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Davenport v. D&L Construction & Solid Walls, LLC

Superior Court of Delaware, Sussex

October 27, 2014

Henry R. Davenport
D&L Construction & Solid Walls, LLC,

Submitted: July 2, 2014

Dear Counsel:

Before the Court is the appeal of Claimant Henry R. Davenport ("Claimant") of a decision rendered against him and in favor of D&L Construction, LLC ("D&L") and Solid Walls, LLC ("Solid Walls") by the Industrial Accident Board (the "Board") regarding Claimant's separately filed Petitions to Determine Compensation Due. For the reasons explained below, the Board's decision is AFFIRMED.

Facts & Procedural Background

During the relevant time period, Claimant was employed by D&L. On the date of Claimant's injury, D&L was a sub-contractor to Solid Walls, a general contractor. Solid Walls maintains workers' compensation insurance, but did not receive a certificate of insurance from D&L regarding Claimant. At the time of Claimant's injury, D&L did not have workers' compensation insurance.

D&L is a construction company specializing in framing and carpentry. The company consisted of the members of the Miller family: David Miller ("Mr. Miller"), his three brothers, and his son. Mr. Miller hired Claimant to drive the D&L crew members to their various job sites, as their Amish faith prohibited them from owning or operating a motor vehicle. About a year before Claimant's accident, D&L's previous driver had quit, and Claimant was hired after he approached Mr. Miller about the job.

Throughout his employment with D&L, Claimant worked five days a week and, along with his co-workers, was paid on Fridays. Claimant was paid $60 per day for driving D&L's crew in Kent County, Delaware, and $70 per day for driving D&L's crew to Sussex County, Delaware. Claimant's pay rate was determined by D&L. D&L provided Claimant an Internal Revenue Service 1099 Form for his 2011 tax returns. Claimant considered himself to be an employee of D&L, rather than an independent contractor.

D&L provided the truck that Claimant used to transport the D&L crew members and their work materials. However, because of the Millers' religion, the truck was owned by D&L's former driver. Throughout his time with D&L, Claimant kept the truck at his residence. D&L paid for the its insurance, gas, and maintenance.

On days when D&L was to perform work, D&L would instruct Claimant the night before as to the job's location and the time Claimant was to pick up the crew members. In the morning, D&L would provide Claimant with directions to the location if Claimant was unaware of how to find it. D&L would also instruct Claimant as to when to pick the crew up at the end of the workday. Sometimes in the morning, Claimant helped load the truck when he picked up the crew.

Once at the job, on at least one occasion, Claimant would help unload the truck or its trailer. Also, he would help reload the trailer and clean the site of trash and lumber at the end of the work day. On one instance, he was asked to pick up trash because "[t]he sooner we get this cleaned up, the sooner we can go home."[1]However, according to Claimant, he was not being paid for this task and so he stopped performing it.

According to Claimant, he needed D&L's permission to leave a job site during the workday, and if he left, he would be told what time to return.[2] Sometimes, he was instructed not to leave the site. On one occasion, he was told that the crew would not be there too long because of rain. On another, he was told to stay put because trusses were being delivered, but if they were not delivered on time, the crew would leave. Sometimes, he was told to not go anywhere because Mr. Miller wanted Claimant to take him to run errands. One time at a job site, Claimant was asked to go pick up materials. On another occasion, he was asked to leave the site and go pick up lumber. When he returned with the lumber, the crew was busy. Therefore, Claimant asked if he could unload lumber, which he did. Sporadically, Claimant was asked to leave a job site to go pick up another person. According to Claimant, he would be sent out on errands for D&L "[e]very now and then."[3]

On one occasion, Claimant helped the D&L crew with trusses. According to Claimant, he saw a D&L crew member in need of assistance with the trusses. Therefore, he went over and helped. Mr. Miller testified, however, that after he observed what Claimant was doing, Mr. Miller stopped Claimant and told him not to provide assistance because Claimant was not a member of D&L and Claimant's assistance could be problematic.[4]

Because Claimant generally was not required to stay on the job site, he would sometimes run his own personal errands, sleep in the truck, or do his own handy-man work for his own customers. Throughout his time with D&L, Claimant was a licensed general contractor with his own "little contracting business."[5] However, he did not drive for anyone other than D&L. He also would not use the D&L truck for purposes unrelated to D&L's business without D&L's permission. Sometimes, when Claimant would leave the job site, he would run errands for D&L on his way back.

Occasionally, members of the D&L crew would ask Claimant to fix things, which he would do. Also, according to Claimant, he helped put up walls "several times."[6] One time, on the ride home from a job site, Claimant was told to get a haircut, which he did.

According to Mr. Miller, Claimant was not expected to or asked to be involved in framing work. Mr. Miller also stated that Claimant wanted to help the D&L crew members, but Mr. Miller told him that he could not because he was not a member of D&L. Mr. Miller told Claimant he would be paid by check, although, according to Mr. Miller, Claimant wanted to be paid "[u]nder the table."[7]

On the day of Claimant's injury, May 10, 2012, D&L was providing the framework on an individual house in Blades, Sussex County. Solid Walls was the general contractor. As the D&L crew worked, Claimant sat in a windowsill. He then noticed that a D&L worker needed assistance moving a piece of framed wall into place. Claimant got up and walked toward the framed wall to hold it for the D&L worker. As he walked over, Claimant fell through plywood which had been cut in the floor, sustaining injury.

Prior to a hearing on Claimant's Petitions, D&L requested a legal hearing before the Board to determine if Claimant was an employee or an independent contractor. The Board rendered a decision, finding that Claimant was an independent contractor, and thus ineligible to receive workers' compensation benefits. Claimant appealed to this Court, which reversed and remanded the Board's decision on the grounds that the Board, at the legal hearing, improperly placed the burden of proof on Claimant, as the ...

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