No

No. 98-489

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 241

296 Mont. 176

988 P.2d 782

AMERICAN AGRIJUSTERS CO.,

Petitioner and Respondent, 

v.

MONTANA DEPARTMENT 

OF LABOR AND INDUSTRY, 

BOARD OF LABOR APPEALS,

and ROBERT GILMORE, JR.,

Respondent and Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and for the County of Lewis and Clark,

The Honorable Jeffrey M. Sherlock, Judge presiding.

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COUNSEL OF RECORD:

For Appellants:

Robert J. Campbell, Department of Labor and Industry, Helena, Montana

For Respondent:

Robert R. Throssell, Keller, Reynolds, Drake, Johnson & Gillespie, Helena, Montana; R. Laubenthal, 

Smith Peterson Law Firm, Council Bluffs, Iowa

Submitted on Briefs: March 18, 1999

Decided: October 14, 1999

Filed:

__________________________________________

Clerk

Justice William E. Hunt, Sr. delivered the Opinion of the Court.

¶ The Montana Department of Labor and Industry (the Department) appeals from 

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the order of the First Judicial District Court, Lewis and Clark County, reversing the 

decision of the Board of Labor Appeals (the Board), which had adopted the findings 

and affirmed the decision of the Department that Robert Gilmore, Jr. (Gilmore), and 

other similarly situated crop adjusters were employees of American Agrijusters Co. 

(Agrijusters). The District Court determined that Gilmore and similarly situated 

crop adjusters were independent contractors and, therefore, that Agrijusters was not 

liable for unpaid unemployment insurance tax contributions. We reverse.

¶ We restate the issue on appeal: Did the District Court correctly review the Board's 

findings of fact and apply § 39-51-201(14), MCA (1995), in determining that Gilmore 

and other similarly situated crop adjusters were independent contractors?

Factual and Procedural Background

¶ On June 1, 1992, Gilmore entered into an Independent Adjusters Agreement with 

Agrijusters, pursuant to which he was to provide crop adjusting services to 

Agrijusters for the ensuing crop season. Gilmore later quit because he was not 

receiving enough work. Thereafter, he filed a claim for unemployment insurance 

benefits with the Department but was told that Agrijusters did not report crop 

adjusters in the unemployment insurance program. The Unemployment Insurance 

Division of the Department determined, on December 15, 1992, that Gilmore and 

other similarly situated crop adjusters were employees of Agrijusters for 

unemployment insurance tax purposes. 

¶ Agrijusters appealed that determination and a hearing on the merits of the dispute 

was held on October 3 and 4, 1995, before a Department Hearings Officer. On May 

10, 1996, the Hearings Officer affirmed the prior determination, finding that the 

work which Gilmore and other similarly situated crop adjusters performed for 

Agrijusters constituted employment, and that Gilmore and similarly situated crop 

adjusters were not independent contractors.

¶ Agrijusters appealed the Hearings Officer's decision to the Board. The Board, in 

affirming the two prior determinations, again found employee and not independent 

contractor status for Gilmore and the other similarly situated crop adjusters. 

Agrijusters then filed a Petition for Judicial Review in the First Judicial District 

Court. On May 26, 1998, the District Court issued an order reversing the three prior 

administrative determinations and holding that Gilmore and similarly situated crop 

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adjusters were independent contractors.

¶ The Federal Crop Insurance Act, 7 U.S.C. §§ 1501-1520, was established in 1938 to 

improve the economic stability of American agriculture by providing a sound system 

of crop insurance. Pursuant to the Act, the Federal Crop Insurance Corporation 

(FCIC) was established to promulgate regulations and enter into agreements to 

reinsure crop insurance contracts between producers and private insurance 

companies. Redland Insurance Company has a Standard Reinsurance Agreement 

with the FCIC to reinsure crop insurance contracts. Under the reinsurance 

agreement, FCIC adjustment procedures and methods must be followed by Redland 

Insurance Company and its subsidiaries. Agrijusters, a subsidiary of Redland 

Insurance Company, provides crop adjusters to service loss claims under multiple 

peril crop insurance policies. 

¶ Agrijusters contracts with crop adjusters to perform crop insurance adjusting in 

the field. The individual crop adjusters are hired on an "as needed" basis. Each 

adjuster signs an Independent Adjusters Agreement. Crop adjusters may be either 

experienced adjusters or inexperienced trainees. Many of the crop adjusters that 

Agrijusters contracts with are inexperienced at adjusting claims. Gilmore had no 

prior experience as a crop adjuster and knew nothing about the adjusting trade prior 

to contracting with Agrijusters. 

