Opinioy,
The plaintiff, Compassionate Care, Inc., appeals from the judgment of the trial court rendered in favor of the defendant, The Travelers Indemnity Company. The plaintiff filed a two count complaint in which it sought, as to the first count, a declaratory judgment that the defendant is legally obligated to provide the plaintiff with a workers’ compensation insurance policy for an estimated annual premium of $1069 and that the plaintiff is not responsible for paying an increased premium of $103,813, as assessed by the defendant. In its second count, the plaintiff sought monetary damages for the defendant’s alleged breach of the covenant of good faith and fair dealing. In response, the defendant filed a two count amended counterclaim sounding in breach of contract based on, inter alia, the plaintiffs alleged failure to pay the premium ultimately claimed by the defendant and requesting the dismissal of the plaintiffs complaint, damages and other relief. The court found for the defendant on the plaintiffs complaint and for the defendant on its counterclaim. On appeal, the plaintiff claims that the trial court incorrectly found that: (1) with respect to the first count of its complaint (A) the health care
The following undisputed facts, as gleaned from the record, are relevant to our discussion of the issues on appeal. The plaintiff is in the business of making referrals of HCPs, including registered nurses and nurse’s assistants, to private individuals and organizations such as nursing homes. The HCPs, who must be properly licensed, submit applications to the plaintiff for the purpose of becoming part of the plaintiffs referral list. As part of the application process, the HCPs are subject to background checks and are also required to complete a “Pre-employment Physical Examination” form. Based on the requests it receives from client health care facilities, the plaintiff offers assignments to the HCPs, who are free to accept or reject the offered position without penalty. The plaintiff does not own, operate, or manage any of the third-party entities to which the HCPs are assigned. Although the HCPs contract with the plaintiff, they are free to work for other agencies or entities while remaining on the plaintiffs referral list. Once they are put on the plaintiffs referral list, however, the HCPs are not allowed to accept employment positions directly from the plaintiffs client companies. Similarly, and by agreement with the plaintiff, its client companies are also prohibited from directly hiring any HCP who is on the plaintiffs referral list unless it informs the plaintiff, in writing, ninety days in advance of its intent to employ an HCP. If a client fails to notify the plaintiff in advance of hiring an HCP directly, the client must pay the plaintiff liquidated damages as delineated in its contract with the plaintiff.
After an HCP has accepted a work placement referral from the plaintiff, the HCP is responsible for completing time sheets to record the hours he or she has worked for a client company. The time sheets are then submitted by the HCPs to the plaintiff, which then bills the third-party clients based on the reported hours worked and an hourly rate previously agreed upon by the plaintiff and third-party client. The hourly rate is actually an amount greater than the fee paid to an HCP because the rate includes a fee paid to the plaintiff by the client company for its services in referring an HCP to a client company. The plaintiff then pays the HCP directly, based on the hourly rate set by the client company and the plaintiff and
Significantly, the plaintiff has no role in supervising or evaluating the work performed by the HCPs. Nor did the court receive any evidence that the agreements made between the plaintiff and HCPs or the agreements between the plaintiff and client companies contained any provisions authorizing the plaintiff to supervise or direct the manner in which an HCP performs services to a client company. Rather, the plaintiff, at the beginning of each work assignment, informs the HCP of the specific requirements of the assignment, based on information received by the plaintiff from a client company, and informs the HCP of the hourly rate he or she will receive based on the determination of the plaintiff and the client company.
In 2006, the plaintiff attempted to obtain workers’ compensation insurance for its office staff, which, at the time, consisted of a small number of clerical employees. Using the services of an insurance broker, the plaintiff submitted applications to several different insurance companies. All of the plaintiffs applications were declined, however, based on the concern that the insurer would be responsible for claims involving the HCPs because their status as independent contractors was uncertain.
The plaintiff then applied for workers’ compensation insurance for its office staff through the assigned risk market,
Thereafter, the defendant asked the plaintiff to comply with supplementary information requests. Specifically, the defendant sent the plaintiff a “Supplementary Underwriting Information Request” on June 16, 2006, asking for additional information such as tax forms and wage reports, the completion of a contractor questionnaire, and a copy of the plaintiff’s brochure.
