GKN Co. v. Magness

ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:

RONALD J. WAICUKAUSKI JAMES H. YOUNG

HEIDI G. GOEBEL Young & Young

White & Raub, LLP Indianapolis, Indiana

Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

GKN CO., formerly known as GUST K. )

NEWBERG CONSTRUCTION COMPANY, )

) Supreme Court Cause Number

Appellant-Defendant, ) 49S02-0002-CV-116

)

v. )

)

LARRY MAGNESS, ) Court of Appeals Cause Number

) 49A02-9811-CV-896

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT #1

The Honorable David A. Jester, Judge

Cause No. 49D01-9405-CT-434

ON PETITION TO TRANSFER

March 13, 2001

RUCKER, Justice

Case Summary

A truck driver sued his general contractor for injuries sustained

while working on a highway construction project. Contending the truck

driver was its employee, the general contractor responded with a motion to

dismiss for lack of subject matter jurisdiction. According to the general

contractor, the truck driver’s exclusive remedy rested with the Indiana

Worker’s Compensation Act. The trial court denied the motion, and the

general contractor pursued an interlocutory appeal. Concluding that a

majority of the factors outlined by this Court in Hale v. Kemp, 579 N.E.2d

63 (Ind. 1991), weighed in favor of the general contractor, the Court of

Appeals reversed in a memorandum decision. GKN Co. v. Magness, No. 49A02-

9811-CV-896 (Ind. Ct. App. June 22, 1999). Having previously granted

transfer, we now affirm the trial court’s judgment. In this opinion we

hold the following: (1) the factors set forth in Hale must be weighed and

balanced against each other; (2) the right of control is the most important

factor in determining the existence of an employment relationship; and (3)

the allegations in the complaint determine who has the burden of

demonstrating the exclusivity of the Indiana Worker’s Compensation Act.

Facts

GKN Co., formerly known as the Gust K. Newberg Construction Company,

was the general contractor of an I-465/I-65 highway construction project.

Starnes Trucking, Inc. entered into a written agreement with GKN to haul

various materials to and from a GKN job site known as a “batch plant”—a

facility where water, cement, and gravel are mixed to create concrete to be

used during construction. In turn, Starnes Trucking hired Larry Magness to

drive a cement truck. Specifically Magness was required to haul concrete

from the batch plant to various highway construction sites.

While present at the batch plant on July 14, 1992, Magness proceeded

to refuel his truck. The tank containing the fuel was surrounded by a

concrete-covered retaining wall designed to contain the fuel in the event

of a spill. Magness was standing on the wall trying to reach the fuel

nozzle on top of the tank when the wall collapsed. Falling to the ground,

Magness sustained injuries to his right wrist and forearm.

Magness received worker’s compensation from Starnes Trucking. He also

filed a complaint for damages against GKN complaining of negligence in the

maintenance and construction of the retaining wall. Relying on Indiana

Trial Rule 12(B)(1), GKN filed a motion to dismiss the complaint for lack

of subject matter jurisdiction contending Magness was an employee of GKN.

Thus, according to GKN, Magness’ exclusive remedy rested with the Indiana

Worker’s Compensation Act. The trial court denied the motion without

reciting its reasons or entering factual findings. On interlocutory

review, the Court of Appeals reversed the judgment of the trial court. On

transfer, we now affirm the trial court’s judgment.

Standard of Review

When an employer defends against an employee’s negligence claim on the

basis that the employee’s exclusive remedy is to pursue a claim for

benefits under the Indiana Worker’s Compensation Act, the defense is

properly advanced through a motion to dismiss for lack of subject matter

jurisdiction under Indiana Trial Rule 12(B)(1). Foshee v. Shoney’s, Inc.,

637 N.E.2d 1277, 1280 (Ind. 1994). In ruling on a motion to dismiss for

lack of subject matter jurisdiction, the trial court may consider not only

the complaint and motion but also any affidavits or evidence submitted in

support. Indiana Dep’t of Highways v. Dixon, 541 N.E.2d 877, 884 (Ind.

1989); Borgman v. State Farm Ins. Co., 713 N.E.2d 851, 854 (Ind. Ct. App.