¶ Trainee crop adjusters are provided with both classroom and on-the-job training 

and supervision by experienced adjusters until they master the adjusting procedures 

required by federal regulations. Trainees must successfully complete both classroom 

and on-the-job training before they are permitted to adjust crop damage on their 

own without an experienced adjuster monitoring their performance. Both 

experienced and trainee crop adjusters must also complete ongoing education 

required by the FCIC, to remain current on changes in industry procedures and 

company policies. Gilmore's separation from Agrijusters occurred during the 

training stages of the work relationship. 

¶ Crop adjusters are compensated at a daily rate as individually specified in each 

Independent Adjusters Agreement. Agrijusters also reimburses individual adjusters 

for reasonable and necessary expenses, including meals, lodging, mileage, maps, 

postage, and telephone calls. However, individual adjusters are responsible for all 

office and secretarial expenses, transportation, vehicle maintenance and repair, and 

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automobile liability insurance. Beginning in 1995, individual adjusters were also 

required to pay for formal classroom training; however, Agrijusters provides 

adjusters who successfully pass the tests with a signing bonus of $500 to $700 for 

agreeing to provide adjusting services to Agrijusters for the ensuing crop season. 

Gilmore attended two training sessions which were paid for by Agrijusters, and was 

also reimbursed for the expenses of attending such training. 

¶ The equipment necessary to crop adjust is minimal and the majority of individual 

adjusters furnish their own equipment. However, some of the adjusters lease their 

equipment through Agrijusters, which provides tools such as a calculator, a grainmeasuring scale, a wheel measurer, and/or a tape measurer to these adjusters for a 

nominal annual fee. Crop adjusters must also purchase a standardized FCIC crop 

adjusting manual for a nominal fee. Adjusters are required to complete their 

assessments on standardized FCIC claim forms provided by Agrijusters. 

¶ Individual crop adjusters are responsible for scheduling and performing their 

duties. Adjusters are not required to work set hours. Nor are adjusters required to 

file periodic progress reports with Agrijusters; they must only file a completed policy 

report, containing the results of the adjuster's crop assessment, when the job 

assignment is completed. Crop adjustment assignments are to be completed by 

adjusters in a "reasonable time," preferably as quickly as possible. Adjusters submit 

their crop adjustments to Agrijusters for review. If the adjustment was completed 

incorrectly and needed to be reworked by the adjuster, then Agrijusters would pay 

that adjuster for the time required to revise the adjustment. If the original adjuster 

was not available, another adjuster would be asked to revise the adjustment.

¶ Under a standard provision in each Independent Adjusters Agreement, either 

party could terminate the relationship for any reason and without cause by giving 

the other party ten days written notice. Because of the uncertainty of various 

conditions affecting the crop growing season, most adjusters do not work full-time 

adjusting crop damage and many adjusters have other primary occupations such as 

ranching, farming, real estate sales, teaching school, selling insurance, and so on. 

Under the Independent Adjusters Agreement, individual adjusters retain the right to 

perform crop adjusting services for other entities. Approximately seventy to eighty 

percent of the crop adjusters who contract with Agrijusters perform crop adjusting 

services for other companies. Gilmore did not have an independently established 

business, crop adjusting or otherwise, during the time that he was under contract 

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with Agrijusters.

Discussion

¶ Did the District Court correctly review the Board's findings of fact and apply § 39-

51-201(14), MCA (1995), in determining that Gilmore and other similarly situated 

crop adjusters were independent contractors?

¶ A district court's review of a decision by the Board, rather than being governed by 

the Montana Administrative Procedure Act, is circumscribed by § 39-51-2410(5), 

MCA. Thomas Bros. v. Cargill, Inc. (1996), 276 Mont. 105, 108-09, 915 P.2d 226, 228. 

Section 39-51-2410(5), MCA, sets forth the applicable standard of review of a Board 

decision:

In any judicial proceeding under 39-51-2406 through 39-51-2410, the findings 

of the board as to the facts, if supported by evidence and in the absence of 

fraud, shall be conclusive and the jurisdiction of said court shall be confined 

to questions of law. . . .

Section 39-51-2410(5), MCA.

