AMERISURE INS. v. TIME AUTO TRANS., INC.Docket No. 131877.
196 Mich. App. 569 (1992)
493 N.W.2d 482
AMERISURE INSURANCE COMPANIES
TIME AUTO TRANSPORTATION, INC
TIME AUTO TRANSPORTATION, INC
Michigan Court of Appeals.
Decided November 2, 1992, at 9:25 A.M.
Kallas, Lower, Henk & Treado, P.C. (by Constantine N. Kallas and Edward J. Lee), for the plaintiff. Colombo & Colombo (by Michael J. O'Shaughnessy), for the defendant.
Before: MURPHY, P.J., and SHEPHERD and T.S. EVELAND, JJ.
Plaintiff appeals as of right from an August 3, 1990, judgment in favor of defendant. We affirm.
Defendant transports automobiles across the continental United States in tractor-trailers. In January 1988, defendant procured workers' compensation insurance from plaintiff for the policy year January 21, 1988, through January 21, 1989. Defendant paid plaintiff a premium of $1,532 for six employees that defendant had on its payroll. At the end of the policy year, plaintiff performed an audit of defendant's records and determined
A bench trial was then conducted. On July 9, 1990, the trial court issued its opinion, finding that six drivers whose deposition testimony was presented at trial were independent contractors and not employees of defendant under the Workers' Disability Compensation Act:
The trial court thus held:
In Sewell v Clearing Machine Corp,
In applying Sewell to this case, we believe that the trial court had jurisdiction to determine if the six drivers were employees. Plaintiff filed an action for breach of contract against defendant, alleging that defendant owed plaintiff additional premiums. In order to determine whether defendant breached the contract, the trial court had to determine whether the six drivers were independent contractors or employees of defendant. The trial court, ruling in favor of the defendant, held that the six drivers were independent contractors and not employees. Thus, in accordance with Sewell, the trial court had the jurisdiction to decide this "fundamental" issue.
Plaintiff next claims that the trial court erred in its interpretation of MCL 418.161(1)(d); MSA 17.237(161)(1)(d). We disagree.
Section 161(1)(d) provides:
(1) As used in this act, "employee" means:
* * *
Our research has found that no published case has interpreted this section. Plaintiff argues that the correct interpretation of § 161(1)(d) is that a person is an employee if he performs a service in the course of business of an employer, unless (1) the person maintains a separate business, (2) holds himself out to and renders service to the public, and (3) is an employer subject to the act. Plaintiff has disregarded the use of the word "not." Thus, under plaintiff's interpretation, all three provisions
The trial court, however, interpreted § 161(1)(d) to mean that each provision must be satisfied for an individual to be an employee. The trial court then found that the evidence indicated that six of the drivers maintained a separate business and thus were independent contractors and not employees.
We believe that the trial court's interpretation is correct. The Legislature is presumed to have intended the meaning it plainly expressed. Frasier v Model Coverall Service, Inc,
Plaintiff next argues that the trial court erred in finding that the six drivers were independent contractors
The economic reality test involves four basic factors: (1) control of the worker's duties; (2) payment of wages; (3) the right to hire, fire, and discipline; and (4) performance of the duties toward the accomplishment of a common goal. Williams v Cleveland Cliffs Iron Co,
Upon reviewing the entire record, we believe that the trial court's finding under § 161(1)(d) and the economic reality test that the six drivers were independent drivers and not employees is supported by the record. These drivers owned or leased all their equipment, paid their own overhead expenses, refused loads, and set their own hours. Additionally, five of the six drivers testified that they could carry loads for others while under contract with defendant. According to the testimony of James Fern, the president and sole shareholder of defendant, independent drivers were not given vacation pay or bonuses. Fern also testified that these drivers leased or owned their own equipment, paid their own expenses, chose their own hours, took off whatever time they wanted, and were not required to wear uniforms as were company drivers.
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