Northland Casualty Co. v. Meeks

trailers, and leased the but permitted he GRUENDER, Before BRIGHT and keep his drivers to them at BENTON, their houses. Circuit Judges. paid Harrell also all operating vehicle GRUENDER, Judge. Circuit costs, including licensing, insurance and gas. The drivers could supplement the The estate and of Meeks heirs if they insurance chose to Each do so. “Meeks”) (collectively Rocky Harrell weekly payments driver received equiva- appeal grant district the court’s1 of sum- twenty-five lent percent of the amount mary judgment Casualty to Northland charged Harrell the for loads that driv- (“Northland”). Company The district transported. paid er Harrell the drivers court held Harrell’s commercial insur- even if a pay customer did not him. No with ance Northland that provided pay- taxes were withheld from the drivers’ (“the auto coverage Policy”) business did checks, and the drivers received 1099 tax arising not cover claims from fatal forms, not W-2 forms. While Harrell had injuries suffered Meeks drivers, no with written contracts his he (“Floyd”) because determined that prohibited them hiring from subcontrac- was employee. Harrell’s On appeal, Either tors. Harrell drivers Policy and Harrell employment any terminate drivers’ covered their claims was time. independent either an contractor or a tem- porary worker. For reasons Policy purchased discussed The below, we affirm. provided coverage Northland for Harrell’s Moody, The Honorable M. James United of Arkansas. Judge States District Eastern District a matter of law. employee certain exclu- trailers with

tractors and conclusion, the district court coverage reaching its liability B of the Section sions. states, Alter- insurance does test. “This Arkansas’s ten-factor applied section (a.) (4) ‘Bodily injury’ ... to: to ... natively, court held that apply arising out ‘insured’ ‘employee’ of the An under Arkansas’s extension employee (1) Employment of: and in the course in 49 found the definition (2) ‘insured’; Performing the by the operations § 390.5 intrastate C.F.R. ‘in- to the conduct of duties related 17.1 of the Arkan- motor vehicles Rule ” de- also sured’s’ business.... Regula- Highway State Commission sas as follows: the relevant terms fined held that Finally, the district court tions. a worker”. “Employee” includes “leased a by Floyd not covered was “tempo- does include a “Employee” not “temporary worker” he was because rary worker”. entity. to” Harrell another “furnished Harrell appeal.

Meeks and person means a leased “Leased worker” an leasing firm under you by

to a labor II. DISCUSSION you the labor agreement between review the district court’s ‘We firm, to perform duties related leasing novo, summary de view judgment grant your “Leased the conduct of business. light favor ing the evidence most “temporary a worker” does not include nonmoving party.” to the Source able worker”. Tech., Inc. v. Fid. & Food U.S. Guar. (8th Cir.2006). also F.3d “We person “Temporary means interpretation of district review the court’s you furnished to to substitute who is policy provision de novo.” an insurance or to permanent “employee” leave diversity case, Arkan apply Id. this meet or short-term workload seasonal law. id. sas conditions. 4, 2002, fatally Floyd On October was A. Employee/Independent Contractor injured transporting while accident summary Harrell Meeks and using agricultural products for judgment appropriate was Floyd’s Harrell’s tractor-trailer. After fact as genuine there is a issue of material death, filed a state court action employee under to whether was an the Arkansas against Harrell under “Although agency is Arkansas law. Statute, Ann. Wrongful Death Ark.Code ordinarily of fact determined question sought § 16-62-102. Harrell defense fact, facts undis- the trier of where the are our coverage Relying from Northland. only one inference can reason- puted, and diversity jurisdiction, Northland then them, it ably be drawn becomes judgment brought declaratory action of law.” Howard v. Dallas question obligations. to disclaim these Northland News, Inc., Morning Ark. summary judgment, filed motion for (1996); accord Cotton They opposed. Meeks and Harrell which Inc., 02-604, 2007 Exp., Commodore material argued genuine that a issue of 2007) (E.D.Ark. *1 Jan. WL fact as whether was existed is “a (stating agency that an determination or a “independent contractor” conclusion, a determi- legal requiring both argument, Rejecting this worker.” law,” and application nation of facts and genuine issues district court held that no undisputed per- material facts and that “where the of material fact existed (Second) conclusion, (1958)). legal § mit one Agency reasonable summary judgment appropriate”) (citing primary analysis factor in this is the extent 185). Howard, 918 S.W.2d at Because the of control an employer may exercise over Floyd’s employment facts attendant to re- Shelter, his worker. 343 F.3d at 926 & n. lationship undisputed, are we now review control, 2. “It right is the not the actual legal de novo the district court’s conclusion control, that determines the relationship.” employee. was Harrell’s Homes, Ark. Transit Inc. v. Aetna &Life Cas., 341 Ark. Applying Arkansas law to deter mine whether was an contractor,

