Question:
Here's an update on Hubby's legal case and the settlement. Here's a link to the NC Industrial Commission website and a link to the findings of the Deputy Commissioner's judgment.
I can post this now that we have been paid.
I want to share this so it may help some other people dealing with similar situations and also help small companies or owner-operators avoid some of these potential legal pitfalls.
Some of you may remember Hubby was injured in a fall from a flatbed trailer in June 2002. He had a broken wrist, concussion and cervical sprain. The wrist turned out to be the only major injury and required a cast for 2 months. Everything else healed on it's own for the most part (he still has some neck pain that wasn't preexisting from time to time).
The employer was a small 3 car operation or so we were told when Hubby hired on there. The company was incorporated and they also owned a small incorporated lumber business. The owner's were a husband/wife and the husband "ran" the lumber business and assisted with the cars but the wife dispatched the cars and was quick to tell you the cars were HERS. The husband was president of the corp. and we had a business card provided by them stating the wife was vice-president.
They paid Hubby %$25 of gross but withheld state and federal taxes and social security from Hubby's pay settlements. I knew some of the other drivers were employed as contractors because the wife told me so. We never EVER saw the other 2 cars during the short time Hubby worked there but the wife told me about a driver named Horace whose wife had passed away. That was the only info we had about the other cars or drivers.
When the injury first happened they informed us they did not have worker's comp. However, the husband told us he would take care of Hubby's bills somehow. He flew my brother out to Colorado to run loads back to NC and get us home while my husband lay in pain in the sleeper. It took about a week to get back.
Within the first week or so home Hubby found a Dr. to treat his wrist on a payment plan or wait for payment from the employer. However he would not treat the back sprain and we couldn't find anyone else who would without payment up front.
We met with the employer to discuss taking care of the bills. He offered to pay HALF of Hubby's medical bills, up to half of $5000. The emergency room bills from Colorado were at least that much. We didn't think much of the offer so I started calling lawyers.
I finally found a lawyer willing to talk to us about the non-insured case. We met with him and he told us quite frankly, we didn't have a case. He said the employer wasn't required to carry worker's comp because he had less than 3 employees. I told him I read that company officers counted towards employee total but he said he didn't think so in this case because we had to also show the company officers were being PAID for their work. He said the other employees were contractors so it would be difficult to prove 3 employees. He said the other employees wouldnt want to come forward and admit they were employees because they were getting a tax break by working as contractors. He advised us to take the $2500 settlement and run.
So we met with the employer and his attorney to sign papers and get the $2500 check. I started reading the papers before Hubby signed and instead of $2500 now we were going to get a little over $2000. The papers said employer was deducting expenses paid out on behalf on Hubby for motel room in Colorado and plane fare to fly my brother out to retrieve the car! But we were between a rock and a hard place, Hubby signed the papers and we left with our money knowing that Hubby had signed saying he received payment in full and releasing employer of all liability.
It was apparent we needed money to survive so Hubby contacted the employer about returning to work and teaming with my brother so he would have help strapping and tarping (he still had the cast on his left arm). But suddenly the employer had hired another driver to run the car and would have to find a way to get rid of him since Hubby was the best driver he ever had. When Hubby asked about the other cars the employer had he was told they had been sold recently.
I wasn't satisfied with all this BS going on so I continued to search the net about workers comp. I wasn't satisfied that the employer WASN'T required to carry insurance so I began to call attorneys again. I finally found an attorney who took time to talk to me but when she found out it involved a non-insured employer she started backing off and saying she didn't have experience in those kind of cases. HOWEVER she gave me the names of 2 attorneys in Greensboro who DID have experience with non-insured employer cases.
I called the first number and talked to the lawyer. He started out immediately telling me he didn't usually do non-insured cases but began to ask me some questions about the case. He told me was in business to make money and didn't do things unless there was money to be made. Looked like another rejection of the case so I told him I guess I would have to file the papers myself and give it a try since we didn't have anything to lose. He paused a minute and told me we would need an attorney to take on that kind of case and told us to come in and talk to him because he thought he just might like to take that one on. Then I told him I think we might have messed up because Hubby signed those papers and took the $2000. He said no, that might actually work in our favor because the agreement Hubby signed was an illegal agreement because it was not approved by the Industrial Commission.
