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Northland Casualty Co. v. Meeks: INSURANCE - "furnished to" for temporary worker implies third party, not worker himself

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-3057
___________
Northland Casualty Company, *
*
Appellee, *
*
v. *
*
Barbara Meeks, individually and as *
Special Administratrix of the Estate of *
Floyd Meeks, Deceased; Floyd Meeks *
Jr., individually; Jewel Meeks, *
individually; Lloyd Gene Meeks, *
individually; Shelia Meeks Hale, *
individually; James Rual Meeks, *
individually; Deanie Renee Meeks *
Hester, individually; Jewel Meeks *
Webb, individually; Andrew Thomas *
Meeks, individually; Don Henry Paul *
Meeks, individually, *
*
Appellants. *
___________
Appeals from the United States
No. 07-3199 District Court for the
___________ Eastern District of Arkansas.
Northland Casualty Company, *
*
Appellee, *
*
v. *
*
1The Honorable James M. Moody, United States District Judge for the Eastern
District of Arkansas.
-2-
Rocky Harrell, doing business as *
Rocky Harrell Farms, *
*
Appellant. *
___________
Submitted: April 18, 2008
Filed: August 28, 2008
___________
Before GRUENDER, BRIGHT and BENTON, Circuit Judges.
___________
GRUENDER, Circuit Judge.
The estate and heirs of Floyd Meeks (collectively Meeks) and Rocky Harrell
appeal the district courts1 grant of summary judgment to Northland Casualty
Company (Northland). The district court held that Harrells commercial insurance
policy with Northland that provided business auto coverage (the Policy) did not
cover claims arising from the fatal injuries suffered by Floyd Meeks (Floyd)
because it determined that Floyd was Harrells employee. On appeal, Meeks and
Harrell argue that the Policy covered their claims because Floyd was either an
independent contractor or a temporary worker. For the reasons discussed below, we
affirm.
I. BACKGROUND
In August 2002, Floyd and Harrell agreed that Floyd would transport
agricultural products for Harrells hauling company on an as needed basis during
the harvest season. Harrell was a farmer who also owned and operated a
-3-
transportation company that was in the business of hauling agricultural products.
While Floyd drove a school bus for the North Little Rock School district, he asked
Harrell for a full-time driver position. Harrell denied this request because the work
was seasonal. Every week during the harvest season, Harrell told Floyd and the other
drivers the loads to pick up, from whom to pick them up, and where to deliver them.
The drivers were able to choose the exact times they would pick up the loads and what
routes to take to complete the deliveries, so long as the deliveries were completed
within a week. Harrell owned the trucks and leased the trailers, but he permitted his
drivers to keep them at their houses. Harrell also paid all vehicle operating costs,
including licensing, insurance and gas. The drivers could supplement the insurance
if they chose to do so. Each driver received weekly payments equivalent to twentyfive
percent of the amount charged by Harrell for the loads that driver transported.
Harrell paid the drivers even if a customer did not pay him. No taxes were withheld
from the drivers paychecks, and the drivers received 1099 tax forms, not W-2 forms.
While Harrell had no written contracts with his drivers, he prohibited them from
hiring subcontractors. Either Harrell or the drivers could terminate the drivers
employment at any time.
The Policy that Harrell purchased from Northland provided coverage for
Harrells tractors and trailers with certain exclusions. Section B of the liability
coverage section states, This insurance does not apply to . . . (4) . . . Bodily injury
to: (a.) An employee of the insured arising out of and in the course of: (1)
Employment by the insured; or (2) Performing the duties related to the conduct of
the insureds business . . . . The Policy also defined the relevant terms as follows:
Employee includes a leased worker. Employee does not include
a temporary worker.
. . .
-4-
Leased worker means a person leased to you by a labor leasing firm
under an agreement between you and the labor leasing firm, to perform
duties related to the conduct of your business. Leased worker does not
include a temporary worker.
. . .
Temporary worker means a person who is furnished to you to
substitute for a permanent employee on leave or to meet seasonal or
short-term workload conditions.
