Appeal by defendant from the North Carolina Industrial Commission. Opinion and award filed 12 January 1981. Heard in the Court of Appeals 21 October 1981.
Arnold, Judge. Judges Clark and Becton concur.
We note at the outset that plaintiff presented no evidence or argument that either of the agreements between the parties was unconscionable or the product of unequal bargaining power. Thus, unless the contracts are found to have been intended to relieve the employer of its obligations under the Workers' Compensation Act, we can see no reason why the agreements of the parties should not be allowed to stand. Ryder concedes that plaintiff was its employee at the time of his injury, and that he is entitled to Workers' Compensation coverage if he was acting within the scope of his employment when the injury occurred. The only question before us is whether replacement of a universal joint pursuant to his obligation under the lease agreement with Ryder came within the scope of plaintiff's employment as a driver for Ryder. We find that it did not.
In determining whether a given relationship is that of employer and employee or that of employer and independent contractor, the test is one of control by the employer over the manner in which the employee does the required work. Alford v. Victory Cab Co., 30 N.C. App. 657, 228 S.E.2d 43 (1976). In the case at bar, the plaintiff was obligated under the lease agreement to repair and maintain his tractor-trailer rig. The manner in which
he fulfilled this obligation was entirely within plaintiff's discretion. While the rig was required to pass a monthly inspection by Ryder, the repairs in question were not being made in anticipation of such an inspection. Moreover, there is no evidence that plaintiff's employment as a driver for Ryder was in any way contingent upon his making these repairs. This renders the case factually distinguishable from Thompson v. Transport Co., 32 N.C. App. 693, 236 S.E.2d 312 (1977), on which plaintiff relies. In Thompson, the plaintiff was injured while preparing his rig for a pre-trip inspection which was required by the company. Furthermore, the equipment was required to pass inspection in order for the plaintiff to receive a load for transport. Here, plaintiff's decision to replace the universal joint was entirely his own, based on his own observations and determination that the repair was needed. No company-imposed requirement such as the pre-trip inspection involved in Thompson was a factor here.
We have carefully considered the opinion of the New York court in Harding v. Herr's Motor Express, Inc., 35 App. Div. 2d 883, 315 N.Y.S. 2d 693 (1970), appeal denied 28 N.Y. 2d 487, 322 N.Y.S. 2d 1026 (1971), relied upon by the Commission. While that case is factually similar to the one before us, we find no indication in the court's brief memorandum opinion of any agreement which specifically placed the repairs involved within the scope of the lease agreement, rather than the employment agreement, of the parties. Since, in the case at bar, the lease agreement clearly designates routine repairs and maintenance as duties of the lessor, we are not persuaded that the two cases turn on the same legal issue.
We find it significant that the plaintiff here was the owner of the tractor-trailer rig he was responsible for maintaining. Since Ryder knew plaintiff had a personal interest in the proper maintenance of his equipment, it had no reason to believe close supervision of his performance of that maintenance was necessary.
In the absence of evidence that Ryder retained any control over the manner in which plaintiff performed the maintenance and repair duties required by the lease agreement, we hold that plaintiff's injury arose, not from the course of his employment but from the performance of his duties as an independent contractor.
The injury, therefore, is not covered by the Workers' Compensation Act.
The opinion and award entered by the Industrial Commission ...