He filed the papework, of course the employer retained his own attorney and the fight was on. It was the contention of the employer and his attorney that the employer was not required to carry comp because Hubby was their ONLY employee at the time of his injury.
We went to the hearing with our attorney still not sure of the outcome. Any settlement attempts had not worked out, the employer HAD offered to settle for $3000 more. I'm not sure our lawyer new exactly WHAT he was going to argue before he got to court. We had discussed several different things and he said the employer was saying Hubby WASNT an employee now.
The employer and his attorney got to speak first. I've never heard so may lies before. The employer said Hubby was a contractor, the only reason he paid taxes for him was Hubby ASKED him to do so because he had no experience with filing his own quarterly taxes. Then he started to say things about Hubby's method of chaining a load and said he instructed Hubby in proper load securement (he showed him how to throw straps and tarps on LUMBER and had Hubby climbing around on top of lumber stacks). However, Hubby was shown how to chain coils by another driver who was loading where we were and who also took the time to help Hubby put up the sidekit. Anyway, he said Hubby had no business on the back of the trailer while chaining down coils.
The employer's lawyer submitted the articles of incorpation and all the company's other records into evidence. The employer said he was the company president, an ex employee was VP and the wife was secretary/treasurer but had never been VP. He also said she did not work in the day to day operations of the company but sometimes answered the phone at home when someone called there. He said she was uncompensated for her time.
The only things we had to submit were the business card given to Hubby that listed the wife as VP of the corp. Hubby also testifed about a time when the wife "chewed him out" for taking the car for service without her OK. She told Hubby SHE ran the cars and NO money was to be spent on them without HER ok (her husband had OK'd that one ) Hubby also told the court the wife was who dispatched him most of the time and signed his paychecks.
When our lawyer began to cross examine the employer, he had the company records submitted by the employer. He began to go over the financial transactions and dates where Hubby was paid and taxes were deducted. He asked the employer if he was only witholding taxes as a favor to Hubby why did he also MATCH his social security and pay unemployment for the quarter in question, according to NC state tax records. He then asked the employer who Horace ** was and began to list paydates for this person paid out during the same time Hubby was also being paid. The employer tried to say Horace was a contractor who was leasing the car from him and kept it in SC and had his own freight to haul with it, etc.
Then our attorney found the REAL kicker. He began to question the employer who (wife's name) was and why their were all these transactions listed during this time for money paid to her for "consultation fees". The employer said he paid her to do the quarterly fuel tax reports and sometimes she had to loan money to the company to purchase fuel on her credit card (she did) and some of the amounts were paying her back for this. However, there was no evidence proving she was an expert in any field where she would be providing "consultation" to the company. Yes, the employer's own company records he submitted into evidence served to "hang" him, lol.
The employer testifed he set up his company and paid his drivers and contractors because that was the custoM way most of the small companies in the area operated. He said he got his legal advice from his brother who was a small company owner and other small owners in the area he was acquainted with. When our attorney asked him, "So, you got your legal advice from car drivers"? I thought I was going to fall on the floor and roll from laughing so hard.
The deputy commissioner gave us an opportunity to got out and talk with employer and his lawyer to try and reach a settlement before he made his ruling. Our attorney asked for $10,000 but the employer rejected it. So we went back in to hear ruling.
The deputy commissioner began by saying that the defense from employer was the only time he'd ever heard someone who was paying taxes AND matching soc. sec. try to say someone wasn't an employee. He said due to the "extreme litigiousness" of the argument that he was going to assess Hubby's attorney's fees to be paid by defendant and also additional penalties to be paid. About this time I noticed the employer's face turning extremely red and his lawyer was turning a purplish gray color.
Then they moved to order him to pay for Hubby's time out of work, all medical bills, for difference Hubby was earning after accident from what he averaged at employer, and fines to the Industrial Commission for every day the employer had at least 3 employees and had failed to carry worker's comp.
Initially the employer appealed the ruling and it was slated for a hearing before the Full Commission. Our attorney was still working on the settlement (he went to school with the employer's attorney ) Finally, a settlement was reached for $15,000 minus the $2000 paid previously. We were ready to get it over with and didn't want to drag things on any more.
Hubby received his share after attorney's fees and medical bills last week. It wasn't a lot but I said back at the beginning of this thing money was not the real object, a little justice was more important to us.
A mind is a terrible thing to have.
Last edited by shewolf on Fri Jul 04, 2003 1:07 pm; edited 1 time in total

