NORTH EAST INS. CO. v. SOUCY5/20/1997
[ 1] Defendants Roger Soucy, Jr. and Melinda Soucy appeal from the summary judgment entered against them in the Superior Court (Androscoggin County, Alexander, J.). They argue that the court erred in ruling as a matter of law that Roger Soucy, Jr. was an "employee" within the meaning of the commercial general liability policy issued by plaintiff, North East Insurance Co. (North East), to Welch Beams, Inc. We affirm the judgment.
[ 2] The facts, as developed for the purposes of summary judgment, are as follows: In 1994, Welch Beams, Inc. entered into a contract with Steve Hammond to replace the roof on his store. Several days before work was to begin on the Hammond store, Thomas Welch, the president of Welch Beams, Inc., engaged Roger Soucy, Jr. to help complete the project. At the time, Soucy worked for his father, Roger Soucy, Sr., when work was available. Soucy's father paid him by the hour and no taxes were withheld from his Soucy was accompanied to the Hammond site by his brother Shawn and another worker, Shane Judd, because Welch asked him to bring along others who needed work.
[ 3] Welch testified in his deposition that he considered Soucy to be a subcontractor rather than his employee. He further testified that he considered Soucy to be his father's employee and thought that Soucy, Sr. would have workers' compensation insurance covering Soucy. Soucy had worked for Welch in 1989 as an employee, according to Welch, during a time that Soucy was not working for his father. That year he withheld taxes from Soucy's check. After 1989, Welch stopped treating those working for him as "employees" and started hiring them as "subcontractors." He did this " ecause of the cost of insurances and the cost of hiring people, the paperwork, the red tape, it was much easier to hire subcontractors to do the work."
[ 4] On the first day that Soucy, his brother, and Judd began work on the site, they arrived at work two hours before Welch and his crew. At that time, one side of the four-sided roof had already been reshingled and two other parts of the roof had been stripped. Soucy and his "crew" began pulling shingles off the remaining side of the roof, without any instruction from Welch to do so. According to Welch, Soucy did not need to be told what to do because he was "an experienced roofer, he knew what the job had in store, he knew what he had to do, anybody in that position don't need to be told what to do." When Welch arrived, Soucy told him where he and his crew were going to work that day and Welch concurred, sending his crew to another part of the worksite.
[ 5] During their days on the project, Soucy and his crew worked exclusively on the roof. They did not run errands for Welch. Welch, however, understood that he had the right to tell Soucy and his crew which roof to work on and, according to Soucy, Welch, not Soucy, told Shawn Soucy and Shane Judd what to do. When Welch was gone from the site, Soucy was in charge. This was because "he was the next in line with the most experience. So it was assumed that he would be in charge when I wasn't around."
[ 6] Soucy brought various tools to the Hammond site with which to work. He used his own personal tools, i.e. his tape measure, hammer, utility knife, square, tool apron, and brought two shovels designed for stripping shingles borrowed from his father. Soucy drove to the site in a vehicle owned by his father's business. Soucy and his crew used staging and ladders provided by Welch, as well as Welch's air guns.
[ 7] On October 28, 1994, Soucy fell off a ladder at the Hammond site, seriously injuring himself. Neither Welch, Soucy, nor Roger Soucy, Sr. had workers' compensation policies coverin
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