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Vinup v. Joe's Construction, LLC

Court of Appeals of Indiana

November 30, 2016

Mark Vinup, Appellant-Plaintiff,
v.
Joe's Construction, LLC and Joe Getz, Appellees-Defendants, and Property-Owners Insurance Company, Appellee-Plaintiff,
v.
Joe's Construction, LLC and Joe Getz, Appellees-Defendants.

         Appeal from the Ohio Circuit Court The Honorable James D. Humphrey, Judge The Honorable Kimberly A. Schmaltz, Magistrate Trial Court Cause No. 58C01-1404-CT-2

          ATTORNEY FOR APPELLANT Thomas J. Dall, Jr. Law Offices of Blake R. Maislin, LLC Cincinnati, Ohio

          ATTORNEYS FOR APPELLEE JOE'S CONSTRUCTION, LLC AND JOE GETZ Richard T. Mullineaux Crystal G. Rowe Jacob B. Vissing Kightlinger & Gray, LLP New Albany, Indiana R. Patrick Magrath Merritt K. Alcorn Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana

          ATTORNEYS FOR APPELLEE PROPERTY-OWNERS INSURANCE COMPANY William J. Beggs Jennifer L. Upton Bunger & Robertson Bloomington, Indiana

          Kirsch, Judge.

         [¶1] After Mark Vinup ("Vinup") was injured on the job while working for Joe's Construction, LLC and Joe Getz (together, "Joe's Construction"), Vinup filed a lawsuit against Joe's Construction seeking damages for his personal injuries. The commercial general liability insurer for Joe's Construction, Property-Owners Insurance Company ("Property-Owners"), filed a declaratory judgment action, seeking a declaration that, pursuant to a policy exclusion, it had no duty to defend and no duty to pay any judgment that might be rendered against Joe's Construction or Joe Getz ("Getz"). The trial court consolidated the declaratory judgment action with Vinup's action, and, thereafter, Property-Owners and Joe's Construction each filed a motion for summary judgment. The trial court granted both motions, and Vinup now appeals, raising several issues that we consolidate and restate as: Whether the trial court erred when it determined as a matter of law that Vinup was an employee of Joe's Construction at the time he was injured.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] Getz began operating Joe's Construction in 1989 as a "d/b/a, " and in 2011, he converted it to a limited liability company. Appellant's App. at 190. Getz generally worked by himself at Joe's Construction and hired other laborers when he "need[ed] an extra hand or two" for projects. Id. Joe's Construction did not issue W-2 or 1099 forms and, instead, paid workers in cash or by trading labor. Joe's Construction did not carry worker's compensation insurance. Id. In April 2012, Joe's Construction was doing work on a project for the Aberdeen Pate Water Company ("Aberdeen Project"), installing water lines. At some point, Vinup was hired by Joe's Construction, [1] along with two other men, Shane Adams ("Adams") and Anthony McAlister ("McAlister") to work on the Aberdeen Project.

         [¶4] For the Aberdeen Project, water pipes, measuring twenty feet in length and weighing in excess of 250 pounds, were loaded and transported on the bed of a trailer and bound together with a metal band. After the crew from Joe's Construction dug a trench for the pipes, a truck would haul the trailer loaded with pipes to an area adjacent to the trench, and the metal bands were cut. The pipes were then individually rolled off the trailer, onto the ground, and into the trench. On April 3, 2012, while Vinup was working, a large pipe that had been cut loose on the trailer "took a bad hop" and started rolling down a hill. Id. at 157. Vinup attempted to stop the pipe by using a spud bar, but the pipe hit Vinup and knocked the spud bar out of his hand. The pipe hit Vinup in the face and head, resulting in injuries.

         [¶5] When Vinup contacted Joe's Construction to pursue Worker's Compensation benefits, an attorney representing Joe's Construction sent Vinup a letter stating that Vinup was not eligible for benefits because he was an independent contractor. Id. at 207 (Ex. B to Getz deposition). Thereafter, Vinup filed a complaint for damages against Joe's Construction. Property-Owners filed a declaratory judgment complaint, asking for a determination that, pursuant to a policy exclusion (1) the policy did not provide coverage for the potential liability of Joe's Construction or Getz, (2) it had no duty to defend, and (3) it would not be liable for any judgment rendered in the future against Joe's Construction or Getz related to Vinup's injuries. The trial court consolidated Vinup's action with Property-Owners's action, and, thereafter, Property-Owners and Joe's Construction each filed a motion for summary judgment, asserting that Vinup was an employee of Joe's Construction at the time of the accident.

