STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
24-573
RONALD DAVIS
VERSUS
TUBE-TECH SERVICES, INC. AND AMERICAN LIBERTY INSURANCE COMPANY
**********
APPEAL FROM THE OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4 PARISH OF ACADIA, NUMBER 23-06351 PAULA MURPHY, WORKERS’ COMPENSATION JUDGE
SHARON DARVILLE WILSON JUDGE
Court composed of Sharon Darville Wilson, Gary J. Ortego, and Clayton Davis, Judges.
AFFIRMED.
Davis, J., dissents and assigns written reasons. Donovan J. O’Pry, II Bernard R. Minyard Grant J. Bratcher Miles C. Hesterly O’PRY LAW FIRM 2014 West Pinhook Road, Suite 507 Lafayette, Louisiana 70508 (337) 415-0007 COUNSEL FOR CLAIMANT/APPELLANT: Ronald Davis
David B. Parnell, Jr. BLUE WILLIAMS, LLC 1060 W. Causeway Approach Mandeville, Louisiana 70471 (504) 831-4091 COUNSEL FOR DEFENDANTS/APPELLEES: Tube-Tech Services, Inc. and American Liberty Insurance Company WILSON, Judge.
Claimant, Ronald Davis (Davis), appeals the ruling of the Workers’
Compensation Judge (WCJ) dismissing his claim for benefits against Tube-Tech
Services, Inc. (Tube-Tech). For the following reasons, we affirm.
I.
ISSUES
Davis alleges the following assignment of error: “The trial court erred in
granting Tube-Tech’s Exception of No Right of Action, as [] Davis was an employee
when he was injured in the course and scope of his employment.” The issue is
whether Davis was an independent contractor or an employee. If we find that Davis
was an independent contractor, we must then determine whether the manual labor
exception applies such that he would be eligible for benefits under the Louisiana
Workers’ Compensation Act.
II.
STANDARD OF REVIEW
It is well-settled that “[t]he distinction between employee and independent
contractor is a factual determination to be decided on a case-by-case basis.”
Fontenot v. J.K. Richard Trucking, 97-220, p. 7 (La.App. 3 Cir. 6/4/97), 696 So.2d
176, 180. Furthermore, “[w]hether an individual’s job involves manual labor is to
be considered from the particular facts and circumstances of each case[,]” and
whether an individual spends “a substantial part of his work time in manual labor”
is a finding of fact. Coleman v. Landstar Ranger, 03-1943, p. 2 (La.App. 1 Cir.
6/24/04), 886 So.2d 472, 473.
Factual determinations in workers’ compensation cases and rulings on
peremptory exceptions of no right of action where evidence is introduced at the
hearing are all subject to the manifest error standard of review. “[T]he issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong,
but whether the factfinder’s conclusion was a reasonable one.” Stobart v. State
through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993). Furthermore,
“[e]ven though an appellate court may feel its own evaluations and inferences are
more reasonable than the factfinder’s, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed upon review where conflict
exists in the testimony.” Id.
III.
FACTS AND PROCEDURAL HISTORY
Davis was hired by Tube-Tech as a truck driver in October of 2022. Tube-
Tech is a company that inspects and cleans oilfield pipe for its customers. Tube-
Tech hires drivers to pick up and deliver the pipe. Tube-Tech owns one truck, which
is a cab and flatbed trailer, and uses a third-party company for additional trucks as
needed.
Blake Granger (Granger), the manager of Tube-Tech, testified that after about
two weeks of employment, Davis came to him to ask what Davis could “do to make
a little extra money.” Granger testified that he told Davis that “he could switch [from
W-2] to 1099, and there was a lot of tax benefits with it, . . . . So that was something
that we discussed with him, and he agreed upon that . . . . [s]o he could collect a
little extra money[.]” After the switch from W-2 to form 1099, Davis was paid $1.25
per mile and $15.00 per hour for any time he had to wait for the truck to be unloaded
by the customer. This amount was charged back to the customer by Tube-Tech.
On October 20, 2023, Davis was delivering a load in Texas and stopped to re-
secure it. When he exited the truck, he allegedly fell and injured his neck and back.
