12/18/2019 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE May 22, 2019 Session

JIMMY WAYNE HELTON v. EARL LAWSON

Appeal from the Circuit Court for Hawkins County No. CC17CV150 Beth Boniface, Judge ___________________________________

No. E2018-02119-COA-R3-CV ___________________________________

The plaintiff sued the defendant for negligence after he was injured in a construction accident on the defendant’s property. The defendant claimed that he was not the employer of the plaintiff. Following a trial, the jury returned a verdict in favor of the defendant and awarded the plaintiff no damages. The plaintiff appeals. We reverse the jury’s verdict only as to damages.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in part; Affirmed in part; Case Remanded

JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL SWINEY, C.J., and ARNOLD B. GOLDIN, J., joined.

Jimmy Wayne Helton, pro se.

Earl Lawson, pro se.

OPINION

I. BACKGROUND

In the fall of 2012, local “handyman” Gene Housewright was planning to help the defendant, Earl Lawson, construct a house. The plaintiff, Jimmy Wayne Helton, contacted Housewright seeking employment.^[1] According to Helton, Housewright informed him that Lawson was going to build his own home and would need laborers for continuance of the failure, the employer shall be liable to an injured employee . . . for damages to be recovered as if this chapter had not been enacted . . . ; and in the case suit for damages is brought instead of a suit to recover compensation under this chapter, the employer, when sued, shall not be allowed to set up as defense to the action that the employee was negligent or that the injury was caused by negligence of a fellow servant or fellow employee, or that the employee had assumed the risk of injury.^[2]

Helton thus contended that Lawson was not allowed to set up the defense that Helton was negligent, as the statute’s terms negate any comparative fault defense. He further argued that Lawson could not “pawn” the accident off on a supervisory employee (Housewright), as Lawson would be precluded from raising the defense that the injury was “caused by negligence of a fellow servant or fellow employee.”

In response, Lawson asserted reliance on Tennessee Code Annotated section 50-6- 106(1)(B)(2) relating to exemption of “casual employees”3 from the provisions of the Workers’ Compensation Act, and sections 50-6-902(b)(4) and (b)(5), exempting from coverage a construction services provider4 who is either performing work directly for the owner of the property or is employed to provide services, maintenance, or improvements on the construction services provider’s own property. Helton replied that the test of casual employment is whether the employee is employed in the usual course of trade, business, profession or occupation of the employer, and that the period of time the employee is employed is immaterial to this test (emphasis added). He argued that Lawson had admitted that he was in the construction business, negating the “casual employee” defense. Thus, contended Helton, Lawson could not rely on Tennessee Code Annotated section 50-6-102(1)(B)(2).

As to section 50-6-902(b)(4), Helton argued that it applied only to those who totally subcontract out work on their own property and he asserted that there was no allegation that Lawson did not supervise the work of Helton and the others. Helton further contended that Lawson affirmed in the permit that he was the principal contractor on the job, negating the section 50-6-902(b)(4) exemption. As to section 50-6-902(b)(5), Helton asserted that a construction services provider like Lawson would be exempt from compliance with the terms and provisions of the Workers’ Compensation Act if he himself was “building a dwelling or other structure, or performing maintenance, repairs, or making additions to structures, on the construction service provider’s own property,” but that the exemption was inapplicable because Lawson was not building the house for himself and had sold the home.

Lawson admitted that he carried no certificate of compliance or any workers’ compensation insurance on the date of the accident. He contended, however, that summary judgment was inappropriate because there was a disputable issue of material fact as to who served as Helton’s employer. Lawson relied on an affidavit in which Housewright maintained that it was he who had hired Helton and that “[a]t all times any individual who worked on the home at issue worked for me at my direction and did what I told them by way of their work efforts.”5

The trial court ruled that summary judgment was not appropriate because Helton’s employment status was in dispute. The jury trial came to be heard on July 2, 2018.

At trial, Lawson again acknowledged that he did not have workers’ compensation insurance. Lawson contended that because the non-party Housewright was Helton’s employer, Housewright would be at fault and responsible for any injuries Helton could prove.