On July 12, 2006, the plaintiff received a letter from the defendant asking it to provide valid proof that a specified list of HCPs associated with the plaintiff had provided the plaintiff with certificates that they carried workers’ compensation insurance coverage for themselves. The defendant sought this information in order to complete its underwriting file. Although the plaintiff was able to provide the defendant with professional liability insurance certificates for each named individual, it was unable to provide workers’ compensation insurance certificates for any of them.
The plaintiff commenced the present action on March 8, 2007, by filing a two count complaint in which it sought, as to the first count, a declaratory judgment that the defendant is legally obligated to cover the plaintiff with the policy for the estimated premium of $1069 and that it is not responsible for paying an increased premium of $103,813
I
With respect to count one of its complaint, the plaintiff first argues that the court improperly determined that the HCPs were the plaintiffs employees. The plaintiff next claims that in its analysis of the HCPs’ status as employees, the court incorrectly concluded that the plaintiff would be responsible for providing workers’ compensation benefits to the HCPs pursuant to § 31-292. We agree with the plaintiff.
A
The plaintiff first claims that the court improperly determined that the HCPs were the plaintiffs employees and not independent contractors. We agree with the plaintiff.
We first set forth the applicable standard of review that governs the plaintiffs first claim. “The determination of the status of an individual as an independent contractor or an employee is often difficult . . . and, in the absence of controlling circumstances, is a question of fact. . . . Thus, the plaintiffs claim requires us to review a finding of fact. ..
While we defer to a trial court’s findings of fact when they are supported by the record, our deference is not unlimited. Indeed, as to the factual question for the court as to whether the HCPs are employees or independent contractors, decisional law aids our analysis. As a general proposition: “The fundamental distinction between an employee and an independent contractor depends upon the existence or nonexistence of the right to control the means and methods of work. ... It is the totality of the evidence that determines whether a worker is an employee under the act, not subordinate factual findings that, if viewed in isolation, might have supported a different determination. . . . For purposes of workers’ compensation, an independent contractor is defined as one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work. . . . Many factors are ordinarily present for consideration, no one of which is, by itself, necessarily conclusive. While 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. . . . Nor is it decisive that the injured party uses his own tools and equipment. . . . The retention of the right to discharge, upon which the finding is silent, is a strong, but again not a controlling, indication that the relationship is one of employment. . . . Other persuasive factors that a person is holding oneself out to be an independent contractor include the issuance of 1099 federal tax forms . . . and engaging independently in business with third parties and doing business apart from the putative employer under a different name.” (Citations omitted; internal quotation marks omitted.) Id., 728-29.
Put succinctly, “ [o]ne is an employee of another when he renders a service for the other and when what he agrees to do, or is directed to do, is subject to the will of the other in the mode and manner in which the service is to be done and in the means to be employed in its accomplishment as well as in the result to be attained. . . . The controlling consideration in the determination whether the
With those principles in mind and recognizing that our task is not to decide whether the HCPs are employees or independent contractors but, rather, to assess whether the trial court reasonably could have concluded that they are employees, we review the relevant evidence available to the court in making its decision.
On the basis of our review, we conclude that the evidence presented at trial was insufficient to support the court’s finding that the HCPs were the plaintiffs employees because there was no evidentiary basis for the court to conclude that the plaintiff had the authority to control the mode or manner in which the HCPs performed their services for the health care facilities to which they had been sent by the plaintiff.
In Latimer v. Administrator,
Conversely, in the present case, while the plaintiff did retain the ability to terminate the services of an HCP at any particular client’s facility, the plaintiff had no authority to control the manner in which the HCPs performed their services for individual clients, nor did the plaintiff have any ability to affect the manner of services except by termination of the assignment. Once an HCP accepted an assignment, the HCP provided his or her own transportation, tools, and supplies and controlled the manner in which they cared for the client.
While this court acknowledges that the plaintiff’s ability to remove an HCP from an assignment may evince some measure of control over the HCP, we do not believe this means of indirect influence alone provides a sufficient basis for the trial court’s conclusion that they are the plaintiffs employees because such an influence falls too short of evidence of the right to control the mode and manner in which the HCPs
In its memorandum of decision, the court found that “while the plaintiff may not exercise its right to control the means and methods of work of the HCP, the plaintiff has the right to do so.” This conclusion by the court, however, lacks evidentiary support because there is no evidence in the record to indicate that the plaintiff either exercised or had the right to exercise control over the means and methods of the HCP’s work. In light of the foregoing, we conclude that the court’s determination that the HCPs are employees was clearly erroneous.