He filed a claim for workers’ compensation benefits, and Tube-Tech and its insurer,
American Liberty Insurance Company, filed an exception of no right of action, 2 alleging that Davis was not an employee of Tube-Tech and was performing services
as an independent contractor. The WCJ found that Davis was an independent
contractor and that the manual labor exception was not applicable. Accordingly, the
WCJ granted the exception of no right of action and dismissed Davis’ claims with
prejudice. This appeal followed.
IV.
LAW AND DISCUSSION
Independent Contractor Status
“Inherently, workers’ compensation is a remedy between an employer and an
employee; it follows then that absent an employer-employee relationship generally
there can be no compensation recovery.” Hillman v. Comm-Care, Inc., 01-1140, p.
6 (La. 1/15/02), 805 So.2d 1157, 1161. There is a statutory presumption of
employment status,1 which the employer can rebut by establishing that the person
was performing services as an independent contractor. Id. (footnote added).
Louisiana Revised Statutes 23:1021(7) defines an “[i]ndependent contractor”
as:
any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter. The operation of a truck tractor or truck tractor trailer, including fueling, driving, connecting and disconnecting electrical lines and air hoses, hooking and unhooking trailers, and vehicle inspections are not manual labor within the meaning of this Chapter.
While “[t]he essence of the [employer-employee] relationship is the right to
control[,]” there are “four primary evidentiary factors considered in deciding”
1 “A person rendering service for another in any trades, businesses or occupations covered by this Chapter is presumed to be an employee under this Chapter.” La.R.S 23:1044. 3 whether such a relationship exists. Hillman, 805 So.2d at 1162 (alteration in
original), quoting Alexander v. J.E. Hixson & Sons Funeral Home, 44 So.2d 487,
488 (La.App. 1 Cir. 1950). The four factors are:
1. Selection and engagement;
2. Payment of wages;
3. Power of [d]ismissal;
4. Power of control.
Id. (alteration in original).
This court in Fontenot, 696 So.2d at 180, quoted Stovall v. Shell Oil Co., 577
So.2d 732, 738–39 (La.App. 1 Cir.), writ denied, 582 So.2d 1309 (La.1991), to
define the conditions that must be met in order to find that a principal and
independent contractor relationship exists:
1. There is a valid contract between the parties;
2. The work being done is of an independent nature such that the contractor may employe non-exclusive means in accomplishing it;
3. The contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods without being subject to the control and direction of the principal, except as to the result of the services to be rendered;
4. There is a specific price for the overall undertaking; and
5. Specific time or duration is agreed upon and not subject to termination at the will of either side without liability for breach.
The WCJ carefully considered each Hillman factor as well as each condition
listed in Fontenot, 696 So.2d 176. The WCJ gave a detailed analysis of each Hillman
factor based on her evaluation of the testimony. She issued thorough reasons for
judgment that outlined her application of the Hillman factors to this case as well as
her resolution of the factual disputes in the testimonies of Granger and Davis and the
credibility determinations that were required to make such resolutions. She found
4 that all of the Hillman factors weighed in favor of finding that Davis was an
independent contractor, and we agree.
There is an obvious dispute over whether Davis’ election to switch the method
of his payment from form W-2 to form 1099 changed the nature of his employment.
Tube-Tech contended that Davis chose to become an independent contractor who
would get offered a run that he could either accept or decline, was in control of his
route (with Tube-Tech’s sole concern being that the delivery was made at the
specified time), and was paid by the mile without any tax deductions. The WCJ
found that Davis “voluntarily re-negotiated his selection and engagement to a status
more akin to an independent contractor.”
Granger described the arrangement as follows: Davis lived about an hour
away from the shop so they would have to offer it to another driver or hire a third
party if it was an “on the spot” run. If Tube-Tech had a run for Davis, they would
call or text him, and if he was available, he would come to the shop. He would then
wait for Tube-Tech’s truck to be loaded. Granger testified that Davis was
responsible for the load and was expected to make sure that it was loaded according
to Department of Transportation standards. Davis was given a delivery time, and he
was free to use his discretion as to what time he needed to leave and what route he
would take so long as he made the delivery on time. Davis testified that the route he
took was his choice and that Tube-Tech did not prohibit him from taking any
particular road. Tube-Tech did not control Davis’ time of departure, the route he
took, or the clothes he wore. He did not have a set schedule. Because Tube-Tech
owned the truck, Tube-Tech was responsible for insurance, gas, and repairs.