¶ The statutory phrase "supported by evidence" has been construed to mean 

supported by substantial evidence. Reynolds v. Pacific Telecom, Inc. (1993), 259 

Mont. 309, 314, 856 P.2d 1365, 1368. Substantial evidence is "something more than a 

scintilla of evidence, but may be less than a preponderance of the evidence." Gypsy 

Highview Gathering Sys. Inc. v. Stokes (1986), 221 Mont. 11, 15, 716 P.2d 620, 623. 

On judicial review, the sole inquiry with respect to the evidence is " 'whether the 

findings are supported by substantial evidence, regardless of whether there is also 

substantial evidence or even a preponderance of evidence to the contrary.' " Gypsy 

Highview, 221 Mont. at 15, 716 P.2d at 623 (quoting Jordan v. Craighead (1943), 114 

Mont. 337, 343, 136 P.2d 526, 528).

¶ Due to this deferential standard of review, it is impermissible, pursuant to § 39-51-

2410(5), MCA, for a district court to "balance conflicting evidence in support of and 

in opposition to the Board's findings, determine which is the more substantial 

evidence, or consider where the preponderance of the evidence lies . . . ." Thomas 

Bros., 276 Mont. at 109, 915 P.2d at 228. Indeed, doing so would effectively nullify 

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the "conclusive nature" of the Board's findings. Thomas Bros., 276 Mont. at 109, 915 

P.2d at 228. This Court's review of a Board decision in unemployment compensation 

cases is governed by the same limited standard. Zimmer-Jackson Assocs., Inc. v. 

Department of Labor and Indus. (1988), 231 Mont. 357, 360, 752 P.2d 1095, 1097 

(citing Gypsy Highview, 221 Mont. at 15, 716 P.2d at 623); see also § 39-51-2410(6), 

MCA. 

¶ Since the Board adopted the findings of fact made by the Department's Hearings 

Officer, we will review those findings as if they were made by the Board. There is no 

allegation of fraud in this matter. Therefore, if the findings of the Board are 

supported by substantial evidence, then those findings are conclusive in nature and 

both the District Court's and this Court's jurisdiction is limited to the legal question 

of whether crop adjusters are employees or independent contractors for 

unemployment insurance tax purposes. We review a trial court's conclusion of law as 

to whether it is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 

474, 803 P.2d 601, 603.

¶ We determine, as discussed below, that the Board's findings are supported by 

substantial evidence, and are therefore conclusive and binding. In accord with this 

determination, we further conclude that the District Court erred in applying § 39-51-

201(14), MCA (1995), and adjudging that Gilmore and other similarly situated crop 

adjusters were independent contractors. 

¶ Section 39-51-201(14), MCA (1995), sets forth what has become commonly referred 

to as the "AB test":

"Independent contractor" means an individual who renders service in the 

course of an occupation and:

(a) has been and will continue to be free from control or direction over the 

performance of the services, both under a contract and in fact; and

(b) is engaged in an independently established trade, occupation, profession, 

or business. 

Section 39-51-201(14), MCA (1995). 

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¶ Because the statute utilizes the conjunctive "and" in the definition of "independent 

contractor," the absence of either the "A" or "B" portion of the test results in a 

conclusion of employment. Northwest Pub. v. Montana Dep’t. of Labor and Indus. 

(1993), 256 Mont. 360, 363, 846 P.2d 1030, 1032. Therefore, Agrijusters must satisfy 

both prongs of the "AB test" in order to sustain its contention that Gilmore and 

other similarly situated crop adjusters are independent contractors. Since we 

conclude, for the reasons that follow, that Agrijusters has failed to establish the 

"A" (right of control) component of the test, we need not address whether the 

"B" (independently established business) part was met. 

¶ In determining whether a right of control exists sufficient to give rise to an 

employer-employee relationship in a given situation, we have identified four factors 

that guide the inquiry: (1) direct evidence of right or exercise of control; (2) method 

of payment; (3) furnishing of equipment; and (4) right to fire. Sharp v. Hoerner 

Waldorf Corp. (1978), 178 Mont. 419, 425, 584 P.2d 1298, 1301-02 (citing 1A Arthur 

Larson, Workmen's Compensation Law § 44.31, at 8-35). These four factors do not 

constitute a balancing test. Rather, independent contractor status must be 

established by a convincing accumulation of evidence under the factors and other 

tests. However, employee status may be established on the strength of the evidence 

under one of the four factors standing alone. Sharp, 178 Mont. at 425, 584 P.2d at 

1302 (quoting 1A Arthur Larson, Workmen's Compensation Law § 44.31, at 8-35). 

