Hanson v. Transportation General, Inc.

dissenting. The majority, in applying the right to control test in determining whether the deceased husband (decedent) of the plaintiff Janet Hanson was an employee within the meaning of the Workers’ Compensation Act (act), General Statutes § 31-275 et seq., ignores this court’s long-standing precedent for determining whether there exists such a relationship. Furthermore, the majority’s narrow interpretation of this remedial statute runs contrary to our fundamental principle that the act “must be interpreted liberally to achieve its humanitarian purposes . . . [and] this court should not impose limitations on the benefits provided for a . . . worker that the statute itself does not clearly specify.” (Citations omitted; internal quotation marks omitted.) Gil v. Courthouse One, 239 Conn. 676, 682-83, 687 A.2d 146 (1997). Today, the majority, by failing to recognize this precedent, allows the named defendant, Transportation General, Inc., doing business as Metro Taxi (Metro), to contract out the very heart of its business for the purposes of avoiding social legislation put in place to protect employees and their families.1

*627Nevertheless, even if we should interpret the act narrowly — that is, focus on whether, at the time of the decedent’s death, Metro retained the right to control the decedent with respect to the performance of his services as a taxicab operator — the plaintiff is entitled to workers’ compensation benefits as the widow of the decedent because, as I point out in part II of this dissent, Metro admitted that the decedent was under its direction at the time of his death. The majority fails to address this claim because, in focusing on whether this court should adopt the relative nature of the work test as an alternative test for the purpose of determining whether a claimant is an employee under the act, it appears to have lost sight of the proverbial forest. 2

Indeed, the majority, in footnote 5 of its opinion, without citing to any supporting authority, characterizes the issue in this appeal as follows: “[W]hat the decedent driver knew or should have known of his own status under the act.” Such a characterization is absurd because the issue in any workers’ compensation case in which the employment status of the claimant is contested is whether the defendant had the right to control the claimant with respect to the performance of his services. If the issue was what the claimant knew of his own status, many employees who allegedly do not know, or should not have known of their employment status, could avoid the exclusivity provision of the act3 and bring an action in tort against their employers.

*628By losing sight of the real issue in this case, the majority deprives the plaintiff of her just compensation.

I

Reversal is required in this case because the compensation commissioner for the third district (commissioner) did not properly review all the circumstances of the decedent’s work relationship to determine whether he was an employee or an independent contractor. The act does not specifically set forth the factors to consider in determining whether a claimant was an employee. General Statutes § 31-275 (9) (A) (i) defines an employee for purposes of the act to mean any person who “[h]as entered into or works under any contract of service or apprenticeship with an employer . . . .” When the state adopted the act in 1913, this court’s determination of whether there existed an employer-employee relation was dependent on the traditional common-law right to control test. See Thompson v. Twiss, 90 Conn. 444, 447, 97 A. 328 (1916), citing Alexander v. Sherman’s Sons Co., 86 Conn. 292, 297, 85 A. 514 (1912), and Norwalk Gaslight Co. v. Norwalk, 63 Conn. 495, 28 A. 32 (1893) (pivotal question is “who has the right to direct what shall be done and when and how it shall be done? [In other words] [w]ho has the right to the general control?”). In 1933, when the American Law Institute adopted the right to control test for determining the existence of a master-servant relationship, it recognized that many factors were germane in determining whether that relationship exists. 1 Restatement, Agency § 220 (1933). Soon thereafter, this court acknowledged that it looked to the *629Restatement when it applied the right to control test to determine whether a claimant was an employee. Northwestern Mutual Life Ins. Co. v. Tone, 125 Conn. 183, 190, 4 A.2d 640 (1939) (“Various elements may enter into the determination of the question whether one who performs services for another is his servant or is exercising an independent employment. Restatement, 1 Agency, 220.”); see also Robert C. Buell & Co. v. Danaher, 127 Conn. 606, 610, 18 A.2d 697 (1941) (same).4

The Restatement (Second) of Agency, § 220 (1958) (hereinafter referred to as § 220), which is substantially the same as its predecessor,5 defines the relationship of master and servant as follows: “(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control. (2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered; (a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) 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 supervision; (d) the skill required in the particular occupation; (e) whether the employer of the workman supplies the instrumentalities, tools, and the place of work *630for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular business of the employer; (i) whether or not the parties believe they are creating the relation of master and servant; and (j) whether the principal is or is not in business.”