Davis could work in the yard at Tube-Tech for an hourly rate if he wanted to,
but Granger said “unfortunately, he didn’t choose to do that often.” Davis did work
in the yard during the first two weeks at Tube-Tech before he switched to form 1099. 5 After the switch, Davis was not required to be at Tube-Tech to wait for a run. He
was paid by the mile plus $15.00 per hour for any wait time, and his work was subject
to there being a load available. The WCJ noted Granger’s testimony that the person
who replaced Davis at Tube-Tech is a salaried employee who, unlike Davis, is
required to be at Tube-Tech at 7:00 a.m.: “[he] is an employee that works full time
when the truck is not running. And when the truck is running, he hops in the truck
and is paid no extra. He is salaried.”
Davis testified: “the word ‘contract’ is being thrown around. But I mean, the
truth is I was an employee, you know.” Davis testified that he was there ninety-five
percent of the time when they needed him and that he was “pretty sure” he worked
in the yard more than the one day in 2023 that was indicated in the pay documents.
He testified that he did not have any records of that because he had an iPhone that
deleted all of his messages after thirty days. He did admit that on the one occasion
that he worked in the yard after switching to form 1099 status, he was issued a form
W-2 for that work. While Davis would not classify the call for a delivery as an
“offer,” he testified that he “definitely accepted it” because it was his job. He
acknowledged that he did turn down some runs because he had other things to do.
The WCJ noted that “there was no evidence presented that he was obligated to accept
any specific request as would be expected by a traditional employee.”
Granger also testified that Tube-Tech could terminate the relationship with
Davis at any time or for cause, but he clarified that termination would occur for a
breach of contract. In response to the WCJ’s questions, Granger confirmed that
nothing changed in the way that Davis got the delivery or how the runs were made;
however, the WCJ did not find that this alone was dispositive of the issue of whether
Davis was an independent contractor or an employee based on the totality of the
factors considered. 6 The WCJ gave no credence to Davis’ testimony that he wanted to switch back
to employee status but felt coerced to stay on form 1099 status. Davis’ discovery
responses stated that he did not contact Tube-Tech about switching back, but he
testified at trial that he did.
Chaisson v. La. Rock Monsters, LLC, 13-1423, p. 4 (La.App. 4 Cir. 4/2/14),
140 So.3d 55, 58, is analogous to this case:
In the instant case, it is undisputed that Mr. Chaisson was hired each day to perform a specific project for an agreed upon price. Louisiana Rock Monsters exercised no control over how or when Mr. Chaisson performed the work, nor did it direct or supervise Mr. Chaisson’s work. Mr. Chaisson used Louisiana Rock Monsters’ truck and supplies. Louisiana Rock Monsters ensured that all drivers complied with the Department of Labor’s mandatory pre-trip inspections on its trucks. Louisiana Rock Monsters also maintained the trucks. Although no contract existed between Mr. Chaisson and Louisiana Rock Monsters, he was paid using a 1099 form and no employment or other taxes were withheld from his pay. Based on the totality of the circumstances, the OWC judge found that Mr. Chaisson was an independent contractor. We find no error in that finding.
The WCJ’s evaluations of credibility were reasonable. We find no manifest
error in her conclusion that Davis was an independent contractor at the time of the
alleged accident.
Manual Labor Exception
Louisiana Revised Statutes 23:1021(7) provides that an independent
contractor is expressly excluded from the provision of the Workers’ Compensation
Act “unless a substantial part of the work time . . . is spent in manual labor by him
carrying out the terms of the contract, in which case the independent contractor is
expressly covered by the provision of this Chapter.” “In sum, ‘manual labor’
consists of work in which the physical predominates over the mental; and a
‘substantial part’ of work time is spent performing manual labor at a rate that is more
than ‘insubstantial or immaterial.’” Knox v. Elite Prot. Sol., 21-419, p. 16 (La.App.
4 Cir. 10/13/21), 366 So.3d 341, 353. The courts have construed the term 7 “substantial part” liberally and noted that “it is not a mathematical formulation.”