As the newest edition of Larson's treatise explains:

[F]or the most part, any single factor is not merely indicative of, but, in 

practice, virtually proof of, the employment relation; while, in the opposite 

direction, contrary evidence is as to any one factor at best only mildly 

persuasive evidence of contractorship, and sometimes is of almost no such 

force at all.

3 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 61.04, at 61-7 

(1999).

(1) Direct Evidence of Right or Exercise of Control

¶ Right of control, as we have repeatedly recognized, is the "most crucial factor" in 

distinguishing between employees and independent contractors. Standard Chem. 

Mfg. Co. v. Employment Sec. Div. (1980), 185 Mont. 241, 247, 605 P.2d 610, 613; see 

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also Zimmer-Jackson, 231 Mont. at 362, 752 P.2d at 1098 (labeling right of control 

"the most important factor in determining employment relationships"). It is the 

"right, not just the exercise, of control" that is of the utmost importance under this 

factor. Sharp, 178 Mont. at 424, 584 P.2d at 1301. Thus, an individual is an employee 

of another when that other has the right to control the details, methods, or means of 

accomplishing the individual's work, and not just the end result of the work. Sharp, 

178 Mont. at 424, 584 P.2d at 1301; Walling v. Hardy Constr. (1991), 247 Mont. 441, 

447-48, 807 P.2d 1335, 1339; Johnson v. Montana Dep’t. of Labor and Indus. (1989), 

240 Mont. 288, 292-93, 783 P.2d 1355, 1358; St. Regis Paper Co. v. Unemployment 

Compensation Comm'n (1971), 157 Mont. 548, 552-53, 487 P.2d 524, 526-27.

¶ Regarding direct evidence of right or exercise of control, the Board found in 

relevant part that: (1) Agrijusters provided specific training to crop adjusters to 

comply with the requirements and regulations of the FCIC; (2) crop adjusters were 

required to adjust crop losses according to FCIC procedures and regulations, and 

were not allowed to use their own discretion to select an alternative method to adjust 

crop losses; (3) trainee crop adjusters were required to satisfactorily complete both 

classroom and on-the-job training, often remaining under the direct supervision of 

experienced adjusters for up to two years before being allowed to crop adjust on 

their own; and (4) Agrijusters reviewed the completed work of crop adjusters and 

returned incomplete or erroneous work to adjusters for revision. These findings are 

supported by substantial evidence in the record and, therefore, are conclusive in 

nature. Notwithstanding these findings, the District Court reasoned that: (1) 

Agrijusters did not control the adjuster's day-to-day work activities; (2) Agrijusters 

return of insufficient or incorrect work indicates that Agrijusters controls only the 

end result of the adjusters' work; and (3) classroom and on-the-job training and 

supervision of adjusters to comply with FCIC regulations indicates control by the 

FCIC, not Agrijusters. 

¶ While we acknowledge that there is substantial evidence in support of a conclusion 

that crop adjusters were not subject to close day-to-day supervision by Agrijusters 

(for example, adjusters could accept or reject assignments from Agrijusters and were 

free to choose their hours of work), we agree with the Department that the District 

Court improperly re-weighed the evidence in concluding that the control factor was 

not established. As mentioned previously, where the Board's findings are supported 

by substantial evidence, it is impermissible for a district court to "balance conflicting 

evidence in support of and in opposition to the Board's findings . . . ." Thomas Bros., 

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276 Mont. at 109, 915 P.2d at 228. This is true even where " 'there is also substantial 

evidence or even a preponderance of evidence to the contrary.' " Gypsy Highview, 

221 Mont. at 15, 716 P.2d at 623 (quoting Jordan, 114 Mont. at 343, 136 P.2d at 528). 

Even though there is sufficient evidence in the record for reaching opposite 

conclusions, we conclude that the Board's findings of fact are supported by 

substantial credible evidence.

¶ In Johnson, a homeowner hired carpenters to complete a remodeling project. 

During completion of the remodeling project, the homeowner "did not correct the 

carpenters as to the details in the performance of their work," and expected them to 

utilize their expertise to achieve his desired outcome for the project. Johnson, 240 

Mont. at 292, 783 P.2d at 1358. Noting that the homeowner told the carpenters only 

"what he wanted done but not how to do it," this Court concluded that the 

homeowner "merely controlled the result" and "not the methods . . . used to 

accomplish the end result." Johnson, 240 Mont. at 292-93, 783 P.2d at 1358. 