When the claimant proves, pursuant to § 220 (1), that the purported employer had a right to control the person’s work, the analysis stops there and the employment relationship for purposes of the act has been satisfied. The “relation of master and servant is one not capable of exact definition. It cannot ... be defined in general terms with substantial accuracy.” 1 Restatement (Second), supra, § 220, comment (1) (c). “Many factors are ordinarily present for consideration, no one of which is, by itself, necessarily conclusive.” Bourgeois v. Cacciapuoti, 138 Conn. 317, 321, 84 A.2d 122 (1951). Indeed, the Restatement recognizes, as we have, that “[although control or right to control the physical conduct of the person giving service is important and in many situations is determinative, the control or right to control needed to establish the relation of master and servant may be veiy attenuated.”61 Restatement (Second), supra, § 220, comment (1) (d). Therefore, when subsection (1) does not definitively establish the employer-employee relationship, triers of *631fact must consider all the factors in § 220 (2), and then determine “whether or not there is a sufficient group of favorable factors to establish” that the claimant is an employee. Id., § 220, comment (1) (c). For example, “[w]hile the method of paying by the hour or day rather than by a fixed sum is characteristic of the relationship of employer and employee, it is not decisive. Thompson v. Twiss, supra, [90 Conn.] 448; Stier v. Derby, 119 Conn. 44, 52, 174 A. 332 [1934], Nor is it decisive that the injured party uses his own tools and equipment.” Bourgeois v. Cacciapuoti, supra, 321; see Ceradsky v. Mid-America Dairymen, Inc., 583 S.W.2d 193, 196 (Mo. App. 1979) (“[w]here the evidence lacks such a conclusiveness, however, whether the one who renders the service for the other acts as employee or independent contractor depends upon all the circumstances of the work relationship — so that control becomes only one indicium weighted with the several others to determine the true status” [emphasis added]).

On the basis of the undisputed findings by the commissioner in this case, I conclude that Metro’s right to control the decedent was not so attenuated as to mandate a finding, under subsection (1) of § 220, that the decedent was an independent contractor. Therefore, consideration of all the factors in subsection (2) of § 220 is required to determine the true status of the decedent at the time of his fatal injury. The majority, like the commissioner, however, limits its review of the decedent’s relationship to a summary analysis of some, but not all, of the factors set forth in § 220 (2).

In general, the “inquiry [into all the factors of subsection (2) of § 220] turns to the economic and functional relationship between the nature of the work and the operation of the business served.” Ceradsky v. Mid-America Dairymen, Inc., supra, 583 S.W.2d 199. Several factors in § 220 (2) specifically focus on the relative *632nature of the claimant’s work. For instance, subsection (2) (b) requires us to take into consideration whether the decedent was engaged in a distinct occupation. “It would appear that to truly be independent contractors, [Metro’s] drivers are required [to have a certificate of operation issued by the state department of transportation] ... in order to present themselves as a business entity.” Petition of City Cab of Manchester, 139 N.H. 220, 222, 652 A.2d 1202 (1994). The owner-operator agreement signed by the decedent provides that he “acknowledges that he has acquired no property rights in ... [the] certificate to operate . . . assigned to him by [Metro] during the term of this Agreement . . . .” Moreover, Metro’s drivers do not present themselves as being separate business entities. Indeed, at the time of the decedent’s injury, he was operating a vehicle painted orange and white — like all other Metro taxicabs — and emblazoned with the Metro name and telephone number. Consequently, most of Metro’s customers “would have no reason to suspect that a driver was a business entity distinct from [Metro].” Id., 223. Under these circumstances, it cannot reasonably be said that the decedent was engaged in an occupation distinct and separate from that of a Metro taxicab operator.