Riles v. Truitt Jones Const., 94-1224, p. 10 (La. 1/17/95), 648 So.2d 1296, 1300.
Davis contends that even if he is an independent contractor, he is still entitled
to receive workers’ compensation benefits under the manual labor exception since a
substantial part of his work time was made up of manual labor. Tube-Tech contends
that the time that Davis spent walking around the pipes, adjusting and securing
straps, and inspecting his loads is statutorily excluded from the definition of manual
labor. “The operation of a truck tractor or truck tractor trailer, including fueling,
driving, connecting and disconnecting electrical lines and air hoses, hooking and
unhooking trailers, and vehicle inspections are not manual labor within the meaning
of this Chapter.” La.R.S. 23:1021(7). But, this court has found that doing manual
labor for one and a half hours in a normal work day was a “substantial part” of a
truck driver’s work where he was required to load and unload his trailer for multiple
runs in a day, climb up and down the ladder on the side of his trailer multiple times
a day, inspect and clean out hoses, and open and close valves to begin and end the
loading of his trailer. McGrew v. Quality Carriers, Inc., 11-440, p. 5 (La.App. 3 Cir.
10/5/11), 74 So.3d 1253, 1257.
Granger testified that loading the truck might take ten minutes or more, but
fifty percent of the time or more, the truck was already loaded by the time Davis got
to the yard. Granger testified that a Tube-Tech employee would load the pipe onto
the truck using a forklift. Either Davis or a Tube-Tech employee would place a layer
of three or more boards between each layer of pipe, if necessary. Granger explained
that specifically, the boards would be used if the pipes were being inspected and
cleaned for future use as opposed to being sold or scrapped. Granger estimated that
boarding the pipes was necessary about sixty percent of the time. Davis vehemently
disagreed with Granger’s estimation that more than fifty percent of the time the truck 8 was already loaded when Davis arrived. Davis testified: “I’m not going to say it
didn’t happen, but more times than not, I was the one assisting with the loading.
Sometimes it was already loaded, but most of the times I was the one.” When he
arrived at the delivery location, Davis had to unstrap the load, but the customer
would unload the pipe. Davis was required to remove any boards between the layers
of pipe, put the boards in the basket on the trailer, and roll the straps. Each board
weighed about eight to twelve pounds. Davis testified that unloading larger pipe
took maybe fifteen to twenty minutes while unloading smaller pipe might take forty-
five minutes to an hour.
Tube-Tech contends that any time Davis spent loading or unloading, fastening
straps, or placing or removing boards was insubstantial compared to the time spent
driving to the delivery sites. Tube-Tech asserts that McGrew, 74 So.3d 1253, is
distinguishable because McGrew, unlike Davis, was contracted to make three trips
per day. Davis, on average, seldom made more than one delivery per day. Davis
testified that the most loads he might have done in one day was three and that it was
usually one or two loads. The Tube-Tech office is in Church Point, Louisiana, and
Davis made deliveries to Houma, Louisiana; Cocodrie, Louisiana; Zapata, Texas;
Midland, Texas; and Victoria, Texas.
The WCJ found that the time Davis spent strapping down pipe and placing or
removing boards, while manual, was not a substantial part of his work time when
compared to the time he spent driving. We find no manifest error in this conclusion.
V.
CONCLUSION
For the foregoing reasons, we affirm the dismissal of Ronald Davis’ claims
against Tube-Tech Services, Inc. Costs of this appeal are assessed to Ronald Davis.
AFFIRMED. 9 JUDGE CLAYTON DAVIS 1000 Main Street Lake Charles, LA 70615 (337) 493-3045
24-573 Ronald Davis v. Tube-Tech Services, Inc. & American Liberty Insurance Company
Davis, J., dissents and assigns written reasons.
I respectfully dissent. The majority employs the manifest error standard of
review, citing Fontenot v. J.K. Richard Trucking, 97-220, p. 7 (La.App. 3 Cir.