1999), trans. denied. In addition, the trial court may weigh the evidence

to determine the existence of the requisite jurisdictional facts. Borgman,

713 N.E.2d at 854.

The trial court standard for evaluating Trial Rule 12(B)(1) motions to

dismiss is not in dispute. However, the standard for appellate review of a

trial court’s grant or denial of such a motion requires clarification. For

example, it has been declared that when evaluating the trial court’s ruling

on a motion to dismiss for lack of subject matter jurisdiction, a reviewing

court will affirm the judgment of the trial court upon any theory supported

by the evidence of record. See, e.g., M.V. v. Charter Terre Haute

Behavioral Health Sys., Inc., 712 N.E.2d 1064, 1066 (Ind. Ct. App. 1999);

Ransburg Indus. v. Brown, 659 N.E.2d 1081, 1083 (Ind. Ct. App. 1995),

trans. denied; Tapia v. Heavner, 648 N.E.2d 1202, 1206 (Ind. Ct. App.

1995). By contrast it has also been declared that where the facts are not

in dispute, a court of review will look de novo at the trial court’s ruling

on a Trial Rule 12(B)(1) motion to dismiss. See, e.g., Save the Valley,

Inc., v. Indiana Dep’t of Envtl. Mgmt., 724 N.E.2d 665, 668 (Ind. Ct. App.

2000), trans. denied; Fratus v. Marion Cmty. Schs. Bd. of Trs., 721 N.E.2d

280, 284 (Ind. Ct. App. 1999), trans. granted, 735 N.E.2d 232 (2000);

McEnroy v. St. Meinrad Sch. of Theology, 713 N.E.2d 334, 336 (Ind. Ct. App.

1999), trans. denied, cert. denied, 120 S. Ct. 1675 (2000); Common Council

of City of Hammond v. Matonovich, 691 N.E.2d 1326, 1328 (Ind. Ct. App.

1998), trans. denied; Rieheman v. Cornerstone Seeds, Inc., 671 N.E.2d 489,

491 (Ind. Ct. App. 1996), trans. denied.

A review of the case authority shows that the standard of appellate

review for Trial Rule 12(B)(1) motions to dismiss is indeed a function of

what occurred in the trial court. That is, the standard of review is

dependent upon: (i) whether the trial court resolved disputed facts; and

(ii) if the trial court resolved disputed facts, whether it conducted an

evidentiary hearing or ruled on a “paper record.”

If the facts before the trial court are not in dispute, then the

question of subject matter jurisdiction is purely one of law. Under those

circumstances no deference is afforded the trial court’s conclusion because

“appellate courts independently, and without the slightest deference to

trial court determinations, evaluate those issues they deem to be questions

of law.” Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind. 2000). Thus, we

review de novo a trial court’s ruling on a motion to dismiss under Trial

Rule 12(B)(1) where the facts before the trial court are undisputed.

If the facts before the trial court are in dispute, then our standard

of review focuses on whether the trial court conducted an evidentiary

hearing. Under those circumstances, the court typically engages in its

classic fact-finding function, often evaluating the character and

credibility of witnesses. Anthem Ins. Cos., Inc. v. Tenet Healthcare

Corp., 730 N.E.2d 1227, 1238 (Ind. 2000). Thus, where a trial court

conducts an evidentiary hearing, we give its factual findings and judgment

deference. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind.

2000). And in reviewing the trial court’s factual findings and judgment,

we will reverse only if they are clearly erroneous. Id. Factual findings

are clearly erroneous if the evidence does not support them, and a judgment

is clearly erroneous if it is unsupported by the factual findings or

conclusions of law. Id.

However, where the facts are in dispute but the trial court rules on a

paper record without conducting an evidentiary hearing, then no deference

is afforded the trial court’s factual findings or judgment because under

those circumstances a court of review is “in as good a position as the

trial court to determine whether the court has subject matter

jurisdiction.” MHC Surgical Ctr. Assocs., Inc. v. State Office of Medicaid

Policy & Planning, 699 N.E.2d 306, 308 (Ind. Ct. App. 1998). See also

Farner v. Farner, 480 N.E.2d 251, 257 (Ind. Ct. App. 1985) (agreeing with

the proposition that “where a case is tried wholly upon documents or

stipulations, the appellate tribunal is in as good a position as the trial

court to determine the force and effect of the evidence.”) Thus, we review

de novo a trial court’s ruling on a motion to dismiss where the facts

before the court are disputed and the trial court rules on a paper record.

