Lassiter v. Robeson Cnty. Sheriff's Dep't

                IN THE COURT OF APPEALS OF NORTH CAROLINA

                                        No. COA23-267

                                   Filed 19 December 2023

North Carolina Industrial Commission, IC No. 19-720164

STEPHEN MATTHEW LASSITER, Employee, Plaintiff,

               v.

ROBESON COUNTY SHERIFF’S DEPARTMENT, Alleged-Employer, SYNERGY
COVERAGE SOLUTIONS, Alleged-Carrier, TRUESDELL CORPORATION,
Alleged-Employer, THE PHOENIX INSURANCE CO., Alleged-Carrier, Defendants.


        Appeal by Defendants from opinion and award entered 17 November 2022 by

the North Carolina Industrial Commission. Heard in the Court of Appeals 23 August

2023.


        Musselwhite Musselwhite Branch & Grantham, by Stephen C. McIntyre, for
        Plaintiff-Appellee.

        Goldberg Segalla LLP, by Gregory S. Horner and Allegra A. Sinclair, for
        Defendant-Appellants Robeson County Sheriff’s Department and Synergy
        Coverage Solutions.

        Hedrick Gardner Kincheloe & Garofalo LLP, by M. Duane Jones, Neil P.
        Andrews, and Brennan C. Cumalander, for Defendant-Appellees Truesdell
        Corporation and The Phoenix Insurance Co.


        GRIFFIN, Judge.


        Defendant Robeson County Sheriff’s Office1 and Synergy Coverage Solutions




        1 Though the caption on appeal from the Industrial Commission references the party as the

“Department,” we use Robeson County Sheriff’s “Office” throughout.
                     LASSITER V. ROBESON CNTY. SHERIFF’S DEP’T

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(collectively, “RCSO”) appeal from an opinion and award of the Full Commission of

the North Carolina Industrial Commission awarding Plaintiff, Stephen Matthew

Lassiter, ongoing medical expenses, to be paid solely by RCSO; and dismissing

Defendant-Appellees, Truesdell Corporation and The Phoenix Insurance Company

(collectively, “Truesdell”). RCSO argues the Full Commission erred in concluding

Plaintiff was an employee of RCSO at the time of his injury, or in the alternative, the

Full Commission erred in concluding Plaintiff was not jointly employed by both RCSO

and Truesdell at the time of his injury. We hold Plaintiff was jointly employed by

RCSO and Truesdell at the time of his injury making both RCSO and Truesdell jointly

liable for Plaintiff’s workers’ compensation.

                     I.   Factual and Procedural History

      On 5 October 2017, Truesdell contracted with the North Carolina Department

of Transportation (“NCDOT”) to perform bridge preservation work along Interstate

95 in Cumberland and Robeson Counties. Within the contract, NCDOT required

Truesdell to have law enforcement officers on scene, with blue lights activated, to

direct traffic in accordance with an independently created traffic control plan.

Pursuant to a referral by NCDOT, Truesdell engaged Captain Obershea of RCSO and

Chief Edwards of Fairmont Police Department to secure law enforcement officers to

perform the required traffic control work.

      On 28 March 2019, upon reviewing the proposed traffic control plan, Captain

Obershea and Chief Edwards agreed they would need additional officers to carry out

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the plan. After NCDOT and Truesdell signed off on their request for additional

officers, Captain Obershea contacted Plaintiff, a deputy with the Robeson County

Sheriff’s Office, to inform him of the work opportunity. Plaintiff, who was off duty at

the time, accepted.

      Plaintiff reported to his designated position in his unmarked patrol car and

began performing his assigned duties. At around 12:00 a.m., Captain Obershea

directed Plaintiff to switch positions with him. Sometime after moving to Captain

Obershea’s position, Plaintiff was struck by a vehicle and sustained injuries to his

head, arms, hands, and legs. Due to the severity of injuries, Plaintiff was airlifted to

a hospital in Florence, South Carolina. Plaintiff underwent extensive treatment and

two subsequent surgeries.