¶ We reach the opposite conclusion here. The findings of the Board demonstrate that 

Agrijusters, through training, supervision, and review of completed job assignments, 

substantially controlled "how" the crop adjusters performed their adjusting work. 

Thus, we hold that Agrijusters exercised a right of control over the means or 

methods by which crop adjusters completed their job assignments.

(2) Method of Payment

¶ Under this factor:

"[p]ayment on a time basis is a strong indication of the status of employment. 

Payment on a completed project basis is indication of independent contractor 

status. Payment on a piece-work or commission basis is consistent with either 

status."

Walling, 247 Mont. at 449, 807 P.2d at 1339 (quoting 1C Arthur Larson, Workmen's 

Compensation Law § 44.33, at 8-94 (1990)).

¶ The District Court concluded that the Board's findings on the method of payment 

factor were not supported by substantial evidence. In so concluding, the court 

reasoned that:

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[T]he Board found that the adjusters were paid by the hour in two-hour 

increments. This finding is not supported by substantial evidence, however. 

The adjusters testified that they were paid on a daily, not an hourly, basis. The 

day could be broken up into portions, but the adjusters then received payment 

for the portion of the day they worked. . . . 

Although the adjusters were still paid on a time basis, such a method of 

payment is not conclusive of either an independent contractor or an 

employment relationship if the method is the custom in the industry. . . . The 

fact that adjusters were paid on a per diem basis is consistent with industry 

custom and does not establish that the adjusters were employees rather than 

independent contractors. 

The court further rejected the Board's finding that adjusters were paid for correcting their 

work as not supported by substantial evidence, since whether or not such payment was 

made "depended on" the nature of the error itself and the time required to rectify it. Based 

on the foregoing, the District Court concluded that evidence of payment on a time basis 

did not necessarily indicate that crop adjusters were employees.

¶ We disagree with the District Court. The administrative record indicates that crop 

adjusters were indeed paid on a per diem basis and, as the court acknowledged, were 

paid for partial days on a prorated basis. In particular, there is substantial evidence 

suggesting that Agrijusters compensated crop adjusters for partial days by breaking 

work days down into "quarters," which, assuming an eight-hour workday, clearly 

supports the Board's finding that adjusters were effectively paid in two-hour 

increments. Moreover, in concluding that the Board's finding on compensation for 

work corrections was not supported by substantial evidence, it appears that the 

District Court ignored credible testimony that crop adjusters were paid for the 

period of time it took to revise an inaccurate or incorrect claim unless the error was 

attributable to the individual adjuster's clear failure to follow required federal 

procedures in adjusting crop losses for Agrijusters.

¶ As noted previously, payment by a unit of time, such as an hour, day, or week, is 

strong evidence of employment status. See Walling, 247 Mont. at 449, 807 P.2d at 

1339; 3 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 

61.06(1), at 61-12 (1999). We hold that the Board's findings on method of payment 

are supported by substantial evidence, and that the Board correctly concluded that 

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payment of adjusters on a time basis is strongly indicative of employee rather than 

independent contractor status.

(3) Furnishing of Equipment

¶ Both the Board and the District Court found that crop adjusters needed only 

"minimal" equipment to complete their jobs (for example, a manual, a calculator, 

and measuring tapes or wheels), and that adjusters either provided their own 

equipment or leased the necessary equipment from Agrijusters for a nominal annual 

fee. These findings are supported by substantial evidence. However, the District 

Court also found that adjusters had to provide the most significant piece of 

equipment, a vehicle, themselves; and had to supply their own office supplies and 

place of business. Based on the foregoing, the District Court concluded that the 

record "suggests that the adjusters were independent contractors."

¶ With respect to the District Court's additional findings that an adjuster's provision 

of a vehicle and a place of business "suggests" independent contractor status, it 

appears that the court again improperly re-weighed the evidence when it should have 

instead concluded that the Board's findings were conclusive because supported by 

substantial evidence. Furthermore, there is no indication in the record that adjusters 

were required by Agrijusters to maintain an office or place of business, and 

numerous individual crop adjusters testified that they did not maintain a separate 

office or place of business for crop adjusting. The District Court's analysis also 

appears to ignore the economic reality underlying the undisputed fact that even 

though adjusters provided their own vehicles, Agrijusters reimbursed adjusters for 

any work-related mileage on their vehicles. 