6/4/97), 696 So.2d 176. Fontenot took language from Stovall v. Shell Oil Co., 577
So.2d 732 (La.App. 1 Cir. 1991), writ denied, 582 So.2d 1309 (La.1991), which
said determining employment status is a “factual determination.” Not only did
these cases involve trials on the merits, rather than exceptions of no right of action,
but the ultimate source of these dicta statements in Fontenot and Stovall came from
cases that emphasized that each case must be determined on its own facts; nowhere
did the source jurisprudence indicate the court’s employment status conclusion is
purely a factual determination always necessitating the manifest error standard. See
Sones v. Mutual of Omaha Insurance Company, 272 So.2d 739 (La.App. 2
Cir.1972), writ denied, 273 So.2d 292 (La.1973) and Pitcher v. Hydro– Kem Services, Inc., 551 So.2d 736 (La.App. 1 Cir.), writ denied, 553 So.2d 466
(La.1989).
The determination of employment status is like any other legal issue that
creates or destroys a right of action. It is made by deciding whether the legal
presumption of employment is overcome using a strict statutory definition and
established jurisprudential factors.
Generally, an exception of no right of action is reviewed de novo because
the determination of whether a plaintiff has a right to bring the action is a question
of law. Guidry v. Ave Maria Rosary & Cenacle, Inc., 21-507 (La.App. 3 Cir.
6/1/22), 341 So.3d 779. If the parties introduce evidence at the trial on the
exception of no right of action, appellate courts consider the lower court’s findings
of fact using the manifest error-clearly wrong standard of review. CV Land, LLC v.
Millers Lake, LLC, 23-69 (La.App. 3 Cir. 11/2/23), 373 So.3d 529. However,
where the material facts are not in dispute, the trial court essentially then must only
determine legal issues, and thus, a reviewing court must apply the de novo standard
of review. Kevin Associates, L.L.C. v. Crawford, 03–0211 (La.1/30/04) 865 So.2d
34.
The Louisiana Supreme Court has stated, “[T]he legal findings of the trial
court are subject to review without the great deference standard we attach to
2 credibility determinations.” State v. Payne, 01–3196, p. 6 (La.12/4/02), 833 So.2d
927, 933. Moreover, “It is self-evident…that if the trial court’s decision was based
on its erroneous interpretation or application of law rather than a valid exercise of
discretion, such an incorrect decision is not entitled to deference.” Kem Search,
Inc. v. Sheffield, 434 So.2d 1067, 1071 (La.1983). Therefore, the manifest error
standard applies only to issues of fact, and for issues of law, the appropriate
standard is whether “the lower court’s interpretive decision was legally correct.”
Duhon v. Briley, 12-1137, p. 4 (La.App. 4 Cir. 5/23/13), 117 So.3d 253, 257-58.
Evidence was introduced at the hearing in this matter. However, on the
question of whether the claimant fit the definition of independent contractor, the
workers’ compensation judge did not need to make credibility determinations nor
resolve contested facts. The essential facts were consistent between both parties’
witnesses. Consequently, the issue is whether the lower court correctly applied the
law to the established facts. Therefore, this Court must determine whether the
lower court’s ruling was “legally correct.”
Davis’s Work Relationship Did Not Fit within the Independent Contractor Definition By definition, a worker cannot be “independent” from the entity paying him
if his sole source of income comes from that entity, as Davis’s did. Also, the
statutory definition of an independent contractor in part defines such relationship as
3 one that is aimed to accomplish “a specified result either as a unit or as a whole.”
La.R.S. 23:1021(7). In contrast, Davis was hired to make an unspecified number of
deliveries to an unknown number of clients for an indefinite time and perform
general labor hourly.
Likewise, if a per mile payment plus hourly wage qualifies as an agreed
upon specific price for the overall undertaking, nearly every agreement for
compensation in a typical employment agreement would as well. La.R.S.
23:1021(13)(d) specifically addresses employees who perform piecework, so the
mere fact that an employee is not paid hourly or by salary does not destroy his
status as an employee.
Additionally, the duration of Davis’s work was for an indefinite time and he
was not free to carry out his work by his own methods. As stated in Hickman, “It
would be specious to believe that he could radically vary his methods or pattern of
pickup and delivery without provoking a reprimand or disciplinary action…” Id. at
392. Tube-Tech required its drivers to be on their insurance; therefore, Davis could
not hire an assistant driver as a substitute, as an independent contractor would have
the right to do.
