Ormond Marshall, Carson Equities, Inc., Houston General Insurance Company, Cunningham Lindsey Claims Management v. Squire Court Limited Partnership

ca05-650

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

DIVISION III

 

CA05-650

 

December 14, 2005

ORMOND MARSHALL,

CARSON EQUITIES, INC.,

HOUSTON GENERAL INSURANCE CO.,

CUNNINGHAM LINDSEY CLAIMS AN APPEAL FROM THE ARKANSAS

MANAGEMENT WORKERS' COMPENSATION

APPELLANTS COMMISSION

v. [E806348]

SQUIRE COURT LIMITED

PARTNERSHIP

APPELLEE AFFIRMED

 

Olly Neal, Judge

Appellant Ormond Marshall brings this appeal from a decision of the Arkansas Workers' Compensation Commission (Commission) that found that he was "jointly employed" by Carson Equities and Squire Court Limited Partnership. On appeal, appellants assert that the Commission's decision is not supported by substantial evidence. We affirm.

Squire Partners, Incorporated is the general partner of Squire Court Limited Partnership (SCLP). Both entities are operated by Henry "Hank" Mann and his son, Michael Mann. SCLP owned Squire Court One and Squire Court Two apartment complexes in Little Rock. The complexes were managed by Carolyn Hornbeck, an employee of SCLP. A renovation project was undertaken at the two complexes. Carson Equities, a company owned by Michael Mann and his two sisters, was hired to perform the renovations.

Appellant Ormand Marshall was hired by Henry Mann to work for Carson Equities. As part of his employment, Marshall laid the flooring for the renovation project. While working on the renovation project, Marshall lived rent free in an apartment at Squire Court in exchange for his painting and placing flooring in the apartment. At the request of Ms. Hornbeck, Marshall also performed general repairs around the complex.

On May 28, 1998, while working on an apartment in the Squire Court Two Complex, Marshall's foot was injured when a concrete-stairway landing collapsed while a co-worker, Nigel Merez, was standing on it.

Marshall and Mr. Merez both brought suit in the Pulaski County Circuit Court against SCLP. They alleged that SCLP was independently negligent and/or that SCLP maintained such control over the renovation project as to be liable for the negligence of its subcontractors. In its answer, SCLP admitted that Marshall was an employee of Carson Equities and denied all other allegations. Following discovery, SCLP moved for summary judgment, arguing that Carson Equities was an independent contractor and that SCLP had no duties toward Carson Equities' employees. The trial court granted SCLP's motion for summary judgment.

An appeal of the trial court's decision was brought before our court. In Merez v. Squire Court Ltd. Partnership, CA02-82 (Ark. App. Oct. 2, 2002) (Merez I), we concluded sua sponte that, pursuant to Ark. Code Ann. § 11-9-105(a) (Repl. 2002),1 the exclusiveremedy provision of the Workers' Compensation Act, the trial court lacked jurisdiction to consider the complaint, and we dismissed the appeal for lack of jurisdiction. This decision was based upon the conclusion that SCLP was the prime contractor on the renovation project. See Merez I, supra. However, upon petition for rehearing, relying on Stapleton v. M.D. Limbaugh Construction Co., 333 Ark. 381, 969 S.W.2d 648 (1998),2 we vacated our previous decision and issued a substituted opinion reversing and remanding the order granting summary judgment on the ground that there were material questions of fact remaining unanswered. See Merez v. Squire Court Ltd. P'ship, CA02-82 (Ark. App. Dec. 18, 2002) (Merez II). A petition for review was filed in the Arkansas Supreme Court. The supreme court granted the petition for review, and in Merez v. Squire Court Ltd. Partnership, 353 Ark. 174, 114 S.W.3d 184 (2003) (Merez III), the supreme court concluded that this court's decision in Merez I was correct and thereby reversed and remanded the case because the Commission had exclusive, original jurisdiction to determine the facts that establishjurisdiction.

Thereafter, Marshall filed a claim before the Commission. Instead of a formal hearing, the parties stipulated that the record would be comprised of the depositions, documents, and discovery responses submitted to the circuit court, this court, and the supreme court. It was agreed that the only fact to be litigated was Marshall's employment status with respect to SCLP.

In a May 28, 2004 opinion, the Administrative Law Judge (ALJ) found that Marshall was jointly employed by Carson Equities and SCLP in that he was under their simultaneous control and simultaneously performed services for each that were closely related to the other. The full Commission affirmed and adopted the decision of the ALJ. From that decision comes this appeal.

In reviewing cases on appeal from the Commission we affirm the Commission's decision if it is supported by substantial evidence. Christian v. Arkansas Crane & Crawler, 55 Ark. App. 306, 935 S.W.2d 1 (1996). Substantial evidence is that which a reasonable person might accept as adequate to support a conclusion. Id. A decision of the Workers' Compensation Commission should not be reversed unless it is clear that fair-minded persons could not have reached the same conclusions if presented with the same facts. Id.