      On 15 April 2019, Plaintiff, in seeking workers’ compensation, filed a Form 18

notice of accident to employer, listing both RCSO and Truesdell as his employers at

the time of injury. Both RCSO and Truesdell denied the existence of employment.

Plaintiff filed a Form 33 request for hearing.

      On 12 July 2021, subsequent to a hearing on the matter, Deputy Commissioner

Peaslee entered an opinion and award, concluding Plaintiff was employed by RCSO

at the time of his injury, but that no employment relationship existed between

Plaintiff and Truesdell. Deputy Commissioner Peaslee dismissed Truesdell from the

claim. On 19 July 2021, RCSO appealed to the Full Commission. On 17 November

2022, the Full Commission entered its opinion and award affirming the Deputy

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Commissioner’s conclusions.

      On 12 December 2022, RCSO timely filed notice of appeal to this Court.

                            II.   Standard of Review

      Ordinarily, we review an opinion and award of the Industrial Commission to

determine “[1] whether the Commission’s findings of fact are supported by competent

evidence, and [2] whether its conclusions of law are supported by its findings of fact.”

Tanner v. State Dep’t of Correction, 

, 

 (1973)

(citations omitted). Where, however, an appeal concerns issues of jurisdiction, “the

jurisdictional facts found by the Commission, though supported by competent

evidence, are not binding on this Court and we are required to make independent

findings with respect to jurisdictional facts.” Williams v. ARL, Inc., 

, 

 (1999) (citation and internal quotation marks omitted).

Notably, “[t]he issue of whether an employer-employee relationship existed at the

time of [an] injury . . . is a jurisdictional fact.” Morales-Rodriguez v. Carolina Quality

Exteriors, Inc., 

, 

 (2010) (citation omitted).

Thus, this Court reviews issues as to whether an employment relationship existed

between the parties de novo. Whicker v. Compass Group USA, Inc., 

, 795–96, 

 (2016) (citation omitted).

                                  III.   Analysis

      Our appellate courts have yet to address whether a law enforcement officer,

working off duty as a traffic control officer, is an independent contractor excluded

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from coverage under the Workers’ Compensation Act; or whether he is to be

considered an employee of the law enforcement agency for which he is primarily

employed, an employee of the private corporation for which he is providing traffic

control services, or a joint employee of both.

      RCSO specifically argues the Full Commission erred in concluding Plaintiff

was an employee of RCSO, rather than working as an independent contractor, at the

time of his injury. In the alternative, RCSO argues the Full Commission erred in

concluding Plaintiff was solely employed by RCSO as he was jointly employed by both

RCSO and Truesdell at the time of his injury.

A. Employer-Employee or Employer-Independent Contractor

      We first determine whether Plaintiff was acting as an independent contractor

at the time of his injury.

      In order to recover under our Workers’ Compensation Act, “the claimant must

be, in fact and in law, an employee of the party from whom compensation is claimed[,]”

and must have been in an employer-employee relationship with that party at the time

of their injury. Fagundes v. Ammons Dev. Grp., Inc., 

, 

 (2018) (citations and internal quotation marks omitted).

Independent contractors are not entitled to compensation under the Workers’

Compensation Act. See Youngblood v. North State Ford Truck Sales, 

, 

 (1988) (“An independent contractor is not a person included

within the terms of the Workers’ Compensation Act, and the Industrial Commission

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has no jurisdiction to apply the Act to a person who is not subject to its provisions.”

(citation omitted)). An independent contractor is an individual “who exercises an

independent employment and contracts to do certain work according to his own

judgment and method, without being subject to his employer except as to the result

of his work.” 

, 

 (citations omitted). Conversely, “an

employer-employee relationship exists ‘[w]here the party for whom the work is being

done retains the right to control and direct the manner in which the details of the

work are to be executed.’” McCown v. Hines, 

, 687–88, 

 (2001) (quoting Youngblood, 

, 

). Our Supreme

Court in Hayes v. Board of Trustees identified eight factors to consider when

determining whether an individual is an independent contractor or an employee:

             The person employed [1] is engaged in an independent
             business, calling, or occupation; [2] is to have the
             independent use of his special skill, knowledge, or training
             in the execution of the work; [3] is doing a specified piece of
             work at a fixed price or for a lump sum or upon a
             quantitative basis; [4] is not subject to discharge because
             he adopts one method of doing the work rather than
             another; [5] is not in the regular employ of the other
             contracting party; [6] is free to use such assistants as he
             may think proper; [7] has full control over such assistants;
             and [8] selects his own time.