an independent we consider the factors, Applying these we conclude totality of by applying the circumstances that the district court did not err in deter Arkansas’s ten-factor test. See Shelter mining employee. was Harrell’s Jones, Mut. Ins. Co. v. 343 F.3d 926 Significantly, Harrell had and full exerted (8th Cir.2003) curiam). (per The factors control over the Floyd’s critical details of we consider are: work. Harrell could terminate Floyd’s

(a) which, by the extent of control will, employment at and he prohibited agreement, may the master exercise Floyd subcontracting from his work. Har work; over the details of the rell orders, also received all customer as (b) whether or employed not the one signed delivery all requests required and in a

engaged occupation distinct or the drivers to complete each delivery with business; Floyd one week. had charge all fuel (c) occupation, the kind of with refer- purchases to Harrell’s account at speci whether, locality,

ence to in the the station, gas fied which limited the routes usually work is done under the di- Floyd. Furthermore, available to Harrell employer by rection of the or a spe- Floyd instructed on proper load handling supervision; cialist without required and Floyd to contact directly him (d) required particular the skill in the any problem case of emergency. occupation; In addition to the control Harrell estab- (e) employer whether the or the work- Floyd, lished over remaining the factors supplies instrumentalities, man the support also Floyd the determination that tools, place and the of work for the an employee. Floyd was hauled exclusive- work; person doing the ly for Harrell engaged and was not in an (f) length the of time for per- which the independent hauling business. While employed; son is Floyd needed some skill to drive a tractor- (g) payment, the method of whether trailer, that skill unique was not and not job; time or the prevalent more among independent con- (h) whether or not the part work is a of employees. tractors than Harrell also regular the employ- business of the supplied necessary all equipment Floyd er; paid all operating costs. Although (i) parties whether or not the believe Floyd only Harrell hired for harvest sea- they are creating the relation of mas- son, Floyd employed was for the entire servant; ter and specific job. season and not for one Addi- (j) whether principal is or is not in Floyd tionally, paid was if a even customer

business. pay failed to Floyd Harrell. The loads Overholt, Blankenship hauled integral 301 Ark. were and essential to Har- (1990) (citing hauling Restatement rell’s parties business. The under- supports totality Har- of the circumstances directly for Floyd that worked stood himself, a worker court’s conclusion that the Floyd not the district rell that subcontracted, make the de- to be from reasonable inference drawn controlled Floyd physically liveries. While that was an em- undisputed facts is Har- during transport, tractor-trailer Harrell, independent ployee and his authority rell retained ultimate tractor.2 Har- instructions.” his] “follow[ed

drivers Employee/Temporary B. Worker proprietor sole of his rell also was trucking business. argue Harrell that Meeks and also facts, Poli undisputed these was not an under the