B
The plaintiff next argues that the court incorrectly concluded that it would be responsible for providing workers’ compensation benefits to the HCPs pursuant to § 31-292. We agree with the plaintiff.
Whether § 31-292 applies to the facts of this case raises a question of statutory construction, which is a “[question] of law, over which we exercise plenary review. . . . The process of statutory interpretation involves the determination of the meaning of the statutory language as applied to the facts of the case, including the question of whether the language does so apply.” (Internal quotation marks omitted.)
Section 31-292 provides: “When the services of a worker are temporarily lent or let on hire to another person by the person with whom the worker has entered into a contract of service, the latter shall, for the purposes of this chapter, be deemed to continue to be the employer of such worker while he is so lent or hired by another.” We believe § 31-292 is inapplicable to the present dispute because that statute assumes that the worker is, in fact, an employee, and merely states that one who hires out an employee on a temporary basis remains liable for that person’s workers’ compensation coverage during the period the worker is on loan. In short, because the statute begs the question as to the present dispute, its provisions are not an aid to our analysis. See 2 A. Sevarino, supra, § 4.12, p. 424. (“given the temporary nature of the lending or letting for hire to another, the required employer-employee relationship between the injured worker and the lending employer must not only have existed immediately before the lending occurred but must also have been contemplated to have resumed after the lending”).
Put simply, § 31-292 is meant to address an employer’s liability for workers’ compensation coverage in instances where the employee may not be working for the employer at the time of injury. See Derrane v. Hartford,
II
The plaintiff finally claims that the court erred in determining that the defendant had a contractual right to charge the plaintiff a higher policy premium based on its classification of the HCPs as employees. Specifically, the plaintiff argues that because it only signed an application for assigned risk coverage, the defendant’s argument that it could still charge the plaintiff an increased premium based on the “payroll and all other remuneration paid or payable during the policy period for all services of . . . [a]ll other persons engaged in work that could make [the defendant] hable under . . . this policy” is misplaced. We are not persuaded.
The following additional facts are relevant to the resolution of the plaintiffs final claim. At trial, Steven Kidd, an audit manager for the defendant, testified concerning the defendant’s audit procedures for workers’ compensation insurance policies. Kidd testified that when an application is submitted to the council and given to the defendant as the assigned risk carrier, the defendant typically orders an audit survey at the beginning of the policy period to verify the defendant’s exposure and to evaluate the insured’s business operations. After the end of the policy period, the defendant then conducts a final audit to verify the actual premium owed based on the appropriate remuneration figures and rate classifications.
We first set forth the well established legal principles that govern insurance coverage disputes and the applicable standard of review that governs the plaintiffs final claim. “ [Construction of a contract of insurance presents a question of law for the court which this court reviews de novo. ... An insurance policy is to be interpreted by the same general rules that govern the construction of any written contract .... In accordance with those principles, [t]he determinative question is the intent of the parties, that is, what coverage the . . . [insured] expected to receive and what the [insurer] was to provide, as disclosed by the provisions of the policy. ... If the terms of the policy are clear and unambiguous, then the language, from which the intention of the parties is to be deduced, must be accorded its natural and ordinary meaning. . . . Under those circumstances, the policy is to be given effect according to its terms. . . . When interpreting [an insurance policy], we must look at the contract as a whole, consider all relevant portions together and, if possible, give operative effect to every provision in order to reach a reasonable overall result. . . .
“In determining whether the terms of an insurance policy are clear and unambiguous, [a] court will not torture words to import ambiguity where the ordinary meaning leaves no room for ambiguity .... Similarly, any ambiguity in a contract must emanate from the language used in the contract rather than from one party’s subjective perception of the terms. . . .
“[A] trial court’s resolution of factual disputes that underlie coverage issues is reviewable on appeal subject to the clearly erroneous standard. . . . Such a finding of fact will not be disturbed unless it is clearly erroneous in view of the evidence and pleadings in the whole record .