Hayes v. Board of Trustees, 

, 

 (1944) (citations

omitted). These factors are not independently determinative and must be “considered

along with all other circumstances to determine whether in fact there exists in the

one employed that degree of independence necessary to require his classification as

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independent contractor rather than employee.” 

      While our Courts have yet to address whether a law enforcement officer,

working off duty as a traffic control officer, is acting as an independent contractor, we

consider our Supreme Court’s decision in State v. Gaines to be instructive here in

considering the Hayes factors, namely, whether, at the time of his injury, Plaintiff

was engaged in an independent occupation or business.

      In Gaines, a duly sworn police officer with Charlotte Police Department was

killed while working off duty providing security for Red Roof Inn. State v. Gaines,

, 

 (1992). The officer wore his Charlotte PD

uniform, service weapon, badge, and portable radio. 

 Further, the officer was to

conform to the same standard of conduct which applied to his on-duty activities. 

Nonetheless, the defendant argued he did not murder a law enforcement officer, as

the officer was acting solely as a security officer for Red Roof Inn at the time of the

incident. 

, 

. Our Supreme Court disagreed noting, per

North Carolina law, all municipal law enforcement officers acting within their

jurisdiction are to be considered peace officers—an officer who “‘when off duty is still

an officer and a policeman having the authority, if not indeed the duty to exercise

functions pertaining to his office in appropriate circumstances, without regard to

departmental rules relating to hours.’” 

, 

 (quoting 18

McQuillion, MUNICIPAL CORPORATIONS 3D, § 53.80B at 348). Further, the Court

stated the official duties of law enforcement officers include: “investigative work

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(including stakeouts), crowd or traffic control, and routine patrol by automobile.” Id.

at 471, 

. Moreover, the Court, in citing to several legislative

expressions, stated, our state legislation specifically indicates “a police officer retains

his official law enforcement officer status even while ‘off duty’ unless it is clear from

the nature of his activities that he is acting solely on behalf of a private entity, or is

engaged in some frolic or private business of his own.” 

, 

.

       In reversing the trial court, our Supreme Court held the duty of a law

enforcement officer, regardless of whether he is off duty performing a secondary

employment, is to act as a peace officer, whose primary duty is to “enforce the law

and insure the safety of the public at large.” 

, 

. Further,

the Supreme Court held the officer was hired on the basis of his official status as a

police officer with the advantages such a status would bring to his secondary

employment—to deter crime and enforce a system of law in an area it was needed.

 The Court noted that while his unformed presence alone was a symbol of the rule

of law, he also served to benefit Red Roof Inn as “his ultimate or primary purpose was

to keep the peace at all times without regard to his ‘off-duty’ or ‘off-shift’ status.” 

       Here, we recognize Plaintiff was, at the time of his injury, acting as a law

enforcement officer, conducting traffic duty—an official duty of law enforcement

officers. In so doing, Plaintiff retained his official status as he was neither acting

solely on behalf of a private entity nor engaged in some private business of his own.

Further, evidence at the hearing indicated Plaintiff was hired on the basis of his

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official status as a police officer, as required by Truesdell’s contract with NCDOT,

and while undoubtably benefitting Truesdell by performing traffic duty, Plaintiff was

also serving and protecting the safety of the community.

      Plaintiff testified he was using his knowledge, skill, experience, and training

as a law enforcement officer on the job. Captain Obershea testified similarly, noting

the officers were “using the skills, the tools, and the equipment that’s provided to

them as a result of their law enforcement training and their law enforcement

position.” Plaintiff was outfitted in a reflective vest with his badge visibly displayed

upon his belt. He also had a service weapon and personal flashlight with him.