On October 4, 2002, Floyd was fatally injured in an accident while transporting
agricultural products for Harrell using Harrells tractor-trailer. After Floyds death,
Meeks filed a state court action against Harrell under the Arkansas Wrongful Death
Statute, Ark. Code Ann. 16-62-102. Harrell sought defense and coverage from
Northland. Relying on our diversity jurisdiction, Northland then brought this
declaratory judgment action to disclaim these obligations. Northland filed a motion
for summary judgment, which Meeks and Harrell opposed. They argued that a
genuine issue of material fact existed as to whether Floyd was an independent
contractor or a temporary worker. Rejecting this argument, the district court held
that no genuine issues of material fact existed and that Floyd was Harrells employee
as a matter of law. In reaching its conclusion, the district court applied Arkansass
ten-factor test. Alternatively, the court held that Floyd was an employee under
Arkansass extension of the definition of employee found in 49 C.F.R. 390.5 to
intrastate operations of motor vehicles in Rule 17.1 of the Arkansas State Highway
Commission Regulations. Finally, the district court held that Floyd was not covered
by the Policy as a temporary worker because he was not furnished to Harrell by
another entity. Meeks and Harrell appeal.
-5-
II. DISCUSSION
We review the district courts grant of summary judgment de novo, viewing
the evidence in the light most favorable to the nonmoving party. Source Food Tech.,
Inc. v. U.S. Fid. & Guar. Co., 465 F.3d 834, 836 (8th Cir. 2006). We also review the
district courts interpretation of an insurance policy provision de novo. Id. In this
diversity case, we apply Arkansas law. See id.
A. Employee/Independent Contractor
Meeks and Harrell argue that summary judgment was not appropriate because
there is a genuine issue of material fact as to whether Floyd was an employee under
Arkansas law. Although agency is a question of fact ordinarily determined by the
trier of fact, where the facts are undisputed, and only one inference can reasonably be
drawn from them, it becomes a question of law. Howard v. Dallas Morning News,
Inc., 918 S.W.2d 178, 185 (Ark. 1996); accord Cotton v. Commodore Exp., Inc., No.
02-604, 2007 WL 283135, at *1 (E.D. Ark. Jan. 30, 2007) (stating that an agency
determination is a legal conclusion, requiring both a determination of facts and
application of law, and where the material undisputed facts permit only one
reasonable legal conclusion, summary judgment is appropriate) (citing Howard, 918
S.W.2d at 185). Because the facts attendant to Floyds employment relationship are
undisputed, we now review de novo the district courts legal conclusion that Floyd
was Harrells employee.
Applying Arkansas law to determine whether Floyd was an employee or an
independent contractor, we consider the totality of the circumstances by applying
Arkansass ten-factor test. See Shelter Mut. Ins. Co. v. Jones, 343 F.3d 925, 926 (8th
Cir. 2003) (per curiam). The factors we consider are:
-6-
(a) the extent of control which, by the agreement, the master may
exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct
occupation or business;
(c) the kind of occupation, with reference to whether, in the locality,
the work is usually done under the direction of the employer or by
a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the person doing
the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by time or by the job;
(h) whether or not the work is a part of the regular business of the
employer;
(i) whether or not the parties believe they are creating the relation of
master and servant; and
(j) whether the principal is or is not in business.
Blankenship v. Overhold, 786 S.W.2d 814, 815 (Ark. 1990) (citing Restatement
(Second) of Agency 220 (1958)). The primary factor in this analysis is the extent
of control an employer may exercise over his worker. Shelter, 343 F.3d at 926 & n.2.
It is the right to control, not the actual control, that determines the relationship. Ark.
Transit Homes, Inc. v. Aetna Life & Cas., 16 S.W.3d 545, 548 (Ark. 2000).
Applying these factors, we conclude that the district court did not err in
determining that Floyd was Harrells employee. Significantly, Harrell had and exerted
full control over the critical details of Floyds work. Harrell could terminate Floyds
employment at will, and he prohibited Floyd from subcontracting his work. Harrell
also received all customer orders, assigned all delivery requests and required the
drivers to complete each delivery within one week. Floyd had to charge all fuel
purchases to Harrells account at a specified gas station, which limited the routes
-7-
available to Floyd. Furthermore, Harrell instructed Floyd on proper load handling
and required Floyd to contact him directly in case of any problem or emergency.