Notwithstanding argue the record he cy “temporary Meeks and because was worker.” was fails establish Policy “temporary excludes worker” claim that a fact-finder employee. They “employee” its definition of and de Floyd was reasonably conclude that person as “a fines independent contractor after consider- you to who is furnished to substitute for ing support factors. ten meet permanent ‘employee’ leave or to issu- argument, they claim that Harrell’s condi seasonal short-term workload forms, tax ance instead W-2 tions.” The does define forms, proves indepen- was an to.” Meeks and Harrell term “furnished However, previously dent contractor. have held of a 1099 tax form does that use he furnished himself to either because that a work- not undermine the conclusion Harrell or to” re “furnished independent and not employee er is apply to who quirement does not worker Shelter, 343 F.3d at 926. contractor. “to was hired meet seasonal or short-term conclusion, “in that reaching this we noted conditions.” workload construing policy’s insurance defini- [an] contracts to con “Insurance are be reality rather ‘employee,’ tion of economic insurer, strictly against but strued legalistic than form should be determina- unambiguous, language where is and Eagle tive.” Id. Ins. Co. v. (quoting Star interpretation possible, one reasonable is Cir.1973)). Deal, 1216, 474 1220 F.2d duty give courts to to is the effect fact that We likewise conclude that plain wording policy.” of the Smith a 1099 tax does not received form Ark. Farm Bureau Cas. Ins. 353 S. analysis alter our was an em- 188, 205, 114 206 “[T]he argue ployee. and Harrell also language of an insurance is to be finding facts support several other in plain, ordinary, popu construed its contractor, independent was an (quotation lar sense.” Id. at 206-07 omit ability Floyd’s such as to determine ted). Supreme The Arkansas has Court timing of the deliveries exact route and interpreted not addressed this issue Floyd’s ability keep truck at his to” in an con phrase “furnished insurance However, these between deliveries. house no supreme tract. “When there is state facts do undermine our conclusion re- directly point, case our role is to had court garding the extent to which Harrell did, fact, supreme how right predict in the state court to and exercise Therefore, us.” Floyd. trol over we find that rule if faced with the issues before concluding employ- was an under 2. Because we find that was an test, Highway Commission ee under the ten-factor we need the Arkansas State Regulations. reach the court's alternative basis for district Inc., (Mo.2008) Exp., Corp., Cotton v. Commodore 459 F.3d Gas. (8th Cir.2006). (en banc). Thus, While Meeks and predict that the Ar that the term “furnished to” kansas Court would follow the ambiguous is and must be construed in courts that have determined that the in favor, Policy’s their we find that the use of volvement of a third party required by unambiguous the term “furnished to” is the use of the term “furnished to” in the clearly requires the involvement of a definition of worker.” See party furnishing third a worker either AMCO, 3; at *4 WL n. Nau permanent ‘employee’ “to for a tilus, at *7. on leave” or “to meet seasonal or short- We also believe that the structure of the term workload conditions.” “temporary worker” unambigu- definition party We first consider whether a third ously requires the involvement of a third must furnish the worker to the insured in If party. “furnished to” require did not worker, order qualify as third supply the temporary work- whether, claim, as Meeks and Harrell any er and worker could furnish himself or qualify a temporary herself to an employer as Meeks and Har- by furnishing himself to Harrell. Other argue, rell then the term “furnished to” courts have determined that a third party AMCO, would meaningless. be based, must furnish the worker in part, on WL at *5. “Construction that neu- the definition of “furnish” Black’s Law any tralizes provision of [an insurance] Dictionary and other dictionaries. See contract should never be adopted if the Dorpinghaus, AMCO Ins. Co. v. No. OS- contract can give be construed to effect to (D.Minn. at *4 n. WL Smith, provisions.” all 114 S.W.3d at 207. Jan.12, 2007); Nautilus Ins. Co. v. Gard- Under Meeks and interpretation, ner, 04-1858, WL *7 any worker who substituted for a perma- (E.D.Pa. 2005). Mar.21, Black’s Dic- Law nent employee on leave or who met sea- tionary defines “furnish” as “to supply, sonal demands or short-term workload provide or equip, accomplishment of a satisfy conditions would the “furnished to” particular purpose.” Black’s Law Dictio- AMCO, requirement. 2007 WL (6th ed.1990). nary 675 Webster’s Third 313280, at interpretation *5. Such an of the Dictionary New International of the En- “temporary worker” definition would neu- glish Language defines “furnish” as “to to,” tralize the term “furnished and we provide needed, supply or with what predict that Supreme the Arkansas Court useful, or desirable.” Webster’s Third would adopt such a definition. New International Dictionary of the En- Furthermore, (2002).3 disagree we with Meeks glish Language 923 We believe argument and Harrell’s that to,” Policy’s the that the term in “furnished the context definition of “leased worker” Policy’s of the creates ambi- definition of “temporary worker,” guity as to whether ambiguous “is not the term necessarily “furnished implies requires that a third to” the party has been in- involvement of a third providing volved in supplying party the work- the of a furnishing temporary er to the insured.” Gavan v. Policy’s Bituminous worker. The definition of “leased Supreme 3. Wagnall's The Arkansas Court also utilizes & Funk definition of “furnish” in Dictionary Curtner, the definitions in Black’s Law another context. Collisonv. 141 Ark. determining other when dictionaries what a 216 S.W. That defi- See, e.g., City term means. Fort Smith v. out; equip of nition of "furnish” was “[t]o or fit - Carter, -, 372 Ark. supply necessary fitting.” what is Id. (Jan. 10, 2008). WL 90442 It utilized the be- equally modify that the verb “is furnished” specifically states a leased worker” by a “or.” they separated by must be furnished labor leas- cause are the word worker that Reading firm. Meeks and contend ing Id. at the second clause 30-31. Policy require another if the meant “gram- the term to” is without “furnished worker,” “temporary furnish party at 31. Based matically impossible.” Id. that specified have then would grammatical analysis, on we this sound temporary be furnished worker predict Supreme that the Court Arkansas However, “just third party. be- such to” that the term “furnished find provision one of an insurance cause applies perma- “to substitute for a to both third-party involvement more ex- refers nent and “to meet leave” than of provision another the same plicitly short-term condi- seasonal or workload third-party in- policy does mean Therefore, reject tions.” we Meeks pro- is excluded from the latter volvement Floyd qualified argument merely at Id. *6. The distinction vision.” merely worker temporary because he provisions contemplate that the dif- shows was hired as a seasonal driver. Id. fering degrees specificity. of It does rely and Harrell on Bituminous requirement not eliminate a “tem- Ross, sup Casualty Corp. v. Mike Inc. worker” must still be furnished porary arguments. F.Supp.2d port their Therefore, party. a third believe (N.D.W.Va.2006). The Bituminous the Arkansas Court would deter- ambigu court held that “furnished to” was to” mine that term “furnished in the only applied ous and that to the first worker” “temporary requires definition definition, part that a third furnish the permanent employee “to for a substitute to the insured. leave,” part and not the second Next, we determine whether the term definition, “to meet seasonal demands [or] applies to” unambiguously “furnished both Bitumi short-term workload conditions.” “to for a perma- to the clause substitute nous, However, F.Supp.2d at employee” nent and to the clause “to meet majority of courts that reviewed have or short-term workload condi- seasonal policy language in one or both of these tions.” If it to the “to applied clause agreed have with contexts our conclusion. permanent employee,” for a See, e.g., AMCO Ins. “temporary worker” definition would not (“[A] *4 worker is not furnished to an grammatical make sense. See Am. Fami- insured unless a third party typically — Tickle, Ins. Co. ly Mut. 99 S.W.Sd agency pro involved in staffing been —has (Mo.Ct.App.2003) (applying gram- viding to the in supplying or worker analysis matical of the Gavan, sured.”); 721; 242 at S.W.3d Gen. definition). As Family the American Mu- Am., Agents Ins. Co. Inc. v. Mandrill reasoned, tual court structure of the “[t]he 961, Corp., Fed.Appx. 967-68 Cir. defining ‘temporary sentence worker’ indi- 2007) (opinion Kennedy, (unpublished) cates that the ‘who is to clause furnished J.); Carl’s Italian Rest. v. Truck Ins. permanent substitute you employ- to Exch., (Colo.Ct.App.2007), 183 P.3d 639-40 leave or ee on to meet seasonal or short- denied, 08SC23, 2008 WL rt. ce term workload conditions’ is subordinate (Colo. 2008) (en banc); May clause adjective modifying ‘person’.” Id. Nautilus, *6-7; at phrases at 30. The “to for a substitute Brown Ins. v. Ind. leave” “to permanent employee on (Ky.2005); Ins. Co. v. Monticello meet seasonal short-term workload con- Dion, Mass.App.Ct. parallel phrases ditions” are infinitive 836 N.E.2d (2005); Nationwide Mut. Ins. the Harrell-owned truck these circum- Allen, Conn.App. 850 A.2d Co. stances. (2004); Mut., Family Am. However, it is conceded that insurance 30-31.4 coverage apply would if a third party had that the Arkansas