Plaintiff testified any member of the public, driving down the interstate, would have

been able to obviously identify him as law enforcement. Additionally, Plaintiff was

displaying his blue lights—of which only publicly owned vehicles, used for law

enforcement purposes are legally allowed to display. See 

(c)

(2023).

      Plaintiff did not have the independent use of his skill, knowledge, or training

as a law enforcement officer. He was required to comply with instruction from both

Truesdell and RCSO. Chief Edwards testified he and Captain Obershea were relayed

instructions through Truesdell who indicated to them the way in which traffic should

flow and the number of officers approved to complete the service. Further, Chief

Edwards testified Plaintiff had no independent ability to freely direct traffic and was

subject to discharge if he failed to comply with the tasks assigned to him by Chief

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Edwards and Captain Obershea. Although Plaintiff was not in the regular employ of

Truesdell, he neither selected the times he worked for Truesdell nor did he work for

a fixed price or lump sum.

      In applying the Hayes factors to the record evidence here and considering the

circumstances surrounding Plaintiff’s work as a traffic control officer, we hold

Plaintiff failed to possess the independence necessary to classify him as an

independent contractor at the time of his injury. Guided by our Supreme Court’s

holding in Gaines, Plaintiff was acting as a law enforcement officer in conducting

traffic control duty and was therefore not engaged in an independent business,

calling, or occupation. Further, Plaintiff did not have the independent use of his skill,

knowledge, or training; was subject to discharge by RCSO if he failed to follow

instruction; was under the control of both RCSO and Truesdell; was not able to select

his own time or hire his own assistants; and was paid hourly instead of a fixed price

or lump sum.

      Because these circumstances indicate Plaintiff was not an independent

contractor at the time of his injury, the Full Commission did not err in concluding

Plaintiff was not an independent contractor at the time of his injury but an employee

of RCSO.

B. Sole or Joint Employment

      We must now determine whether RCSO was Plaintiff’s sole employer or

whether Plaintiff was also jointly employed by Truesdell.

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      As noted above, a claimant is entitled to recover under our Workers’

Compensation Act from a party with whom he was in an employer-employee

relationship at the time of his injury. See Fagundes, 

, 

 (internal marks and citations omitted). Our Workers’ Compensation Act

defines an employee to be, among other things, a person engaged in employment

under a contract of hire. 

(2) (2021); see also Hollowell v. N.C.

Dep’t of Conservation & Dev., 

, 

 (1934) (stating an

employer-employee relationship “is essentially contractual in its nature, and is to be

determined by the rules governing the establishment of contracts” (citation omitted)).

      Under certain circumstances, a person may be an employee of two different

employers at the time of their injury. Leggette v. McCotter, Inc., 

,

 (1965). To prove simultaneous employment by two separate

employers, a claimant may rely on two doctrines: the joint employment doctrine or

the lent employee doctrine. Whicker v. Compass Group USA, Inc., 

, 

 (2016) (citation omitted). Under the joint employment

doctrine, Plaintiff must prove he was, at the time of his injury, “a single employee,

under contract with two employers, and under the simultaneous control of both,

simultaneously perform[ing] services for both employers, and [] the service for each

employer is the same as, or is closely related to, that for the other.” McGuine v. Nat’l

Copier Logistics, LLC, 

, 700–01, 

, 338 (2020)

(citations and internal quotation marks omitted).

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   1. Contract of Employment

      The joint employment doctrine requires an employment contract exist between

both Plaintiff and RCSO and Plaintiff and Truesdell. While we have established

there existed an employment contract between Plaintiff and RCSO, we must

determine whether there also existed an employment contract between Plaintiff and

Truesdell.

      An employment contract may be “express or implied, oral or written[.]” 

(2). An implied contract is “an actual contract inferred from the

circumstances, conduct, acts or relations of the parties, showing a tacit

understanding.” Archer v. Rockingham Cnty., 

, 

 (2001) (citations omitted). To determine whether an implied employment

contract existed between the parties, consideration must be given as to who “hired,

paid, trained, and supervised” the employee. McGuine, 270 N.C. App. at 701, 841

S.E.2d at 339 (citations and internal marks omitted).

