Reynolds v M&M Contracting
Annotate this Case
Download PDF
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA03-1015 NORTH CAROLINA COURT OF APPEALS Filed: 16 November 2004 JAMES REYNOLDS, Employee, Plaintiff, v. From the Industrial Commission I.C. File No. 150434 M&M CONTRACTING, Employer, and AMCOMP ASSURANCE CORP. Carrier, Defendants. Appeal by plaintiff from opinion and award entered 5 May 2003 by the North Carolina Industrial Commission. Heard in the Court of Appeals 21 April 2004. Lewis & Daggett, P.A., by Griffis C. Shuler for the plaintiffappellant. Womble Carlyle Sandridge & Rice, P.L.L.C. by Clayton M. Custer for the defendant-appellees. ELMORE, Judge. M & M Contracting (M & M) is a general construction contractor owned and operated by Bob Melvin (Melvin). James Reynolds (plaintiff) performed siding work with Terry King (King) -2and Jake Toley (Toley) on a house being built by M & M in May of 2001. Plaintiff worked on two different houses and was paid by the hour in cash. of the sum. Melvin paid King, and King then paid plaintiff out Melvin then asked plaintiff to do some painting in the interior of both houses. agreed to do the work. They negotiated a price, and plaintiff Plaintiff retained King and Toley, and they agreed that the wages would be split three ways evenly. supplied the paint and supplies. Melvin Plaintiff supplied the spray gun painter and a ladder. As the plaintiff was using the spray gun in one of the houses, the gun jammed. Plaintiff washed the sprayer and still no paint came out of the gun. Plaintiff took the spray gun off the spray rig and when he bent down to pick up the hose, the paint suddenly unclogged and some paint exploded into his left eye. Plaintiff attempted to wash out his eye with water, but noticed blood and paint. King and Toley took plaintiff to the hospital. Plaintiff underwent emergency surgery, but suffered a total loss of vision in that eye. The first treating ophthalmologist (Dr. Weaver) testified that the paint was forcefully injected into and around the eyeball and plaintiff s brain. back through the optic canal and into the Plaintiff also received treatment from Dr. Brasington, who agreed that plaintiff had a total loss of vision in the left eye and recommended that the plaintiff wear safety glasses at all times. Dr. Weaver advised the plaintiff to not be around machinery and equipment and not to be on ladders and scaffolding. Plaintiff was unable to earn wages from the date of his injury, 6 -3June 2001 until approximately 12 November 2001. Both doctors agree that plaintiff s condition is permanent. Melvin was notified of plaintiff s injury, and plaintiff requested that Melvin s workers compensation insurance cover his lost wages. Melvin refused. Plaintiff brought the case to the North Carolina Industrial Commission. Deputy Commissioner Taylor dismissed the claim for lack of jurisdiction. to the Full Commission. Plaintiff appealed The Full Commission entered an opinion that the plaintiff had not shown good ground to reconsider the evidence, receive further evidence, or rehear the parties and their representatives, or amend the opinion and award of the Deputy Commissioner except for minor modifications. From that opinion, plaintiff appeals. I. Plaintiff s three assignments of error each center on the Commission s plaintiff finding was not that an it employee lacked but jurisdiction was rather because an the independent contractor. Whether an employer-employee relationship exists is a jurisdictional issue and, unlike findings by the Commission in an order where jurisdiction is not an issue, findings of jurisdictional fact . . . are not conclusive, even when supported by competent evidence. This Court must then review the evidence of record and make an independent determination of plaintiff s employment status, guided by the application of ordinary common law tests. Barber v. Going West Transp., Inc., 134 N.C. App. 428, -4430, 517 S.E.2d 914, 917 (1999) (citations omitted). Thus, this Court has the right, and the duty, to make its own independent findings of such jurisdictional facts from its consideration of all the evidence in the record. Lucas v. Stores, 289 N.C. 212, 218, 221 S.E.2d 257, 261 (1976). falls on the plaintiff. Id. The burden of proof on this issue With these principles as our guide, we now examine plaintiff s appeal. II. The plaintiff first assigns as error the North Carolina Industrial Commission s (Commission) findings of fact and its conclusions of law that the plaintiff was not an employee of defendant Melvin but rather was either a single independent contractor or a co-independent contractor with Terry King. We affirm the Commission. In the case of McCown v. Hines, 353 N.C. 683, 549 S.E.2d 175 (2001), our determine Supreme whether an Court explained the employer-employee criteria we relationship whether plaintiff is an independent contractor: Whether an employer-employee relationship existed at the time of the injury is to be determined by the application of ordinary common law tests. Under the common law, an independent contractor exercises an independent employment and contracts to do certain work according to his own judgment and method, without being subject to his employer except as to the result of his work. In contrast, an employer-employee relationship exists [w]here the party for whom the work is being done retains the right to control and direct the manner in which the details of the work are to be executed. use to exists or -5In Hayes [v. Board of Trustees of Elon College, 224 N.C. 11, 16, 29 S.E.2d 137, 140 (1944).] this Court identified eight