In this case, several facts before the trial court were in dispute and

just as important even for those facts not in dispute, the parties disagree

about the inferences to be drawn from those undisputed facts. Further, the

trial court did not conduct an evidentiary hearing, rather it ruled upon a

paper record consisting of the parties’ complaints, contract, affidavits of

witnesses, and excerpts of deposition testimony. Accordingly, in reviewing

the factual findings as well as the conclusions of law in this case, we

apply a de novo standard of review. In so doing, we will affirm the

judgment of the trial court on any legal theory the evidence of record

supports. However, the ruling of the trial court is presumptively correct,

and we will reverse on the basis of an incorrect factual finding only if

the appellant persuades us that the balance of evidence is tipped against

the trial court’s findings.

Discussion

I.

The Indiana Worker’s Compensation Act (the “Act”) provides the

exclusive remedy for recovery of personal injuries arising out of and in

the course of employment. Ind.Code § 22-3-2-6. Although the Act bars a

court from hearing any common law claim brought against an employer for an

on-the-job injury, it does permit an action for injury against a third-

party tortfeasor provided the third-party is neither the plaintiff’s

employer nor a fellow employee. I.C. § 22-3-2-13. Here, Magness contends

that he is entitled to recover against GKN because he was not employed by

GKN at the time he was injured. Rather, according to Magness, Starnes

Trucking employed him. GKN does not dispute that Starnes Trucking employed

Magness. It contends, however, that Magness was a “dual employee” of both

GKN and Starnes Trucking.

The Act contemplates that one worker may simultaneously have two

employers. I..C. § 22-3-3-31. Where two employers “so associate

themselves together that both are in direct control of the employee and he

is made accountable to both, he will be considered an employee of both

employers . . . .” U.S. Metalsource Corp. v. Simpson, 649 N.E.2d 682, 685

(Ind. Ct. App. 1995) (quoting Jackson Trucking Co. v. Interstate Motor

Freight Sys., 122 Ind. App. 546, 104 N.E.2d 575, 580 (1952)). Determining

whether an employer-employee relationship exists ultimately is a question

of fact. Detrick v. Midwest Pipe & Steel, Inc., 598 N.E.2d 1074, 1077

(Ind. Ct. App. 1992). In making this determination, the fact-finder must

weigh a number of factors, none of which is dispositive. This Court has

identified the most important of those as: (1) right to discharge; (2) mode

of payment; (3) supplying tools or equipment; (4) belief of the parties in

the existence of an employer-employee relationship; (5) control over the

means used in the results reached; (6) length of employment; and, (7)

establishment of the work boundaries. Hale v. Kemp, 579 N.E.2d 63, 67

(Ind. 1991). Cf. Mortgage Consultants, Inc. v. Mahaney, 655 N.E.2d 493,

495-96 (Ind. 1995) (applying a non-exhaustive list of ten factors as set

forth in the Restatement (Second) of Agency § 220(1) cmt. c (1958)). A

number of cases suggest that if a majority of the seven Hale factors is

present, then an employer-employee relationship exists.[1] However,

consistent with Hale, we now reaffirm that the factors must be weighed

against each other as a part of a balancing test as opposed to a

mathematical formula where the majority wins. As explained in greater

detail below, when applying this balancing test, the trial court should

give the greatest weight to the right of the employer to exercise control

over the employee.

In Rensing v. Indiana State University Board. of Trustees., 444

N.E.2d 1170 (Ind. 1983), this Court declared for the first time, “[T]he

primary consideration is that there was an intent that a contract of

employment, either express or implied, did exist. In other words, there

must be a mutual belief that an employer-employee relationship did exist.”

Id. at 1173 (emphasis added).[2] In reaching this conclusion, we cited Fox

v. Contract Beverage Packers, Inc., 398 N.E.2d 709 (Ind. Ct. App. 1980),

and Gibbs v. Miller, 152 Ind. App. 326, 283 N.E.2d 592 (1972). However,

upon closer examination, we conclude that these two cases do not support

that precise holding. Fox merely stated “the courts have also uniformly

held that in order for there to be an employer-employee relationship there

must be a contract, either express or implied.” Fox, 398 N.E.2d at 712.

