Opinion
No. 73-104
Decided October 10, 1973.
Interstate moving company that leased truck from New York intrastate hauling company, and its insurer, were held liable for workmen's compensation benefits to employee of hauling company injured while unloading truck in Colorado. Moving company and its insurer sought review. Affirmed
1. WORKERS' COMPENSATION — Lessor — Intrastate Company — Lessee — Interstate Company — Lessee Liable — Injured Workman — Employee of Lessee. By statute, where both intrastate hauling company, the lessor of truck, and interstate moving company, the lessee of truck, were covered by workmen's compensation insurance, the lessee is liable to workman injured while unloading truck, if that workman is an employee of the lessee.
2. Interstate Company — Controlled — "Driver-Owner" — Liable — Helper of Driver — Injured — Unloading Truck. Where "owner-driver" of truck for lessor New York intrastate hauling company was directly supervised while in Colorado by lessee interstate moving company, and where he reported daily to the interstate company and was authorized by it to hire helpers to be paid from his own account, the interstate company was the employer of both the driver and his helper, and it is liable for the workmen's compensation benefits of helper who was injured while unloading truck.
Review of Order from the Industrial Commission of the State of Colorado
Dosh, DeMoulin, Anderson and Campbell, Byron G. Rogers, Jr., for petitioner Allied Van Lines and Transport Insurance Company.
Hemminger, McKendree, Vamos Elliott, P.C., Richard D. Greengard, for respondents Feuer Moving and Storage and State Insurance Fund of New York.
John P. Moore, Attorney General, John E. Bush, Deputy, Peter L. Dye, Assistant, for Director of the Department of Labor and Employment, Division of Labor, Workers' Compensation Section, and The Industrial Commission of Colorado.
Fred B. Dudley, Richard G. Fisher, for Weicker Transfer and Storage Co. and State Compensation Insurance Fund.
This is a review of a final order of the Industrial Commission which affirmed the referee's order that petitioner Allied Van Lines, Inc., and its insurance carrier, Transport Insurance Company, were liable for payment of benefits claimed by Paul J. Market, claimant. We affirm.
The findings that Market was injured in the course of his employment, that he as entitled to benefits, and the amount of the award are not contested. The question on review is whether Allied or Feuer Moving and Storage is responsible for the claim. Weicker Transfer and Storage Co. and its insurance carrier, State Compensation Insurance Fund, were dismissed in the final order and are not involved in this review.
The basic facts are not in dispute. Feuer, an agent of Allied Van Lines, is an intrastate hauling company licensed to do business in the state of New York. It does not have an ICC permit to operate outside of New York. Feuer carries workmen's compensation insurance for the protection of its employees. Allied is a national company with an ICC permit to operate throughout the United States. Allied contracts through its agents, such as Feuer, for the movement of goods from state to state. It owns no tractors or trailers, and does not have any drivers as regular employees. Instead, it leases the equipment from, and is supplied drivers by, the local agents. However, Allied does carry workmen's compensation insurance.
Andy Castaldi, of Long Island, New York, was an "owner-driver" for Feuer. The tractor-trailer used by Castaldi was owned by Feuer but was being acquired by Castaldi under a contract of purchase. In June 1970, Castaldi was delivering a load of household goods in Colorado and hired Market, a resident of Colorado, to help unload the truck. Market's injury occurred in the unloading operation.
Allied contends that Castaldi was an employee of Feuer, that Feuer's workmen's compensation insurance provided coverage in Colorado and that under its interpretation of C.R.S. 1963, 81-9-1(1) and (2), Feuer and its insurer should be responsible for the claim. Both parties agree that the company whose workmen's compensation insurance covers the driver, Castaldi, is liable for injuries to the claimant-helper Market.
The Commission determined that Feuer's insurance covered only New York State employees and did not cover persons, such as Market, who were part-time employees residing in Colorado. We agree with Allied's contention that this ruling was incorrect. It was also conceded by Feuer at oral argument that its policy of insurance did in fact provide coverage in Colorado. However, this erroneous ruling does not change the result.
[1] Allied leases trucks from Feuer and, by statute, where both the lessor and lessee are covered by workmen's compensation insurance, the lessee is liable, if Castaldi was an employee of Allied. C.R.S. 1963, 81-9-1(2). Since both companies are insured, the issue is whether Castaldi was an employee of Allied or of Feuer.
While in Colorado, Castaldi was directly supervised and his work was controlled by Allied. He telephoned Allied daily to report his location and to receive instructions for any new assignments before returning to New York. Castaldi prepared a daily log and sent the original to Allied and a copy to Feuer. He was authorized to hire helpers when needed to load or unload goods, but such help was paid by him from his own account.
[2] The employment relationship here differs in no significant particular from the one in American Red Ball Transit Co. v. Industrial Commission, 145 Colo. 509, 359 P.2d 1018. Applying the holding of that case, the interstate carrier (Allied), not its intrastate agent (Feuer), was the employer of both the driver, Castaldi, and the claimant, Market, and Allied is liable for claimant's workmen's compensation benefits.
The findings and conclusions of the Commission, except as noted, are supported by the evidence and the applicable law.
Order affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE PIERCE concur.