                                                                FILED
                                                           Nov 30 2016, 6:39 am

                                                                CLERK
                                                            Indiana Supreme Court
                                                               Court of Appeals
                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Thomas J. Dall, Jr.                                       JOE’S CONSTRUCTION, LLC
Law Offices of Blake R. Maislin, LLC                      AND JOE GETZ
Cincinnati, Ohio                                          Richard T. Mullineaux
                                                          Crystal G. Rowe
                                                          Jacob B. Vissing
                                                          Kightlinger & Gray, LLP
                                                          New Albany, Indiana
                                                          R. Patrick Magrath
                                                          Merritt K. Alcorn
                                                          Alcorn Sage Schwartz & Magrath,
                                                          LLP
                                                          Madison, Indiana
                                                          ATTORNEYS FOR APPELLEE
                                                          PROPERTY-OWNERS
                                                          INSURANCE COMPANY
                                                          William J. Beggs
                                                          Jennifer L. Upton
                                                          Bunger & Robertson
                                                          Bloomington, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016         Page 1 of 19
      Mark Vinup,                                               November 30, 2016
      Appellant-Plaintiff,                                      Court of Appeals Case No.
                                                                58A04-1602-CT-502
              v.                                                Appeal from the
                                                                Ohio Circuit Court
      Joe’s Construction, LLC and Joe                           The Honorable
      Getz,                                                     James D. Humphrey, Judge
                                                                The Honorable
      Appellees-Defendants,
                                                                Kimberly A. Schmaltz, Magistrate
      and                                                       Trial Court Cause No.
                                                                58C01-1404-CT-2
      Property-Owners Insurance
      Company,
      Appellee-Plaintiff,

              v.

      Joe’s Construction, LLC and Joe
      Getz,
      Appellees-Defendants.




      Kirsch, Judge.


[1]   After Mark Vinup (“Vinup”) was injured on the job while working for Joe’s

      Construction, LLC and Joe Getz (together, “Joe’s Construction”), Vinup filed a

      lawsuit against Joe’s Construction seeking damages for his personal injuries.

      The commercial general liability insurer for Joe’s Construction, Property-

      Owners Insurance Company (“Property-Owners”), filed a declaratory judgment

      action, seeking a declaration that, pursuant to a policy exclusion, it had no duty

      to defend and no duty to pay any judgment that might be rendered against Joe’s

      Construction or Joe Getz (“Getz”). The trial court consolidated the declaratory

      Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016           Page 2 of 19
      judgment action with Vinup’s action, and, thereafter, Property-Owners and

      Joe’s Construction each filed a motion for summary judgment. The trial court

      granted both motions, and Vinup now appeals, raising several issues that we

      consolidate and restate as: Whether the trial court erred when it determined as

      a matter of law that Vinup was an employee of Joe’s Construction at the time

      he was injured.


[2]   We affirm.


                                  Facts and Procedural History
[3]   Getz began operating Joe’s Construction in 1989 as a “d/b/a,” and in 2011, he

      converted it to a limited liability company. Appellant’s App. at 190. Getz

      generally worked by himself at Joe’s Construction and hired other laborers

      when he “need[ed] an extra hand or two” for projects. Id. Joe’s Construction

      did not issue W-2 or 1099 forms and, instead, paid workers in cash or by

      trading labor. Joe’s Construction did not carry worker’s compensation

      insurance. Id. In April 2012, Joe’s Construction was doing work on a project

      for the Aberdeen Pate Water Company (“Aberdeen Project”), installing water

      lines. At some point, Vinup was hired by Joe’s Construction,1 along with two




      1
        Prior to being hired by Joe’s Construction, Vinup had borrowed money from Getz, and Getz agreed to
      allow Vinup to pay back the debt by having Vinup give some money back to Getz after each time that Joe’s
      Construction paid Vinup.

      Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016                   Page 3 of 19
      other men, Shane Adams (“Adams”) and Anthony McAlister (“McAlister”) to

      work on the Aberdeen Project.


[4]   For the Aberdeen Project, water pipes, measuring twenty feet in length and

      weighing in excess of 250 pounds, were loaded and transported on the bed of a

      trailer and bound together with a metal band. After the crew from Joe’s

      Construction dug a trench for the pipes, a truck would haul the trailer loaded

      with pipes to an area adjacent to the trench, and the metal bands were cut. The

      pipes were then individually rolled off the trailer, onto the ground, and into the

      trench. On April 3, 2012, while Vinup was working, a large pipe that had been

      cut loose on the trailer “took a bad hop” and started rolling down a hill. Id. at

      157. Vinup attempted to stop the pipe by using a spud bar, but the pipe hit

      Vinup and knocked the spud bar out of his hand. The pipe hit Vinup in the face

      and head, resulting in injuries.


