mr campbell you may proceed thank you your honor may it please the court my name is john campbell i represent rock solid hell and in this case rock solid is one of two named respondents and this is an issue over lending and borrowing between the other named employer supermax you'll note that david drips the injured workers attorney is not part of this because the accident itself was not really in dispute it's a question of libel it between two named deployers and the skirt of the commission go wrong mr campbell well i think the commission as well as circuit court in explaining the basis of their decision as a few errors here that are worthy of your attention and frankly  and really glaring points that i think the commission eight initially an absence a lot of facts that the commission failed to consider and some of them being as i was saying the hours worked are not the between rock solid and in the drivers all the drivers equally mr grips my client john piece made clear that he was responsible for working on the jobsite all of these cement drivers were responsible for hauling over the road claimants or how did you receive the daily this orders the night before wasn't it from a rock solid employee who was to as well often often it was jonathan pease my client said that he would make the phone call himself not always but often and not hiding that fact your honor but let's look at was it direction in console for him was he corning at the direction of rachel the general contractor that was not addressed by the commission at all i think they painted with a broad brush here jonathan piece testify clearly in the contract work back set up that rachel is the general contractor rachel bought all of the cement rachel paid all of the trucking companies and truckers the whole bessemer you were talking about supervising in job site by mr vest which i think is another area commission saying that there supervision and control by my client who's had a job site hundreds of miles away from an accident someone's driving a truck but that doesn't really make any sense there's no supervisor  trucking company at the customer's a daily basis he received his directions from the rock solid employees not his company correct yes and i think that's exactly what the hastings case explained was a distinction that's an important in this case which has to do with coordination between so contractors cooperating with work and who's really in charge of direction and control i met tap it was rock solid able to do they have any power or authority to discipline middle or fire him or do anything  not at all zero little ways against your position no rock solid did not have control i think if you were asking about super max perhaps i represent rock solid and they did not testimony this is a father and son situation with regard to supermax and rock solid they own the stock the companies so my sons doesn't have control over my workers you wear the a j jensen case yes i am absolutely so how is this case distinguish mickens two ways one and i turned repeatedly to the issue of money and who pays who for what work and we had commission and life on an argument that doesn't matter money always matters in the courts it clear that determining music control one of the elements is who pays for what services a j johnson they bought a tremendous amount of ash fall from bill maher i believe it was named actual provider and they bought so right that they offered a yeah it was the word to control the machine that dome our offer because of the amount that was purchased so that was offered on a jobsite day to day again that would be the same hours that would be on direct control for the job being done not over the road trucking hundreds of miles away where no money is exchanged between my client and his father's company supermax or is he making any kind of a brokerage deal with rachel a general contractor both jonathan pease said there's a superintendent from rachel on a job site consoling ace the schedule and timing of everything rachel is in control of this job it's undisputed undisputed the contract itself says that in so many words the contract for the entire job says rachel is in charge based rachel is in charge of hiring all the sec they did simply because there's cooperation between sub contract whether or not a terminations or a dismissal from this job could be dispensed by my client that's important in the case law because it demonstrates that real level of control but these both of these gentlemen who own these respective companies would be to somehow call his father a super max and say i don't want him driving these trucks and even then it is that's making money as an agreement with rachel the general current so in your opinion who was the borrowing employer or was there abiding my personal all of the nation deliver product to their customers all act so what are the partners of a contract it would be rachel and superman that is where the money was exchanged for the services of mr dress my client is involved and none of not one dollar of any cash whether it be a brokered deal or for services or paying for trips driving was my client and all your client ever receive any direction isn't from rachel that anybody contact him and tell him where to go what to do anything with it well ever just about every day jonathan pease explained rachael was in charge of everything they said it's a day off for a holiday or a half day or speed up slow down the superintendent  related a request to deliberate a particular time that is a miniscule point that again is very much in tune similar to facts explained in the hastings