Most importantly, the Restatement directs this court to consider whether the decedent’s work was “a part of the regular business of the employer.”71 Restatement (Second), supra, § 220 (2) (h). In this case, Metro’s sole business was to supply taxi service, precisely what the decedent was doing as a result of his employment by Metro. Indeed, pursuant to Metro’s owner-operator *633agreement, the decedent was hired to perform a continual service of carrying passengers to and from points in Metro’s area of operations8 in order to ensure fulfillment of Metro’s obligations to the department of transportation to provide a quality taxicab service meeting certain standards. Although Metro argued before the commissioner that it was in the business of “leasing cars to drivers,” Metro was obligated to provide taxi service in accordance with its franchise with the department of transportation. In doing so, Metro received telephone calls from customers for taxi service and dispatched drivers, including the decedent, to these customers. While Metro adopted an ingenious method of fixing the decedent’s compensation and permitted him to exercise much discretion over the use of his taxicab, there was, still, “a continuous, essential connection between [Metro’s] work and that of the [decedent] . . . making the [decedent’s] labor a critical part of the regular business of [Metro].” (Citations omitted; internal quotation marks omitted.) Petition of City Cab of Manchester, supra, 139 N.H. 222; Aisenberg v. C.F. Adams Co., 95 Conn. 419, 422, 111 A. 591 (1920) (“[t]he means and method of conducting this business, as we have in part detailed, comprise the essence of this business”).

This last factor, § 220 (2) (h), is closely related to the “relative nature of the work” test that the plaintiff urges this court to adopt and that has been embraced by other jurisdictions. See, e.g., Stampados v. Colorado D. & S. Enterprises, 833 P.2d 815, 817 (Colo. App. 1992); Ceradsky v. Mid-America Dairymen, Inc., supra, 583 S.W.2d 193; Petition of City Cab of Manchester, supra, 139 N.H. 221; Kertesz v Korsh, 296 N.J. Super. 146, 153, *634686 A.2d 368 (App. Div. 1996); Claim of Griffin, 466 N.W.2d 148, 150 (N.D. 1991); Kaiel v. Cultural Homes-tay Institute, 129 Or. App. 471, 477, 879 P.2d 1319 (1994).

It is unnecessary for this court to consider the issue of adopting the relative nature of the work test in order to decide this case because, according to our precedent, most of the factors of this test have relevance in the application of the right to control test.9 For example, *635in Higley v. Woodford, 106 Conn. 284, 285-86, 137 A. 755 (1927), this court specifically relied on the following factor — the degree to which the claimant’s work is a separate calling or business — to conclude that the claimant woodcutter was not an employee of the defendant. The court in Higley emphasized that because the claimant was “ ‘exercising an independent employment . . . was doing his own business ... in his own way and under his own will’ ” he was an independent contractor. Id. Most importantly, in at least two cases this court has relied on the extent to which the work is a regular part of the purported employer’s regular business to determine whether a claimant was an employee or an independent contractor. See, e.g., Robert C. Buell & Co. v. Danaher, supra, 127 Conn. 612 (claimant was employee because “ ‘[o]n the whole the work which the salesmen are doing is the business of the plaintiff [and t]he advancement of that business depends very largely upon the method and manner of the doing of their work by the salesmen’ ”); Lassen v. Stamford Transit Co., 102 Conn. 76, 81, 128 A.2d 117 (1925) (negligent operator of taxicab was employee of defendant who had concession for operating taxi service, in part, because defendant had no “other means of performing this service”).10

*636II

In my view, reversal of the commissioner’s decision is also required because he failed to include in his findings material undisputed facts that clearly would have established an employer-employee relationship. It is well settled law that the “finding [of the commissioner] cannot be changed unless the record discloses that the finding includes facts found without evidence or fails to include material facts which are admitted or undisputed.” Wheat v. Red Star Express Lines, 156 Conn. 245, 248, 240 A.2d 859 (1968). Moreover, “[t]he conclusions drawn by [the commissioner] from the facts found must stand unless they result from an incorrect application of the law to the subordinate facts or from an inference illegally or unreasonably drawn from them.” (Internal quotation marks omitted.) Fair v. People’s Savings Bank, 207 Conn. 535, 539, 542 A.2d 1118 (1988).

