### FILED March 09, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE
JOHN D. HOWELL, ) C/A NO. 03A01-9810-CV-00340 ) Plaintiff-A ppellant, ) BRAD LEY C IRCUIT ) v. ) HON. LAWRENCE H. PUCKETT, ) JUDGE DEAN CHASE, d/b/a CHASE ) HEATING AND AIR-CONDITIONING,) AFFI RMED ) AND Defendant-Appellee. ) REMANDED

PHILL IP L. DA VIDS ON, N ashville, for P laintiff-Ap pellant. J. CHRISTOPHER C LEM, LUTHE R-ANDERSO N, PLLP, Chattanooga, for Defendant-Appellee.

O P I N I O N Franks, J. In this action p laintiff sued defenda nt for tortious injuries alleged ly occurring “at Chase Heating and A ir Conditioning”. Plaintiff had recovered W orker’s Compensation benefits

from Steve Mann, d/b/a Mann Mechanical Contract ing, who intervened in this action. The T rial Court, responding to a m otion for summa ry judgment, granted defendant summary judgment on the basis that Chase was a statutory e mployer pursua nt to T.C .A. §50 -6-108 and §5 0-6-11 2.

This is the issu e to be resolv ed on app eal. Summary judgments are onl y granted where t

he movant establi shes there are no genuine

issues of material fact, and t he movant is entit

led to a judgment
as a ma tter of law
. Byrd v. H all , 847 S .W.2d 208 (T enn. 19 93).2 The material fact

s are not in di spute. Plai ntiff, at the time of his a

lleged inj ury , wasan emp loyee of Stev e Mann,

d/b/ a Mann Me chanica

l Contra cting. At some time prior t

o the accident,Mann had been an employee of defendant,but at the time of the a ccident their w orking relatio nship had changed , and the de fendant sa id in his deposition that Mann was a “sub-contract or”. At the ti

me of plaintiff’ s alleged accident, Mann was renti ng trucks, equi

pment and the sheet meta l shop from defen dant. T he truck s and u niform s worn by the w orkers c arried d efend ant’s log o. Defendant’s test

imony is not di sputed on the busine ss relationship. He testi fied: Q. Okay. What was the busines s relati onship at the t ime of the accident in June of 1 994 with M r. Howell betwe en you and Mr. -- A. Mann. Q. -- Mann? A. Well, I was just

subcontracti

ng -- I rented al

l of the trucks

and the sheet metal shop t

o him. And he was -- and paid him -- he subcontracted al

l my labor and i

nstallat ions. I paid hi

m by the job. Q. Did that business relationship have anythi ng to do with your workers’ comp insurance? A. Well, I didn’t

carry it . That was part of t he deal, he carr

ied the workman’s comp himself, and the insurance on the men back there. And I carried it on m ine, on the se rvice peop le. And I pa id him so m uch per m an hour, w hich includ ed -- we h ad it figured to where h e could co me out by pa ying his insuran ce, becaus e his insurance was overhead. Q. When you say com e out, to you mean com e out better? A. Yeah, he come out better , himself. Q. Well, and better

for you, t

oo? A. Wel l, hop ed it w orke d tha t wa y. Plaintiff ar

gues that Mann was an independent cont ractor. As the Supreme Court has noted in Stratton v. United Inter-Mountai n Telephone Co. , 695 S.W.2d 947 (Tenn. 1985), when the fa cts are essent

ially undisputed, t

he question of3

whether one is an employee or an indepe ndent contractor for the p urposes of W orker’s Compensation, is one of l aw for the court. The StrattonCourt teac hes that certa in factors are t

o be considered in det

ermining whether the

relationship is one of employer-em ployee or inde pendent c ontractor, an d that no on e factor ne cessarily controls. Thes e are:

1. Right to contr

ol the conduct of t

he work. 2. Right of termi

nation. 3. Metho d of payme nt. 4. Whether alleged employee furnishes his own helpers. 5. Whether alleged employee furnishes his own tools. 6. Whether one is d oing work fo r another. Id. at 950. The Co urt continue s that the right to control the w ork is repea tedly emphasized and observed: “ The test is not

whether the right

to control i s exercised, but me rely whe ther the r ight to co ntrol ex isted”, Id.

Clearly,the right t

o control exis ted in this case. The defendant contracted with t

hird parties for heating and ai r-conditi oning instal

lations, and he then contracted with M ann to do th e installation. M ann used the tools, equ ipment, uniforms and the premis es of defendant to car ry out the work. The working arrangement between Mann and defendant was ess entially an allocation of overhead expe nses with pay met t

o Mann f or wor k per formed by

Mann and his

empl oye es. On this record,

Mann only contribut

ed labor to the oper

ation. The courts have noted t hat the stat

utory scheme under

consideration intended to ensur

e that all workers are paid benefi ts when they are

injured in t

he
course of their emplo yment. Stratton. The statutory intent was sat

isfied by t

he payment of Worker’s Compensati on benefits to t

he plaintiff

herein. We hold on the4

undisputed evidence t

hat defendant was withi n the statut

e’s umbrella of pr

otection as an emplo yer and was entitled to judg ment.

We affirm the judgment of the Tr ial Court and remand wit h the cost of the appeal asses sed to plaint iff.

__________________________

Herschel P. Franks, J.
CONCUR:

___________________________ Don T. McM urray, J.

___________________________ Charles D. Susano, Jr., J.