Aboytes-Mosqueda v. LFA Inc. , 306 Neb. 277 ( 2020 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    09/18/2020 08:07 AM CDT
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    Nebraska Supreme Court Advance Sheets
    306 Nebraska Reports
    ABOYTES-MOSQUEDA v. LFA INC.
    Cite as 
    306 Neb. 277
    Cesar Aboytes-Mosqueda, appellant, v. LFA Inc.
    and Ismael Huerta, appellees.
    ___ N.W.2d ___
    Filed June 26, 2020.    No. S-19-967.
    1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev.
    Stat. § 48-185 (Cum. Supp. 2018), an appellate court may modify,
    reverse, or set aside a Workers’ Compensation Court decision only when
    (1) the compensation court acted without or in excess of its powers; (2)
    the judgment, order, or award was procured by fraud; (3) there is not
    sufficient competent evidence in the record to warrant the making of the
    order, judgment, or award; or (4) the findings of fact by the compensa-
    tion court do not support the order or award.
    2. ____: ____. On appellate review, the factual findings made by the trial
    judge of the Workers’ Compensation Court have the effect of a jury ver-
    dict and will not be disturbed unless clearly wrong.
    3. Workers’ Compensation: Judgments: Appeal and Error. In testing
    the sufficiency of the evidence to support the findings of fact in a work-
    ers’ compensation case, an appellate court considers the evidence in the
    light most favorable to the successful party, every controverted fact must
    be resolved in favor of the successful party, and the appellate court gives
    the successful party the benefit of every inference reasonably deducible
    from the evidence.
    4. Workers’ Compensation. As the trier of fact, the Workers’ Compensation
    Court is the sole judge of the credibility of witnesses and the weight to
    be given their testimony.
    5. Employer and Employee: Independent Contractor: Master and
    Servant. Ordinarily, a person’s status as an employee or an independent
    contractor is a question of fact; however, where the facts are not in dis-
    pute and where the inference is clear that there is, or is not, a master and
    servant relationship, the matter is a question of law.
    6. Employer and Employee: Independent Contractor. There is no single
    test for determining whether one performs services for another as an
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    ABOYTES-MOSQUEDA v. LFA INC.
    Cite as 
    306 Neb. 277
    employee or as an independent contractor; rather, the following factors
    must be considered: (1) the extent of control which, by the agreement,
    the employer may exercise over the details of the work; (2) whether the
    one employed is engaged in a distinct occupation or business; (3) the
    kind of occupation, with reference to whether, in the locality, the work is
    usually done under the direction of the employer or by a specialist with-
    out supervision; (4) the skill required in the particular occupation; (5)
    whether the employer or the one employed supplies the instrumentali-
    ties, tools, and the place of work for the person doing the work; (6) the
    length of time for which the one employed is engaged; (7) the method of
    payment, whether by the time or by the job; (8) whether the work is part
    of the regular business of the employer; (9) whether the parties believe
    they are creating an agency relationship; and (10) whether the employer
    is or is not in business.
    Appeal from the Workers’ Compensation Court: Julie A.
    Martin, Judge. Affirmed.
    John E. Corrigan, of Dowd & Corrigan, L.L.C., for appellant.
    James D. Garriott, of Cassem, Tierney, Adams, Gotch &
    Douglas, for appellee LFA Inc.
    Antonio VandenBosch, of VandenBosch Law, L.L.C., for
    appellee Ismael Huerta.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Freudenberg, J.
    INTRODUCTION
    Cesar Aboytes-Mosqueda was working on a roofing job
    when he slipped and fell from the roof. Aboytes-Mosqueda
    brought a workers’ compensation claim against Ismael Huerta
    and LFA Inc. Aboytes-Mosqueda claims that Huerta was his
    employer and that Huerta and LFA conducted a scheme to
    avoid liability under the Nebraska Workers’ Compensation
    Act. Aboytes-Mosqueda claims that LFA should be considered
    a statutory employer pursuant to Neb. Rev. Stat. § 48-116
    (Reissue 2010). The court considered the evidence presented
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    ABOYTES-MOSQUEDA v. LFA INC.
    Cite as 
    306 Neb. 277
    and dismissed the claim, because Aboytes-Mosqueda failed to
    prove he was an employee of Huerta. We affirm.
    BACKGROUND
    Aboytes-Mosqueda was working a roofing job with Huerta
    on June 13, 2018. While working on the roof, Aboytes-
    Mosqueda slipped and fell, but was caught by his harness.
