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Bentley v. Jonathan Piner Construction

Court of Appeals of North Carolina

July 18, 2017

THOMAS BENTLEY, Employee, Plaintiff,

         North Carolina Industrial Commission, I.C. No. 14-721965

         Appeal by Plaintiff from opinion and award of the North Carolina Industrial Commission entered 9 October 2015. Originally heard in the Court of Appeals 8 August 2016, with an opinion filed 20 September 2016 vacating the Industrial Commission's opinion and award and remanding the case for a new hearing. Defendants' petition for rehearing was granted 17 November 2016. Reheard in the Court of Appeals 6 February 2017. This opinion supersedes and replaces the opinion filed 20 September 2016.

          Dunn, Pittman, Skinner & Cushman, PLLC, by Rudolph A. Ashton, III; and Dodge Jones Law Firm, P.A., by Robert C. Dodge, for Plaintiff-Appellant.

          Dickie, McCamey & Chilcote, P.C., by Michael W. Ballance and Martin R. Jernigan, for Defendants-Appellees.

          Smith Moore Leatherwood LLP, by Jeri L. Whitfield, for North Carolina Association of Defense Attorneys, amicus curiae.

          Law Offices of Kathleen G. Sumner, by Kathleen G. Sumner; and Law Office of David P. Stewart, by David P. Stewart, for Workers' Injury Law & Advocacy Group, amicus curiae.

          McGEE, Chief Judge.

         Thomas Bentley ("Plaintiff") appeals from an opinion and award of the North Carolina Industrial Commission ("the Commission") determining he was not an "employee" of Jonathan Piner Construction ("Piner Construction"), as that term is used in the North Carolina Workers' Compensation Act, N.C. Gen. Stat. § 97-1 et seq. In an opinion published 20 September 2016, this Court determined that the plain language of N.C. Gen. Stat. § 97-84 (2015) was violated when the Commission based its opinion and award on an opinion and order by a deputy commissioner who was not present at the hearing and did not hear the evidence. Bentley v. Piner, __ N.C.App. __, __, 790 S.E.2d 379, 382 (2016). Defendants petitioned this Court for rehearing, which we granted. Upon rehearing, we hold that Plaintiff did not preserve his argument regarding the proper interpretation of N.C. G.S. § 97-84 due to his failure to raise it before the Commission. We further hold that the Commission did not err in concluding Plaintiff was not an employee of Piner Construction, nor did it err in holding that Piner Construction was not Plaintiff's "statutory employer" pursuant to N.C. Gen. Stat. § 97-19. Accordingly, we affirm the order of the Commission.

         I. Background

         In early 2014, Plaintiff and his friend, George Tucker ("Tucker"), were working "side jobs" in the construction industry in and around Newport, North Carolina. At the time, Plaintiff held himself out as the owner and operator of Bentley Construction and Maintenance ("Bentley Construction") and had distributed business cards that advertised his business services as "[r]oofing, siding, painting, pressure washing . . . [r]emodels and renovations, [and] sheetrock work and repairs." Plaintiff also operated a website under the Bentley Construction name.

         One day in February 2014, Plaintiff and Tucker were driving around in Plaintiff's truck, which had the words "Bentley Construction and Maintenance" displayed in a decal on its side, looking for work. While driving about, Plaintiff and Tucker happened upon a jobsite in the Breakwater subdivision in Newport, North Carolina (the "Breakwater jobsite").[1] Plaintiff pulled his truck over and attempted to find the person in charge to ask if he and Tucker could work on the Breakwater jobsite. Plaintiff and Tucker encountered Jonathan Piner ("Piner"), the owner and operator of Piner Construction.

         Piner Construction was the subcontractor responsible for, inter alia, the framing of the houses being constructed at the Breakwater jobsite. After talking for a brief period of time about what type of experience Plaintiff and Tucker had in the construction industry, Plaintiff handed Piner a Bentley Construction business card and asked Piner to call if he had any framing work available. Piner responded that if "some work [came] up . . . that [he] couldn't put [his] guys on, " he would call Plaintiff.

         A few weeks later, Piner "felt like [he] might need to make a phone call to somebody" to assist on the framing job at the Breakwater jobsite because he believed Piner Construction would not be able to complete all of the framing work. Piner contacted Plaintiff, and gave him the option of being paid at a fixed price or being paid by the hour. Plaintiff replied that he would "get back" to Piner on his preferred method of payment. After hearing from Piner, Plaintiff contacted, among others, Tucker and Shawn Noling ("Noling") to request their assistance on the Breakwater jobsite.

         When Plaintiff, Tucker, and Noling arrived at the Breakwater jobsite to begin work, Piner produced the blueprints for the house to be constructed. Noling introduced himself to Piner, read the blueprints, [2] and then suggested the hourly rate that each man should be paid: Noling was paid $18.00 per hour, Tucker was paid $14.00 per hour, and Plaintiff was paid $12.00 per hour. Piner characterized Noling as the "lead man" and the "man running the show" due to his expertise and experience in the construction industry, and characterized Plaintiff as the "low man on the totem pole" due to his relative inexperience. Piner asked Plaintiff if he wanted a single check written to him for all of the men he had brought with him to work on the Breakwater jobsite "because [Plaintiff] was operating as [Bentley Construction]." Plaintiff requested that Piner pay each man individually, and Piner agreed to do so.

         Tucker testified that he, Plaintiff, and Noling were able to set their own hours, including making decisions about when breaks were to be taken. At the Breakwater jobsite, Plaintiff brought and used his own tools, including a compressor, a nail gun, and a "sawzall." As the work progressed, Plaintiff, Tucker, and Noling were "struggling for tools" because the tools brought by Plaintiff were inadequate, so Piner brought tools from them to use. When Noling realized another worker was needed to complete the job, he enlisted the help of C.P. Hollingsworth ("Hollingsworth"). Noling testified that he did not need to ask Piner's permission to hire Hollingsworth, and that Plaintiff similarly could have hired another person to work on the Breakwater jobsite without consulting Piner. Noling also testified that Piner did not instruct him to frame the house in a specific manner, and that he, Plaintiff, Tucker, and Hollingsworth used their own special skills, knowledge, and training to frame the house. According to Noling, Piner was not interested in the method employed to frame the house, but was only interested in "[t]he finished product."

         Plaintiff worked as a "cut man" on the Breakwater jobsite. While working on 3 March 2014, Plaintiff was injured when a nail he was prying from a board broke loose and struck him in the right eye. As we explained in our previous opinion in this case,

[f]ollowing the injury, Plaintiff filed a workers' compensation claim with the Commission on 25 March 2014. Piner Construction, along with its insurance carrier, Stonewood Insurance Company (collectively, "Defendants") denied the claim for compensation, contending the injury was non-compensable under the Workers' Compensation Act because Plaintiff was not an employee of Piner Construction on the date of the accident. The claim was assigned for a hearing before Deputy Commissioner Mary C. Vilas ("Deputy Vilas").

Bentley, __ N.C. App. at __, 790 S.E.2d at 379. A hearing was held before Deputy Vilas on 5 December 2014. At the hearing, Tucker, Noling, and Piner testified. Plaintiff was not present for, ...

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