In addition to the control Harrell established over Floyd, the remaining factors
also support the determination that Floyd was an employee. Floyd hauled exclusively
for Harrell and was not engaged in an independent hauling business. While Floyd
needed some skill to drive a tractor-trailer, that skill was not unique and not more
prevalent among independent contractors than employees. Harrell also supplied all
necessary equipment to Floyd and paid all operating costs. Although Harrell hired
Floyd only for harvest season, Floyd was employed for the entire season and not for
one specific job. Additionally, Floyd was paid even if a customer failed to pay
Harrell. The loads Floyd hauled were integral and essential to Harrells hauling
business. The parties understood that Floyd worked directly for Harrell and that Floyd
himself, not a worker Floyd subcontracted, would make the deliveries. While Floyd
physically controlled the tractor-trailer during transport, Harrell retained ultimate
authority and his drivers follow[ed his] instructions. Harrell also was the sole
proprietor of his trucking business.
Notwithstanding these undisputed facts, Meeks and Harrell argue that the
record fails to establish that Floyd was Harrells employee. They claim that a factfinder
could reasonably conclude that Floyd was an independent contractor after
considering the ten factors. In support of this argument, they claim that Harrells
issuance of 1099 tax forms, instead of W-2 forms, proves that Floyd was an
independent contractor. However, we previously have held that use of a 1099 tax
form does not undermine the conclusion that a worker is an employee and not an
independent contractor. Shelter, 343 F.3d at 926. In reaching this conclusion, we
noted that in construing [an] insurance policys definition of employee, economic
reality rather than legalistic form should be determinative. Id. (quoting Eagle Star
Ins. Co. v. Deal, 474 F.2d 1216, 1220 (8th Cir. 1973)). We likewise conclude that the
fact that Floyd received a 1099 tax form does not alter our analysis that Floyd was an
2Because we find that Floyd was an employee under the ten-factor test, we need
not reach the district courts alternative basis for concluding that Floyd was an
employee under the Arkansas State Highway Commission Regulations.
-8-
employee. Meeks and Harrell also argue that several other facts support a finding that
Floyd was an independent contractor, such as Floyds ability to determine the exact
route and timing of the deliveries and Floyds ability to keep the truck at his house
between deliveries. However, these facts do not undermine our conclusion regarding
the extent to which Harrell had the right to and did, in fact, exercise control over
Floyd. Therefore, we find that the totality of the circumstances supports the district
courts conclusion that the only reasonable inference to be drawn from the undisputed
facts is that Floyd was an employee of Harrell, not an independent contractor.2
B. Employee/Temporary Worker
Meeks and Harrell also argue that Floyd was not an employee under the Policy
because he was a temporary worker. The Policy excludes a temporary worker
from its definition of employee and defines temporary worker as a person who
is furnished to you to substitute for a permanent employee on leave or to meet
seasonal or short-term workload conditions. The Policy does not define the term
furnished to. Meeks and Harrell argue that Floyd was a temporary worker either
because he furnished himself to Harrell or because the furnished to requirement
does not apply to a worker who was hired to meet seasonal or short-term workload
conditions.
Insurance contracts are to be construed strictly against the insurer, but where
language is unambiguous, and only one reasonable interpretation is possible, it is the
duty of the courts to give effect to the plain wording of the policy. Smith v. S. Farm
Bureau Cas. Ins. Co., 114 S.W.3d 205, 206 (Ark. 2003). [T]he language of an
insurance policy is to be construed in its plain, ordinary, and popular sense. Id. at
3The Arkansas Supreme Court also utilizes the definitions in Blacks Law
Dictionary and other dictionaries when determining what a term means. See, e.g., City
of Fort Smith v. Carter, --- S.W.3d ---, 2008 WL 90442 (Ark. Jan. 10, 2008). It
utilized the Funk & Wagnalls definition of furnish in another context. Collison v.
