Security Industrial Insurance Co. v. State ex rel. Department of Labor

577 So. 2d 190, 1991 La. App. LEXIS 421, 1991 WL 35068
CourtLouisiana Court of Appeal
DecidedMarch 5, 1991
DocketNo. CA 89 1955
StatusPublished
Cited by1 cases

This text of 577 So. 2d 190 (Security Industrial Insurance Co. v. State ex rel. Department of Labor) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Security Industrial Insurance Co. v. State ex rel. Department of Labor, 577 So. 2d 190, 1991 La. App. LEXIS 421, 1991 WL 35068 (La. Ct. App. 1991).

Opinion

LANIER, Judge.

This action is a suit by an insurance company seeking judicial review of an administrative decision of the Administrator of the Office of Employment Security of [191]*191the Department of Labor (Administrator).1 The trial court reversed the decision of the Administrator.2 The Administrator took this devolutive appeal.

FACTS

The undisputed facts of this case were concisely stated by the Administrator in his decision as follows:

Mr. [Richard] Gregg [Jr.] worked with Security Industrial Insurance Company [Security] as a District Manager for the six years immediately preceeding [sic] his separation from the Company. His primary responsibility in this particular position was to motivate the staff managers and agents under his supervision to produce and conserve a satisfactory business. This would require an effective system by which the staff managers and agents would insure that collections and solicitations for new business were made. The Company maintains a 3-tier system in each district for insurance solicitations and collections. In each district, the district manager usually supervises three staff managers who each have five agents under their direct supervision. Mr. Gregg was responsible for the district operations of three staff managers and approximately fifteen agents.
The Company conducts the majority of its business through door-to-door and home visitations. The insurance agents are responsible for making collections and solicitations, while the district manager insures that the staff managers and the agents are effectively carrying out their responsibilities. For the services rendered to the company by Mr. Gregg in this capacity, he was paid based solely on a percentage of the commissions resulting from the activities of the staff managers and agents under his supervision.
Mr. Gregg, a licensed insurance agent, could personally make insurance sales for the Company and was encouraged to do so since this would enhance the commissions in his district and also serve to increase the commissions that he received. The evidence clearly indicates, however, that Mr. Gregg’s primary responsibility was to see that the staff managers and agents in his district produced.
Mr. Gregg had the responsibility of reviewing books and reports submitted by staff managers and agents and the further responsibility of insuring that all monies were turned in as reported. Mr. Gregg was under the supervision of a regional vice-president who would offer ideas, point out problem areas, and otherwise make suggestions for operation to Mr. Gregg in his capacity as a district manager.
A district manager for Security Industrial Insurance Company also acts in the capacity of a staff manager when no staff manager is available. He can select a replacement for a staff manager and acts in conjunction with the staff manager to select insurance agents for the company.

PROCEDURAL FACTS

Security received a statement from the Administrator showing that unemployment compensation benefits were paid to Gregg and charged to its experience-rating record and contribution rate. La.R.S. 23:1541. Pursuant to La.R.S. 23:1541(4), Security asserted that unemployment compensation benefits paid to Gregg were not properly chargeable to its experience-rating record and contribution rate. Security was granted a hearing by the Administrator at which it presented evidence of the services performed by Gregg as a district manager. [192]*192After the hearing, the Administrator found the following:

OPINION: Louisiana Revised Statute 23:1472(12)(H)(IX) provides:
H. The term “employment” shall not include.
IX. Service performed by an individual as an insurance agent or an [sic] an insurance solicitor, if all such service performed by such individual for his employing units is performed for remuneration solely by way of commission.
The evidence presented to this Agency is sufficient to establish that the services performed by Mr. Gregg for Security Industrial Insurance Company did not fall within the aforementioned exception of Louisiana Employment Security Law and, as such, should be deemed as “employment”. The services performed were an integral part of the business being conducted by Security Industrial and the Company, through its regional vice-presidents, did maintain a sufficient amount of control over the services performed by Mr. Gregg and would be capable of altering the everyday operations of the district over which Mr. Gregg has supervision.
Although it is relatively clear that Mr. Gregg was paid based solely on commission related directly to the performance of the staffs under his control, it is also clear that he spent a minimal, if any, amount of time actually selling or soliciting for insurance.
Mr. Gregg’s primary responsibilities surrounded his supervision of agents and sales managers in their insurance sales and solicitations.
We feel that the evidence does not fully satisfy the requirements of R.S. 23:1472(12)(H)(IX) so as to exempt the services rendered by Mr. Gregg for Security Industrial Insurance Company from the definition of “employment” for purposes of unemployment insurance contributions attributable to Security Industrial.

After receiving notice of the Administrator’s decision, Security filed a petition for judicial review in the Twenty-third Judicial District Court. After a hearing, the trial court found that the Administrator erred as a matter of law in finding the exemption under La.R.S. 23:1472(12)(H)(IX) inapplicable to Gregg and reversed the decision of the Administrator.

This appeal followed.

EXEMPTION FROM LOUISIANA EMPLOYMENT SECURITY LAW UNDER LA.R.S. 23:1472(12)(H)(IX)

(Assignments of error numbers 1 and 2)

The Administrator contends the trial court erred in finding that his decision was incorrect as a matter of law.

The Louisiana Employment Security Law (LESL) is remedial social legislation. La.R.S. 23:1471; Parker v. Gerace, 354 So.2d 1022 (La.1978). It is composed, in principal part, of the taxing section, La.R.S. 23:1531-23:1553, and the beneficent section, La.R.S. 23:1591-23:1635, which are considered to be entirely separate and distinct. Brown v. LaNasa, 244 La. 314, 152 So.2d 33 (1963). The beneficent section is to be given a broad and liberal construction, whereas the taxing section is to be given a narrow and strict construction. Brown v. LaNasa, 244 La. 314, 152 So.2d at 35. This appeal is concerned with the taxing section.

The LESL establishes an unemployment compensation fund. La.R.S. 23:1491 and 23:1531. The amount of an employer’s contribution to the fund is determined, in part, by its experience-rating record. La. R.S. 23:1532-23:1537 and 23:1541. Unemployment compensation benefits paid to an employee are charged to the employer’s experience-rating record. La.R.S. 23:1533 and 23:1541. La.R.S. 23:1541 provides, in pertinent part, as follows:

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

Related

Security Industrial Insurance Co. v. State ex rel. Department of Labor
581 So. 2d 673 (Supreme Court of Louisiana, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
577 So. 2d 190, 1991 La. App. LEXIS 421, 1991 WL 35068, Counsel Stack Legal Research, https://law.counselstack.com/opinion/security-industrial-insurance-co-v-state-ex-rel-department-of-labor-lactapp-1991.