factors to consider in determining which party retains the right of control and, thus, whether the claimant is an independent contractor or an employee: The person employed (a) is engaged in an independent business, calling, or occupation; (b) is to have the independent use of his special skill, knowledge, or training in the execution of the work; (c) is doing a specified piece of work at a fixed price or for a lump sum or upon a quantitative basis; (d) is not subject to discharge because he adopts one method of doing the work rather than another; (e) is not in the regular employ of the other contracting party; (f) is free to use such assistants as he may think proper; (g) has full control over such assistants; and (h) selects his own time. . . . No particular one of these factors is controlling in itself, and all the factors are not required. Rather, each factor must be considered along with all other circumstances to determine whether the claimant possessed the degree of independence necessary for classification as an independent contractor. Hines, 353 N.C. at 686-87, 549 S.E.2d at 177-78 (2001) (citations omitted) (holding that a roofer who fell from the top of a rental home on which he was installing a roof was an independent contractor). Our caselaw generally holds that when a worker agrees to complete a certain job for a lump sum payment, retaining control of other details of the assignment then that worker is an independent contractor. See generally Hayes v. Elon College, 224 N.C. 11, 29 S.E.2d 137 (1944) (summarizing caselaw in which the Court has found the plaintiff to be an independent contractor, and holding in that case that the plaintiff, an electrician retained for a certain job -6for a lump sum payment, was an independent contractor). These holdings are consistent with the factors enumerated above. In the present case, plaintiff originally did siding work for Melvin for an hourly wage. Nothing in the record indicates that plaintiff was in the regular employ of Melvin. Melvin then asked plaintiff to do some painting, and they negotiated a lump sum payment of $1,200.00 per house. Plaintiff chose men to assist him, negotiating how they would divide the sum payment. his own spray painter and ladder. Plaintiff used Melvin retained no control over the details of the work, the equipment he would use to accomplish it, whether or not he would require assistance, or who would assist him. Plaintiff contends in his brief on appeal that he had no special skill, but was only pretty good at painting. However, plaintiff was hired to perform a job requiring special skill, and his proficiency at that skill is not the salient issue. He was exercising a special skill, that of painting, which satisfies the criteria listed above. We hold that based on the above-referenced factors and the facts presented contractor. in the record, plaintiff was an independent The Industrial Commission was therefore correct in deciding that it lacked jurisdiction on these grounds. III. In the alternative, plaintiff next assigns error to the Commission s finding of fact and its conclusions of law that the -7plaintiff was not an employee of a subcontractor, Terry King. We affirm. Plaintiff admitted that he was not an employee of King in the effort to argue that he was an employee of Melvin. contact with Melvin generally, which is the King was the difference that plaintiff relies on here. King and plaintiff arranged to split the profits evenly and work together. There did not seem from the record to be any basis for finding that plaintiff was employed by King such that compensation. King would be responsible for purposes of We therefore affirm the Commission on this point. IV. Lastly, the plaintiff assigns error to the Commission s conclusion of law that the Industrial Commission does not have jurisdiction of this claim pursuant to N.C. Gen. Stat. § 97-19. That section of the General Statutes provides that [a]ny principal contractor, intermediate contractor, or subcontractor who hires a subcontractor and does not require a certificate of workers compensation insurance from the subcontractor may be held liable for injuries of the employees of such subcontractor in the event of an injury. N.C. Gen. Stat. § 97-19 (2003). This provision gives the employees of the subcontractor status as statutory employees of the principal contractor for purposes of compensation. The provision also allows the principal contractor to recover from the subcontractor, or from the responsible party, the amount of compensation. Id. The evidence from the parties is conflicting as -8to whether there is a certificate in this case; none was produced as evidence. The provisions of N.C. Gen. Stat. § 97-19 do not extend to one acting as an independent contractor. Richards v. Nationwide Homes, 263 N.C. 295, 302, 139 S.E.2d 645, 650 (1965). existed between 1987 and 1996 was The statute as it broadened to include subcontractors in the class of protected statutory employees, however, amendments brought into effect in 1996 returned to the prior language of the statute which limited the scope of protection to employees of subcontractors. See generally Boone v. Vinson, 127 N.C. App. 604, 492 S.E.2d 356 (1997), disc. review denied, 347 N.C. 573, 498 S.E.2d 377 (1998). Because we hold that plaintiff in this case was acting as the independent contractor subcontractor, this himself section of and not the General applicable. We therefore affirm the Commission. Affirmed. Judges BRYANT and GEER concur. Report per Rule 30(e). the employee Statutes of is a not
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