Curtner, 216 S.W. 1059, 1061 (Ark. 1919). That definition of furnish was [t]o
equip or fit out; supply what is necessary or fitting. Id.
-9-
206-07 (quotation omitted). The Arkansas Supreme Court has not addressed this issue
or interpreted the phrase furnished to in an insurance contract. When there is no
state supreme court case directly on point, our role is to predict how the state supreme
court would rule if faced with the issues before us. Cotton v. Commodore Exp., Inc.,
459 F.3d 862, 864 (8th Cir. 2006). While Meeks and Harrell argue that the term
furnished to is ambiguous and must be construed in their favor, we find that the
Policys use of the term furnished to is unambiguous and clearly requires the
involvement of a third party in furnishing a worker either to substitute for a
permanent employee on leave or to meet seasonal or short-term workload
conditions.
We first consider whether a third party must furnish the worker to the insured
in order to qualify as a temporary worker, or whether, as Meeks and Harrell claim,
Floyd could qualify as a temporary worker by furnishing himself to Harrell. Other
courts have determined that a third party must furnish the worker based, in part, on the
definition of furnish in Blacks Law Dictionary and other dictionaries. See AMCO
Ins. Co. v. Dorpinghaus, No. 05-1296, 2007 WL 313280, at *4 n.3 (D. Minn. Jan. 12,
2007); Nautilus Ins. Co. v. Gardner, No. 04-1858, 2005 WL 664358, at *7 (E.D. Pa.
Mar. 21, 2005). Blacks Law Dictionary defines furnish as to supply, provide or
equip, for accomplishment of a particular purpose. Blacks Law Dictionary 675 (6th
ed. 1990). Websters Third New International Dictionary of the English Language
defines furnish as to provide or supply with what is needed, useful, or desirable.
Websters Third New International Dictionary of the English Language 923 (2002).3
We believe that the term furnished to, in the context of the Policys definition of
-10-
temporary worker, is not ambiguous and necessarily implies that a third party has
been involved in providing or supplying the worker to the insured. Gavan v.
Bituminous Cas. Corp., 242 S.W.3d 718, 721 (Mo. 2008) (en banc). Thus, we predict
that the Arkansas Supreme Court would follow the courts that have determined that
the involvement of a third party is required by the use of the term furnished to in the
definition of temporary worker. See AMCO, 2007 WL 313280, at *4 n.3; Nautilus,
2005 WL 664358, at *7.
We also believe that the structure of the temporary worker definition
unambiguously requires the involvement of a third party. If furnished to did not
require a third party to supply the temporary worker and any worker could furnish
himself or herself to an employer as Meeks and Harrell argue, then the term
furnished to would be meaningless. See AMCO, 2007 WL 313280, at *5.
Construction that neutralizes any provision of [an insurance] contract should never
be adopted if the contract can be construed to give effect to all provisions. Smith,
114 S.W.3d at 207. Under Meeks and Harrells interpretation, any worker who
substituted for a permanent employee on leave or who met seasonal demands or shortterm
workload conditions would satisfy the furnished to requirement. See AMCO,
2007 WL 313280, at *5. Such an interpretation of the temporary worker definition
would neutralize the term furnished to, and we predict that the Arkansas Supreme
Court would not adopt such a definition.
Furthermore, we disagree with Meeks and Harrells argument that the Policys
definition of leased worker creates ambiguity as to whether the term furnished to
requires the involvement of a third party in the furnishing of a temporary worker. The
Policys definition of leased worker specifically states that a leased worker must be
furnished by a labor leasing firm. Meeks and Harrell contend that if the Policy meant
to require another party to furnish a temporary worker, then the Policy would have
specified that the temporary worker be furnished by such a third party. However,
just because one provision of an insurance policy refers to third-party involvement
-11-
more explicitly than another provision of the same policy does not mean that thirdparty
involvement is excluded from the latter provision. Id. at *6. The distinction
merely shows that the provisions contemplate differing degrees of specificity. Id. It
does not eliminate the requirement that a temporary worker must still be furnished
by a third party. Therefore, we believe that the Arkansas Supreme Court would
determine that the term furnished to in the definition of temporary worker
requires that a third party furnish the temporary worker to the insured.