Here, the Commission affirmed and adopted the findings and decision of the ALJ. When an ALJ has made sufficient findings of fact, the Commission may specifically adopt the findings of fact made by the ALJ. Lowe v. Car Care Mktg., 53 Ark. App. 100, 919 S.W.2d 520 (1996). In the present case, the ALJ made sufficient findings of fact, and it was appropriate for the Commission to adopt those findings as its own. Thus, because the findings and conclusions of the ALJ are also the findings and conclusions of the Commission, we consider both the ALJ's order and the Commission's order in our review. Swaim v. Wal-Mart Assocs., Inc., Ark. App. , S.W.3d (May 25, 2005).

Arkansas Code Annotated section 11-9-102(9)(A) (Supp. 2005) defines "employee" as:

[A]ny person, including a minor, whether lawfully or unlawfully employed in the service of an employer under any contract of hire or apprenticeship, written or oral, expressed or implied, but excluding one whose employment is casual and not in the course of the trade, business, profession, or occupation of his or her employer and excluding one who is required to perform work for a municipality or county or the state or federal government upon having been convicted of a criminal offense or while incarcerated.

Joint employment occurs when a single employee, under contract with two employers, and under the simultaneous control of both, simultaneously performs services for both employers, and when the services for each employer is the same as, or is closely related to, that for the other. 3 Larson's Workmen's Compensation Law, § 68.02 at 68-2 (2005); see also Cook v. Recovery Corp., 322 Ark. 707, 911 S.W.2d 581 (1995). If an employee is engaged in joint employment, meaning performing for and under the control of two employers at the same time, the liability for workers' compensation benefits is joint. Cook v. Recovery Corp., supra.

In his May 28, 2004 opinion the ALJ wrote the following:

[C]laimant in this case was obviously jointly employed by both Carson and Squire Court LP. Henry Mann clearly exercised simultaneous control of the employees of both Squire Court LP and Carson. As stated above, although he stated in his deposition that he did not act on behalf of Carson, had nothing to do with Carson, and did not have any dealings with any employees of Carson, Henry Mann's answers to interrogatories filed by Squire Court LP indicated that Henry was a consultant for both Squire Court LP and Carson; that he provided advice on construction and management of apartments; and that he had authority to write checks on behalf of both Carson and Squire Court LP. Finally, Henry admitted in his deposition that he periodically went to the job site and viewed the quality of the work. He explained that although Michael ran Carson, Michael, unlike Henry, did not know anything about construction. Clearly, Henry Mann was exercising control over Carson, as well as Squire Court LP.

The employees hired to work on the Carson renovation project of the Squire Court properties believed that Henry Mann was in charge; some even believed that Carson was a subsidiary of Squire Court LP. Even Henry Mann's own son, Michael, the "owner" of Carson, according to Henry, was unsure of both he and his father's status where these two companies were concerned.

Claimant performed simultaneous services for both employers, as he was hired and received paychecks from Carson for the renovation work on the properties, but was given a rent-free apartment by Squire Court LP in exchange for his agreement to "fix up" that apartment. Further, he took instruction from Carolyn Hornbeck, an employee of Squire Court LP and the manager of the Squire Court apartments, when she needed work done for Squire Court LP.

Finally, the services Claimant performed for each of Carson and Squire Court LP were the same as, or closely related to, that for the other. Claimant testified that he was the "floor guy" for Carson; his job was for carpet and tiles. His job in fixing up the apartment he was given by Squire Court LP was to paint, and lay carpet and tiles.

When we view the evidence in a light most favorable to the ALJ's findings, we cannot say that fair-minded people when confronted with these same facts would not have reached the same conclusions. Therefore, the Commission's decision finding that Marshall was a joint employee of both Carson Equities and SCLP is supported by substantial evidence, and we affirm.

Affirmed.

Glover and Vaught, JJ., agree.

1 Arkansas Code Annotated section 11-9-105(a) provided in pertinent part:

The rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee, . . . or anyone otherwise entitled to recover damages from the employer, . . . or prime contractor of the employer, on account of the injury or death, and the negligent acts of a coemployee shall not be imputed to the employer. No role, capacity, or persona of any employer, principal, officer, director, or stockholder other than that existing in the role of employer of the employee shall be relevant for consideration for purposes of this chapter, and the remedies and rights provided by this chapter shall in fact be exclusive regardless of the multiple roles, capacities, or personas the employer may be deemed to have. (Emphasis added.),

2 In Stapleton it was held that the "prime contractor" exclusion in section 11-9-105(a) was unconstitutional.