Lawson admitted that the project’s accounts were in his name, that the invoices for materials bore his name, that he paid the bills, and that he basically controlled the operation. He acknowledged that he secured the building permit in his name, affirming on the form the following: “I am a record owner of the property on which the work is to be performed and this residential structure is for my own individual use and is not for sale, lease or rent . . . .”; “I will perform all work for which the building permit was issued . . . and agree to ensure anyone hired must show proof of license . . . .”; “I am not hiring a construction manager to oversee the project[,]”; and “[S]hould I cease to act as the owner-builder of the project, and hire a contractor to complete the project, . . . the contractor will apply for a new permit.” In essence, by obtaining the building permit in his name, Lawson agreed that he would be acting as his own “general contractor” or “prime contractor” on the project.^[6] Despite signing an acknowledgment that he had “read the important notices document and understand the requirements and responsibilities that accompany a Homeowner’s Permit and that I have truthfully completed this application,” Lawson testified that he did not read the notices on the building permit application; rather, he just marked what “[t]he lady told me to mark – to answer these questions and sign here.” Lawson asserted that he did not understand that his answers on the permit meant that he “couldn’t hire people to help . . . work on that home or get Gene to run the job or anything like that.” He stated that he had built other buildings and had never secured a permit.^[7]

Lawson testified that he did not witness Helton’s fall, but when he arrived, Helton declared to him that the injury was just an ankle sprain. Lawson claimed that he was not involved in any way with the bracing and did not provide any equipment or tools. He asserted that the bracing was hand built by Housewright, who, with the help of another worker, assembled it to “screw it to the house for the board [a piece of aluminum] to sit on.” Lawson did comment that perhaps the bracing did not collapse but rather that Helton was under the influence of marijuana or alcohol, or a combination of the two, when he fell. Suggestions that drug use was an issue, were made throughout the trial, by the defense but, no proof of Helton’s impairment was established. Another witness, the worker who was handing the vinyl up to Helton, opined that Helton was not impaired and was able to do his job.

527, 539 (Tenn. 1995). A general contractor is normally responsible for obtaining the necessary construction permits and for hiring and supervising the work of the subcontractors on the project. Winter, 914 S.W.2d at 539-40. A contractor is defined in section 62-6-102(2) as one who engages in “contracting.” Contracting, according to section 62-6-102(1)(A), includes only those construction activities undertaken “for a fixed price, fee, commission, or gain of whatever nature.” Winter, 914 S.W.2d at 540. While many of the responsibilities that Lawson took on during the construction would normally be a general contractor’s responsibilities, the mere fact that he assumed the responsibilities does not transform an owner into a “contractor.” Id. at 539- 40.

Lawson related that he did not know Helton before the work on the house; rather, according to Lawson, Housewright hired Helton to work for him. Lawson declared that he did not instruct Housewright to hire other workers for the project, but Housewright secured other individuals to work with him. Lawson claimed that he had no control over the laborers – he did not hire or fire any of them nor did he schedule the work hours. Lawson stated that he paid Housewright in cash and was unaware of how Housewright paid the workers. Lawson acknowledged that Housewright never purchased anything with his own money.

Housewright testified that he “was working on [Lawson’s house] with a couple of boys that work with me.” He stated that he hired Helton upon the suggestion of the electrician, Helton’s brother. According to Housewright, Helton “’worked for me,’ and I ‘was his boss and/or supervisor.’ I was the one building the house. [Lawson] paid us, but [Helton] worked for me.” Housewright claimed to be “the prime contractor on th[e] house” and was “overseeing the project.” He testified that Lawson designed the house, “drawed the prints out and told . . . what he wanted,” and “[h]e’d come over there after work of the evening and say if it was all right or not all right.” According to Housewright, Lawson paid for everything. In an affidavit, Housewright maintained that he was hired by Lawson to construct the house and that it was his choice who to hire as laborers. He stated that “[a]t all times any individual who worked on the home at issue worked for me at my direction and did what I told them by way of their work efforts.” Housewright claimed that “[a]t no time did I ever tell anyone working for me that they worked for anyone other than me,” nor “did I ever tell anyone that they would be working for Earl Lawson.” He observed that Lawson “had no knowledge” of Helton being hired and probably “did not even know” Helton. As to the bracing, Housewright claimed that Helton helped construct it, and if it was improperly built, it was due to Helton’s own negligence. Housewright claimed to be unaware that he lacked the authority to construct a building exceeding $25,000 in value because he was not a licensed contractor. He acknowledged that he smoked two joints of marijuana with Helton the day of the accident before work started.