Gibbs, on the other hand, declared that “[t]he general test in determining

the existence of a[n] [employer-employee] relationship is the right to

direct and control the conduct of the alleged servant at the time the

negligent act occurred.” Gibbs, 283 N.E.2d at 594-95.

Our research does reveal that the intent or belief of the parties may

be an important factor but only to the extent that it indicates an

assumption of control by one party and submission to control by the other

party. See Restatement (Second) of Agency § 220(2) cmt. m. This is so

apparently because of the subjective nature of an inquiry concerning the

parties’ intent. On the other hand, a determination concerning control is

more objective. Among other things, it suggests a certain economic

interdependency and implicates the employer’s right to establish work

boundaries, set working hours, assign duties, and create job security.[3]

We conclude therefore that although not dispositive, the right to control

the manner and means by which the work is to be accomplished is the single

most important factor in determining the existence of an employer-employee

relationship.

II.

We next address who bears the burden of proof in this case. The lack

of subject matter jurisdiction may be raised as an affirmative defense

either in the answer to the complaint or in a motion to dismiss. See

Ind.Trial Rule 8(C); T.R. 12(B)(1). As a general proposition, the party

challenging subject matter jurisdiction carries the burden of establishing

that jurisdiction does not exist. Methodist Hosp. of Ind., Inc. v. Ray,

551 N.E.2d 463, 467 (Ind. Ct. App. 1990), opinion adopted by 558 N.E.2d 829

(Ind. 1990). Because there is a strong public policy favoring the coverage

of employees under the Act, a number of decisions have declared that once

an employer raises the issue of the exclusivity of the Act, the burden

automatically shifts to the employee.[4] However, as Judge Kirsch

explains, this public policy is not advanced where its effect “immunize[s]

third-party tort feasors and their liability insurers from liability for

negligence which results in serious injuries to one who is not in their

employ.” Nowicki, 711 N.E.2d at 544 (Kirsch, J., dissenting). We agree.

Indeed this Court has never endorsed the proposition that an employee

automatically bears the burden of proof on the question of jurisdiction

when the issue is raised in the context of a worker’s compensation claim.

Rather, we have held:

[W]hen the plaintiff’s own complaint recites facts demonstrating the

employment relationship and its role in the injuries alleged, the

burden shifts to the plaintiff to demonstrate some grounds for taking

the claim outside the Worker’s Compensation Act.

Perry v. Stiter Buick GMC, Inc., 637 N.E.2d 1282, 1286 (Ind. 1994). Hence,

when challenging the trial court’s jurisdiction, the employer bears the

burden of proving that the employee’s claim falls within the scope of the

Act unless the employee’s complaint demonstrates the existence of an

employment relationship. Only where the employee’s complaint demonstrates

the existence of an employment relationship does the burden then shift to

the employee to show some ground for taking the case outside of the Act.

Id. Thus, we disapprove of the language in those cases declaring that once

an employer raises the issue of the exclusivity of the Act, the burden

automatically shifts to the employee. See supra note 4.

In this case Magness’ complaint does not recite facts demonstrating

the existence of an employment relationship between Magness and GKN. In

fact, as one might anticipate, in an effort to show that the Act did not

apply, the complaint specifically alleges that Magness was an employee of

Starnes Trucking. As to facts showing the existence of a dual employment

relationship, at most the complaint was ambiguous on this point. R. at 15-

16.

Accordingly, as the party challenging the trial court’s jurisdiction, GKN

had the burden to establish lack of subject matter jurisdiction.

III.

We turn now to an examination of the Hale factors to determine whether

GKN carried its burden of establishing that Magness’ claim lay within the

jurisdiction of the Act. Stated differently, we examine whether GKN

established that the trial court lacked jurisdiction to adjudicate Magness’

claim.

1. Right to Discharge

Thomas Beaty, the GKN supervisor at the batch plant, testified by way

of deposition that if a driver was not performing his duties properly, he

would “give [the driver] three warnings.” Supp. R. at 50. After giving a

driver his first warning, Beaty would call Margie Starnes, the owner of

Starnes Trucking, to let her know that he was having a problem with a

particular driver and she should fix the problem. Supp. R. at 50-51.

