*1 P.2d 383 MORTIMER, Claimant-Appellant- Respondent, Cross APARTMENTS, Employer,
RIVIERA
Defendant-Respondent-Cross
Appellant.
No. 19425.
Supreme Idaho, Falls, May 1992 Term.
Oct. *2 Bush, P.A., Anderson, Pike & Idaho While that motion was pending, Mortimer Falls, appellant-cross respondent. changing Joel moved for an order caption argued. include, Tingey complaint defendants, E. alleged owners Riviera. The Commis- Falls, Stephens, & Thomsen sion motion. denied the Mortimer moved *3 respondent-cross appellant. Alan C. Ste- to reconsider. The also Commission denied phens argued. reconsideration, part the motion for in be- pending appeal. cause of the This Court BISTLINE, Justice. appeal thereafter dismissed Riviera’s as (“Mortimer”) Claimant Mortimer premature. seriously permanently injured and type and amount of benefits to garage off the when he fell roof of a at the which Mortimer was entitled were deter- Apartment Complex Riviera in Idaho Falls. mined the Commission at a later hear- The Industrial Commission determined ing. The Commission also Mor- awarded compen- Mortimer was entitled to worker’s timer percent penalty, attorney fees, a 10 in part sation. We affirm and remand for and of costs because failure Riviera’s part. in reconsideration comply statutory requirement with the payment unemployment compensation of BACKGROUND claims. (“Riviera”) Apartments Riviera is an challenges Mortimer appeal on the Com- apartment complex owned Dean Mor- denying mission’s post-hearing order his (Claimant Lynn brother), timer Mortimer’s motions to amend his pleading. Riviera Egan, Marshall and M & M Investments. cross-appeals from the Commission’s find- Terry Jim and Pat Mahin own M & M ings that employee Mortimer was an of 1987, September In Investments. of Mor- Riviera acting scope who was within the of working began Apart- timer at Riviera his employment at injury the time of the ments. carried Riviera no worker’s com- and the Commission’s award to Mortimer pensation insurance. costs, compensation, additional and at- Starting September April of 1987 until torney fees which were assessed Rivi- 7, 1988, performed Mortimer various main- payment era’s failure to secure of worker’s remodeling tenance jobs at Riviera. compensation claims. For the reasons April 7, On Mortimer another follow, which we remand for further con- measuring man were on roofs each of (1) change cap- sideration of: the motion to garages at Riviera in order to deter- (2) question tion and whether Mor- required mine how much material would be timer was employee a casual and thus out- garages. to re-roof the stepped Mortimer side scope worker’s of a backwards off roof and suffered ex- coverage. rulings We affirm other tensive injury. the Commission. hearing After on question of liabili- ty, the Commission concluded Mortim- DISCUSSION er was an injury during Mortimer’s arose out of and A. THE ORDER THE MO- DENYING employment. course of his In so hold- TION TO CHANGE CAPTION IS ing, rejected Commission Riviera’s FOR FURTHER REMANDED employ- claims that Mortimer was either CONSIDERATION. ee of Corporation First Financial or an Appeal Timely. Mortimer’s independent contractor and that Mortimer was on his own errand he was in- argues Riviera first Mortimer’s jured. appeal should Mor be dismissed because Court, appealed challeng- timely ap timer this did not file his notice ing peal. of liability. Mortimer The motion to reconsider denied premature. May appeal moved to dismiss the on but the notice 11,1991, Kindred, July fifty-eight may filed until seem be conflict with was not distinguishable for- cases days Riviera contends that the two are later. their began ty-two day period distinguishing to run when facts. The feature of Fe- that, denied Mortimer’s motion to notwithstanding nich is the continu- ing that the no- jurisdiction reconsider. the Commission on other period timely matters, filed because the did appealed tice was fully order from May 30, begin to run until date completely all the issues resolved in that awarding Kindred, Commission issued its order ben- there were still cause. other efits. relating to the cause matters same which fully yet were to be resolved. seeking party
A review of a decision of physically must the Industrial Commission case is like This Kindred *4 appeal file notice of with the Commission a continuing jurisdiction Commission had af- filing forty-two days from the date within change ter denial the to the motion decision, order, or which is any award caption and the motion to reconsider be- right. appealable as matter of I.A.R. a cause there were still unresolved issues 11(d) 14(b). provides Appellate Idaho Rule cause, to the that same wit: extent of a order of the “final decision or that Mortimer was entitled to benefits receive. or final deci- Industrial Commission ... [a] words, In other the Commission had not upon rehearing or reconsider- sion or order the fully completely resolved all issues agency[ may by ation the administrative ]” it denied his mo- Mortimer’s case when Thus, right. matter of appealed be as a require To tion to reconsider. Mortimer to began day period to forty-two the whether appeal forty-two days