Helton claimed that Housewright informed the workers that while on Lawson’s property, they worked for Lawson. He noted at trial as follows:

I thought I worked for [Lawson] because [Housewright] introduced me to [him] and told him I was there to help [him] build his house. We shook hands. We went to work. Just because I’d been in around the business for many years, I knew that [Lawson] was the employer, and I knew that he had to have the building permit because it was his property and there was no licensed contractor on the property. It had to be [Lawson].”

According to Helton, Housewright located the experienced workers for the construction of the house for Lawson and served as a supervisor to Lawson on the build. He observed that Housewright would total the hours worked by the workers, and Lawson paid them in cash. Helton acknowledged that Housewright assembled the bracing that failed to support the platform. On appeal, he contends that the bracing was present that morning when he arrived and that Lawson purchased the materials. He asserts that incorrect anchors (screws) were purchased, delivered, and supplied by Lawson for use on the structure. Overall, he claimed Lawson is liable because “it is his job, his property, his job site. He is liable and responsible for his people.”

According to Helton, on the day of the accident, he was not under the influence of anything at 9:30 in the morning. He contended that he did not see Housewright smoking marijuana at the job site. Helton testified that the last time he had water skied or used a waterboard was about six years before the accident. He acknowledged that he had suffered falls since the accident because his right ankle will not hold up his weight and his left leg will not “work right” and will “quit working for no reason at all and [with] no warning . . . .” His girlfriend testified that she had witnessed him falling several times. Helton asserted that prior to the accident, he had no problems with his back, neck, or leg, but now every day is a struggle. A physician’s testimony confirmed Helton’s injuries and observed that Helton had difficulty walking.

After the jury trial, Helton was found to be an employee of the non-party Housewright, 30 percent at fault for his injuries, and entitled to no damages. Housewright was found to be 60% at fault and Lawson 10%.

Helton filed a “Motion for Re-Trial,” asserting that the jury did not appear to comprehend their responsibilities pursuant to the jury instructions. He contended that because Housewright was not a licensed contractor and could not obtain a building permit on the project, Lawson should be considered the employer of anyone working on the property – Housewright as well as Helton. According to Helton, pursuant to the building permit, Lawson assumed all responsibility on the project. After the trial court denied the motion for a new trial, Helton filed a timely appeal.

II. ISSUES Helton contends that the jury verdict was contrary to the weight of the evidence presented at trial. Helton argues that Lawson, as the permit holder, was responsible for the safety of the persons working on the home. According to Helton, the individual absolutely liable for his injuries was Lawson.

III. STANDARD OF REVIEW

Rule 13(d) of the Tennessee Rules of Appellate Procedure narrowly limits the role of appellate courts in reviewing the factual findings of a jury. Duran v. Hyundai Motor Am., Inc., 271 S.W.3d 178, 204 (Tenn. Ct. App. 2013). “Findings of fact by a jury in civil actions shall be set aside only if there is no material evidence to support the verdict.” Tenn. R. App. P. 13(d); Goodale v. Langenberg, 243 S.W.3d 575, 583 (Tenn. Ct. App. 2007). “Material evidence is ‘evidence material to the question in controversy, which must necessarily enter into the consideration of the controversy and by itself, or in connection with the other evidence, be determinative of the case.’” Meals ex rel. Meals v. Ford Motor Co., 417 S.W.3d 414, 422 (Tenn. 2013) (quoting Knoxville Traction Co. v. Brown, 89 S.W. 319, 321 (Tenn. 1905)). Material facts may be proven “by direct or circumstantial evidence or a combination of both.” State v. Phillips, 138 S.W.3d 224, 230 (Tenn. Ct. App. 2003) (citations omitted). Testimony alone may be sufficient to establish a material fact. See Strickland v. City of Lawrenceburg, 611 S.W.2d 832, 835 (Tenn. Ct. App. 1980) (finding testimony was material evidence to support the jury’s verdict); Henley v. Amacher, No. M1999-02799-COA-R3-CV, 2002 WL 100402, at[*13] (Tenn. Ct. App. Jan. 28, 2002) (“[T]he surgeon’s testimony provides the material evidence needed to sustain the jury’s determination that the June 28, 1995 wreck left Mr. Henley permanently impaired.”). When determining whether there is material evidence to support a jury verdict, we must “take the strongest legitimate view of all the evidence in favor of the verdict, assume the truth of all evidence that supports the verdict, allow all reasonable inferences to sustain the verdict, and discard all countervailing evidence.” Barkes v. River Park Hosp., Inc., 328 S.W.3d 829, 833 (Tenn. 2010) (quoting Whaley v. Perkins, 197 S.W.3d 665, 671 (Tenn. 2006)).