After giving a driver a third warning, Beaty would tell that driver that he

was no longer needed at the construction site and he should get in touch

with Margie. Supp. R. at 50. Beaty would then call Margie himself to

inform her of the action taken. Id.

Although Beaty did not have the authority to terminate Magness’

employment with Starnes Trucking, he could terminate Magness’ employment

with GKN by telling Magness that he was no longer needed at the

construction site and informing Margie of the action taken. Indeed, Beaty

had previously discharged other Starnes Trucking employees in such a

manner. Supp. R. at 48-49. In U.S. Metalsource, an employer-employee

relationship was found to exist under similar facts. “Although Metalsource

[the general contractor] did not have the power to terminate [the

plaintiff’s] employment with Whiteford [the subcontractor], it could

terminate his employment with Metalsource by calling a Whiteford supervisor

and

instructing him that it no longer wanted [the plaintiff] to deliver its

steel.” U.S. Metalsource,

649 N.E.2d at 685. This right of discharge factor weighs in favor of a

conclusion that Magness was an employee of GKN.

2. Mode of Payment

The record shows that although Beaty was responsible for signing

Magness’ time card, Magness was paid directly by Starnes Trucking. Starnes

Trucking issued Magness’ paychecks, withheld his taxes, paid his worker’s

compensation insurance premiums, and provided him with health insurance.

Supp. R. at 39. GKN argues “the fact that Magness received his paycheck

from Starnes would not defeat the existence of an employer-employee

relationship between GKN and Magness.” Brief of Appellant at 8. We agree.

However, it is a factor that points to a conclusion that Magness was not

an employee of GKN.

3. Supplying Tools or Equipment

The contract between GKN and Starnes Trucking required Starnes

Trucking to furnish the materials, equipment, and fuel for the construction

project. Supp. R. at 74, 77. If this in fact was the only evidence before

the trial court, then it would appear that Magness was in the employ of

only Starnes Trucking. However, the record shows that the parties’ actual

course of conduct was substantially different than expressed in the written

agreement. Specifically, there was evidence before the trial court that

GKN leased the trucks to Starnes Trucking, performed all maintenance on the

trucks, and provided the fuel and washout equipment for the trucks. Supp.

R. at 40, 41, 66, 67, 123-26. Indeed, GKN owned the fueling equipment that

Magness used when he was injured. Accordingly, this factor also weighs in

favor of a conclusion that Magness was an employee of GKN.

4. Belief of the Parties in the Existence of an Employer-Employee

Relationship

Here, both parties agree, “Neither Magness nor GKN believed at the

time of the project that there was an employer-employee relationship

between them.” Brief of Appellant at 8; Brief of Appellee at 16.

Nonetheless, GKN directs our attention to case authority standing for the

proposition that the absence of such a belief is common in dual employment

situations. See, e.g., U.S. Metalsource, 649 N.E.2d at 686; Beach v. Owens-

Corning Fiberglass Corp., 542 F. Supp. 1328, 1330 (N.D. Ind. 1982), aff’d,

728 F.2d 407 (7th Cir. 1984). In both cases the courts found the existence

of an employment relationship where only the employee did not believe he

was an employee of both businesses. U.S. Metal Source, 649 N.E.2d at 686;

Beach, 542 F. Supp. at 1331. Here, by contrast, neither party believed an

employer-employee relationship existed. Accordingly, this factor weighs

against a conclusion that GKN employed Magness.

5. Control Over the Means Used in the Results Reached

As we have already indicated, although not dispositive, control is

the most important factor when determining whether an employer-employee

relationship exists. The contract between GKN and Starnes Trucking

provides in pertinent part:

The General Contractor and the Subcontractor to this Agreement have an

independent contractor status in relation to each other. As an expert

in its field of work, the Subcontractor has sole control over the

means and methods by which his work is to be done, including all

requirements for doing the work safely, and the General Contractor is

not in charge of the construction, means and methods, or of the safety

of the Subcontractor’s work.

Supp. R. at 79. In addition to this contractual language, Beaty testified

during his deposition that his only direction to Magness was to give him a

“ticket” for each load of concrete he hauled, inform him where to take each

load of concrete, give him a cut off sign at the end of the day, and tell

him what time to return the following morning. Supp. R. at 52-54.