    Aboytes-Mosqueda suffered a significant injury as a result of
    the fall and brought a claim in the Workers’ Compensation
    Court against Huerta and LFA.
    The roofing job was a result of a contract between the home-
    owner and Hometown Roofing, Inc. (Hometown), who is not
    a party to the case. Hometown subcontracted the job to LFA.
    LFA then arranged with Huerta to recruit a crew to build the
    roof. LFA explained that the people used on a roofing crew
    vary on a job-by-job basis and that each person on the crew is
    an independent subcontractor, not an employee.
    The man who operates LFA, which is owned by his wife,
    testified at the workers’ compensation hearing that LFA fre-
    quently does work contracted by Hometown and generally
    receives payment for roofing jobs from Hometown by check.
    After receiving payment from Hometown, LFA’s operator
    pays a set amount to a roofing crew based on the square foot-
    age of the roof. Each roofing job was a separate agreement.
    LFA did not determine the hours of the roofing crew but
    would inspect the roof to ensure it was installed according to
    the contract.
    Huerta’s deposition was entered into evidence in lieu of
    live testimony due to his unavailability. Huerta testified in his
    deposition that he works with several different roofing compa-
    nies and works on approximately seven to nine houses a year
    with LFA. He indicated that he is not a general contractor and
    that he works as a member of “the crew” alongside everyone
    else. He also testified that Aboytes-Mosqueda worked with
    him on approximately two or three houses a month during
    2018 and did not work with him at all in 2017.
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    ABOYTES-MOSQUEDA v. LFA INC.
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    306 Neb. 277
    Huerta testified that the customary method for calculating
    pay was based on the number of plywood squares that cover
    the roof, or the rough square footage of the roof. His share of
    what the general contractor pays for the roofing job was always
    the same as the other roofers who worked with him.
    At the job where Aboytes-Mosqueda was injured, there
    were five men working on the roofing crew, including Huerta.
    The money received from LFA was split evenly between each
    person on the crew. Huerta claimed that Aboytes-Mosqueda
    brought his own tools and that Huerta provided the ladder to
    access the roof. Huerta claimed that each worker brought his
    own harness. Huerta also testified that each member of the
    crew was free to determine his own schedule for starting and
    stopping work. In his deposition, Huerta testified that LFA
    approached him after the incident and had him sign a contract
    agreeing to carry workers’ compensation insurance.
    Aboytes-Mosqueda testified at the hearing that he had
    worked exclusively for Huerta since 2011. Aboytes-Mosqueda
    testified that there was a verbal hiring agreement between
    Huerta and himself, but he also testified that he was paid by
    the job. Aboytes-Mosqueda testified that Huerta would pick
    him up and provided the ladder and several tools, including
    the nail gun and compressor. Aboytes-Mosqueda claims that
    Huerta provided the harnesses and directed every member of
    the crew to use them at all times. Aboytes-Mosqueda admitted
    that he brought his own tool belt, hammer, and knife. Aboytes-
    Mosqueda also admitted that his pay for each job was the
    result of a verbal agreement with Huerta specific to each job.
    Aboytes-Mosqueda testified that no one saw him slip, but that
    he told Huerta at the jobsite right after the incident.
    Aboytes-Mosqueda claimed that Huerta was his employer.
    He further argued to the compensation court that LFA subcon-
    tracted jobs with Huerta even though LFA knew that Huerta
    did not carry workers’ compensation insurance. Thus, LFA was
    engaged in a scheme to avoid liability pursuant to § 48-116
    and should be considered a statutory employer as a result.
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    ABOYTES-MOSQUEDA v. LFA INC.
    Cite as 
    306 Neb. 277
    Aboytes-Mosqueda asserted that Huerta’s testimony concern-
    ing the agreement between Huerta and LFA proved Huerta was
    an employer and that LFA should be found to be a statutory
    employer under § 48-116.
    The Workers’ Compensation Court first considered the tes-
    timony of Aboytes-Mosqueda and Huerta and found that there
    was not a contract for employment between Aboytes-Mosqueda
    and Huerta. The court then considered the evidence in light
    of the 10 factors relevant to whether a person is an employee
    or an independent contractor. Without making determinations
    of credibility on the issue of who supplied the safety harness,
    nail gun, and compressor at the jobsite, the compensation court
    found that Aboytes-Mosqueda had failed to carry his burden
    of demonstrating that he was an employee of Huerta. Thus,
    § 48-116 was not applicable. The court dismissed the action,
    and Aboytes-Mosqueda appealed.