      Plaintiff here was not under any express contract of employment with

Truesdell. However, record evidence reflects the existence of an implied contract. We

acknowledge Truesdell was not responsible for training Plaintiff, but Truesdell did

hire, pay, and supervise Plaintiff.

      A law enforcement officer, performing law enforcement duties, will always be

under the command of the officers who outrank him, even when working in an off-

duty capacity. Accordingly, Truesdell did not have independent direct supervision

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over Plaintiff. While Plaintiff was under the direct command and supervision of his

superior officers—Captain Obershea and Chief Edwards—Truesdell still exercised

some supervisory authority and control over the officers. Truesdell was directly

responsible for the project and making sure officers were on scene.           Truesdell

contacted RCSO requesting officers to perform traffic duty and provided Captain

Obershea and Chief Edwards with plans of how to direct or control traffic as provided

by their engineer. Although Truesdell did not speak directly with every officer on

site, Truesdell was directly in control of how many officers were working as neither

Captain Obershea nor Chief Edwards had the independent authority to hire

additional officers. Notably, Plaintiff was not originally scheduled to work on the

date of his accident. Instead, Captain Obershea and Chief Edwards, after consulting

the plan and recommended officer count offered by Truesdell, believed there needed

to be additional officers on site. Captain Obershea and Chief Edwards contacted

Truesdell to ask permission before calling Plaintiff to request his assistance in traffic

control work.   This indicates a consistent level of supervision or control which

Truesdell had over the officers; if Truesdell had rejected the request for an additional

officer or refused to present the idea to NCDOT, Plaintiff would not have been on the

scene the night of his injury.

      This evidence is also indicative of Truesdell’s hiring authority.        Truesdell

engaged Captain Obershea and Chief Edwards to secure an allotted number of law

enforcement officers to perform the required traffic control work. Truesdell also

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required each officer fill out a W-9 of which indicated the officers who worked for

them; had the officers complete timesheets on which Truesdell signed off after

submission; and directly paid each officer $55 per hour.

      In considering this record evidence, we hold there existed an implied contract

of employment between Truesdell and Plaintiff as Truesdell, while not responsible

for training Plaintiff, maintained a level of supervision and control over the Plaintiff’s

work for them, had independent hiring authority, and paid Plaintiff directly for his

services.

   2. Simultaneous Control and Performance of Closely Related Services

      Although we hold there existed a contract of employment between Plaintiff and

Truesdell, we must determine whether Plaintiff was under the simultaneous control

of RCSO and Truesdell while simultaneously performing similar services for both

RCSO and Truesdell.

      Our Court’s opinion in Whicker v. Compass Group USA, Inc., illustrates

circumstances to consider in making such a determination. In Whicker, Crothall

Services Group entered into a contract with Novant Health, Inc., under which

Crothall agreed to provide cleaning services to several Novant healthcare facilities.

Whicker, 

, 

. The plaintiff was employed by

Crothall and assigned to clean Forsyth Medical Center. 

 The plaintiff, while on

her lunch break at Forsyth Medical Center, fell and injured her shoulder. 

 The

plaintiff filed a claim seeking workers’ compensation and asserted she was employed

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by both Crothall and Novant. 

, 

. The Full Commission

concluded no employment relationship existed between the plaintiff and Novant

under either the joint employment or lent employee doctrine. 

 The plaintiff

appealed to this Court which affirmed the opinion and award of the Full Commission

holding: the plaintiff failed to show she was a joint employee of Crothall and Novant

as there was no express or implied employment contract with Novant and the

plaintiff; Crothall and Novant did not engage in similar work; and Novant did not

have control over the manner and execution of the plaintiff’s work. 

, 

.

      Our case can be distinguished from Whicker.           Here, there existed an

employment contract between both Plaintiff and RCSO and Plaintiff and Truesdell.

