Ware v. Industrial Comm'n

Case Date: 12/28/2000
Court: Industrial Commission
Docket No: 1-00-1279WC Rel

December28, 2000

No. 1-00-1279WC


IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

INDUSTRIAL COMMISSION DIVISION


WILLIAM WARE,

          Appellant,

v.

THE INDUSTRIAL COMMISSION et
al
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          (Superior Carriers,
          Appellee).

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Appeal from the Circuit
Court of Cook County.


No. 99-L-50396



Honorable
Joanne L. Lanigan,
Judge, Presiding.

JUSTICE COLWELL delivered the opinion of the court:

Claimant, William Ware, appeals a decision of the circuit court of Cook County confirming a decisionof the Industrial Commission (Commission). The Commission reversed the decision of the arbitratorawarding benefits under the Workers' Compensation Act (Act). 820 ILCS 305/1 et seq. (West 1994). TheCommission found that claimant failed to prove that an employer-employee relationship existed betweenhim and respondent, Superior Carriers (Superior). We reverse.

BACKGROUND

Ware was an over-the-road truck driver who owned his own semi-tractor. Superior was a companyengaged in the business of delivering freight for various customers. Superior provided tank trailers to Ware. On October 1, 1992, Superior dispatched Ware to deliver a load of methanol to a facility in Michigan ownedby Shell Chemical (Shell). A pump, which was used for unloading, was leaking and Ware attempted totighten the packaging on the pump. Ware's jacket became entangled in the pump's drive shaft, and he wasseverely injured. The pump was located on the tractor. Superior required that the tractor be equipped withthe pump.

At the time of the accident, Ware was operating under an agreement with Superior titled "EquipmentLease Agreement Between Independent Contractor And Carrier." The lease referred to Ware as anindependent contractor. The agreement provided that Ware would lease his tractor to Superior, giving it"exclusive possession, control, and use for the limited purpose of complying with state and federaltransportation law." Under the lease, Superior was required to pay for insurance to cover the vehicle whenit was being operated in Superior's service. Superior also was to acquire "bobtail" insurance to cover thevehicle when it was not operated in their service. This insurance was charged to Ware. Ware was paid apercentage of the gross revenue from each particular job. The lease required Ware to submit severaldocuments in order to be paid. The lease also provided that the cost of tank cleaning was to be splitbetween the parties and that Ware was responsible for inspecting the tanks. One of the documents Warehad to turn in to be paid was a "tank cleaning check off list." The lease allowed Ware to hire otherindividuals to operate the truck, but required his hiring decisions to be approved by Superior. Ware wasresponsible for all costs of operation. The lease also prohibited Ware from using his tractor to haul freightfor other companies without Superior's approval. The lease could be terminated at anytime, after 30 daysfrom its effective date, if either party gave notice by certified mail. Superior could also terminate the leaseimmediately under various circumstances, including failure to provide a competent driver. This was not thefirst lease between the parties; rather, Superior would terminate a lease and issue a new one whennecessary to comply with applicable local or federal regulations. The lease the parties were operating underat the time of the accident was signed January 14, 1991. Ware stated that he understood the lease andentered into it voluntarily.

Ware was paid a percentage of the gross revenue, except when hauling for Shell where he was paidby the mile. He did not receive any form of a benefit package. Superior did not withhold income or socialsecurity taxes from Ware's compensation. Ware received a federal 1099 form rather than a W-2 form.

Ware had been employed by D & L Transport when Superior acquired that company in 1987. Warewas working under a lease agreement, and Superior canceled that lease and issued a new one. Since thattime, Ware worked exclusively for Superior. He quit in 1989, but he returned after two weeks. Whileworking for Superior, Ware did not have any other customers and did not advertise as a separate business. He was, however, incorporated. Ware did have another driver operating his truck for an undeterminedamount of time in 1991 and 1992.

Individual assignments were initiated by Superior through a travel order. Ware did not makearrangements with Superior's customers. The order would tell a driver what load he was carrying, whereto deliver it, what times he had to pick up and deliver it, and what equipment he needed to unload. Theorder also provided some routing information. Timetables reflected the requests of Superior's customers. Generally, drivers were not required to follow the suggested route, but if hazardous materials were beinghauled, the route was mandatory in some areas.