However, sometimes the State inspector, not Beaty, gave Magness the

“ticket” and told him where to take the load of concrete. Supp. R. at 54,

55. Further, Beaty never met with Magness to discuss his work on the

project, and he never instructed Magness how to maneuver his truck or pour

the concrete. Supp. R. at 53, 55. Although GKN may have exerted some

control over Magness, it did not do so concerning the means used in the

results reached. In this regard, Magness’ relationship with GKN was

typical of that of an independent contractor. See, e.g., Mortgage

Consultants, 655 N.E.2d at 495 (“In contrast to employees, generally ‘an

independent contractor controls the method and details of his task and is

answerable to the principal as to results only.’”) (quotation omitted).

Accordingly, this factor weighs heavily against a conclusion that GKN

employed Magness.

6. Length of Employment

The record shows that Magness had only been working at the

construction site three months when he sustained injury. GKN points out

that Magness was working out of a Teamster’s Union Hall and was hired for

different temporary jobs. In April 1992, Magness was hired to work on the

I-465/I-65 highway construction project of which GKN was the general

contractor. Magness’ three months of employment was also the same length

of time of his employment with Starnes Trucking. The only work that

Magness did for Starnes Trucking was in connection with the GKN project.

He never worked for Starnes Trucking before the accident and has not worked

for Starnes Trucking since then. According to GKN, the foregoing facts

point to a conclusion that Magness was its employee.

We first observe that the longer the length of employment, the more

indicative it is of an employer/employee relationship. Restatement

(Second) of Agency § 220(2) cmt. j. The length of employment here was so

abbreviated that it sheds little light one way or the other as to whether

Magness was an employee of GKN. More importantly, GKN has not shown that

there was any discussion between the parties concerning the length of time

that Magness would work for GKN. See, e.g., Fox, 398 N.E.2d at 712

(finding an employment relationship was indicated because “Contract [the

‘borrowing’ employer] determined the length of time Fox would be required

to work at the plant. . . .”). We conclude that the length of employment

in this case cannot be said to weigh in favor of finding an employment

relationship between Magness and GKN.

7. Establishment of Work Boundaries

Magness contends the work boundaries “were established by the State of

Indiana, by way of plans and specifications and location for the road

repair project.” Brief of Appellee at 32. On the other hand, GKN insists

that it established the work boundaries by virtue of the fact that it

supervised the batch plant, to and from which Magness hauled loads of

concrete.

Although the actual location of the road repair was established by the

Indiana Department of Transportation, it was GKN’s batch plant where

Magness reported to work, received

instructions, picked up cement loads, parked his truck at the end of day,

and sustained injury. This evidence points in favor of an employment

relationship between Magness and GKN.

Conclusion

Balancing the Hale factors and giving considerable weight to the

element of control, we conclude there was sufficient evidence before the

trial court to show that Magness was not an employee of GKN and thus GKN

failed to carry its burden of proving that Magness’ claim of injury fell

within the scope of the Act. Accordingly, the trial court properly denied

GKN’s motion to dismiss for lack of subject matter jurisdiction. We

therefore affirm the trial court’s judgment. This cause is remanded for

further proceedings.

SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.

-----------------------

[1] See, e.g., Southport Little League v. Vaughan, 734 N.E.2d 261,

268 n.6 (Ind. Ct. App. 2000), trans.denied; Black v. Employee Solutions,

Inc., 725 N.E.2d 138, 143 (Ind. Ct. App. 2000); Nowicki v. Cannon Steel

Erection Co., 711 N.E.2d 536, 540 (Ind. Ct. App. 1999), trans. denied;

Walters v. Modern Aluminum, 699 N.E.2d 671, 675 (Ind. Ct. App. 1998),

trans.denied; Davis v. Cent. Rent-A-Crane, Inc., 663 N.E.2d 1177, 1180

(Ind. Ct. App. 1996); Tapia, 648 N.E.2d at 1207; Williams v. R.H. Marlin,

Inc., 656 N.E.2d 1145, 1153 (Ind. Ct. App. 1995).

[2] Hale also quotes Rensing for this proposition. See Hale, 579

N.E.2d at 67.

