

This text of 289 S.W.3d 431 (Johnson v. Bonds Fertilizer, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Bonds Fertilizer, Inc., 289 S.W.3d 431, 375 Ark. 224, 2008 Ark. LEXIS 712 (Ark. 2008).

Opinion

Paul Danielson, Justice.

In this third appeal of this matter, appellant Scipio Johnson appeals from the order of the Workers’ Compensation Commission, which found that he was performing employment services for both appellee Bonds Fertilizer, Inc. and the Bonds Brothers Trust, also known as the Farm, at the time of his accident on June 28, 1995. 1 See Johnson v. Bonds Fertilizer, Inc., 365 Ark. 133, 226 S.W.3d 753 (2006) (Johnson II); Johnson v. Union Pac. R.R., 352 Ark. 534, 104 S.W.3d 745 (2003) (Johnson I). Mr. Johnson asserts four points on appeal: (1) that the Commission’s finding that he was performing work for Bonds Fertilizer on the date of his injury was not supported by substantial evidence; (2) that the Administrative Law Judge (ALJ) and the Commission erroneously exceeded this court’s mandate in Johnson II; (3) that the ALJ and the Commission erred by applying the doctrines of dual employment, loaned employee, simultaneous employment, and joint employment; and (4) that the ALJ and the Commission erred in denying his motion to dismiss appellee Bonds Brothers, Inc., and in failing to strike its motions and briefs. We affirm the Commission’s order.

As set forth in both Johnson I and Johnson II, this matter arises from an accident in which a train collided with a truck near Tamo, Arkansas, on June 28, 1995. Mr. Johnson was a passenger in the truck and was seriously injured when he was thrown from the vehicle upon impact. Mr. Johnson and his wife, Bessie Johnson, filed suit in the Jefferson County Circuit Court against Union Pacific Railroad, Bonds Fertilizer, Inc., and Bonds Brothers, Inc., alleging negligence and a loss of consortium. The circuit court granted summary judgment to both Bonds Fertilizer, Inc. and Bonds Brothers, Inc. and granted partial summary judgment to Union Pacific, on the issue of inadequate warning devices. Following a jury trial against Union Pacific on the remaining issue of negligence, the jury returned a verdict in favor of Union Pacific. Mr. Johnson appealed to this court, and we affirmed the grant of partial summary judgment to Union Pacific, but reversed the grant of summary judgment to Bonds Fertilizer, 2 remanding the matter to the circuit court with leave for Mr. Johnson to pursue a determination before the Commission as to whether he was performing employment services for Bonds Fertilizer or for the Farm on the date of the accident. 3 See Johnson I, supra.

Following our remand, Mr. Johnson sought a determination from the Commission; however, the ALJ and the Commission, in a 2-1 decision, agreed with the argument of Bonds Fertilizer and the Farm that since the statute of limitations had run, the Commission had no further jurisdiction in the matter and was without authority to issue an advisory opinion. See Johnson II, supra. On appeal, this court held that the Commission erred in both of its conclusions and reversed and remanded the matter to the Commission for a determination “as to whether Johnson was performing employment services for Bonds Fertilizer or the Farm on the date of the accident.” 365 Ark. at 137, 226 S.W.3d at 756.

Since our remand in Johnson II, a hearing was held before the ALJ on July 21, 2006, and on January 10, 2007, the ALJ issued its order. In that order, the ALJ quoted the facts from our opinion in Johnson I, stating: 4

The record reflects, that, on the date of the accident,Johnson was an employee of both the Farm and Bonds Fertilizer. Both companies, along with Bonds Brothers, were either owned or controlled by Kenny Bonds and Brian Bonds. Kenny and Brian each owned fifty percent of Bonds Brothers. Bonds Brothers is the sole shareholder of Bonds Fertilizer. The Farm is a partnership comprised of Kenny Bonds Farms, Brian A. Bonds Trust, and Bonds Brothers. When Johnson performed work for either the Farm or Bonds Fertilizer, he reported to the same supervisor, Allan Maxey. Some weeks, Johnson would perform tasks for both employers, but he would receive only one paycheck, from the company that he did the most work for that week. The week before the accident and the week of the accident, Johnson was paid by Bonds Fertilizer.
On the morning of the accident, Johnson was performing work for the Farm, because one of the Farm’s employees was out sick. That afternoon, Johnson was supposed to deliver a load of fertilizer that was coming in at 3:00 p.m. for Bonds Fertilizer. In the meantime, around 1:00 p.m., Maxey instructed Johnson to pick up a tractor for the Farm and begin laying irrigation pipe. Maxey instructed Johnson to ride with Frances Birmingham, an employee of Bonds Fertilizer. Alyston Luster, an employee of the Farm, also rode with them. The truck they were riding in was owned by Bonds Brothers, and it had a 1,000-gallon water tank hooked to the back. f
Following the accident, Kenny Bonds reported Johnson’s accident to the insurance carrier for Bonds Fertilizer. The insurance carrier approved the claim and paid approximately $61,000 in medical and temporary total disability benefits to or on behalf of Johnson. Johnson accepted these benefits for over nine months, from July 1995 to .April 1996. Subsequently, in February 1998, Johnson made a claim for additional benefits, fisting as his employer: “Bonds Fertilizer, Inc. or Bonds Brothers Farms, Inc.” That claim was later withdrawn by Johnson, in favor of the civil suit.

352 Ark. at 539-40, 104 S.W.3d at 746-47. In addition, the ALJ’s order set forth the relationship between Bonds Brothers Trust, Bonds Brothers, Inc., and Bonds Fertilizer:

In the deposition of Kenny Bonds,Jr., the relationship between the Bonds entities is explained. Bonds Brothers Trust is the operating partnership that runs the farm and was composed of Kenny Bonds, Kenny Bonds’ Farm, Brian Bonds’ Trust, and Bonds Brothers, Inc. It was commonly known as “The Farm.” Bonds Brothers, Inc. is a corporation which is a partner in the Trust and owns the equipment and buildings leased and used by the Farm. Bonds Fertilizer, Inc. is a wholly owned subsidiary of Bonds Brothers, Inc. and operates a separate fertilizer business. Kenny Bonds, Jr. is the general partner of Bonds Brothers Trust, president of Bonds Brothers, Inc., and president of Bonds Fertilizer, Inc.

The ALJ determined that the preponderance of the evidence demonstrated that Mr. Johnson was paid by both Bonds Fertilizer and the Farm, “although he would get a check from only one of them for any particular pay period.” The ALJ further determined, based on the evidence, that at the time of. the accident, both Mr. Johnson and the driver of the truck were paid by Bonds Fertilizer and that Mr. Johnson was paid by Bonds Fertilizer both the week before and the week of the accident. Accordingly, the ALJ concluded, because Bonds Fertilizer paid Mr. Johnson and was not reimbursed, there was strong evidence that Bonds Fertilizer was Mr. Johnson’s employer at the time of the accident.

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Bluebook (online)
289 S.W.3d 431, 375 Ark. 224, 2008 Ark. LEXIS 712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-bonds-fertilizer-inc-ark-2008.