    ASSIGNMENT OF ERROR
    Aboytes-Mosqueda asserts that the district court erred in
    dismissing his action given the uncontroverted evidence of
    a scheme to avoid employer liability under the Nebraska
    Workers’ Compensation Act.
    STANDARD OF REVIEW
    [1] Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2018),
    an appellate court may modify, reverse, or set aside a Workers’
    Compensation Court decision only when (1) the compensa-
    tion court acted without or in excess of its powers; (2) the
    judgment, order, or award was procured by fraud; (3) there is
    not sufficient competent evidence in the record to warrant the
    making of the order, judgment, or award; or (4) the findings
    of fact by the compensation court do not support the order
    or award. 1
    [2,3] On appellate review, the factual findings made by
    the trial judge of the Workers’ Compensation Court have
    1
    Eddy v. Builders Supply Co., 
    304 Neb. 804
    , 
    937 N.W.2d 198
    (2020).
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    ABOYTES-MOSQUEDA v. LFA INC.
    Cite as 
    306 Neb. 277
    the effect of a jury verdict and will not be disturbed unless
    clearly wrong. 2 In testing the sufficiency of the evidence to
    support the findings of fact in a workers’ compensation case,
    an appellate court considers the evidence in the light most
    favorable to the successful party, every controverted fact must
    be resolved in favor of the successful party, and the appellate
    court gives the successful party the benefit of every inference
    reasonably deducible from the evidence. 3
    [4] As the trier of fact, the Workers’ Compensation Court is
    the sole judge of the credibility of witnesses and the weight to
    be given their testimony. 4
    ANALYSIS
    [5] In order for LFA to be considered an employer under
    § 48-116, Aboytes-Mosqueda had a burden to prove that
    he was an employee of Huerta as defined by the Nebraska
    Workers’ Compensation Act. 5 Ordinarily, a person’s status as
    an employee or an independent contractor is a question of
    fact; however, where the facts are not in dispute and where
    the inference is clear that there is, or is not, a master and
    servant relationship, the matter is a question of law. 6 We find
    that the factual determinations made by the trial court are
    not clearly wrong, and we agree with the compensation court
    that Aboytes-Mosqueda was not an employee of Huerta; thus,
    § 48-116 is not applicable to this case.
    Aboytes-Mosqueda’s only assignment of error is that the
    compensation court erroneously dismissed his claim, because
    the evidence showed a scheme by LFA to avoid liability.
    2
    Id. 3
    
    Id.
    4
    
        Martinez v. CMR Constr. & Roofing of Texas, 
    302 Neb. 618
    , 
    924 N.W.2d 326
    (2019).
    5
    See Neb. Rev. Stat. ch. 48, art. 1 (Reissue 2010, Cum. Supp. 2018, &
    Supp. 2019).
    6
    Pettit v. State, 
    249 Neb. 666
    , 
    544 N.W.2d 855
    (1996).
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    ABOYTES-MOSQUEDA v. LFA INC.
    Cite as 
    306 Neb. 277
    Aboytes-Mosqueda argues that because LFA had Huerta sign
    an agreement to obtain workers’ compensation insurance after
    Aboytes-Mosqueda was injured, this is proof of the type of
    scheme prohibited by § 48-116.
    Section 48-116 states:
    Any person, firm, or corporation creating or carry-
    ing into operation any scheme, artifice, or device to
    enable him or her, them, or it to execute work with-
    out being responsible to the workers for the provisions
    of the Nebraska Workers’ Compensation Act shall be
    included in the term employer, and with the immediate
    employer shall be jointly and severally liable to pay the
    compensation herein provided for and be subject to all
    the provisions of such act. This section, however, shall
    not be construed as applying to an owner who lets a
    contract to a contractor in good faith, or a contractor,
    who, in good faith, lets to a subcontractor a portion of
    his or her contract, if the owner or principal contractor,
    as the case may be, requires the contractor or subcon-
    tractor, respectively, to procure a policy or policies of
    insurance from an insurance company licensed to write
    such insurance in this state, which policy or policies
    of insurance shall guarantee payment of compensation
    according to the Nebraska Workers’ Compensation Act
    to injured workers.
    We have recently explained that the protections provided
    under § 48-116 are to ensure that companies cannot use sub-
    contractors to absolve them of the responsibility to ensure that
    employees are properly insured under the Nebraska Workers’
    Compensation Act. 7 The principal contractor has the respon-
    sibility to ensure that the subcontractor obtains a workers’
    compensation insurance policy. 8 In the event that the principal
    contractor fails to require a subcontractor to carry workers’
    7
    See Martinez v. CMR Constr. & Roofing of Texas, supra note 4.