[5]   When Vinup contacted Joe’s Construction to pursue Worker’s Compensation

      benefits, an attorney representing Joe’s Construction sent Vinup a letter stating

      that Vinup was not eligible for benefits because he was an independent

      contractor. Id. at 207 (Ex. B to Getz deposition). Thereafter, Vinup filed a

      complaint for damages against Joe’s Construction. Property-Owners filed a

      declaratory judgment complaint, asking for a determination that, pursuant to a

      policy exclusion (1) the policy did not provide coverage for the potential

      liability of Joe’s Construction or Getz, (2) it had no duty to defend, and (3) it

      would not be liable for any judgment rendered in the future against Joe’s

      Construction or Getz related to Vinup’s injuries. The trial court consolidated

      Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016   Page 4 of 19
      Vinup’s action with Property-Owners’s action, and, thereafter, Property-

      Owners and Joe’s Construction each filed a motion for summary judgment,

      asserting that Vinup was an employee of Joe’s Construction at the time of the

      accident.


[6]   Property-Owners’s position was that the Commercial General Liability Policy

      issued to Joe’s Construction for the period from September 15, 2011 through

      September 15, 2012 (“the Policy) contained an “Employer’s Liability”

      exclusion clause that excluded coverage from bodily injury to employees of the

      insured arising out of and in the course of employment, and, thus, it was not

      liable for coverage for Vinup’s injuries. Id. at 94. Joe’s Construction’s position

      was that Vinup was an employee under Indiana law, and, therefore, his

      exclusive remedy was to pursue a claim for benefits under Indiana’s Worker’s

      Compensation Act.


[7]   Property-Owners designated evidence including certain pleadings and exhibits,

      the Policy at issue, and deposition excerpts from Vinup, Getz, McAlister, and

      Adams. Joe’s Construction also designated evidence that included deposition

      excerpts from Vinup, Getz, McAlister and Adams. The evidence was, to some

      degree, overlapping and reflected that Getz would hire people as he needed

      them and that he was the person in charge of those workers. Getz solely

      determined the schedule, work hours, and breaks for all individuals that worked

      for Joe’s Construction, Getz provided the workers with tools and safety vests,

      and he determined the work to be done on each day. Vinup, McAlister, and

      Adams were all hired as “general laborers.” Id. at 194. Getz, and no one else,

      Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016   Page 5 of 19
      told the workers “what to do.” Id. at 156. Joe’s Construction designated

      evidence that Getz considered Vinup to be an employee of Joe’s Construction

      for the period of time that he was working on the Aberdeen Project and that

      Vinup considered Getz to be “the boss.” Id. at 156, 167, 194. The designated

      evidence showed that Getz paid Vinup $10 per hour, and they generally worked

      eight-hour days. Vinup expected that work on the Aberdeen Project would last

      several months, and he would work on it “until we got it done.” Id. at 154.

      Previously, Getz had loaned Vinup money in increments that totaled $363, and

      Vinup paid back Getz as he would get paid by Joe’s Construction. He had paid

      back about $50 when the accident occurred, which was only a few days into the

      job. The designated evidence reflected that the type of work that Joe’s

      Construction was doing on the Aberdeen Project was part of the usual and

      ordinary course of business for Joe’s Construction.


[8]   Vinup opposed the summary judgment motions, arguing that, with regard to

      Property-Owners, Vinup did not qualify as an “employee” under the Policy

      and, instead, was a “temporary employee” for whom coverage was available

      under the Policy. He also argued that the determination of one’s employment

      status is fact-sensitive and thus improper for determination by summary

      judgment. Vinup’s designations in opposition to the two summary judgment

      motions included, among other things, evidence that Vinup was a general

      laborer, who worked various odd jobs for various contractors in the course of a

      year and that Getz never considered Vinup to have been a full-time employee of

      Joe’s Construction. Id. at 152, 192. Vinup designated evidence that Joe’s


      Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016   Page 6 of 19
       Construction paid its workers in cash or trade, never issued W-2 or 1099 forms

       to its workers, and payroll taxes were never withheld from Vinup’s earnings.

       Id. at 192. Vinup designated evidence that Getz expected that once Vinup’s

       debt to Getz was paid off, Vinup would no longer work for Getz. Id. at 194.