Answer:

Congratulations Shewolf! Sounds like you found yourself a very understanding and learned lawyer indeed. He now has another feather in his cap, you and the hubby have justice and can breath easier. Glad to hear it!
For Owner Operator Jobs
*********
Heres caringjobs .com

Answer:

So Shewolf,
Is it safe to assume... If the employer had not taken taxes out for your hubby, and left no questions to him being a "Sub-Contractor", that you guys would be paddling up do-do creek ????

Answer:

It may have been harder to win but I really don't think so.
If you read the actual file at the Industrial Commission site the Horace I referred to above as being a contractor is discussed here. He was in fact being paid as a contractor with no taxes witheld. However the court considered him an employee also BECAUSE he was (1) operating under the ICC or DOT# of Carolina Freight Systems Inc (they cited some old case that was settled in the courts years ago concerning that one). (2) Was operating under the direction of Carolina Freight Systems, i.e. being dispatched, etc. unless proven otherwise. (3) Was operating a car and trailer owned by Carolina Freight Systems and on fuel paid for by Carolina Freight Systems. Here is what it says there:
"From at least April 24, 2002 to at least a week before June 3, 2002, there was an employer-employee relationship between the defendant-employer and Horace Suber. The defendant-employer paid for both the fuel and repairs for the car it leased to Mr. Suber."
A mind is a terrible thing to have.

Answer:

Finally justice for the little guy.Had a similar situation with an owner operator only it was over unemployment it took a while and a lot of calls and paperwork but I did get my money.Congrats to you.
Amann

Answer:

In other words, the adage "Sue the Basta**s" is alive and well!
Congratulations
“We get cars that big in here all the time."

Answer:

Some people give you no alternative but to sue them. I have been place in that position myself.
Workmans comp decided to cut a tiny portion of the money they owe me hoping I would just go away, but they should know better than that! After two years I still cannot get medical clearance from the doctor to return to work and may face more surgery still.
What choice does anybody in that situation have but to sue? It's not like we spilled hot coffee in our laps!
After four court orders for wc to pay the claim and they still refuse, I am searching for a decent civil attorney that will work on a contingency basis so I can demand punative and actual damages and losses as a result of their refusal to comply with the courts demands.
Sue? You betcha! And anyone else who decides they are so big they can simply ignore justice and stamp on the little guy!
«"The one thing that unites all human beings, regardless of age, gender, religion, economic status or ethnic background, is that, deep down inside, we ALL believe that we are above-average drivers."»

Answer:

Call Me "Sue" I tried playing nice nice with the insurance company and it got me know where..They started paying and 1/2 way through they decided they where not responsible for the entire injury.
Just the shoulder not the neck, and their own doctor says it is related..If I never see the idiots in Murray Ky again it will be to soon..
But I will see them in court
Congrats Shewolf.. Tell hubby to be careful with the neck..
Life is not measured by the number of breaths we take, but by the moments that take our breath away

Answer:

money was not the real object, a little justice was more important to us.
---------
-----