Burns v. Nyberg , 108 Idaho 151 ( 1985 )

HUNTLEY, Justice.

Nyberg, who resides in California, hired Burns to manage an apartment unit in Caldwell, Idaho. After several months, Burns suffered a back injury while moving railroad ties in the apartment parking lot. Two months after that Burns was terminated as manager of the apartment, the reasons stated in Nyberg’s dismissal letter being that Burns failed to follow prudent maintenance practices; that rent receipts were forwarded late; and that maintenance receipts were not forwarded with the monthly reports. Burns then filed a Worker’s Compensation application.

Nyberg resisted the claim, contending that Burns was an independent contractor, not an employee, and that his injury occurred outside the course of his employment.

Before Burns was hired, Nyberg had employed Frank Woomer as manager under written contract. The contract with Woomer recited that Woomer was an independent contractor. When Woomer quit he recommended to Nyberg that Burns succeed him, since Burns had done some work for Woomer while Woomer was manager. Burns and Nyberg had no written agreement, but Nyberg contends that Burns understood and agreed that the terms of the written agreement under which Woomer had worked would also apply to Burns.

Burns’ duties involved renting property to tenants when vacancies occurred, collecting rent, performing minor maintenance, and cleaning the apartments and maintaining the grounds. He was to submit a monthly report to Nyberg showing the amounts collected, funds expended while performing his work, and the total amount remitted to Nyberg. A $200 operating account was established to purchase supplies and pay minor expenses. The account was funded by money retained from rent collections. Burns opened a checking account under the name “Canyon Management Properties” in which he deposited the rent and cleaning deposits he collected from tenants. After rent and deposits were collected, Burns kept any amount due him, and forwarded the balance to Nyberg.

Burns was paid a management fee of 10% of the rent collected, and $5.00 per hour for minor repair and maintenance work. Later, the parties amended their oral agreement to provide that Burns receive free rent instead of a management fee.

Burns made recommendations to Nyberg for improvements to the apartments. He did not have authority to make major improvements on the property, but did have authority to decide whether a tenant’s cleaning deposit could be refunded. He also could purchase inexpensive supplies used to clean or repair the apartments. Burns could and did hire other individuals to perform work at the apartment complex.

No provisions were made for withholding from payments to Burns for taxes, social security, or other withholding.

The parties stipulated that the scope of the hearing before the Industrial Commission would be limited to whether or not Nyberg was a covered employer under the Worker’s Compensation Law. If it were decided he was an employer, further testimony and/or depositions would be given as to the extent of injuries of claimant. The Commission concluded that Burns failed to establish that Nyberg had, or assumed, the right to control the claimant with respect to the time, manner and method of executing his work; or to direct his activities, or to control the details of the work and determine how it should be performed. The Commission therefore concluded that Burns had failed to establish he was defendant’s employee at the time of the accident, and that he was therefore not entitled to recover Worker’s Compensation benefits. We affirm.

The determination of whether an injured party is an independent contractor or an employee is a factual determination which must be made from all the facts and circumstances established by the evidence. Ledesma v. Bergeson, 99 Idaho 555, 585 P.2d 965 (1978). The Industrial Commission’s factual findings will not be overturned on appeal when they are supported by substantial and competent evidence. Nelson v. Pumnea, 106 Idaho 48, 675 P.2d 27 (1983); Green v. Columbia Foods, 104 Idaho 204, 657 P.2d 1072 (1983).

Burns argues on appeal that while the facts before the Commission were undisputed, the Industrial Commission misapplied the law to the facts, and its order should therefore be set aside. We do not agree. The Industrial Commission had before it substantial and competent evidence to conclude that Burns was an independent contractor. For example, the manner in which Burns established the operating account under an assumed business name is indicative of independent contractor status. Further, Burns could and did hire others to work at the apartments. The right to hire, furnish, control, discharge and pay assistants, although not conclusive, indicates independent contractor status. Merrill v. Duffy Reed Construction Company, 82 Idaho 410, 353 P.2d 657 (1960). The fact that no provision was made for withholding taxes, social security or other withholding further points toward independent contractor status. The evidence also substantiated the Referee’s finding that Nyberg did not issue any specific directions to or controls upon Burns with regard to the manner, means and method of performing the details of his work. Nyberg was actually interested only in the ultimate result — that rent be collected and forwarded in a timely manner, and that necessary maintenance and repairs be performed. Nyberg was an absentee owner who had little contact with Burns.

The primary test in Idaho is whether a contract gives, or the employer assumes, the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract. Ledesma v. Bergeson, supra. Under this test the Commission’s finding that claimant was an independent contractor was supported by the evidence.

Finally, the Referee found, and the evidence showed, that Nyberg terminated his relationship with Burns because he was dissatisfied with the results of Burns’ efforts. In the Ledesma case this Court stated that only where either party had the right to terminate a relationship at will and without liability would evidence reflecting such a relationship be indicative of an employer-employee relationship. Id. 99 Idaho at 559, 585 P.2d 965. Nyberg did not exercise a right to terminate at will; rather he terminated his agreement with Burns based on legitimate grounds for dissatisfaction which he stated in his termination letter.

Burns also argues that admission of the written agreement between Nyberg and Woomer was irrelevant and prejudicial to Burns. On the contrary, the evidence showed that the written agreement outlined the manager’s duties, and that Nyberg understood that Burns was familiar with the terms of the agreement because he had worked for Woomer, and because Woomer suggested Burns be hired.

Affirmed.

Costs to respondents. No attorney fees.

DONALDSON, C.J., and SHEPARD and BAKES, J.J., concur.