within after the deni- run the denied Mortim- Commission al his motion to reconsider would contra- depends change caption on er’s motion to litiga- policy avoiding piecemeal vene our appealable was as a that order whether tion. right “final or as a decision order matter Kindred, Accordingly, pursuant we to upon rehearing or reconsideration.” denying that the order the motion to hold a previously stated that decision We have reconsider was not a final decision order Industrial which does of the Commission 11(d). The purposes appeal of I.A.R. finally dispose not of all of the claimant’s timely it was filed within for- was because subject not final decision to claims is a ty-two days the after issuance Com- 11(d), especially I.A.R. appeal pursuant to awarding mission’s decision benefits. Commission re where the has cases jurisdiction. Amalgam v. tained Kindred Denying The The Motion to Order 147, 149, Co., 118 Idaho 795 Sugar ated Caption Change is Vacated and the (1990); v. see Pills Jensen Remanded Further Consider- 823 P.2d bury, ation. Here, denying order Mortimer’s motion the change caption the motion to reconsider above, appealed from As noted Riviera finally Mortimer’s dispose all of did not appeal liability. The was the furthermore, claims; re eventually One of issues dismissed. in order to determine jurisdiction tained judgment appeal in that was that the raised to which Mortimer was of benefits amount is because Riviera not enforceable entitled. legal entity, as a Apartments is a such not partnership corporation. or a Commis- reliance on Fenich Boise Riviera’s Riviera “is an sion found the fact to be that # 310, 682 P.2d Lodge Elks Mor- case, apartment complex by owned Dean (1984), misplaced. is In that we timer, Egan, M-M Invest- Marshall dismissed from decision that appeal ments, by Jim which in turn was owned forty-two days brought within was not appears Mahin.” It further Terry and Pat though Industrial Commission even complex apartment the name of jurisdiction over the that that it stated reserved changed. glance has been Although at first Fenich claimant. Mortimer,
According argu- liability if Riviera’s concern that issue was on Apartments not appeal ment that Riviera are at the time motion Mortimer’s existing entity correct, legal change caption it filed was not a judgment denying against follow Mortimer’s basis for the motion. Apartments Riviera could unenforce- Second, that in it we believe this case Therefore, in response able. to Riviera’s was immaterial that motion to amend argument, change moved liability testimony was made after the on caption to list the as “Dean defendants was heard. There is no time limit on such Mortimer, Mahin, Egan, Marshall Thomas motions in the Industrial Commission’s Terry, Employers, Apart-
Jim
dba Riviera
Rules of
Practice
Judicial
and Procedure.
ments.” The motion was “based on the
interesting
It
note that the owners did
grounds
...
evidence established
object
on
motion
the basis that
Apartments
jointly
owned
prejudice
the amendment would
them.
Mortimer,
Egan,
Dean
Thomas
Marshall
objecting, they only asserted that M-M In-
Mahin,
Terry.”
and Jim
vestments should be
named defendant
opposed
the motion because
Terry
instead of
and Mahin as individuals.
Apart-
evidence showed that Riviera
any
“[t]he
argument
Nor is there
made
jointly
ments was
owned Dean Mortim-
owners would have defended the
*5
er,
individual,
Egan,
an
Marshall
an individ-
differently
matter
the
had
action been cor-
ual,
Investments,
partnership,
a
M-M
and
rectly captioned from
beginning.
the
partnership
comprised
which
was
of two Moreover, nothing in the record indicates
partners, Thomas Patrick Mahin and Jim that the amendment
prejudiced
would have
Terry.”
the
To
contrary,
appears
owners.
the
it
fully
that their interests
compe-
were
and
The Commission denied the motion
tently represented during
proceedings
the
and Mortimer’s motion for reconsideration
and
against
fully
that the claim
them was
the
“long
because
motion was made
after
defended against.
liability
the determination of
was made.
Moreover,
motion was made after
th[e]
We
inequitable
believe that it would be
to
Appeal
Supreme
Notice
to the
[the]
compensating
allow the owners to avoid
...
filed.” We vacate the Com Mortimer,
seriously
employee
injured
an
mission’s order and remand for reconsider
during
employment, by
the course of
rely-
ation.
ing upon
pleading.
a
technical error
Ida-
requires
Code
ho
72-708
otherwise. This
§
first
requires
We
note that I.C. 72-708
§
especially
appears
is
so because it
“[p]rocess
procedures
and
under [the
proceedings
the
the
below
interests of the
worker’s
shall
as
be
law]
fully
owners
competently repre-
were
summary
simple
may
reasonably
as
attorney
the
by
representing
sented
the
possible
far
as
as
in accordance with
(One might
Riviera Apartments.
query:
equity.” Keeping
the rules of
that admoni-
attorney
the
Who does
for the Riviera
mind,
tion in
there are two reasons for
Apartments represent,
if not the owners
vacating those orders of the Commission.
thereof? And if
Apartments
the Riviera
do
First, Mortimer should
be prejudiced
not
independent legal
not exist
an
entity,
as
by
premature
filing
appeal.