case where it's simply because subcontractors are communicating and cooperating that does not trigger an employer employee relationship especially when there's no financial interaction between the subcontract but the claimant wouldn't know where to go every day if it wasn't for rock solid employees well you could say that but in reality they're not something to the part who made a phone call it could be made by anybody if rachel decided i'll just make the phone call tonight if any of three other subcontractors on that job so i don't think he said there were four or five subcontractors if any of them decided to make the phone call or were told by rachel to make the phone call on any given day eight you guys can you leave at six in the morning be here at four in the afternoon or whatever maybe that doesn't trigger employer employee relationship who's real represented well actually you know initially the case was only against supermax and then my client was brought in after super mix of getting benefits for a while and we were named as if our own lawyer and the the fight between the correct interpretation of facts i think the commission failed to appreciate some of these important elements didn't address the elements that i'm bringing up in their conclusions are inaccurate so we say oh they're factual conclusions reasonable well not if they're inaccurate but if you're father for the driver through his own company he didn't pay his father for the services that all went to rachel the agreement for the per load and everything like that went through rachel right to the father's company which is super  as not relevant it is relevant because it opens the door to where b contract is and we know the nd element being express or comply by contract where is this contract on my client or saying i don't have any agreement with my da company we know that there is no written contract between rachel the general who again if someone is going to be named as our work it would have to be rachel but that's where the financial agreement was for hauling services by the way who's under his contract terms what he was even supposed to be doing there was an all hands on deck as there was a shortage of bunch of subs who were called in to bring in some trucks and rachel paid all i fail to see why my client has employer employee relationship in a borrowing relationship being triggered simply because yes he made a phone call it would declare what time rachel wanted the job or deliver to be made that is not enough under the totality of facts here and i believe an accurate assessment of the facts what would demonstrate that rachel is very similar to another case heavily relied on if you're going to compare facts or parties or players campbell daniel eagan on behalf of supermax the st issue i want to address that was brought up this is the issue of the contract and who the contract was between that contract is an avid and it's in the record in the contract is between rachel and rock solid it's not until a footnote or in the den dome that house super mix is going to be paid is mentioned in the testimony also reveals that rock solid jonathan pease the company that was out in south dakota called his father and asked for trucks to be sent out there that he needed help that his employer his partner also needed help and he asked for concert for people in trucks to come out there there was no negotiation between superman and rachel as to how the they were to be paid it was already set between rock solid and rachel so the issue of contract there is no contract between super mics and rachel mr egan can you address mr campbell's overarching argument essentially  saying hey you know what's out has nothing to do with this rachel had control of everything that they directed everything they were there they supervise that is what work was to be done basically rockfeller had nothing to do with any of the work that was being performed that was all directed and controlled by rachel what's your response to that whether or not that's accurate and i don't think there's any any evidence in the record other than the testimony by jack he says the evidence when you boil it down to david drips is david drips took his day to day dispatch orders from rock solid stabilization david trips testified he either received his instructions from jonathan pease the owner of rock solid himself or he received them from another rock solid employee so david drips as far as he was concerned from the testimony and how the arbitrator in the commission concluded david drips took his orders from rock solid stabilisation that was that was who he was to report to and he got to south dakota that was who was going to give him his day to day orders so whether or not rachel controlled the from any company at all i assume there were people from rachel that were there there were and certainly the owner of rock solid would stare there was nobody from supermax from my client who was present  supervisory capacity you know it's not clear to me how many supermax employees were really out there there was we know definitely that there were two employees with prox there was some can record what is said i believe that they were responsible for an ant and i guess mr campbell can correct me if i'm wrong they were performing some type of ground i'm sorry can you repeat your question then yeah i think does that stop and question can only go to one contract that's on the record and that's what rachel and rock solid that's correct ok because there's no contract  explicit or written contract rather between super max not that's correct that's correct and the