When reviewing a jury’s verdict, we “do not recalibrate the jury’s preponderance of the evidence assessment” or reevaluate credibility determinations. Ferguson v. Middle Tennessee State Univ., 451 S.W.3d 375, 380 (Tenn. 2014). Accordingly, “[w]here there is material evidence to support the verdict, the judgment will be affirmed even though the testimony of one or more witnesses supports a contrary verdict.” Higgins v. Channel Five Television Co., No. 89-127-II, 1989 WL 115217, at *1 (Tenn. Ct. App. Oct. ^[4], 1989) (citing City of Chattanooga v. Ballew, 354 S.W.2d 806 (Tenn. Ct. App. 1961); Tenn. R. App. P. Rule 13(d)).

IV. DISCUSSION

Workers’ Compensation8

The purpose of the Workers’ Compensation Law is to provide a reliable and equitable remedy to workers who are injured on the job, while limiting the liability to which the employer is exposed. See Clanton v. Cain-Sloan Co., 677 S.W.2d 441, 443 (Tenn. 1984); Sasser v. Averitt Express, 839 S.W.2d 422, 429 (Tenn. Ct. App. 1992). Tennessee Code Annotated section 50-6-101, et seq. The law requires employers to compensate employees for injuries arising out of and occurring in the course of employment. Tenn. Code Ann. § 50-6-103. Employers and employees in Tennessee subject to the Workers’ Compensation Law “shall, respectively, pay and accept compensation for personal injury or death by accident arising out of and in the course of employment without regard to fault as a cause of the injury or death[.]” Tenn. Code Ann. § 50-6-103(a)(2008).9 An injury must arise “primarily out of and in the course and scope of employment that causes . . . the need for medical treatment.” Tenn. Code Ann. § 50-6- 102(14). An injury arises out of employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. Fritts v. Safety Nat’l Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005).

Generally, only employers with five or more employees are required to provide workers’ compensation coverage for their employees. Tenn. Code Ann. § 50-6-106(5). However, this limitation does not apply to the construction industry, “perhaps because of the dangers arising in many construction trades and because many small contractors employ fewer than five workers. CNA (Continental Cas.) v. King, No. M2004-02911- COA-R3-CV, 2006 WL 2792159, at *4 (Tenn. Ct. App. 2006). See Tenn. Code Ann. § 50-6-102(11); Tenn. Code Ann. § 50-6-902.

As noted in CNA (Continental Cas.), Tennessee Code Annotated [section] 50-6-113(f)(1)10 provides that “any person engaged in the construction industry, including principal contractors, intermediate contractors, or subcontractors,11 shall be required to carry workers’ compensation insurance. This requirement shall apply whether or not the person employs fewer than five (5) employees. Sole proprietors and partners shall not be required to carry workers’ compensation insurance on themselves. . . .”

Id.(emphasis added).

Tennessee Code Annotated section 50-6-901, et seq. applies to the construction industry.

Any person engaged in construction is required to carry workers’ compensation insurance regardless of whether the provider employs fewer than five employees. Tenn. Code Ann. § 50-6-902(a). The statutory provision provides as follows:

(a) Except as provided in subsection (b), all construction services providers shall be required to carry workers' compensation insurance on themselves. The requirement set out in this subsection (a) shall apply whether or not the provider employs fewer than five (5) employees.

(b) To the extent there is no restriction on applying for an exemption pursuant to § 50-6-903, a construction services provider shall be exempt from subsection (a) if the provider:

…

(4) Is a construction services provider performing work directly for the owner of the property; provided, however, that this subdivision (b)(4) shall not apply to a construction services provider who acts as a general or intermediate contractor and who subsequently subcontracts any of the work contracted to be performed on behalf of the owner;