Consequently, as the nature of Davis’s work for Tube-Tech fits neither the
statutory nor jurisprudential definition of an independent contractor, and because
the default is a statutory presumption of employment, Davis is an employee of 4 Tube-Tech. However, because the lower court focused on the four factors
highlighted by the Supreme Court surrounding the right to control giving rise to
an employment relationship, I will address those as well below.
The Lower Court Misapplied the Hillman Factors
The lower court’s written reasons found that Davis “voluntarily re-
negotiated his selection and engagement to a status more akin to an independent
contractor” in switching to 1099 reporting. The court believed the selection and
engagement factor supported finding an independent contractor relationship. The
fact that taxes are not withheld from a worker’s pay does not create an independent
contractor relationship. Harrington v. Hebert, 00-1548 (La.App. 3 Cir. 5/23/01),
789 So.2d 649; Lewis v. Teacher’s Pet, Inc., 621 So.2d 867 (La.App. 3 Cir. 1993),
writ denied, 629 So.2d 1140 (La.1993). Rather, it is substance of the relationship
not the label which determines whether a worker is an employee or an independent
contractor. Teel v. Superior Scrap Metals, 95-969 (La.App. 5 Cir. 5/15/96), 675
So.2d 1169, writ denied, 96-1566 (La. 5/1/97), 693 So.2d 749.
Davis’s job duties, tasks he performed, his interaction with the clients, and
the way he was contacted to make deliveries after he switched to a 1099 reporting
stayed the same. Accordingly, the lower court was legally incorrect in giving this
change legal significance.
5 The lower court also found it a “notable distinction” that the driver who
replaced Davis was a full-time salaried employee who had to report at a specific
time and work when there were no deliveries to be made. Therefore, the court
found the way in which Davis was paid (by mile plus an hourly rate for wait time
and yard work) favored finding an independent contractor status.
The recognition that the later employee was paid differently is not in dispute.
However, the earlier employee was paid per mile for deliveries, and Granger
testified they changed the position after Davis left, including changing it to a salary
position. The changing nature of the position gives little credence to the assertion
that being paid per mile supports finding an independent contractor relationship
when the employee preceding Davis was paid per mile for deliveries. Also, the
lower court did not attach the proper legal significance to the fact that Mr. Davis
was paid a bonus and given advances, as is done for an employee, and was also
paid hourly for any wait time or work he performed in the yard.
The lower court further found that the power of dismissal weighed in favor
of finding an independent contractor relationship. This conclusion was legally
incorrect. Not only did Granger testify Tube-Tech had the right to terminate Davis
at will, but there was nothing negotiated between the parties other than pay by mile
for deliveries and by hour in the yard, and that Davis had to submit to background
checks and drug tests. Typically, an independent contractor would perform work 6 for a certain term and negotiate protections from termination during that term as
implied by the statutory and jurisprudential definitions. No protections or
provisions governing termination were ever negotiated; therefore, the record
supports that Davis could have been terminated at will.
The lower court found it significant that Davis did not have a set schedule,
was not bound to accept any specific request (despite trying to accept them all),
had the discretion to ensure the delivery was loaded to his standards,1 and could
travel on any road employing his own driving rules. Based on this, the lower court
found Tube-Tech did not have the power to control Davis.
Davis did not call and negotiate potential future deliveries. He was entirely
dependent on Tube-Tech. The relationship was one-sided as Davis’s schedule was
dictated by Tube-Tech telling him of a pre-scheduled delivery. There is nothing in
the record to indicate that Davis could negotiate a certain number of guaranteed
deliveries or change the delivery times that were set by Tube-Tech and Tube-Tech’s
clients. The very few times Davis “turned down” loads were analogous to an
employee calling in sick or taking vacation.
1 The fact that Davis had the discretion to ensure the delivery was loaded to his standards is of little weight, as Davis was operating a commercial vehicle between states, making him subject to the Federal Motor Carrier Safety Regulations. These regulations require all commercially licensed drivers to inspect and secure their loads.
7 Tube-Tech had the expectation that Davis would consistently make himself
available for runs indefinitely and always called him first when they needed to
make a delivery. Davis had an expectation of an ongoing employment relationship,
as this was his only source of income. Regardless of what labels the parties gave
this arrangement, Davis was an employee of Tube-Tech.
For the above reasons, I respectfully dissent.