Opinion
No. 77-638
Decided February 16, 1978.
Interstate carrier sought review of Industrial Commission ruling that it was the employer of truck driver, who at the time and place of his fatal accident, was operating under another carrier's ICC permit.
Order Affirmed
1. WORKERS' COMPENSATION — Trucker — Death Benefits — Operating Under ICC Permit — Transit Company — Remained Employee — General Employer — Lessee of Truck. Where workmen's compensation death benefits were sought as the result of the death of a trucker who had leased his tractor to transportation company and operated it as an employee of that company, and where, when the fatal accident occurred, the trucker was hauling a load for one of the transportation company's customers but, for advantageous rate purposes, was operating under the ICC permit of another transit company, the trucker was not performing work on behalf of the transit company, and no contract of hire existed between the trucker and the transit company; consequently, the Industrial Commission properly determined that the transportation company remained the trucker's employer at the time of his death.
Review of Order of the Industrial Commission of the State of Colorado
Wood, Ris Hames, F. Michael Ludwig, for petitioners. J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Timothy R. Arnold, Special Assistant Attorney General, for respondents Director of the Division of Labor and the Industrial Commission of Colorado. Francis L. Bury, William J. Baum, Robert S. Ferguson, for respondents Englewood Transit Company and State Compensation Insurance Fund.
This is a review of a final order of the Industrial Commission which determined that petitioner Horn Transportation, Inc., and its insurance carrier, Commercial Standard Insurance Company, were liable for the payment of death benefits to the dependents of Rex A. Wards, deceased. We affirm.
The sole question presented for review is whether Horn or Englewood Transit Company was the employer of the decedent at the time of his death for purposes of establishing liability under the Workers' Compensation Act.
The relevant facts are not disputed. Both Horn and Englewood are interstate carriers operating under the authority of the Interstate Commerce Commission. The decedent, who was the owner of a commercial tractor, leased his tractor under a long term lease to Horn and then drove the tractor as an employee of Horn. The decedent was hauling a load for one of Horn's customers from Kansas City, Missouri, to Glendale, Arizona, when he had a fatal accident while driving over Wolf Creek Pass between Pueblo, Colorado, and Cortez, Colorado.
Between Kansas City and Pueblo the decedent operated under Horn's ICC permit. Although both Horn and Englewood had ICC permits to operate throughout Colorado, the decedent was operating under the ICC permit of Englewood between Pueblo and Cortez, pursuant to what is known as a "trip lease" agreement, in order to allow Horn's customer to take advantage of Englewood's lower rate schedule. A copy of the "trip lease" agreement was not offered into evidence, but there was testimony that Englewood was to receive from Horn a small percentage of Horn's revenues from the trip. During the course of the trip including that portion between Pueblo and Cortez, Englewood did not exercise any supervisory control over the decedent, and the decedent received his instructions from Horn.
From Cortez, Colorado, to Glendale, Arizona, the decedent was to operate under the ICC permit of a third carrier as neither Horn nor Englewood had ICC authority to operate in Arizona.
Petitioners contend in effect that whenever a driver is operating under the ICC permit of an interstate carrier, then that carrier is deemed as a matter of law to be the employer of such driver for purposes of establishing liability under the Workers' Compensation Act, and that this is so regardless of whether the carrier actually exercises any control over the driver. In support of this contention petitioners rely upon American Red Ball Co., Inc. v. Industrial Commission, 145 Colo. 509, 359 P.2d 1018 (1961), and Archer Freight Lines, Inc. v. Horn Transportation Co., Inc. 32 Colo. App. 412, 514 P.2d 330 (1973). However, we do not view either case as supporting petitioners' argument.
In each of the above-cited cases the driver was hauling goods for the carrier under whose ICC permit he was operating at the time of the injury or death. Archer followed the rule announced by our Supreme Court in American Red Ball which in turn, appears to be based upon the obligations of an interstate carrier pursuant to regulations adopted by the Interstate Commerce Commission. See De Berry v. Coker Freight Lines, 234 S.C. 304, 108 S.E.2d 114 (1959), cited as authority by the Court in American Red Ball. However, in the present case both Horn and Englewood are interstate carriers, and Horn does not rely upon any regulations of the Interstate Commerce Commission which would impose liability upon Englewood as a matter of law where the goods are being hauled for Horn's customer.
Thus, we conclude that the present case is controlled by the provisions of § 8-48-101 and § 8-52-101, C.R.S. 1973, which provide in pertinent part as follows:
"Any . . . company, . . . operating or engaged in or conducting any business by leasing or contracting out any part or all of the work thereof to any lessee, . . . or subcontractor, . . . shall be construed to be an employer . . . and shall be liable . . . to pay compensation for injury or death resulting therefrom to said lessees, and subcontractors and their employees.
"Where an employer, . . . loans the service of any of his employees . . . to any third person, he shall be liable . . . unless it appears from the evidence in said case that said loaning constitutes a new contract of hire, express or implied, between the employee whose services were loaned and the person to whom he was loaned."
[1] Under the above-quoted statutory provisions, Englewood could only be construed an employer of the decedent within the meaning of the Act if the decedent was performing work on behalf of Englewood or if a contract of hire, either express or implied, existed between the decedent and Englewood. None of these conditions were met. Hence, the Industrial Commission was correct in determining that Horn, as the lessor decedent's truck and his general employer pursuant to § 8-48-101, C.R.S. 1973, remained the employer of the decedent at the time of his death.
Order affirmed.
JUDGE COYTE and JUDGE STERNBERG concur.