Riviera’s
a
standing
pursue
how does it have
to
or
While we understand the Commission’s
appellate proceeding?)
resist an
any
to
is
hesitation
take
action while a case
72-732(4) gives
13(d)
Idaho Code
the Court
see I.A.R.
appeal,
pending
(provid-
§
authority
the
to set aside an
ing
any
order or
stay
automatic
order or
findings
if
the
award
Commission
“the
award of
Industrial Commission which
not as
inequitable
support
it
to al- of fact do
a matter of law
appealed), would be
order____” Believing
by
appel-
this to be the
low Riviera to benefit
incorrect
here,
procedures
a
attempting
appeal
late
to
case
we vacate
Commission’s or-
Thus,
non-appealable
denying
change
order.
because
der
Mortimer’s motion
premature,
caption
and remand the cause for the
the Commission’s
proceedings
supplies
further
used Mortimer in his remodel-
hold
ing
requested
work.
amend-
whether
determine
unfairly
caption
preju-
ment of the
independent
An
contractor is a
Apartments.
of the Riviera
dice
owners
“person
specific
who renders service for a
recompense
result,
specified
for a
under
BY THE
FINDINGS MADE
B. THE
right
to control or actual control of
AS TO LIABILITY
COMMISSION
principal
to the
as
result
his[/her]
his[/
AFFIRMED, BUT THE
ARE
not as
work
to the means
her]
THE
REMANDED TO
CAUSE IS
accomplished.”
which such result
I.C.
FURTHER
COMMISSION FOR
72-102(14).
a
Whether
claimant is an
AS TO WHETHER
FINDINGS
independent
contractor is a
EM-
A CASUAL
MORTIMER WAS
v. Nyberg,
Burns
factual determination.
PLOYEE.
Evidence in the
1. There is
Sufficient
question
ultimate
to be decided is whether
Support
the Commis-
Record
right
assumes the
to control
Finding
sion’s
That
Was
time,
executing
manner and method of
Independent
Not an
Contractor
distinguished
employee,
work of the
Acting
And That Mortimer Was
merely
right
require
from the
certain
Scope
Employ-
His
Within
results. Four factors are used to deter
at the Time
ment
1)
“right
mine whether
control” exists:
Accident.
2)
right,
direct evidence
method of
3) furnishing major
payment,
items
shows
evidence
4)
right
equipment, and
to terminate
independent
was an
contrac-
that Mortimer
Burdick v. Thorn
relationship at
will.
tor,
employee.
There was evidence
*6
ton,
869,
(1985).
109 Idaho
required I.A.R. 20 have to be served under Only He Was a Casual Em- Because Appellate served. Rule 20 been *8 ployee. filing the states that the time of of “[a]t Riviera, cross-appeal, appellant presenting or in evidence the or the Commission, copies urged the that cross-appellant shall thereof Mortimer was serve out parties who and therefore upon persons all who were a casual below, compensation scope proceedings in the wheth side the of worker’s appeared 72-212(2). Although coverage. Riv they parties appeal.” to the I.C. er or not are § hearing at all iera it clear conducted proper service has been made on made Unless service, that one of is Commission’s referee parties entitled to whether Mortimer on those matters the contested issues was jurisdiction without act employee, the Commission parties. See was a casual which affect the unserved 193, em findings regarding the casual 67 Idaho made no Finlayson Humphreys, v. 195, 210, (1946); ployee argues issue. that the Com Helgeson 174 211 v. P.2d 667, 957, issue was Powell, 673, failure to address the Idaho 34 P.2d 959 mission’s 54 agree. (1934). error. We
847 Nevertheless, argues case is similar to v. it This Gomez Ran that the award Inc., 337, 340, 42, disagree. should be gen’s, 670 P.2d reversed. We There, employer 45 raised argues Riviera first that the term question of whether the worker barred “employer” found in as the statute is un compensation receiving from worker’s ben vague. constitutionally Although a statute alleged by reason of his efits failure may unconstitutionally be held vague if employment. accept suitable This Court “persons intelligence of common nec must reversed Industrial Commission’s essarily guess at meaning ...”, its Con of benefits remanded the cause award nally Co., General Construction 269 to the Commission because of its failure to 385, 126, 391, 127, U.S. 46 S.Ct. 70 L.Ed. presented the properly discuss issue. 105 (1926); Marek, see also State v. 340, 45; at Idaho 670 P.2d at see also 860, 866, 1314, (1987), Idaho 736 P.2d Simplot Co., 112 v. J.B. O'Dell not the case here. Idaho Code (failure (1987) 72-102(11) “employer” defines as § properly to consider raised person any expressly impli- who has or required the defense reversal of the deci edly hired or contracted the services sion). The same result in must as Gomez another. It includes contractors and sub- be obtained here. The cause is remanded It contractors. includes the owner or determination, to the Commission for a premises, person, lessee of or other who record, upon based the evidence now virtually proprietor operator Lynn of whether Mortimer was a casual on, who, the business there carried but employee. by