         [¶6] Property-Owners's position was that the Commercial General Liability Policy issued to Joe's Construction for the period from September 15, 2011 through September 15, 2012 ("the Policy) contained an "Employer's Liability" exclusion clause that excluded coverage from bodily injury to employees of the insured arising out of and in the course of employment, and, thus, it was not liable for coverage for Vinup's injuries. Id. at 94. Joe's Construction's position was that Vinup was an employee under Indiana law, and, therefore, his exclusive remedy was to pursue a claim for benefits under Indiana's Worker's Compensation Act.

         [¶7] Property-Owners designated evidence including certain pleadings and exhibits, the Policy at issue, and deposition excerpts from Vinup, Getz, McAlister, and Adams. Joe's Construction also designated evidence that included deposition excerpts from Vinup, Getz, McAlister and Adams. The evidence was, to some degree, overlapping and reflected that Getz would hire people as he needed them and that he was the person in charge of those workers. Getz solely determined the schedule, work hours, and breaks for all individuals that worked for Joe's Construction, Getz provided the workers with tools and safety vests, and he determined the work to be done on each day. Vinup, McAlister, and Adams were all hired as "general laborers." Id. at 194. Getz, and no one else, told the workers "what to do." Id. at 156. Joe's Construction designated evidence that Getz considered Vinup to be an employee of Joe's Construction for the period of time that he was working on the Aberdeen Project and that Vinup considered Getz to be "the boss." Id. at 156, 167, 194. The designated evidence showed that Getz paid Vinup $10 per hour, and they generally worked eight-hour days. Vinup expected that work on the Aberdeen Project would last several months, and he would work on it "until we got it done." Id. at 154. Previously, Getz had loaned Vinup money in increments that totaled $363, and Vinup paid back Getz as he would get paid by Joe's Construction. He had paid back about $50 when the accident occurred, which was only a few days into the job. The designated evidence reflected that the type of work that Joe's Construction was doing on the Aberdeen Project was part of the usual and ordinary course of business for Joe's Construction.

         [¶8] Vinup opposed the summary judgment motions, arguing that, with regard to Property-Owners, Vinup did not qualify as an "employee" under the Policy and, instead, was a "temporary employee" for whom coverage was available under the Policy. He also argued that the determination of one's employment status is fact-sensitive and thus improper for determination by summary judgment. Vinup's designations in opposition to the two summary judgment motions included, among other things, evidence that Vinup was a general laborer, who worked various odd jobs for various contractors in the course of a year and that Getz never considered Vinup to have been a full-time employee of Joe's Construction. Id. at 152, 192. Vinup designated evidence that Joe's Construction paid its workers in cash or trade, never issued W-2 or 1099 forms to its workers, and payroll taxes were never withheld from Vinup's earnings. Id. at 192. Vinup designated evidence that Getz expected that once Vinup's debt to Getz was paid off, Vinup would no longer work for Getz. Id. at 194. With regard to Getz's control of Vinup and the other workers, Vinup designated evidence that Getz did not train them or specifically instruct them on how to perform the assigned physical labor tasks. Id. at 214, 230.

         [¶9] Following a hearing, the trial court granted summary judgment, by separate orders, in favor of Property-Owners and Joe's Construction, determining that no genuine issue of fact existed, that Vinup was an employee, and the alleged injuries arose out of in and in the course of Vinup's employment. Id. at 23-26. Vinup now appeals.

         Discussion and Decision

         [¶10] When reviewing a grant or denial of summary judgment, we apply the same standard as the trial court: summary judgment is only appropriate when the designated evidence shows that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Walker v. Martin, 887 N.E.2d 125, 130 (Ind.Ct.App. 2008), trans. denied. On appeal, we consider all of the designated evidence in the light most favorable to the nonmoving party. Walker, 887 N.E.2d at 130. The trial court's order granting a motion for summary judgment is cloaked with a presumption of validity, and a party appealing from a summary judgment decision has the burden of persuading the court that the grant or denial of summary judgment was erroneous. Id.

         [¶11] The issue before us is whether the trial court erred when it determined, as a matter of law, that Vinup was an employee of Joe's Construction at the time that he suffered injuries. As is relevant here, the consequences of that employee status are: (1) Vinup's remedy is limited to that available under the Worker's Compensation Act, and he cannot pursue a negligence action against Joe's Construction;[2] and (2) pursuant to a policy provision excluding from coverage payment for injuries to an employee, Property-Owners owed no duty to defend and would not be liable for any judgment rendered against Joe's Construction or Getz. Vinup contends that genuine issues of material fact exist on the issue of whether he was an employee or, instead, was an independent contractor, and, therefore, the trial court erred when it granted summary judgment in favor of Joe's Construction and in favor of Property-Owners. He asks that we reverse the summary judgment orders and remand the matter for trial.

         A. ...


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