Our decision in National Fire Ins. Co. of Hartford provides guidance for our analysis of this claim. In National Fire Ins. Co. of Hartford, the defendant appealed from the underlying civil action in which the plaintiff successfully sought unpaid workers’ compensation insurance coverage premiums. Id., 573. The dispute between the parties concerned whether certain workers should have been included in the premium recalculation, which increased the premiums by an additional $46,529, based on the plaintiffs audit of the defendant’s business operations. Id., 575-76. In its memorandum of decision, the trial court stated: “[T]he plaintiff is entitled to include in its premium recalculation all persons or entities, whether employees of the defendant or not, for whom the plaintiff may be liable to pay workers’ compensation benefits, unless the defendant proves that such coverage was otherwise provided. . . . [E]ven if all of the . . . [workers] were independent contractors rather than employees, the plaintiff was entitled to additional premiums for their work with the defendant because they all fit within part five C 2 of the insurance policy in that they engaged in work that could make the plaintiff liable to provide workers’ compensation benefits.” (Internal quotation marks omitted.) Id., 576-77. Although, on appeal, this court concluded that the trial court did not make an express finding that the workers at issue were “employees,” we nevertheless found that it was sufficient for the court to have determined that the workers in question fell within the “penumbra” of the policies because they engaged in work that could make the plaintiff liable to provide workers’ compensation benefits. See id., 579-80. In sum, the insurer in National Fire Ins. Co. of Hartford was entitled to assess a premium based on its exposure or risk of having to cover certain employees even if it could later be determined that they were ineligible for workers’ compensation as employees.
Similarly, the circuit court decision m. Hartford Accident & Indemnity Co. v. Capital Home Improvement Co., Inc.,
In the present case, the workers’ compensation insurance policy issued by the defendant contains multiple provisions that establish the defendant’s risk exposure concerning the plaintiffs business operations. Perhaps most telling is the defendant’s obligation to indemnify the plaintiff, contained in part one, section C of the policy, titled, “We Will Defend,” which states in relevant part: “We have the right and duty to defend at our expense any claim, proceeding or suit against you for the benefits payable by this insurance.” Under this provision of the policy, if an HCP filed a claim against the plaintiff for workers’ compensation benefits, the defendant would be contractually required to defend any claim at their expense. If, for example, the defendant were not entitled to collect a premium from the plaintiff based on its risk exposure but, instead, based solely on the plaintiffs contentions that the HCPs were independent contractors, the defendant would be indemnifying the entirety of the plaintiffs risk in exchange for little compensation. This duty to defend would require the defendant to represent the plaintiff in any dispute filed by any potential claimant regardless of whether the plaintiff intended to cover the particular claimant under its workers’ compensation policy.
Finally, the plaintiffs claim that it only signed the application for insurance and, thus, that it is “not contractually obligated to pay an increased premium based merely on the possibility that a health care worker could be determined to be an employee,” is legally and factually incorrect.
The judgment is reversed with respect to the first count of the plaintiffs complaint and the case is remanded with direction to render judgment for the plaintiff on that count; the judgment is affirmed in all other respects.
In this opinion the other judges concurred.
Notes
We use the acronym HCPs for purposes of clarity and consistency as this terminology was used at trial.
Federal 1099 tax forms are generally used to report payments made in the course of a business to a person who is not an employee; See Rodriguez v. E.D. Construction, Inc.,
Although the plaintiffs flyer does represent that the plaintiff conducts follow-up calls to evaluate the HCP’s performance, Beverly Anglin, the plaintiffs president, testified on behalf of the plaintiff at trial that such calls are not frequently made in practice.
Employers who are unable to obtain workers’ compensation insurance coverage through the voluntary insurance market must apply for coverage through the assigned risk market. See ED Construction, Inc. v. CNA Ins. Co.,
The council is the Residual Market Plan Administrator for Connecticut. See ED Construction, Inc. v. CNA Ins. Co.,
Beverly Anglin testified at trial that the defendant did not communicate to her that it wanted workers’ compensation—and not professional liability— insurance certificates related to the HCPs. The record, however, belies this claim. The court received evidence that both the “Contractors Questionnaire” and the letter the plaintiff received requesting such information specified that the defendant wanted “workers’ compensation certificates of insurance” for each subcontractor. On the basis of this record, it is apparent that the defendant was requesting proof of workers ’ compensation insurance coverage for each listed individual to establish whether those individuals needed to be included in its calculation of its risk exposure in determining the final premium. Moreover, the policy, as adduced at trial, included part five, section C, titled, “Remuneration,” which states that the calculation of the premium is based on the remuneration paid or payable to “[a]ll other persons engaged in work that could make us liable under Part One ... of this policy . . . This paragraph 2 will not apply if you give us proof that the employers of thesepersons lawfully secured theirworkers compensation obligations.” (Emphasis added.)
