Omaha World-Herald v. Dernier

570 N.W.2d 508, 253 Neb. 215, 1997 Neb. LEXIS 213
CourtNebraska Supreme Court
DecidedOctober 24, 1997
DocketS-95-321
StatusPublished
Cited by46 cases

This text of 570 N.W.2d 508 (Omaha World-Herald v. Dernier) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Omaha World-Herald v. Dernier, 570 N.W.2d 508, 253 Neb. 215, 1997 Neb. LEXIS 213 (Neb. 1997).

Opinions

Per Curiam.

This is an action for unemployment compensation benefits. The defendant-appellant, William Dernier, entered into a five-page “Independent Distributor Agreement” with the plaintiffappellee, Omaha World-Herald, calling for Dernier to purchase from the World-Herald newspapers at fixed prices and to sell them in a delivery area designated by the World-Herald by placing them in news racks which Dernier rented from the World-Herald and through retail outlet dealers such as stores and service stations. Dernier’s compensation consisted of the difference between the price Dernier paid the World-Herald and the prices at which he sold the newspapers. The amount Dernier charged the dealers was determined by agreement between Dernier and the dealers; the World-Herald determined the price of the newspapers dispensed from the news racks.

The World-Herald had the right to suggest the locations of the news racks, and only World-Herald newspapers and promotional signs and materials supplied by the World-Herald could be placed in them. On occasion, the World-Herald caused the move of a news rack to a less profitable location. Although [217]*217Dernier was responsible for the basic appearance and maintenance of the news racks, the World-Herald submitted a list of the news racks to the city to check for compliance with its codes. If the news racks were found to be in violation of the codes, the World-Herald was fined.

Dernier billed and collected for his own accounts and agreed to prepare and distribute bills to those who did not pay the World-Herald directly. He determined the number of newspapers he wished to purchase each day, but was obligated to stock the news racks and supply the dealers with sufficient newspapers so as to avoid “sold out” conditions. Moreover, the World-Herald could unilaterally increase or decrease the size of Dernier’s orders. Dernier paid the World-Herald weekly for the newspapers he purchased, and although title to the newspapers passed to Dernier as he took delivery of them, he could return any unsold newspapers for full credit.

Dernier was to supply the World-Herald with a constantly updated “run” list showing the location of the news racks, the dealers he was serving, and the amount of sales to each of the dealers. In addition, the World-Herald supplied Dernier with a “delivery list” which showed the name, address, and actual sale by day of all “single copy” accounts in Dernier’s delivery area, which list remained the property of the World-Herald and was to be kept current by Dernier as a confidential document.

The agreement required Dernier to provide at his own expense a substitute of his choice to perform his contractual obligations in the event of his “illness, disability, or absence, or if for any other reason” he was “unable to perform” his responsibilities. Dernier also agreed to provide a work force adequate to perform his contractual obligations and agreed further that said work force would be under his direction and control, and any persons so engaged would be his “employees and/or contractors.” Dernier had engaged three persons to help him.

While the agreement permitted Dernier to work for others, the arrangement could be terminated if Dernier failed to make deliveries of the World-Herald newspapers within specified times for weekly morning editions, weekly afternoon editions, and weekend editions. Although the agreement is not entirely clear, the evidence establishes that the times were 6:30 a.m., [218]*2185 p.m., and 6 a.m., respectively. Either party could terminate the agreement with or without cause upon 30 days’ notice, and the World-Herald could terminate the agreement immediately without notice upon Dernier’s commission of any wrongful act.

The agreement recited that Dernier was to be considered an independent contractor and that he was responsible for paying expenses and providing vehicles, employees, and insurance, and contained a mechanism for securing Dernier’s performance.

Dernier was expected to increase his sales of newspapers by 3 percent per year, and the failure to do so was cause for termination of the agreement. The agreement was ultimately terminated on or about February 8, 1994, by the World-Herald for Dernier’s failure to place advertisement material as required and for not selling enough newspapers. Dernier had earned approximately $40,000 per year under the agreement; the World-Herald did not make deductions from Dernier’s compensation for federal, state, or Social Security taxes.

A Department of Labor claims deputy determined that Dernier was not entitled to unemployment insurance benefits, the department’s appeal tribunal reversed the deputy’s decision, and the district court reversed the decision of the appeal tribunal. Dernier then appealed to the Nebraska Court of Appeals. Pursuant to our power to regulate the caseload of the Court of Appeals, we, on our own motion, removed this case to our docket.

In an appeal from the appeal tribunal to the district court regarding unemployment benefits, the district court conducts a review de novo on the record; on review by the Court of Appeals or the Supreme Court, the judgment of the district court may be reversed, vacated, or modified for errors appearing on the record. When reviewing a judgment for errors appearing on the record, the inquiry is whether the decision conforms to the law, is supported by competent evidence, and is neither arbitrary, capricious, nor unreasonable. Law Offices of Ronald J. Palagi v. Dolan, 251 Neb. 457, 558 N.W.2d 303 (1997). However, when reviewing a question of law, an appellate court reaches a conclusion independent of the lower court’s ruling. Zimmerman v. Douglas Cty. Hosp., 252 Neb. 583, 563 N.W.2d 349 (1997).

[219]*219The Employment Security Law, Neb. Rev. Stat. §§ 48-601 through 48-671 (Reissue 1993), provides for the payment of unemployment compensation benefits to otherwise eligible individuals having qualified for such through prior employment, §§ 48-624 and 48-625. The act defines employment as any “service performed ... for wages or under any contract of hire, written or oral, express or implied.” § 48-604(1). The issue, thus, is whether Dernier performed services for “wages,” and if not, whether he performed services under a “contract of hire.”

The act defines “wages” as being “all remuneration for personal services, including commissions and bonuses and the cash value of all remunerations in any medium other than cash.” § 48-602(16). While we have not addressed whether participation in arrangements such as that presented here results in the payment of wages, other jurisdictions have considered similar arrangements and provide guidance on the issue.

The parties in Matter of Balhorn-Moyle Petroleum Co., 315 N.W.2d 481 (S.D. 1982), an action to recover unemployment compensation contributions, entered into an agreement whereby the operator received gasoline provided by the petroleum company and sold it at a service station which the company owned and the operator ran. The operator reimbursed the company for the gasoline he sold, retaining a portion of the sale.

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Omaha World-Herald v. Dernier
570 N.W.2d 508 (Nebraska Supreme Court, 1997)

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Bluebook (online)
570 N.W.2d 508, 253 Neb. 215, 1997 Neb. LEXIS 213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/omaha-world-herald-v-dernier-neb-1997.