only mention of how super max was to be paid is in like i said  footnote or in an and then down to that contract between rachel and rock solid and what super mix was to haul and they're the only one that is specifically mentioned in that contract there are other people that obligations of rock solid under the contract it is my contention and what's your evidence to support that contention rock solid had the contract to provide to sunder lane meant and if you read that contract as i recall they are to spread the materials that the concrete to rock solid concrete was then transferred to a rock solid truck and with brett we couldn't spread it super mix couldn't spread that at the job site supermax was i believe and i'd have to look more deeply into the contract again i believe that rock solid also had some obligation to get the the concrete to the job site to support the one about the contract it was again as the testimony of record indicates david drips was approached by his dispatcher at superma said we would like for you to go to south dakota and we would like for you to report to jonathan piece of rock solid stabilization and do whatever it is jonathan asks you to do at the job site and david trips gotten this super mixed truck testified he followed other rock solid employees from illinois to south dakota stayed at a hotel with other rock solid employees and reported to jonathan piece to take his day to day orders and obligations if that's not an understanding that there's an implied contract of hire or employer employee relationship i don't know what else needs to be shown and i think the commission made the same conclusion and i think that plenty of there is plenty of evidence to support that those factual determination and a conclusion by the commission well  i think and i think that i'm not talking about employer we're talking about lending and borrowing that's right right and i know i know what justin justice hoffman sad evidence the circuit court indicated that the arbitrator determined that rock solid had the right to control the manner in which the employee perform the work and you went through those factual bases and it's clear that to the court that there was evidence that rock solid directed the employee on how to that rock solid directive in control of the work of mr drift exercice all the direction  control for mr drips at the work site and that mr drips was dependent on receiving direction from rock solid i think those are reasonable conclusions based upon the evidence of record here before your honor can just plagiarize a circuit court for president of the known to do that yeah i while you know that lawyers do that very well we find something that works and i want to give credit to judge meyer because he's the presidency is nowhere on the horizon but at any rate the commission decision is a reasonable one there's plenty of facts to well our standard  a reasonable notice on there is no but there are plenty of facts of record to support that this decision is not against the manifest weight begins and that it should be a firm mr reagan said maybe i'm not sure i think so wasn't sure i am certain that the record reflects that he was not both by the testimony of jonathan pease my client who made clear that he was not responsible for purchasing or delivering the cement a missed job the contract also indicates g c c is the sub contractor responsible d for delivering the cement so that is the responsibility and that is undisputed based on johnson and a very contract in written in with rachel between my client he was only responsible on the job site for spreading mystery and points out why then i'm sure you'll ask is the rock solid are the rock solid drivers also hauling cement the right you said they're not responsible if you hear the full testimony of my client jonathan piece he explain that the sub that rachel hired gcc had insufficient number of trucks so it was all hands on deck rachel needs more trucks to fill this aspect of the job so rachel can do their job so client can do their job on the job my client did have to have to trucks he said i've got some guys that's why my client call this father he said great there's a shortage g c c is responsible for this they don't have enough rachel pate superman more trucks and more we don't have the names of the other subs but more subcontractors there were several so contractor trucking companies that rachel paid to support the full need to deliver these goods it was not part of my client's job mr cripps was performing was over the road truck driving and hauling for his for his drug employer in if anyone is a borrowing employer it would have to be rich my client is not in the situation did not make any certainly no written we know that or implied or verbal agreement financially with his father at all for mr britt services it was all through rachel that's very important though you're characterizing super mi all because a broker makes money there are if my client took a fee off of this or charged rachel and then took his dance workers and put them in his trucks and was making money different facts here this is so if you don't this is been lost by the commission and i don't want to be lost in today's discussion this idea of supervision and control again mr drips did no work on those jobs in the idea that he was director of control on the job so you use that term  it is a red herring and it's a square peg into a round hole if you're trying to equate a over the road driver who's in charge of delivering product to a customer to a jobsite that your goods did no work on the job site where my client did have