As previously pointed out, the undisputed facts found by the commissioner provided sufficient proof of the decedent’s employee status. Nevertheless, when the findings requested by the plaintiff, based upon Metro’s own admission before the commissioner, are added to the commissioner’s findings, the evidence is overwhelming that the decedent was an employee of Metro at the time of his fatal injury. The commissioner found that “[w]hen a driver agreed to service a call through the radio dispatcher he was under the orders and direction of the dispatcher.” After the commissioner released its decision, the plaintiff requested that he amend this finding to include the following facts: “[The decedent] always utilized the radio dispatch service [of Metro] and at the time of his death, he was responding to a radio dispatch call [from Metro] and was under orders *637and direction of the dispatcher.”11 The transcript of the hearing before the commissioner reflects that the defendant had conceded that the decedent utilized the services of the dispatcher “most of the time” he operated the taxicab, and that he was “utilizing it for at least some of the night [he was killed] because the people who killed him were a radio dispatched call.”12 Remarkably, the majority concludes, without specific reference or identification of the requested finding, that even if the commissioner had granted the plaintiffs request to correct this and fifteen other findings, “ ‘the ultimate conclusion [that the decedent was not an employee] would not change.’ ”

Clearly, if the decedent was responding to Metro directed dispatches on the night he was murdered, he was “under the orders and direction of’ Metro and for that time, at least, he was under the direct control of Metro in full satisfaction of § 220 (1). The majority seems to hold that for the decedent to qualify for workers’ compensation benefits he must have worked exclusively or predominantly for Metro. This requirement is contrary to our long-standing rule of law that “[a] person may be a contractor as to part of his service and a servant as to another part . . . [and that] the question *638of compensability [under the act] is determined by the particular relationship existing at the time the injury was suffered.” (Citation omitted; emphasis added.) Clough v. Estate of Malley, 126 Conn. 379, 382, 11 A.2d 398 (1940); Spring v. Constantino, 168 Conn. 563, 573-75, 362 A.2d 871 (1975) (public defender is employee of state for certain purposes, and independent contractor for other purposes); Scorpion v. American-Republican, Inc., 131 Conn. 42, 45, 37 A.2d 802 (1944) (issue for jury was whether newsboys were agents of defendant, or independent contractors as to removal of wires from stacks of delivered papers); Markham v. Middletown, 102 Conn. 571, 574, 129 A.2d 524 (1925) (town tree warden, as independent contractor, was acting as employee of town when he was injured removing limbs from tree on public property); see also 1 T. Shearman & A. Redfield, Negligence (6th Ed. 1913) § 165 (“[o]ne who has an independent business, and generally serves only in the capacity of a contractor, may abandon that character for a time, and become a mere servant or agent, and this, too, without doing work of a different nature from that to which he is accustomed”). Moreover, by Metro’s own admission and the commissioner’s finding, “most of the time” Metro’s dispatcher exercised direct control over the decedent.13

Furthermore, even when the decedent operated the taxicab at his own discretion, Metro retained the right to exercise control over him. “It is not the fact of actual interference with control but the right to interfere which makes the difference between an independent contractor and a servant or agent.” (Internal quotation marks omitted.) Kaliszewski v. Weathermaster Alsco Corp., *639148 Conn. 624, 629, 173 A.2d 497 (1961). The conclusion that Metro had a right to control the decedent is supported by the fact that it had the right to terminate the decedent’s owner-operator agreement — the agreement that was the foundation of Metro’s business, and that required each owner-operator to: (1) maintain a neat and clear appearance at all times while on duty; (2) exercise courtesy and consideration and help passengers load and unload baggage; (3) use the shortest available route to the passenger’s destination, or as directed by the passenger; and (4) follow all relevant department of transportation regulations. See Lassen v. Stamford Transit Co., supra, 102 Conn. 80-81 (“it must be implied that the company directed and required its drivers to conform to these methods of dealing with the company’s customers”). Nevertheless, even if Metro never disciplined drivers who did not conform, the fact that it had the right to discipline those said drivers is “one of the strong indications that the relation is one of employment.” (Internal quotation marks omitted.) Aisenberg v. C.F. Adams Co., supra, 95 Conn. 423.

At the very least, because the commissioner omitted material facts from his findings, his conclusion that “the proof does not indicate that [Metro] had the degree of control necessary to show that [the decedent] was an employee of [Metro] on [the night he was killed]” is unreasonably drawn from the subordinate facts. Therefore, I would reverse the Appellate Court, and remand the case with instruction to remand the case to the review board and the commissioner for reconsideration in view of these material facts and any other fact which was admitted or undisputed.

Accordingly I dissent.