We believe furnished Harrell with a temporary driver- would find that the term “furnished Court employee, coverage apply but would not if unambiguously requires that a third to” temporary Harrell himself hired a driver- to temporary furnish the worker employee. Such a result is anomalous and Accordingly, Floyd insured. does not the distinction does not make sense. under qualify temporary as worker If policy one reads the insurance care- Policy. fully, by one is struck the ambiguity pertinent tained in the policy language. III. CONCLUSION policy The language is as follows: genuine Because there were no issues of ‘Temporary worker’ person means a who fact and the district court material you is furnished to to substitute for a correctly determined that was Har- permanent ‘employee’ on leave to temporary and not a work- rell’s meet seasonal or short-term workload by Policy, er defined we affirm the as added). (Emphasis conditions. grant summary judg- district court’s ment to Northland. language The focus is on the following provision may the first “or.” This be read BRIGHT, Judge, concurring Circuit that: so dissenting part. ‘Temporary person worker’ means a who policy being The under this insured you is furnished to for a employee. sued the estate of his former permanent ‘employee’ on leave or [fur- The issue we must decide is whether the nished] meet seasonal or short-term policy provision insurance contained a workload conditions. cover the insured under Arkansas Alternatively, provision may be read majority law. I concur except with the so that: to whether there is insurance coverage to ‘Temporary worker’ a person means owner, Harrell, Rocky the truck on the meet seasonal or short-term workload tempo- basis Meeks’s status as a conditions. rary employee. I conclude that no exclu- When one applies sion to Harrell’s insurance examines this regarding provision, Meeks. one is struck the uncertainty meaning. of its policyholder