Additionally, Plaintiff was under the simultaneous control of both RCSO and

Truesdell.   As noted above, Captain Obershea and Chief Edwards were directly

responsible for supervising Plaintiff while Truesdell, having direct hiring authority,

was directly responsible for Plaintiff being on scene at the time of his injury.

Additionally, Truesdell had control over the execution of Plaintiff’s work. Truesdell

had engineers draw up traffic plans with the number of officers necessary at each

location point, then relayed the information, through Captain Obershea and Chief

Edwards, to Plaintiff. Further, as indicated in Chief Edwards’s testimony, Truesdell

had control over which officers were on scene. Chief Edwards noted, rather than

losing the contract, he would have asked an officer not to return to service under the

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direction of Truesdell if Truesdell had an issue with an officer’s performance.

      There are clear discrepancies between the Court’s decision in Whicker and the

instant case, but we note our inability to decisively state the nature of the work

Plaintiff was performing at the time of his injury was of the same nature as the work

performed by Truesdell.    However, we are persuaded this requirement, per our

Court’s opinion in Whicker, is not required to show joint employment under the joint

employment doctrine.

      In Whicker, a prior panel of this Court stated, “[u]nder both the joint

employment and lent employee doctrines, [the] [p]laintiff must show the work she

was performing at the time of her injury was of the same nature as the work

performed by Novant.” Whicker, 

, 

. The Court,

without citing any supporting authority, reasoned that where the plaintiff was not

required to show the work being performed—cleaning services—was of the same

nature of the work performed by Novant—healthcare services—virtually any

contractor retained by Novant to upkeep its facilities would be deemed an employee

of Novant. 

, 784 S.E.2d at 570–71.

      We interpret the joint employment doctrine differently. As stated, the doctrine

requires, in relevant part, the service for each employer to be the same or closely

related to that for the other. See 

, 

 (citing Anderson v.

Texas Gulf, Inc., 

, 

 (1986)). This rule,

provided by the Court in Whicker, can be traced back to our Court’s opinion in

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Anderson and further to the authoritative treatise, Larson’s Workers’ Compensation

Law. See id.; see also 5, Larson, LARSON’S WORKERS’ COMPENSATION LAW § 68.02, p.

68-1. Neither our Court’s opinion in Anderson nor Larson’s Workers’ Compensation

Law interpret these rules to require the work being done by the plaintiff to be of the

same nature of the work performed by the company for which the plaintiff is working

when injured. See id.

      We recognize, instead, the joint employee doctrine specifically states the

service being performed by the plaintiff for each employer must be the same or closely

related to the service for the other, not that the nature of the work of each employer

had to be the same or closely related.         For, if we were to accept the Court’s

interpretation in Whicker, we would be effectively prohibiting, at a minimum, any off-

duty law enforcement officer performing traffic duty from recovering from the

company for which he was performing traffic duty, regardless of whether an express

or implied contract existed, unless the officer was performing traffic duty for a private

company whose business was also performing traffic duty.

      Based on our interpretation of the joint employment doctrine, we need not

reach whether the nature of the work Plaintiff was performing at the time of his

injury, traffic duty, was of the same nature of the work traditionally performed by

Truesdell.   Further, we hold the Full Commission’s conclusion which states, in

pertinent part, “because the work Plaintiff was performing at the time of his injury

was essentially law enforcement work, not concrete work . . . Truesdell is not liable

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as a joint or special employer[,]” was made in error.

      Here, Plaintiff was, at the time of his injury: a single employee; under a

contract of employment with both RCSO and Truesdell; under the simultaneous

control of both RCSO and Truesdell; and performing a service similar to the service

he performed for RCSO when performing traffic duty for Truesdell. Thus, we hold

Plaintiff was jointly employed by both RCSO and Truesdell at the time of his injury,

and the Full Commission erred in concluding otherwise.

                                  IV.   Conclusion

      For the aforementioned reasons, the Full Commission correctly concluded

Plaintiff was not an independent contractor but erred in concluding Truesdell was

not liable as a joint employer.

      AFFIRMED IN PART AND REVERSED IN PART.

      Judges MURPHY and HAMPSON concur.




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