[3] We find further support for this view in those jurisdictions that

have considered the issue. See, e.g., Santiago v. Phoenix Newspapers,

Inc., 794 P.2d 138, 142 (Ariz. 1990) (“Where th[e] right of control exists,

the inference of the employer-employee relationship is strengthened.”);

Empire Star Mines Co. v. California Employment Comm’n, 168 P.2d 686, 692

(Cal. 1946) (“[T]he most important factor [in determining whether an

employer-employee relationship exists] is the right to control the manner

and means of accomplishing the result desired.”), overruled on other

grounds by California v. Sims, 651 P.2d 321 (Cal. 1982); Porter v.

Pathfinder Servs., Inc., 683 A.2d 40, 42 (Del. 1996) (“[In determining

whether an employer-employee relationship exists,] [t]he greatest weight is

given to the issue of control.”); 4139 Mgmt. Inc. v. Dep’t of Labor and

Employment, 763 So. 2d 514, 517 (Fla. Dist. Ct. App. 2000) (“[I]f control

is extended to the means used to achieve the results, there is generally an

employer-employee relationship.”); Ragler Motor Sales v. Indus. Comm’n, 442

N.E.2d 903, 905 (Ill. 1982) (“The right of the employer to control the way

in which the work is performed is an important factor in determining

whether the claimant is an employee . . . .”); Roberts v. Louisiana, 404

So. 2d 1221, 1225 (La. 1981) (“The single, most important factor to

consider in deciding whether the employer-employee relationship exists . .

. is the right of the employer to control the work of the employee.”);

Whitehead v. Safway Steel Prod., Inc., 497 A.2d 803, 809 (Md. 1985)

(“[W]hether the employer has the right to control and direct the employee

in the performance of the work and in the manner in which the work is to be

done is the ‘decisive,’ or ‘controlling’ test.”) (quotations omitted);

Silvia v. Woodhouse, 248 N.E.2d 260, 264 (Mass. 1969) (“[T]he existence of

[an employer-employee] relationship depends on whether there is a right to

control.”); Krause v. Trs. of Hamline Univ. of Minn., 68 N.W.2d 124, 127

(Minn. 1955) (“Undoubtedly the most important single factor in determining

whether an employer-employee relationship exists is that of the right to

control.”); Hutchison v. St. Louis Altenheim, 858 S.W.2d 304, 305 (Mo. Ct.

App. 1993 ) (“The pivotal question in determining the existence of an

employer-employee relationship is whether the ‘employer had the right to

control the means and manner of the service, as distinguished from

controlling the ultimate results of the service.’”) (quoting Howard v.

Winebrenner, 499 S.W.2d 389, 395 (Mo. 1973)); Piantanida v. Bennett, 111

A.2d 412, 414 (N.J. 1955) (In determining whether an employment

relationship exists “[t]he element of control is the one most stressed.”);

Jay Lines, Inc. v. Workmen’s Comp. Appeal Bd., 443 A.2d 1370, 1372 (Pa.

Commw. Ct. 1982) (“[T]he crucial test [in determining whether an employment

relationship exists is] whether the alleged employer assumes control of the

work to be done and the manner in which it is performed.”); Averett v.

Grange, 909 P.2d 246, 249 (Utah 1995) (“In workers’ compensation cases,

this court has consistently held that whether an employer-employee

relations////hip exists depends upon the employer's right to control the

employee.”); Hinds v. Dep’t of Labor & Indus. of State of Washington, 272

P. 734, 735 (Wash. 1928) ([In determining whether an employment

relationship exists,] [t]he final test [is] whether there was the right of

control.”).

[4] See, e.g., Nowicki, 711 N.E.2d at 539; Walters, 699 N.E.2d at 673;

Lawson v. Raney Mfg., Inc., 678 N.E.2d 122, 125 (Ind. Ct. App. 1997),

trans. denied; Fleischmann v. Wausau Bus. Ins. Co., 671 N.E.2d 473, 475

(Ind. Ct. App. 1996), trans. denied; Gonzalez v. Clinton, 663 N.E.2d 1157,

1158 (Ind. Ct. App. 1996), trans. denied; Davis, 663 N.E.2d at 1179.