reason there an being independent reason, any contractor or for other is not sum, we affirm the Commission’sfind- employer the direct workmen ings an inde- employed. If employer there is se- pendent acting contractor and he was cured, surety appli- it means his so far as scope employment the course and of his cable. injured. he was ad- We decline to statutory That definition is sufficient argument dress Riviera’s Finan- that First ordinary an person inform whether s/he employer. cial was Mortimer’s “employer,” falls within the term and we so hold. THE C. IM- COMMISSION’S ORDER Riviera also the award A 10 POSING PERCENT PENAL- giv should be it reversed because was not TY, COSTS, AND ATTORNEY application en notice that the of the statute FEES ON RIVIERA IS AFFIRMED. be considered at the benefits hear presented The next issue is whether Mor- ing. points It out that I.C. re 72-713 § arising timer is entitled to benefits out of quires give at ten Commission to least Riviera's payment failure to secure for the time, days place, notice of the and “issues According claim. to I.C. 72-210: However, any hearing. heard” at payment If fails an to secure was done in this case. notice act, required this hearing purpose states that employee may injured compensa- claim hearing was to “determine amount awarded, tion under this law and shall be benefits to which Claimant is entitled.” compensation, addition amount We use of the believe Commission’s (10%) equal percent to ten of the total term “benefits” in the was sufficient notice *9 compensation together of give applicability amount his to Riviera notice that the costs, any, if and reasonable attor- of with I.C. 72-210 at issue. § ney’s fees if he has retained counsel. Finally, argues that Mor Riviera claiming percent estopped did 10 is from The Commission award the timer the bene true, costs, attorney fees to fits I.C. that is penalty, and Mortim- 72-210. Whether § however, pertinent. dispute er. Riviera does not that it had is not The statute compensation. require a payment failed secure does claimant make 848 Craner, v. Estate 57, 61, in order I.C. 72-210 to re- 117 785
claim under § Rather, thereunder. ceive award the Commission provides that statute percent penalty McDEVITT,
“shall” award the and JOHNSON concur. JJ. addition to the amount BAKES, Justice, Chief specially if it finds claimed the claimant that concurring: payment. failed to secure employer has I in all of the opinion, concur Court’s only make a claim for com- Mortimer need A(2) I except a reservation have Part about eligible in order to for an pensation to suggest which seems that the claimant I.C. Once that award under 72-210. § against entity, proceed can one “Riviera right is it is the claim made Commission’s Apartments,” throughout proceedings, obligation and make additional try bring at the then end in and hold has against who failed award responsible certain individuals the mere payment, as Riviera failed to do. to secure filing change caption of a motion to no that makes contention the Com- Riviera proceedings in order to list the individu- complying mission is barred from with the I defendant-employers. als some as see plain language statute. The Com- procedural process problems due that with is affirmed. mission’s order However, procedure. since Court Finally, that award of issue, merely vacates and remands attorney fees should be reversed because the cause “for remands the Commis- only permits “reason- the I.C. 72-210 proceedings sion to hold further to deter- attorney fees and the Commission able” requested mine whether the amended of contingency never made a caption unfairly prejudice Because the record fee reasonable. Apartments,” I owners of con- shows that the Commission stated that cur the Court’s remand to hold fur- with light the facts circumstances of “[i]n ther proceedings on that issue. case, finds the Commission this reasonable,” contingency fee is one-third CAREY, Tern, Pro J. concurs. reject argument. we this sum, affirm the Commission’s we percent penalty as award of the well fees. attorney
costs and reasonable P.2d 392 CONCLUSION L. and Alithea Donald PRATTON denying order 1. The Commission’s Pratton, wife, husband and G. caption change is Mortimer’s motion Plaintiffs-Respondents, remanded to the Commission vacated and for reconsideration. GAGE, Defendant-Appellant, Jack 2. to the Com- The cause remanded disposition of mission consideration and was a casual Riviera’s claim I-V, inclusive, Stevens, Jerre Does other find- employee. The Commission’s Defendants. liability ings as are affirmed. No. 19050. attorney award of 3. The Commission’s Idaho, fees, Supreme costs, imposition and the Boise, 1992 Term. March percent penalty affirmed. upon 4. If determines the Commission Oct. Mortimer was not casual remand that attorney fees and employee, reasonable awarded to Mor-
costs on should be *10 pursuant to I.C. 72-210. Swenson
timer