The letter stated in relevant part: “As provided in the policy provisions, the estimated premium basis for your insurance policy(s) is subject to adjustment. Your audit will consist of a review of certain financial records such as, but not limited to, payroll/sales reports and tax forms. These records, and others, will help to determine the proper insurance premium based on the coverage provided.”
General Statutes § 31-275 (9) provides in relevant part: “(A) ‘Employee’ means any person who: (i) Has entered into or works under any contract of service or apprenticeship with an employer, whether the contract contemplated the performance of duties within or without the state . . . .”
The defendant later conducted a final audit in which it determined a final premium amount of $67,069.
The defendant claimed that the plaintiff only owed $66,000, after conducting further audits and subtracting the amount the plaintiff had already paid to the defendant.
In its counterclaim, the defendant made several claims concerning the plaintiffs alleged breach of contract. In its first count, the defendant claimed that the HCPs were the plaintiffs employees and that, as such, the plaintiff breached the express terms and conditions of the policy by failing to permit the defendant to inspect its workplace and records to calculate the final premium and by failing to pay the premium due under the policy. Whether the plaintiff actually cooperated with the defendant during the final stages of the final audit was a point of contention at trial. In the second count of its counterclaim, the defendant argued, in the alternative, that if the HCPs were independent contractors, the plaintiffs failure to pay the premium due under the policy still constituted a breach of contract.
In its memorandum of decision, the court noted that two workers’ compensation claims had been filed against the plaintiff by two different HCPs in the past. One such claim was adjudicated by a workers’ compensation commissioner, who, rejecting the plaintiffs claim, determined that the HCP claimant was an employee and ordered the plaintiff to pay benefits owed to the claimant under the act. The second claim was settled for $15,000. There is nothing in the record to indicate, nor do the parties argue, that we are bound by the commissioner’s findings and the litigants’ agreement in those two instances.
See also Nationwide Mutual Ins. Co. v. Alien,
In its memorandum of decision, the court found that: “The plaintiff does not own, operate or manage any physical premises on which the HCP performs their assigned tasks. The only ‘supervision’ provided by the plaintiff relates to the specific requirements for the assignment which the plaintiff has received from the third party.”
In signing a contract with the plaintiff, each third-party client acknowledged that: “All temporary nurses are independent contractors who provide their own insurance and are paid directly by [the plaintiff]. At all times hereunder, the nurses/certified nurses assistants] provided to the facility by [the plaintiff] shall be independent contractors of the SUPPLIER only.” (Emphasis in original.) Additionally, each HCP was required to sign an acknowledgment form in conjunction with its.application, which stated: “In signing this form you are declaring that you are an independent contractor and in the event of injury you are not entitled to workers compensation benefits; that is, you work at your own risk. In the event of on the job injury you will not receive coverage for los[t] wages. Should you require such insurance, it is your responsibility to do so. As an independent contractor you will not be eligible for unemployment compensation at the termination of your assignment.” Although the existence of this language declaring the HCP to be independent contractors is important to note when examining the totality of the evidence, we acknowledge that merely labeling the HCP as an independent contractor is not dispositive. See 2 A. Sevarino, supra, § 4.13.2, p. 431 (“[t]he mere labeling of the employment relationship as an independent contractor by the parties may not prevent a Workers’ Compensation Commissioner from finding that the injured worker is in fact an employee based upon the actual work relationship”); see also Latimer v. Administrator, supra,
Kidd testified that remuneration is “essentially the term that insurance carriers—we use within the industry to—to describe exposure for a policy. It includes payroll to employees. It could include payroll to uninsured subcontractors or cash payments to—to contract labor.”
In its brief, the plaintiff argues that: “[T]his is not a situation where the plaintiff filled out an application to be covered by a policy of workers’ compensation insurance issued by the defendant, in which it agreed to be bound by a provision of this type.” The plaintiff argues, as well, that in the present case it “filled out an application to the assigned risk pool of the [workers’ [compensation [p]lan. The application signed by the plaintiff does not include a provision which gives the defendant the right to increase the premium based on potential liability to the defendant. The plaintiff does not dispute that the application commits the plaintiff to interim audits, and increased premiums if health care professionals are determined to be employees and not independent contractors. However, the plaintiff is not contractually obligated to pay an increased premium based merely on the possibility that ahealth care worker could be determined to be an employee.”