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Shurvington v. Cavender Drywall1/30/2001
Appeal From: Labor and Industrial Relations Commission
Opinion Vote: AFFIRMED.
Breckenridge and Smart, Jr., JJ., concur.
Opinion:
Les Huff Drywall ("Huff") appeals the decision of the Labor and Industrial Relations Commission ("Commission"), awarding workers' compensation benefits to claimant, Leonard Shurvington, for injuries sustained on December 11, 1998. In its sole point on appeal, Huff claims the award of the Commission is not supported by competent and substantial evidence. The issue is not whether Shurvington is entitled to benefits, but rather, whether he is a borrowed servant subject to payment by Huff. Huff argues that Shurvington was an employee of Joe Cavender Drywall ("Cavender") at the time of the accident. Because we find that Shurvington was a borrowed servant of Huff, we affirm the decision of the Commission.
FACTUAL AND PROCEDURAL BACKGROUND
Leonard Shurvington was an employee of Joe Cavender Drywall for 13 years. Shurvington served as foreman, installing sheetrock on homes under construction. For some time prior to December 11, 1998, Joe Cavender had a working relationship with Les Huff of Les Huff Drywall, who also installed sheetrock in residences. The two periodically worked on jobs for each other, generally when one was not busy and the other needed help to complete a job. The employers would sometimes do the work personally; other times, the work would be done by their employees. In the latter case, the two agreed that each employer was responsible for paying his own employees for work done on behalf of the other, and they agreed that each would pay workers' compensation insurance on their own employees.
Approximately two weeks prior to December 11, 1998, under their mutual work relationship, Huff and one of his employees assisted on a Cavender job because Huff had no work at that time. On December 8, 1998, Cavender contacted Huff and advised that business was slow for him and that his employees could work for Huff for three days. Huff accepted the help. Cavender then advised Shurvington that work would be slow for three days, that Huff needed help, and that Shurvington could work for Huff. Huff was present during this conversation. Shurvington went right then with Huff to the Huff job site, and received from Huff approximately 30 minutes of detailed instruction regarding the work to be done. Cavender did not accompany Huff and Shurvington to the Huff job site. Following the instructions, Shurvington returned to the Cavender job to "finish out the day."
On December 9, 1998, Shurvington began working at the Huff jobsite. The job was to last three days. On December 11, he was injured when he fell from an open balcony while carrying a piece of sheetrock.
On January 6, 1999, Shurvington filed his claim for compensation with the Division of Workers' Compensation. A hearing took place on March 18, 1999, before an administrative law judge of the Division of Workers' Compensation. The only issue before the Division was the nature of the employer/employee relationship. On April 15, 1999, the ALJ issued a determination that Shurvington was entitled to benefits, that the award was to be paid by Huff, and that the claims against Cavender were dismissed. Its findings were as follows:
Shurvington had worked for Cavender for 13 years, as a foreman of a crew installing drywall. On December 8, 1998, Cavender was installing drywall in a residence, with Shurvington as foreman, and the job was nearly complete.
Cavender told Shurvington he would not have work for him for three or four days and when the job was done, he could go to work for Huff, who was install
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