WILLIAM C. BREWER, APPELLANT,
v.
LOUIS CUETO AND NELLIE CUETO, D/B/A MAGNOLIA CORNER AND THE RETREAT, AND EMPLOYERS INSURANCE OF WAUSAU, APPELLEES
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The court reversed the Industrial Claims Judge's determination that Brewer was an independent contractor, holding that Brewer was a day laborer entitled to workers' compensation benefits because the Cuetos retained absolute control over the relationship, including the unilateral right to terminate without liability.
An individual hired on a day-to-day basis with no contract for a specific project, supplied materials and tools by the employer, paid daily, and subject to unilateral termination without liability is a day laborer, not an independent contractor, under the control test.
[1] The determination whether an individual is an independent contractor or an employee ultimately turns on the employer's power to control the worker, and an employer's abso…
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Join FLexlaw to unlock all legal intelligence“Such power ... is indisputably an evidential element which tends strongly to show the person employed is not an independent contractor.”
Citing Larson, Law of Workmen's Compensation, § 44.35, regarding the significance of the employer's power to control in determining independent contractor status.
Brewer was injured while painting a multi-storied building the Cuetos intended to use as a rooming house. The Cuetos denied liability and asserted Bre…
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PER CURIAM.
Brewer appeals an order of the Judge of Industrial Claims, finding him to be an independent contractor not entitled to benefits under the Florida Workmen’s Compensation Act. He was injured while painting a multi-storied building which the Cue-tos intended to use as a rooming house. The Cuetos denied liability, asserting Brewer to be an independent contractor. Brewer alleged that he was a day laborer, and we agree. There was no contract between the parties for the completion of a specific project; the materials and tools were supplied by the Cuetos; Brewer was paid at the end of each day; and, most important, the Cuetos had the absolute right to terminate their relationship without liability. That is, Brewer could not come back and force a right to complete the job; such a right did not exist. As we stated in Lindsey v. Willis, 101 So. 2d 422 (Fla. 1st DCA 1958), whether or not an individual is an independent contractor ultimately turns on the power to control. There, we cited with favor Larson, Law of Workmen’s Compensation, § 44.35, which states in part:
“Such power ... is indisputably an evidential element which tends strongly to show the person employed is not an independent contractor.”
See also 41 Am.Jur.2d 743, § 5, “Independent Contractors, Indicia of Relationship.”
REVERSED.
MILLS, C. J., and McCORD, J., concur. BOOTH, J., dissents with an opinion.
BOOTH, Judge,
dissenting.
I dissent from this court’s retention of jurisdiction in this case, which arose outside the territorial jurisdiction of the court. See Crews v. Town of Bay Harbor, 378 So. 2d 1265 (Fla. 1st DCA 1979).
On the merits, I would concur in the majority’s opinion.
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Pearson v. Harris, 449 So. 2d 339 (Fla. 1st DCA 1984)…-employee, or contractee-indepen-dent contractor, under both the workers’ compensation law and under the common law, are virtually identical. See, Florida Industrial Commission v. Schoenberg, 117 So. 2d 538 (Fla.1960). As we said in Brewer v. Cueto, 379 So. 2d 1322, 1323 (Fla. 1st DCA 1980), cert. den. 388 So. 2d 1111 (Fla. 1980), whether or not an individual is an independent contractor “ultimately turns on the power to control.” See, also, Orcutt v. Environmental Technologists, 432 So. 2d 701 (Fla. 1st DCA 1…
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Bill Rivers Trailers, Inc. v. Miller, 489 So. 2d 1139 (Fla. 1st DCA 1986)…e control of the servant’s conduct.” Pearson v. Harris, 449 So. 2d 339, 342 (Fla. 1st DCA 1984). Ultimately, a determination that an individual is or is not an independent contractor “turns on the power to control.” Pearson, quoting Brewer v. Cueto, 379 So. 2d 1322, 1323 (Fla. 1st DCA 1980), cert. denied 388 So. 2d 1111 (Fla.1980). After a careful review of the record and consideration of the elements involved in determining independent contractor or employee status, we conclude that there was no error in the…
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Fanny Hammel v. Pittman, 389 So. 2d 1220 (Fla. 1st DCA 1980)…ppel-lee’s employment, the type of labor performed, and Hammel’s ability to fire appel-lee without liability, justify the finding of an employer-employee relationship versus an independent contractor relationship. Cantor v. Cochran; Brewer v. Cueto, 379 So. 2d 1322 (Fla. 1st DCA 1980). Although the deputy properly concluded that appellee was an employee of Hammel, this does not settle the issue of whether Century Village East, Inc. was liable to appellee for workers’ compensation benefits. The evidence revea…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Emerson Crews v. Town OF BAY Harbor Islands & Metro. Dade Cnty. Self Ins. Fund, 378 So. 2d 1265 (Fla. 1st DCA 1979)
- Lindsey v. Willis, 101 So. 2d 422 (Fla. 1st DCA 1958)