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State Automobile Mutual Insurance Company v. Christie6/18/2002
1 State Automobile Mutual Insurance Company (State Auto) appeals from an order entered in a declaratory judgment proceeding that determined that State Auto was obliged to defend and indemnify William F. Christie, Jr., Zoey Christie and Christie Construction Company in a tort action filed by Kevin E. Atwood (Atwood). We reverse.
2 William Christie, a self-employed general contractor t/d/b/a Christie Construction Company, (collectively Christie) performs commercial and residential construction. Atwood spoke with Christie about work availability, intending to submit a bid for roofing work. Christie informed Atwood that he only used subcontractors, and that Atwood could work as a "mason tender" on a kennel building project. Atwood agreed to work in that capacity.
3 On June 15, 1992, Atwood was injured while cleaning a cement machine, which was used to mix mortar. He filed a Workers' Compensation (WC) claim petition seeking benefits. Christie filed an answer denying that Atwood was an employee. Christie acknowledged that he did not maintain WC coverage because he had no employees. No adjudication of the WC claim took place because Atwood withdrew the claim upon receipt of $8,000 from Christie. No release was signed. Subsequently, Atwood instituted a civil action against Christie and Stone, claiming that he worked for Christie as a laborer. In the suit, Atwood sought damages for the injury he claims he suffered when cleaning the cement machine.
4 Christie maintained commercial liability insurance coverage under a policy from State Auto, which was in effect at the time that Atwood was injured. The policy provided liability insurance coverage for bodily injury, but excluded " ny obligation of the insured under a workers compensation, disability benefits or unemployment compensation law or any similar law." Record, Exhibit A, Insurance Policy at 15. The policy further stated that coverage did not apply to bodily injury to " n employee of the insured arising out of and in the course of employment by the insured." Id.
5 State Auto filed a declaratory judgment action to have the court determine whether Christie was entitled to coverage by State Auto under the general liability policy in effect at the time. State Auto claimed that the evidence proved that Atwood was an employee and, therefore, the exclusions in the policy dictated that no coverage was available under the policy. In addition to the above recitation of facts, the court also formulated the following findings concerning Atwood's employment status:
3. Since the mid-1980's, Christie has had no employees but utilizes subcontractors to perform his contract work.
5. Christie informed Atwood that he only deals with subcontractors, not employees.
6. Subsequently, Atwood informed Christie that he was willing to perform work for Christie as a subcontractor.
7. Atwood then joined Christie at a job site in Cranberry Township, Butler County, which involved the construction of a kennel.
8. While Atwood anticipated submitting a bid for roofing work, Christie intended to use Atwood's services for masonry work as well as roofing.
9. Atwood's initial work assignment was as a mason tender. His principle duties were to mix mortar and supply the mortar to Christie who was laying concrete block.
10. Atwood brought his own hammer and trowel. All other tools, equipment and supplies to mix the mortar were provided by Christie.
11. Atwood was paid a daily rate plus expenses by check issued weekly. There was no agreement between Atwood and Christie as to benefits such as vacation.
12. Atwood
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