Jones Brothers10/5/2005
Appellee Leslie Keeter was injured in a near-fatal motor-vehicle accident while working for Michael Whitlock Trucking Company (Whitlock Trucking), an uninsured subcontractor. On appeal, Jones Brothers, Inc. (Jones), and its insurer, Lumbermen's Underwriting Alliance, contend that the Arkansas Workers' Compensation Commission erred in ordering Jones to pay workers' compensation benefits to Keeter, because Jones was not, as found by the Commission, the "prime contractor" within the meaning of Ark. Code Ann. § 11-9-402(a) (Repl. 2002). On cross-appeal, Journagan Construction Company (Journagan) and its insurer, Builders' Association Outstates Insurance Plan/Benchmark Insurance Company, contend that the Commission erred in concluding that, in accordance with Ark. Code Ann. § 11-9-402(b), Jones has a lien against moneys due or to become due against its immediate subcontractor, Journagan. Also, as part of Jones's appeal, we consider whether the Commission should have awarded a lien against not only Journagan but also its insurer. Further, on cross-appeal, we consider whether the Commission properly found as moot the issue of whether Journagan's immediate subcontractor, Aggregate Transportation Specialist (Aggregate), possessed workers' compensation insurance. We affirm the Commission.
In determining whether Jones was the prime contractor, we must briefly state the facts showing the connections between the parties. The record contains a copy of an "Arkansas State Highway Commission Contract" in which Jones, as contractor, agreed to widen 4.5 miles of Highway 412 that were west of Harrison to four lanes. A map in the record shows that the widening was to be made to a portion of Highway 412 between Alpena and Bear Creek Springs. The record further includes a "Subcontract Agreement" between Jones, as contractor, and Journagan, as subcontractor, in which Journagan agreed to perform services related to the same highway project.
In a deposition, James Holt, a senior vice-president of Journagan, stated that his company entered into an oral agreement with Aggregate whereby Aggregate would provide trucking services to haul materials needed for the Highway 412 project. Michael Swearingen, the sole proprietor of Aggregate, in turn stated in his deposition that he provided trucking services to Journagan for delivery of materials related to the project. He further stated that either he or one of his employees was contacted by Michael Whitlock of Whitlock Trucking, and Aggregate hired Whitlock Trucking to provide trucks for the Highway 412 project. In their combined deposition, Michael Whitlock and Rochelle Whitlock presented testimony that they had been hired by Aggregate for the Highway 412 project, that Whitlock Trucking hired Keeter to drive a dump truck, and that Keeter was working on the Highway 412 project at the time of his accident. His accident, they said, occurred on Highway 412 between Alpena and Bear Creek Springs, closer to Bear Creek Springs, where a Journagan quarry and asphalt plant were located, when he was coming back from the job with an empty truck on his way to the plant. Keeter's wife, Becky Keeter, testified at the hearing that, before the accident, Keeter told her he was on his way to work on that project. And finally, Keeter testified at the hearing that, on the day of the accident, he was driving a dump truck for Whitlock Trucking on the Highway 412 project, where persons from Journagan were present.
The relevant statute for determining the liability for compensation for the employee of an uninsured subcontractor provides in part that " here a subcontractor fails to secure compensation required by this chapter, the prime contractor shall be liable for compensation to t
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