The truck owner and Har- majority liability applies rell would not receive insurance Missouri and ma- if coverage regular employee operated jority law to read “furnish to” as unambig- provide Meeks and Harrell also relied on American While Harrell did not One, Inc., Family Mutual Insurance Co. v. As support position, other case law to their However, (Mo.Ct.App.2006). 189 S.W.3d 194 note two other courts have found the case, subsequent in a the Missouri term “furnished to” in the definition of "tem Court overruled this decision and found that porary ambiguous. worker” to be See Nick’s " ambiguous the term ... 'furnished to’ is not Pizza, Co., Brick Oven Inc. v. Excelsior Ins. 19 necessarily party implies that a third has 736, (N.Y.Sup.Ct. Misc.3d 853 N.Y.S.2d 870 providing supplying been involved in 2008); Landscape Mgmt., Nat’l Indem. Co. v. Gavan, worker to the insured.” 242 S.W.3d (Fla.Dist.Ct.App.2007). 963 So.2d 361 at 721. 878

uous, party a third to furnish requiring permanent temporary employee.5 How-

to furnish have read

ever, judges provision other

differently.6 company that should

It is the insurance clear, and language if it does

make its so, consequences must suffer the

do language. Reasonable ambiguous

its persons, may well as reasonable

judges, as differ- worker clause

read third require involve-

ently, some require some not to third

ment and such This is sufficient for me to

party action. today’s ruling.

dissent WILLCOCKSON, Appellant,

Donna

v. ASTRUE, Commissioner,

Michael J. Security Administration,

Social

Appellee.

No. 07-3757. Court of Appeals,

United States

Eighth Circuit. 13, June

Submitted: 2008. 28, Aug.

Filed: 2008. Co., 528, (Ky.2005); Agents 5. Ins. Co. Am. v. Mandrill 184 S.W.3d 537-40 Mon- Gen. 961, Dion, 46, Mass.App.Ct. Corp., Fed.Appx. ticello Ins. v. 65 243 967-68 Cir. Co. J.); 1112, (2005); 2007) 836 (unpublished) (opinion Kennedy, N.E.2d 1115 Nationwide Allen, 526, 05-1296, Conn.App. Dorpinghaus, Mut. Ins. Co. v. 850 v. AMCO Ins. Co. No. * 1047, 313280, (D.Minn. 12, A.2d WL at Jan. Gardner, 2007); v. Nautilus Ins. Co. No. 04- 664358, (E.D.Pa. Ross, *7 v. Corp. Cas. Bituminous Mar.21, 2005); (N.D.W.Va.2006); v. F.Supp.2d Gavan Bituminous Cas. 744-45 (Mo.2008) (en Pizza, Corp., Excelsior Nick’s Brick Oven Inc. v. Ins. Exch., Co., banc); Carl’s Italian Rest. v. Truck Ins. 19 Misc.3d 853 N.Y.S.2d (N.Y.Sup.Ct.2008); (Colo.Ct.App.2007), cert. Indem. Co. 183 P.3d Nat’l South 08SC23, denied, (Colo. Landscape Mgmt. 2008 WL 2008622 963 So.2d (en banc); 2008) (Fla.Dist.Ct.App.2007). May Brown v. Ind. Ins.

Case Details

Case Name: Northland Casualty Co. v. Meeks

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Aug 28, 2008

Citation: 540 F.3d 869

Docket Number: 07-3057, 07-3199

Court Abbreviation: 8th Cir.