Next, we determine whether the term furnished to unambiguously applies
both to the clause to substitute for a permanent employee and to the clause to meet
seasonal or short-term workload conditions. If it only applied to the clause to
substitute for a permanent employee, the temporary worker definition would not
make grammatical sense. See Am. Family Mut. Ins. Co. v. Tickle, 99 S.W.3d 25, 30-
31 (Mo. Ct. App. 2003) (applying a grammatical analysis of the temporary worker
definition). As the American Family Mutual court reasoned, [t]he structure of the
sentence defining temporary worker indicates that the clause who is furnished to
you to substitute for a permanent employee on leave or to meet seasonal or short-term
workload conditions is a subordinate adjective clause modifying person. Id. at 30.
The phrases to substitute for a permanent employee on leave and to meet seasonal
or short-term workload conditions are parallel infinitive phrases that equally modify
the verb is furnished because they are separated by the word or. Id. at 30-31.
Reading the second clause without the term furnished to is grammatically
impossible. Id. at 31. Based on this sound grammatical analysis, we predict that the
Arkansas Supreme Court would find that the term furnished to applies to both to
substitute for a permanent employee on leave and to meet seasonal or short-term
workload conditions. Therefore, we reject Meeks and Harrells argument that Floyd
qualified as a temporary worker merely because he was hired as a seasonal driver.
Meeks and Harrell rely on Bituminous Casualty Corp. v. Mike Ross, Inc. in
support of their arguments. 413 F. Supp. 2d 740 (N.D. W. Va. 2006). The
4Meeks and Harrell also relied on American Family Mutual Insurance Co. v. As
One, Inc., 189 S.W.3d 194 (Mo. Ct. App. 2006). However, in a subsequent case, the
Missouri Supreme Court overruled this decision and found that the term furnished
to . . . is not ambiguous and necessarily implies that a third party has been involved
in providing or supplying the worker to the insured. Gavan, 242 S.W.3d at 721.
While Meeks and Harrell did not provide other case law to support their
position, we note that two other courts have found the term furnished to in the
definition of temporary worker to be ambiguous. See Nicks Brick Oven Pizza, Inc.
v. Excelsior Ins. Co., 853 N.Y.S.2d 870 (N.Y. Sup. Ct. 2008); Natl Indem. Co. v.
Landscape Mgmt., 963 So. 2d 361 (Fla. Dist. Ct. App. 2007).
-12-
Bituminous court held that furnished to was ambiguous and that it only applied to
the first part of the temporary worker definition, to substitute for a permanent
employee on leave, and not the second part of the definition, to meet seasonal
demands [or] short-term workload conditions. Bituminous, 413 F. Supp. 2d at 745.
However, the majority of courts that have reviewed this policy language in one or both
of these contexts have agreed with our conclusion. See, e.g., AMCO Ins. Co., 2007
WL 313280, at *4 ([A] worker is not furnished to an insured unless a third
partytypically a staffing agencyhas been involved in providing or supplying the
worker to the insured.); Gavan, 242 S.W.3d at 721; Gen. Agents Ins. Co. of Am., Inc.
v. Mandrill Corp., 243 Fed. Appx. 961, 967-68 (6th Cir. 2007) (unpublished) (opinion
of Kennedy, J.); Carls Italian Rest. v. Truck Ins. Exch., 183 P.3d 636, 639-40 (Colo.
Ct. App. 2007), cert. denied, No. 08SC23, 2008 WL 2008622 (Colo. May 12, 2008)
(en banc); Nautilus, 2005 WL 664358, at *6-7; Brown v. Ind. Ins. Co., 184 S.W.3d
528, 537-40 (Ky. 2005); Monticello Ins. Co. v. Dion, 836 N.E.2d 1112, 1115 (Mass.
App. Ct. 2005); Nationwide Mut. Ins. Co. v. Allen, 850 A.2d 1047, 1057 (Conn. App.
Ct. 2004); Am. Family Mut., 99 S.W.3d at 30-31.4
We believe that the Arkansas Supreme Court would find that the term
furnished to unambiguously requires that a third party furnish the temporary worker
-13-
to the insured. Accordingly, Floyd does not qualify as a temporary worker under the
Policy.
