McCown v. Hines

537 S.E.2d 242, 140 N.C. App. 440, 2000 N.C. App. LEXIS 1204
CourtCourt of Appeals of North Carolina
DecidedNovember 7, 2000
DocketCOA99-1120
StatusPublished
Cited by12 cases

This text of 537 S.E.2d 242 (McCown v. Hines) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCown v. Hines, 537 S.E.2d 242, 140 N.C. App. 440, 2000 N.C. App. LEXIS 1204 (N.C. Ct. App. 2000).

Opinions

LEWIS, Judge.

Defendants Mike Hines d/b/a Mike Hines Heating and Air Conditioning and N.C. Home Builders Self-Insured Fund, Inc. appeal from an Opinion and Award of the North Carolina Industrial Commission granting plaintiff James Robert McCown permanent and total disability compensation. Defendants contend the Commission erred in (1) classifying plaintiff as an employee rather than an independent contractor, and (2) setting plaintiffs average weekly wage at $400. We reverse the decision of the Industrial Commission.

On 8 April 1996, plaintiff James McCown was re-roofing a rental house on Sixth Street in Smithfield, North Carolina. As he attempted to leave the roof by a ladder leaning against the house, he fell, suffering a spinal cord injury which paralyzed him from the waist down. Although Mike Hines owned the rental house on Sixth Street, plaintiff had been contacted by defendant Curtis Hines, Mike Hines’ father, to do the roofing work. Plaintiff had installed several roofs for Curtis [442]*442Hines in 1995, and in 1995 and 1996, did roofing work for numerous persons in the Smithfield area. At the time of the accident, plaintiff had been in the construction business for twenty years, and roofing work for ten.

Following his injury, plaintiff filed a Workers’ Compensation claim with the Industrial Commission in March 1997, ultimately seeking coverage from the defendants. On 5 March 1998, a compensation hearing was held before Deputy Commissioner Edward Garner, Jr. At the parties’ request, the Deputy Commissioner ruled only on the issue of compensability and not on the issue of plaintiff’s medical condition. On 19 June 1998, the Deputy Commissioner filed an Opinion and Award dismissing plaintiff’s claim for lack of jurisdiction. In his opinion, the Deputy made findings of fact and concluded as a matter of law, that plaintiff was not an employee of Curtis Hines, Mike Hines or Mike Hines Heating and Air Conditioning at the time of the accident. Plaintiff appealed to the Full Commission. On 18 May 1999, the Full Commission reversed this determination, finding that Mike Hines’ heating and air conditioning business and his rental properties were one company, that Curtis Hines was an agent of Mike Hines, that defendants retained the right to control the details of plaintiff’s work, and concluding plaintiff was an employee of Mike Hines d/b/a Mike Hines Heating and Air Conditioning.

Defendants first contend the Commission erred in concluding that, at the time of the accident, plaintiff was an employee rather than an independent contractor. It is well established that in order for a claimant to recover under the Workers’ Compensation Act, an employer-employee relationship must exist at the time of the claimant’s injury. Askew v. Tire Co., 264 N.C. 168, 170, 141 S.E.2d 280, 282 (1965).

Whether an employer-employee relationship exists is a jurisdictional issue and unlike most findings by the Commission, “findings of jurisdictional fact . . . are not conclusive, even when supported by competent evidence.” This Court thus must “review the evidence of record” and make an independent determination of plaintiff’s employment status, guided “by the application of ordinary common law tests.”

Barber v. Going West Transp., Inc., 134 N.C. App. 428, 430, 517 S.E.2d. 914, 917 (1999) (citations omitted). Thus, this Court “has the right, and the duty, to make its own independent findings of such jurisdictional facts from its consideration of all the evidence in the [443]*443record.” Lucas v. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976). The burden of proof on this issue falls on the claimant. Id.

Our courts have defined an independent contractor as “one who exercises an independent employment and contracts to do certain work according to his own judgment and method, without being subject to his employer except as to the result of his work.” Youngblood v. North State Ford Truck Sales, 321 N.C. 380, 384, 364 S.E.2d 433, 437 (1988). Where the party for whom the work is being done retains the right to control and direct the manner in which the details of the work are to be performed, the relationship is one of employer and employee. Id. There are generally eight factors which indicate classification as an independent contractor:

The person employed (a) is engaged in an independent business, calling, or occupation; (b) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he may think proper; (g) has full control over such assistants; and (h) selects his own time.

Hayes v. Elon College, 224 N.C. 11, 16, 29 S.E.2d 137, 140 (1944). No one factor is determinative. Id. Considering several of the foregoing factors in light of this case, we conclude plaintiff was an independent contractor at the time of the accident.

Most notably, plaintiffs occupation as a roofer required special skill and training, and plaintiff had independent use of his skill and training in the execution of his work. Neither Curtis nor Mike Hines had any personal experience in the installation of roofs, and plaintiff was given almost no instruction to that effect. Although Curtis Hines required plaintiff to use mismatched shingles and instructed him as to the placement of these shingles, “the fact that a worker is supervised to the extent of seeing that his work conforms to plans and specifications does not change his status from independent contractor to employee.” Ramey v. Sherwin-Williams Co., 92 N.C. App. 341, 345, 374 S.E.2d 472, 474 (1988). In all, supervision over the plaintiff’s work was minimal. Plaintiff had “very little” conversation with Mike Hines before and during the roofing project. He was allowed full discretion as to placement of tow boards, the correct number and positioning of [444]*444the nails into the shingles and the proper overlapping of the shingles. While Curtis Hines viewed plaintiffs work from the ground, neither Curtis nor Mike ever got on the roof to inspect plaintiffs work.

Additionally, although Curtis Hines provided nails and tarpaper, plaintiff furnished his own truck, ladder, and several tools, including a hammer and nail apron, for the job. See, e.g., Barber, 134 N.C. App. at 432, 517 S.E.2d at 918 (“When valuable equipment is furnished for use of a worker, an employee relationship almost ‘invariably’ is established.”) (citation omitted).

As to payment for the roofing job, plaintiff failed to establish he was paid on a per hour basis. See, e.g., Youngblood, 321 N.C. at 384, 364 S.E.2d at 437 (“[P]ayment by a unit of time ... is strong evidence that [plaintiff] is an employee.”). Plaintiff testified he “would assume that [he and Curtis Hines] probably did not” discuss payment. (Tr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Kenneth Church v. Home Fashions International
532 F. App'x 345 (Fourth Circuit, 2013)
Church v. Home Fashions International, LLC
879 F. Supp. 2d 498 (W.D. North Carolina, 2012)
Lee v. City Cab of Tarboro
North Carolina Industrial Commission, 2010
Hughart v. Dasco Transportation, Inc.
North Carolina Industrial Commission, 2008
Lincoln v. McLamb
North Carolina Industrial Commission, 2008
Smith v. World Custom Homes
North Carolina Industrial Commission, 2008
Pait v. World Custom Homes
North Carolina Industrial Commission, 2008
Estrada v. Charles Gregory Repairs
North Carolina Industrial Commission, 2005
Sessoms v. Arrow Group Ltd.
North Carolina Industrial Commission, 2004
Hughart v. Dasco Transp.
North Carolina Industrial Commission, 2003
McCown v. Hines
549 S.E.2d 175 (Supreme Court of North Carolina, 2001)
McCown v. Hines
537 S.E.2d 242 (Court of Appeals of North Carolina, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
537 S.E.2d 242, 140 N.C. App. 440, 2000 N.C. App. LEXIS 1204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccown-v-hines-ncctapp-2000.