    8
    See
    id. See, also, Hiestand
    v. Ristau, 
    135 Neb. 881
    , 
    284 N.W. 756
    (1939).
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    compensation insurance and an employee of the latter sus-
    tains a job-related injury, the principal contractor is a statu-
    tory employer. 9
    Although we have never made this point explicit, it is
    clear from our case law and the language of § 48-116 that
    liability under § 48-116 presupposes that the injured worker
    was an “employee” of the subcontractor, to whom the sub-
    contractor had an obligation to procure workers’ compensa-
    tion insurance protection. 10 We have found liability under
    § 48-116 only when the claimant was an employee of the
    subcontractor and the principal contractor failed to require
    the subcontractor to carry the proper insurance. 11 Thus, the
    applicability of § 48-116 depends on whether or not Aboytes-
    Mosqueda is an employee of Huerta under the Nebraska
    Workers’ Compensation Act.
    Neb. Rev. Stat. § 48-115 (Reissue 2010) provides the statu-
    tory definition for employee. Applicable here is § 48-115(2),
    which states in relevant part: “Every person in the service
    of an employer who is engaged in any trade, occupation,
    business, or profession as described in section 48-106 under
    any contract of hire, expressed or implied, oral or written,
    including aliens and also including minors.” No evidence
    of an express employment contract was provided. Although
    Aboytes-Mosqueda testified that there was a verbal employ-
    ment agreement, he did not disclose any details of this agree-
    ment, nor did he indicate when or where the agreement
    was made.
    9
    See Martinez v. CMR Constr. & Roofing of Texas, supra note 4.
    10
    See Bohy v. Pfister Hybrid Co., 
    179 Neb. 337
    , 
    138 N.W.2d 23
    (1965). See,
    also, Gardner v. Kothe, 
    172 Neb. 364
    , 
    109 N.W.2d 405
    (1961); Standish v.
    Larsen-Merryweather Co., 
    124 Neb. 197
    , 
    245 N.W. 606
    (1932).
    11
    See Martinez v. CMR Constr. & Roofing of Texas, supra note 4. See, also,
    Duffy Brothers Constr. Co. v. Pistone Builders, Inc., 
    207 Neb. 360
    , 
    299 N.W.2d 170
    (1980); Bohy v. Pfister Hybrid Co., supra note 10; Gardner v.
    Kothe, supra note 10; Hiestand v. Ristau, supra note 8; Standish v. Larsen-
    Merryweather Co., supra note 10.
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    ABOYTES-MOSQUEDA v. LFA INC.
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    306 Neb. 277
    There was conflicting testimony about whether there was a
    verbal agreement to create an agency relationship, and we find
    that the compensation court was not clearly wrong in determin-
    ing there was no mutual intent between Aboytes-Mosqueda
    and Huerta to enter into an employment agreement. 12 Thus, we
    consider whether the compensation court was correct in finding
    Aboytes-Mosqueda was an independent contractor in light of
    the 10 factors set forth by this court. 13
    [6] There is no single test for determining whether one
    performs services for another as an employee or as an inde-
    pendent contractor; rather, the following factors must be con-
    sidered: (1) the extent of control which, by the agreement,
    the employer may exercise over the details of the work; (2)
    whether the one employed is engaged in a distinct occupa-
    tion or business; (3) the kind of occupation, with reference
    to whether, in the locality, the work is usually done under the
    direction of the employer or by a specialist without supervi-
    sion; (4) the skill required in the particular occupation; (5)
    whether the employer or the one employed supplies the instru-
    mentalities, tools, and the place of work for the person doing
    the work; (6) the length of time for which the one employed is
    engaged; (7) the method of payment, whether by the time or by
    the job; (8) whether the work is part of the regular business of
    the employer; (9) whether the parties believe they are creating
    an agency relationship; and (10) whether the employer is or is
    not in business. 14
    Several of these factors militate against finding that Aboytes-
    Mosqueda was an employee. Aboytes-Mosqueda testified that
    when he fell from the roof, no one was present because he
    was working alone on that particular section of the roof.
    The compensation court found that Aboytes-Mosqueda was
    12
    See Kaiser v. Millard Lumber, 
    255 Neb. 943
    , 
    587 N.W.2d 875
    (1999).