III. CONCLUSION
Because there were no genuine issues of material fact and because the district
court correctly determined that Floyd was Harrells employee and not a temporary
worker as defined by the Policy, we affirm the district courts grant of summary
judgment to Northland.
BRIGHT, Circuit Judge, concurring and dissenting in part.
The insured under this policy is being sued by the estate of his former
employee. The issue we must decide is whether the insurance policy contained a
provision that would cover the insured under Arkansas law. I concur with the
majority except as to whether there is insurance coverage to the truck owner, Rocky
Harrell, on the basis of Floyd Meekss status as a temporary employee. I conclude
that no exclusion applies to Harrells insurance policy regarding Meeks.
The truck owner and policyholder Harrell would not receive liability insurance
coverage if a regular employee operated the Harrell-owned truck in these
circumstances.
However, it is conceded that insurance coverage would apply if a third party
had furnished Harrell with a temporary driver-employee, but coverage would not
apply if Harrell himself hired a temporary driver-employee. Such a result is
anomalous and the distinction does not make sense.
If one reads the insurance policy carefully, one is struck by the ambiguity
contained in the pertinent policy language. The policy language is as follows:
-14-
Temporary worker means a person who is furnished to you to
substitute for a permanent employee on leave or to meet seasonal or
short-term workload conditions. (Emphasis added).
The focus is on the language following the first or. This provision may be
read so that:
Temporary worker means a person who is furnished to you to
substitute for a permanent employee on leave or [furnished] to meet
seasonal or short-term workload conditions.
Alternatively, this provision may be read so that:
Temporary worker means a person to meet seasonal or short-term
workload conditions.
When one examines this temporary worker provision, one is struck by the uncertainty
of its meaning.
The majority applies Missouri and majority law to read furnish to as
unambiguous, requiring a third party to furnish a substitute for a permanent employee
5Gen. Agents Ins. Co. of Am. v. Mandrill Corp., 243 Fed. Appx. 961, 967-68 (6th
Cir. 2007) (unpublished) (opinion of Kennedy, J.); AMCO Ins. Co. v. Dorpinghaus,
No. 05-1296, 2007 WL 313280, at *15 (D.Minn. Jan. 12, 2007); Nautilus Ins. Co. v.
Gardner, No. 04-1858, 2005 WL 664358, at *7 (E.D. Pa. Mar. 21, 2005); Gavan v.
Bituminous Cas. Corp., 242 S.W.3d 718, 721 (Mo. 2008) (en banc); Carls Italian
Rest. v. Truck Ins. Exch., 183 P.3d 636, 639-40 (Colo. Ct. App. 2007), cert denied,
No. 08SC23, 2008 WL 2008622 (Colo. May 12, 2008) (en banc); Brown v. Ind. Ins.
Co., 184 S.W.3d 528, 537-40 (Ky. 2005); Monticello Ins. Co. v. Dion, 836 N.E.2d
1112, 1115 (Mass. App. Ct. 2005); Nationwide Mut. Ins. Co. v. Allen, 850 A.2d 1047,
1057 (Conn. App. Ct. 2004).
6Bituminous Cas. Corp. v. Ross, 413 F. Supp. 2d 740, 744-45 (N.D. W. Va.
2006); Nicks Brick Oven Pizza, Inc. v. Excelsior Ins. Co., 853 N.Y.S.2d 870, 873
(N.Y. Sup. Ct. 2008); Natl Indem. Co. of South v. Landscape Mgmt. Co., 963 So. 2d
361, 364 (Fla. Dist. Ct. App. 2007).
-15-
and to furnish a temporary employee.5 However, other judges have read the provision
differently.6
It is the insurance company that should make its language clear, and if it does
not do so, it must suffer the consequences of its ambiguous language. Reasonable
judges, as well as reasonable persons, may read the temporary worker clause
differently, some to require third party involvement and some not to require such third
party action. This is sufficient for me to dissent from todays ruling.
______________________________
 

 
 
 

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