Superior provided instructions to Ware regarding the operation and maintenance of his truck. Superior prohibited Ware from carrying unauthorized passengers in his truck. It required Ware to notifySuperior if an accident occurred. Superior forbade Ware to operate more hours than allowed by federal lawand threatened to terminate him if he received three speeding tickets in one year. Superior set forthprocedures for operating in cold weather. These procedures included how to clean the vehicle, where topark, what kind of fuel to purchase, and when to check the trailer for condensation. Superior instructedWare to remove all hoses from the trailer he was using and place them on a cleaning rack at the end of ashift. Superior required Ware to take a physical every two years. The results of the physicals were sentdirectly to Superior. Superior's company logo was displayed on Ware's tractor. Many of the requirementsSuperior mandated originated in federal regulations governing the trucking industry.

In 1989 and 1990, Ware was a part of a portion of Superior's fleet which was dedicated to servingShell. Shell imposed additional requirements on this fleet. Ware was required to display the Shell logo, aswell as the Superior logo, on his tractor. He was required to wear a uniform, bearing both companies logos,and to shave his beard. OSHA required drivers to be clean shaven so that an oxygen mask would fit, ifnecessary. Because Shell required instant communication with these drivers, Superior installed a cellulartelephone in Ware's truck. Ware was required to attend safety meetings while part of this fleet.

Ware's truck was registered in Superior's name. This was required by federal regulations. The costof the license was deducted from Ware's compensation. The "bobtail" insurance Superior selected forWare's truck listed both parties as insureds. The cost of this insurance was also deducted from Ware'scompensation.

Ware was allowed to purchase his own workers' compensation insurance policy under the lease. In 1990, Superior put together an "occupational accident plan" through CIGNA. This was not a true workers'compensation plan. If a driver successfully made a workers' compensation claim against Superior, thebenefits of this policy would be paid to Superior. All drivers were required to either procure their ownworkers' compensation insurance or enroll in the CIGNA plan at their own expense. Ware initially declinedto participate in the CIGNA plan, despite not having his own insurance at the time. In May 1991, Superiortold Ware he would no longer be dispatched unless he enrolled in the CIGNA policy, and Ware complied. Ware had provided his own workers' compensation insurance in the past.

Following his accident, Ware was unable to make payments on his truck. He sold it on February1, 1993. In a letter dated April 26, 1993, Superior terminated the lease agreement. Joe Benes, a Superioremployee, testified that Ware inquired about employment as a "company driver" around this time.

The arbitrator awarded Ware benefits under the Act. 820 ILCS 305/1 et seq. (West 1994). Thearbitrator relied primarily on Superior's right to control Ware's activities and the nature of Ware's work inrelation to Superior's business. The arbitrator also cited Superior's retention of the right to discharge Wareand the fact that Superior provided equipment and material to Ware in support of his decision. The arbitratornoted that Ware was paid as an independent contractor, but found that this factor did not outweigh thoseupon which he relied.

The Commission reversed. The Commission found the present case controlled by Earley v.Industrial Comm'n, 197 Ill. App. 3d 309 (1990). The Commission found the case similar to Earley in thefollowing respects: both case involved similar vehicle insurance arrangements; both cases involvedclaimants who paid for their own health insurance; both cases involved claimants who were paid apercentage of gross revenue for shipments delivered; both cases involved parties operating under a leasewith an exclusivity provision; and both cases involved similar arrangements regarding how the claimantswere dispatched. The Commission also noted that Ware had incorporated and that the lease identified himas an independent contractor. Finally, the Commission rejected Ware's contention that Superior's greaterability to terminate the lease allowed Superior to exercise substantial control over Ware.

The circuit court of Cook County found that the Commission's decision was not contrary to themanifest weight of the evidence. The circuit court also relied on the present case's similarities to Earley. The court noted that the dispatch procedures used in both cases were the same. The court rejected Ware'sreliance on the exclusivity provision in the lease, finding that it was imposed by federal regulations ratherthan Superior and that it applied to the tractor rather than to Ware personally. The court noted that most ofthe requirements Ware was subjected to originated either with federal regulations or customers. The trialcourt relied on Ware's corporate status in determining that the nature of his and Superior's business wasdifferent. Finally, the court noted Ware was paid as an independent contractor, provided his own tractor,and was referred to as an independent contractor in the lease. The court found Superior's greater right toterminate the agreement insignificant. Ware now appeals.

