Jones Bros., Inc. v. Journagan Construction Co.

214 S.W.3d 870, 92 Ark. App. 406
CourtCourt of Appeals of Arkansas
DecidedOctober 5, 2005
DocketCA 04-842
StatusPublished
Cited by3 cases

This text of 214 S.W.3d 870 (Jones Bros., Inc. v. Journagan Construction Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jones Bros., Inc. v. Journagan Construction Co., 214 S.W.3d 870, 92 Ark. App. 406 (Ark. Ct. App. 2005).

Opinion

Josephine LinKer Hart, Judge.

Appellee Leslie Keeter was injured in a near-fatal motor-vehicle accident 1 while working for Michael Whitlock Trucking Company (Whitlock Trucking), an uninsured subcontractor. On appeal, Jones Brothers, Inc. (Jones), and its insurer, Lumbermen’s Underwriting Alliance, contend that the Arkansas Workers’ Compensation Commission erred in ordering Jones to pay workers’ compensation benefits to Keeter, because Jones was not, as found by the Commission, the “prime contractor” within the meaning of Ark. Code Ann. § ll-9-402(a) (Repl. 2002). On cross-appeal, Journagan Construction Company (Journagan) and its insurer, Builders’ Association Outstates Insurance Plan/Benchmark Insurance Company, contend that the Commission erred in concluding that, in accordance with Ark. Code Ann. § ll-9-402(b), Jones has a lien against moneys due or to become due against its immediate subcontractor, Journagan. Also, as part of Jones’s appeal, we consider whether the Commission should have awarded a Hen against not only Journagan but also its insurer. Further, on cross-appeal, we consider whether the Commission properly found as moot the issue of whether Journagan’s immediate subcontractor, Aggregate Transportation Specialist (Aggregate), possessed workers’ compensation insurance. We affirm the Commission.

In determining whether Jones was the prime contractor, we must briefly state the facts showing the connections between the parties. The record contains a copy of an “Arkansas State Highway Commission Contract” in which Jones, as contractor, agreed to widen 4.5 miles of Highway 412 that were west of Harrison to four lanes. A map in the record shows that the widening was to be made to a portion of Highway 412 between Alpena and Bear Creek Springs. The record further includes a “Subcontract Agreement” between Jones, as contractor, and Journagan, as subcontractor, in which Journagan agreed to perform services related to the same highway project.

In a deposition, James Holt, a senior vice-president of Journagan, stated that his company entered into an oral agreement with Aggregate whereby Aggregate would provide trucking services to haul materials needed for the Highway 412 project. Michael Swearingen, the sole proprietor of Aggregate, in turn stated in his deposition that he provided trucking services to Journagan for delivery of materials related to the project. He further stated that either he or one of his employees was contacted by Michael Whitlock of Whitlock Trucking, and Aggregate hired Whitlock Trucking to provide trucks for the Highway 412 project. In their combined deposition, Michael Whitlock and Rochelle Whitlock presented testimony that they had been hired by Aggregate for the Highway 412 project, that Whitlock Trucking hired Keeter to drive a dump truck, and that Keeter was working on the Highway 412 project at the time of his accident. His accident, they said, occurred on Highway 412 between Alpena and Bear Creek Springs, closer to Bear Creek Springs, where a Journagan quarry and asphalt plant were located, when he was coming back from the job with an empty truck on his way to the plant. Keeter’s wife, Becky Keeter, testified at the hearing that, before the accident, Keeter told her he was on his way to work on that project. And finally, Keeter testified at the hearing that, on the day of the accident, he was driving a dump truck for Whitlock Trucking on the Highway 412 project, where persons from Journagan were present.

The relevant statute for determining the liability for compensation for the employee of an uninsured subcontractor provides in part that “[w]here a subcontractor fails to secure compensation required by this chapter, the prime contractor shall be liable for compensation to the employees of the subcontractor.” Ark. Code Ann. § ll-9-402(a). 2 In order to determine whether Jones was liable as the prime contractor, we must not only construe the meaning of “prime contractor” but also determine whether the Commission properly found that Keeter, as an employee of Whitlock Trucking, was performing services that arose from a subcontract between Whitlock Trucking and Aggregate, which in turn arose from a subcontract between Aggregate and Journagan, which in turn arose from a subcontract between Journagan and Jones, which arose from Jones’s contract with the Arkansas State Highway Commission.

On appeal, we review the Commission’s decision to see if it is supported by substantial evidence, viewing the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission’s findings. See, e.g., Riddell Flying Serv. v. Callahan, 90 Ark. App. 388, 206 S.W.3d 284 (2005). Giving due regard to our standard of review, we conclude that substantial evidence supported the Commission’s finding that the necessary links existed between the work Keeter was performing and the Jones contract with the Arkansas State Highway Commission.

Next, we note that there is no statutory definition of “prime contractor” in our workers’ compensation statutes, so we must construe the meaning of the term “prime contractor” and consider whether the Commission properly found that Jones was the prime contractor and thus liable for payment of compensation to Keeter, who was the employee of an uninsured subcontractor. It is well settled that the appellate court reviews issues of statutory construction de novo, as it is for the appellate court to decide what a statute means. See, e.g., Aloha Pools & Spas, Inc. v. Employer’s Ins. of Wausau, 342 Ark. 398, 403, 39 S.W.3d 440, 443 (2000). In construing a statute, we give words their ordinary and usually accepted meanings, and if possible, we give meaning and effect to every word. Id. at 404, 39 S.W.3d at 443.

In Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996), the Arkansas Supreme Court considered the issue of how to define the term “prime contractor.” In its analysis, the court relied on Bailey v. Simmons, 6 Ark. App. 193, 639 S.W.2d 526 (1982), where we observed that, in order for there to be a subcontractor relationship, the person sought to be charged as prime contractor must have been contractually obligated to a third party for the work being done at the time of the injury. Nucor, 326 Ark. at 223, 931 S.W.2d at 430. Also, the Nucor court noted that we defined a subcontractor as a person who agrees to perform part of a contract for a person who has already agreed to perform the contract for a third party. Id. The Nucor court concluded that the status of prime contractor presupposes work to be done for a third party. Id.

Whitlock Trucking — who lacked workers’ compensation insurance — was Aggregate’s subcontractor, Aggregate was Jour-nagan’s subcontractor, and Journagan was Jones’s subcontractor. All subcontractors were performing services that arose from the contract between Jones and a third party, the Arkansas State Highway Commission.

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Related

JONES BROTHERS, INC. v. Whitlock
234 S.W.3d 864 (Supreme Court of Arkansas, 2006)
Musson Custom Building, Inc. v. Valladares
222 S.W.3d 214 (Court of Appeals of Arkansas, 2006)

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Bluebook (online)
214 S.W.3d 870, 92 Ark. App. 406, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-bros-inc-v-journagan-construction-co-arkctapp-2005.