¶ As this Court has observed, an employment relationship "almost invariably exists" 

where the "employer furnishes valuable equipment." Solheim v. Tom Davis Ranch 

(1984), 208 Mont. 265, 273, 677 P.2d 1034, 1038 (citing 1C Arthur Larson, 

Workmen's Compensation Law § 44.34, at 8-95 to 8-104), overruled on other 

grounds by Haag v. Montana Sch. Group Ins. Auth. (1995), 274 Mont. 109, 906 P.2d 

693; accord Johnson, 240 Mont. at 293, 783 P.2d at 1359. Nevertheless,"[p]roof 

showing a worker furnished his [or her] own equipment is not necessarily fatal to a 

finding of employee status." Solheim, 208 Mont. at 273-74, 677 P.2d at 1038 (citing 

1C Arthur Larson, Workmen's Compensation Law § 44.34, at 8-95 to 8-104); accord 

Johnson, 240 Mont. at 293, 783 P.2d at 1359. Specifically, as the newest edition of the 

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Larson treatise elucidates: 

Since the furnishing even of heavy and valuable equipment by workers is 

frequently inadequate to establish independent contractorship, a fortiori very 

little weight is given to the furnishing by the worker of such small items as 

trowels, hammers and other hand tools, axes, brushes, knives, snips, and 

paperhanging equipment.

3 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 61.07(7), at 61-

21 (1999).

¶ We determine that this case falls within the foregoing observation. This Court has 

cautioned that the furnishing of equipment "test does not cut in both directions with 

equal force." Solheim, 208 Mont. at 273, 677 P.2d at 1038. Given the economic reality 

that crop adjusting requires minimal tools and our foregoing conclusions on the 

other Sharp factors, we hold that the furnishing of minimal equipment by crop 

adjusters does not necessarily indicate independent contractor status and, in fact, 

tends to militate in favor of employee status here.

(4) Right to Fire

¶ " 'The power to fire,' " as this Court has recognized, " 'is the power to control.' " 

Solheim, 208 Mont. at 274, 677 P.2d at 1039 (quoting 1C Arthur Larson, Workmen's 

Compensation Law § 44.35, at 8-116 to 8-122). The absolute right to terminate the 

work relationship without liability is regarded as inconsistent with the concept of an 

independent contractor, pursuant to which the contractor should have the legal right 

to complete the project under contract and to treat any attempt to prevent 

completion as a breach of contract. Solheim, 208 Mont. at 274, 677 P.2d at 1039 

(quoting 1C Arthur Larson, Workmen's Compensation Law § 44.35, at 8-116 to 8-

122). 

¶ Concerning the right to fire, the Board found only as follows: "Either party can 

terminate the 'Independent Adjuster's Agreement' for any reason or for no reason 

by the terminating party giving ten (10) days prior written notice to the other." Thus, 

the Board concluded: "Absent conspicuously from the contract is any liability for 

termination of the 'independent adjuster' relationship." Numerous individual crop 

adjusters testified that they thought or believed that Agrijusters could fire crop 

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adjusters at any time. However, the record is less than clear as to whether a failure to 

provide ten days written notice prior to termination would subject the terminating 

party to liability for breach of contract. The District Court reasoned in its order that 

"if the agreement was terminated orally or with less than ten days' notice, the 

terminating party breached the contract and faced potential liability." 

¶ Agrijusters urges this Court to hold that, since the Board made an erroneous legal 

conclusion on the right to fire, the District Court owed the Board no deference with 

respect to the fourth Sharp factor. While the District Court's legal conclusion might 

well be correct, we conclude, nonetheless, that application of the four Sharp factors 

to the evidence in this case does not, on the whole, add up to a convincing 

accumulation of the evidence in favor of a conclusion of independent contractor 

status for Gilmore and the other similarly situated crop adjusters.

¶ In conclusion, we hold that the District Court erred in reversing the decision of the 

Board. Thus, we vacate the District Court's order and remand this case to the 

District Court for remand to the Department, with directions for entry of judgment 

on the Board's decision.

¶ Reversed and remanded. 

/S/ WILLIAM E. HUNT, SR.

We Concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER 

/S/ JAMES C. NELSON

/S/ W. WILLIAM LEAPHART

/S/ KARLA M. GRAY

/S/ TERRY N. TRIEWEILER 

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