ANALYSIS

The sole issue raised in this appeal is whether the Commission erred when it determined that Warewas not an employee of Superior at the time of his accident. The question of whether an employmentrelationship existed at the time of an accident is one of fact. Netzel v. Industrial Comm'n, 286 Ill. App. 3d550, 553 (1997). Accordingly, we will disturb the decision of the Commission only if it is against the manifestweight of the evidence. Kirkwood v. Industrial Comm'n, 84 Ill. 2d 14, 20 (1981). A finding is contrary to themanifest weight of the evidence if the opposite conclusion is clearly apparent. Village of Oreana v. IndustrialComm'n, 289 Ill. App. 3d 845, 850 (1997). We decline Ware's invitation to review this case de novo. Wareargues that the Commission applied the wrong legal standard in determining he was not an employee ofSuperior in that the Commission did not recognize that certain factors in the test for making this assessmentare entitled to greater weight. While the Commission did not explicitly state certain factors are moreimportant, our review of their opinion indicates they applied the proper test. Accordingly, we will apply themanifest weight of the evidence standard here.

No rigid rule of law exists regarding whether a worker is an employee or an independent contractor. Area Transportation Co. v. Industrial Comm'n, 123 Ill. App. 3d 1096, 1099 (1984). Rather, courts havearticulated a number of factors to consider in making this determination. The single most important factoris whether the purported employer has a right to control the actions of the employee. Bauer v. IndustrialComm'n, 51 Ill. 2d 169, 172 (1972). Also of great significance is the nature of the work performed by thealleged employee in relation to the general business of the employer. Ragler Motor Sales v. IndustrialComm'n, 93 Ill. 2d 66, 71 (1982); Peesel v. Industrial Comm'n, 224 Ill. App. 3d 711, 716 (1992). Additionalfactors to consider are the method of payment, the right to discharge, the skill the work requires, which partyprovides the needed instrumentalities, and whether income tax has been withheld. Wenholdt v. IndustrialComm'n, 95 Ill. 2d 76, 80-81 (1983). Finally, a factor of lesser weight is the label the parties place upon theirrelationship. Earley, 197 Ill. App. 3d at 317. The term "employee," for purposes of the Act, should bebroadly construed. Chicago Housing Authority v. Industrial Comm'n, 240 Ill. App. 3d 820, 822 (1992).

Turning to the most important factor, the right to control, we conclude that the manifest weight of theevidence indicates Superior both had and exercised a right to control Ware's on-the-job activities. Althoughthe test focuses upon the right to control, the actual exercise of control is strong evidence of the employer'sright to control. Bob Neal Pontiac-Toyota, Inc. v. Industrial Comm'n, 89 Ill. 2d 403, 411 (1982). When actualcontrol has been shown, only clear evidence that the employer exceeded its authority will overcome theinference that the right to control existed. Bob Neal Pontiac-Toyota, Inc., 89 Ill. 2d at 411.

In the present case, Superior exercised substantial control over Ware's activities. It forbade himfrom carrying passengers. It required him to inspect his assigned tank trailer prior to starting a trip. Thelease also provided that the tank be cleaned when Superior provided information as to the necessity ofcleaning and designated the location where the cleaning was to occur. It instructed him regarding what typeof fuel to buy, where to park, and how to inspect and maintain equipment during cold weather. Superiordirected Ware to remove hoses from his trailer and place them on a cleaning rack at the end of his shift. Superior's dispatchers issued travel orders indicating what his load was, what equipment he needed, wherehe was going, and what time to be there. When Ware was carrying hazardous cargo, Superior wouldsometimes direct the route he was to follow as well. Superior required him to attend safety meetings, weara uniform, shave, and display the Shell logo on his tractor while he was working in the fleet dedicated toserving Shell. When not dedicated to Shell, Ware was required to display Superior's logo on his tractor. If an accident occurred, Ware was instructed to contact Superior. Superior restricted the number ofconsecutive hours Ware could drive. Finally, Superior required Ware to pass a federally mandated physical. Results of the examination were sent directly to Superior. This extensive list of circumstances whereSuperior would direct Ware's behavior, coupled with Ware's compliance, is strong evidence that Superiorhad the right to control Ware's activities.

Superior complains that most of the areas in which it exercised control over Ware were to insurecompliance with federal regulations or customer demands. We find the motivation for Superior's actionsirrelevant. Professor Larson has noted that "it has been possible to make a strong showing of control byintroducing detailed regulations *** and proving that the employer was personally responsible for theirobservance." 3 Larson, Workers' Compensation Law