Britt v. COLONY CONST. CO.

240 S.E.2d 479 (1978)

35 N.C. App. 23

Deborah Anne BRITT, widow, Christina Carol Britt, Child, By Her Guardian Ad Litem, Deborah Anne Britt, Harvey C. Britt, Deceased, Employee, v. COLONY CONSTRUCTION COMPANY, Employer, Standard Fire Insurance Company, Carrier, and/or Cumberland Utilities, Inc., Employer, Aetna Insurance Company, Carrier.

No. 7710IC155.

Court of Appeals of North Carolina.

January 17, 1978.

*483 Teague, Johnson, Patterson, Dilthey & Clay by C. Woodrow Teague and George W. Dennis, III, Raleigh, for defendants Cumberland Utilities, Inc. and Aetna Insurance Company.

Nance, Collier, Singleton, Kirkman & Herndon by James R. Nance, Jr., Fayetteville, for plaintiffs.

Anderson, Broadfoot & Anderson by Hal W. Broadfoot, attorneys for defendants Colony Construction Company and Standard Fire Insurance Company.

BRITT, Judge.

Appellants contend first that the Commission erred in determining that Britt was an employee of Utilities rather than of Colony, and in concluding that a contractor-subcontractor relationship existed between Colony and Utilities. We find no merit in these contentions.

*484 "Upon review of an order by the Industrial Commission, this Court does not weigh the evidence, but may only determine whether there is evidence in the record to support the finding made by the Commission. Garmon v. Tridair Industries, 14 N.C.App. 574, 188 S.E.2d 523 (1972). If there is any evidence of substance which directly or by reasonable inference tends to support the findings, the court is bound by such evidence, even though there is evidence that would have supported a finding to the contrary. Keller v. Wiring Co., supra [259 N.C. 222, 130 S.E.2d 342]. . . ."

Russell v. Yarns, Inc., 18 N.C.App. 249, 252, 196 S.E.2d 571, 573 (1973).

We hold that the evidence was more than sufficient to support the Commission's finding that Britt was an employee of Utilities at the time of the accident which cost him his life. Among other things, the evidence showed that the work crew including Britt and its foreman, Hunt, was hired by Utilities, that a vehicle owned by Utilities and operated by Hunt transported Britt to and from his work each day, that only Utilities had the right to hire and fire, that Utilities decided where Britt would work each day and each hour of the day, and that Utilities determined the amount of his wages. The evidence further showed that the only supervision Colony exercised over the work crew was to see that their work met the D.O.T. specifications.

We also hold that the Commission did not err in concluding that a contractor-subcontractor relationship existed between Colony and Utilities. A subcontractor has been described as "[o]ne who has entered into a contract, express or implied, for the performance of an act with the person who has already contracted for its performance." Lester v. Houston, 101 N.C. 605, 611, 8 S.E. 366, 369 (1888). Clearly the relationship between Colony and Utilities met this description. It is true that Colony and Utilities agreed that Britt and other members of the work crew would be "employees" of Colony while working on projects 306 and 307, but their agreement to that designation cannot operate to the prejudice of the members of the crew under the facts in this case. The Commission properly determined that the primary reason for the designation was to circumvent certain requirements of the D.O.T.

Appellants contend next that the Commission erred in determining that Britt's average weekly wage was $89.25, this being the aggregate of his wages received from Colony and Utilities. For the reasons hereinbefore and hereinafter stated, we find no merit in this contention. Our courts have declared many times that the Workmen's Compensation Act will be liberally construed to effectuate its purpose to provide compensation for injured employees or their dependents, and its benefits should not be denied by a technical, narrow and strict construction. Stevenson v. Durham, 281 N.C. 300, 188 S.E.2d 281 (1972); Hewett v. Garrett, 274 N.C. 356, 163 S.E.2d 372 (1968); Conklin v. Hennis Freight Lines, Inc., 27 N.C.App. 260, 218 S.E.2d 484 (1975).

Appellants contend that defendants Colony and Standard Fire are estopped from denying that the employer-employee relationship existed between Colony and Britt, and that Colony and Standard Fire should pay at least a part of the benefits awarded to plaintiffs. We think this contention has merit.

It is well settled in this jurisdiction that the law of estoppel applies in Workmen's Compensation proceedings as in other cases. Aldridge v. Motor Co., 262 N.C. 248, 136 S.E.2d 591 (1964); Ammons v. Sneeden's Sons, Inc., 257 N.C. 785, 127 S.E.2d 575 (1962); Biddix v. Rex Mills, 237 N.C. 660, 75 S.E.2d 777 (1953); Greene v. Spivey, 236 N.C. 435, 73 S.E.2d 488 (1952); Pearson v. Pearson, Inc., 222 N.C. 69, 21 S.E.2d 879 (1942); Allred v. Woodyards, Inc., 32 N.C. App. 516, 232 S.E.2d 879 (1977); 8 Strong's N.C. Index 3d, Master and Servant, § 81, page 649.

In Aldridge v. Motor Co., supra, the evidence established that the officers of a close corporation owned certain realty, including *485 the building in which the corporate business was carried on; that the officers employed the claimant to keep their several properties in repair, and told the local agent of their insurer that they wanted the employee covered by the corporation's compensation insurance policy; and that, in response to the agency's assurance that this would be accomplished by putting the employee on the corporation's payroll, they did so, so that his remuneration was included in computing the insurance premium. The court held that the insurer was estopped from denying that an injury to such employee while repairing property unconnected with the corporate business was within the coverage of the policy.

In the case at hand the evidence disclosed that Colony and Utilities agreed that when Utilities' work crew, including Britt, was working on projects 306 and 307, members of the crew would be Colony's "employees"; that Colony made deductions from its payments to Utilities to cover Workmen's Compensation insurance premiums on the wages paid Britt and other members of the crew; and that Colony's carrier, defendant Standard Fire, accepted those premiums.

While the cited cases, establishing or following the principle that the law of estoppel applies in Workmen's Compensation proceedings as in other cases, dealt with claims as between employees and carriers, we perceive no reason why the principle would not apply also to claims as between carriers.

"The doctrine of estoppel springs from equitable principles and the equities in the case." 28 Am.Jur.2d, Estoppel and Waiver, § 28, page 629. Certainly it would be inequitable in this case to limit Britt's dependents to a recovery of benefits based on the part of his labors performed on Colony projects. In like manner, we think it would be inequitable for Standard Fire to escape all liability after Colony collected premiums for Workmen's Compensation insurance on Britt's wages and Standard Fire accepted those premiums.

We hasten to add that while the Commission found as a fact that Colony made deductions to cover Workmen's Compensation insurance premiums on Britt, it made no finding that those premiums were accepted by Standard Fire although there is evidence to that effect.

For the reasons stated, while holding that the Commission properly determined that Britt was an employee of Utilities and that his dependents are entitled to recover benefits based on his aggregate wages received from Utilities and Colony, we also hold that the Commission should have made a finding as to Standard Fire's acceptance or non-acceptance of Compensation insurance premiums collected by Colony on Britt's wages paid by Colony.

Consequently, this cause is remanded to the Industrial Commission for further findings of fact and determinations. Should the Commission find that said premiums were accepted by Standard Fire, then the Commission will determine the proportion that the wages paid Britt by Colony bears to his total wages for the period of time during which he worked for Utilities and Colony. The Commission will then amend its order to provide that Standard Fire pay its proportionate part of the award.

The Commission may receive such additional evidence as it deems necessary to make said findings and determinations.

Remanded.

PARKER and VAUGHN, JJ., concur.