    13
    See Omaha World-Herald v. Dernier, 
    253 Neb. 215
    , 
    570 N.W.2d 508
         (1997).
    14
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    ABOYTES-MOSQUEDA v. LFA INC.
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    working independently when the accident occurred. Moreover,
    it was undisputed that the inspection of the work product at
    the end of each job was done by LFA, not by Huerta. These
    facts are indicative of an independent contractor rather than
    an employee.
    Although Aboytes-Mosqueda testified that he worked exclu-
    sively for Huerta, the trial court found that Aboytes-Mosqueda
    was free to work with other roofers. Huerta worked with
    Aboytes-Mosqueda on two or three roofs a month during 2018
    and did not work with him at all during 2017. Huerta testified
    that he regularly worked jobs without Aboytes-Mosqueda and
    that Aboytes-Mosqueda was free to decline jobs whenever
    Huerta called and offered work. Aboytes-Mosqueda’s ability to
    accept or decline work on a job-by-job basis is also indicative
    of an independent contractor.
    Both the length of time and manner of payment weigh
    heavily against Aboytes-Mosqueda. Aboytes-Mosqueda did not
    contest that he was always paid in cash by the job, and the
    amount was determined on a job-by-job agreement between
    himself and Huerta. Aboytes-Mosqueda received the same
    amount of money as each of the other crew members, includ-
    ing Huerta. Each job was usually only a couple of days, and
    occasionally, they would work two jobs in the same week.
    Based on the length of the jobs and Huerta’s testimony that
    they worked together approximately two or three times a
    month, Aboytes-Mosqueda was actively working at a jobsite
    with Huerta approximately 6 days a month. We have explained
    that the shorter and more sporadic a job is, the more akin it
    is to one performed by an independent contractor. 15 Both the
    length of the jobs and the method of payment are indicative of
    an independent contractor.
    As the compensation court noted, there was little to no
    evidence presented concerning several factors. There was
    no evidence addressing whether Aboytes-Mosqueda was a
    15
    See Pettit v. State, supra note 6.
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    specialist, what the common practice in the locality is, or
    what kind of skill is required to be a roofer. We agree with
    the compensation court that if there were such additional facts
    supporting Aboytes-Mosqueda’s status as an employee, he had
    the burden to present them.
    The only factor upon the evidence presented that weighs
    in favor of considering Aboytes-Mosqueda an employee is
    the fact that roofing is a part of the regular business or trade
    of Huerta. However, Huerta testified that he did not hold
    himself out to be a business and no evidence was presented
    to contradict his testimony. There was conflicting testimony
    concerning who supplied the safety harnesses and some of
    the tools. There was also disagreement over whether work
    hours were set by Huerta or as a crew. It was uncontested
    that Aboytes-Mosqueda brought his own tool belt, hammer,
    and knife. Aboytes-Mosqueda claims that Huerta provided
    transportation to the jobsite, which demonstrates control over
    the work hours. The compensation court found that Aboytes-
    Mosqueda was free to work or stop working at will and that the
    amount of time spent on a job was the result of consensus by
    the crew.
    The compensation court did not make factual determina-
    tions as to who supplied the safety harnesses, nail gun, and
    compressor, but even if we accepted Aboytes-Mosqueda’s tes-
    timony that Huerta supplied these tools, such facts would not
    be sufficient to establish that Aboytes-Mosqueda was in fact
    an employee. The majority of the factors, including the extent
    of control Huerta exercised over Aboytes-Mosqueda, support
    the conclusion that Aboytes-Mosqueda was not an employee
    of Huerta as defined by the Nebraska Workers’ Compensation
    Act. The compensation court did not clearly err in making this
    determination. Thus, § 48-116 does not apply to this case and
    whatever agreements did or did not occur between Huerta and
    LFA following Aboytes-Mosqueda’s injury are irrelevant. The
    plaintiff, in the Workers’ Compensation Court, must prove
    that she or he has employee status to invoke the jurisdiction
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    of the court. 16 The compensation court did not err in conclud-
    ing that Aboytes-Mosqueda failed to prove his employee sta-
    tus. Thus, it did not err in dismissing the action.
    CONCLUSION
    The Workers’ Compensation Court did not clearly err in its
    determination that Aboytes-Mosqueda was not an employee
    of Huerta. As a result, § 48-116 is inapplicable to the present
    case. The judgment of the Workers’ Compensation Court is
    affirmed.
    Affirmed.
    16
    Id.