       With regard to Getz’s control of Vinup and the other workers, Vinup

       designated evidence that Getz did not train them or specifically instruct them

       on how to perform the assigned physical labor tasks. Id. at 214, 230.


[9]    Following a hearing, the trial court granted summary judgment, by separate

       orders, in favor of Property-Owners and Joe’s Construction, determining that

       no genuine issue of fact existed, that Vinup was an employee, and the alleged

       injuries arose out of in and in the course of Vinup’s employment. Id. at 23-26.

       Vinup now appeals.


                                       Discussion and Decision
[10]   When reviewing a grant or denial of summary judgment, we apply the same

       standard as the trial court: summary judgment is only appropriate when the

       designated evidence shows that there is no genuine issue of material fact and

       that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule

       56(C); Walker v. Martin, 887 N.E.2d 125, 130 (Ind. Ct. App. 2008), trans. denied.

       On appeal, we consider all of the designated evidence in the light most

       favorable to the nonmoving party. Walker, 887 N.E.2d at 130. The trial court’s

       order granting a motion for summary judgment is cloaked with a presumption

       of validity, and a party appealing from a summary judgment decision has the


       Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016   Page 7 of 19
       burden of persuading the court that the grant or denial of summary judgment

       was erroneous. Id.


[11]   The issue before us is whether the trial court erred when it determined, as a

       matter of law, that Vinup was an employee of Joe’s Construction at the time

       that he suffered injuries. As is relevant here, the consequences of that employee

       status are: (1) Vinup’s remedy is limited to that available under the Worker’s

       Compensation Act, and he cannot pursue a negligence action against Joe’s

       Construction;2 and (2) pursuant to a policy provision excluding from coverage

       payment for injuries to an employee, Property-Owners owed no duty to defend

       and would not be liable for any judgment rendered against Joe’s Construction

       or Getz. Vinup contends that genuine issues of material fact exist on the issue

       of whether he was an employee or, instead, was an independent contractor,

       and, therefore, the trial court erred when it granted summary judgment in favor

       of Joe’s Construction and in favor of Property-Owners. He asks that we reverse

       the summary judgment orders and remand the matter for trial.


                                           A. Ten-Factor Analysis

[12]   Whether one acts as an employee or an independent contractor generally is a

       question for the trier of fact. Mortg. Consultants, Inc. v. Mahaney, 655 N.E.2d

       493, 496 (Ind. 1995). “However, if the significant underlying facts are




       2
         See Ind. Code § 22-3-2-6 (Indiana’s Worker’s Compensation Act is exclusive remedy available to employees
       for accidental personal injury arising out of and in the course of employment).

       Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016                   Page 8 of 19
       undisputed, the court may properly determine a worker’s classification as a

       matter of law.” Walker, 887 N.E.2d at 131 (citing Moberly v. Day, 757 N.E.2d

       1007, 1009 (Ind. 2001)). An employee is one “‘employed to perform services in

       the affairs of another and who with respect to the physical conduct in the

       performance of the services is subject to the other’s control or right to control,’”

       whereas an independent contractor generally controls the method and details of

       the task and answers to the principal only as to the results. Id. (quoting

       Restatement (Second) of Agency § 220(1) and citing Wishard Mem’l Hosp. v.

       Kerr, 846 N.E.2d 1083, 1090 (Ind. Ct. App. 2006)).


[13]   As Vinup correctly observes, our Supreme Court in Moberly set forth a non-

       exhaustive list of ten factors to be used in the analysis of determining whether

       one is an independent contractor or an employee:

               (1) the extent of control which, by the agreement, the master may
               exercise over the details of the work;


               (2) whether or not the one employed is engaged in a distinct
               occupation or business;


               (3) the kind of occupation, with reference to whether, in the
               locality, the work is usually done under the direction of the
               employer or by a specialist without supervision;


               (4) the skill required in the particular occupation;


               (5) whether the employer or the workman supplies the
               instrumentalities, tools, and the place of work for the person
               doing the work;

       Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016   Page 9 of 19
               (6) the length of time for which the person is employed;


               (7) the method of payment, whether by the time or by the job;


               (8) whether or not the work is a part of the regular business of the
               employer;


               (9) whether or not the parties believe they are creating the
               relation of master and servant; and


               (10) whether the principal is or is not in business.


       757 N.E.2d at 1010 (applying analysis of Restatement (Second) of Agency §

       220). All of the ten circumstances are considered in the analysis, and although

       no single factor is dispositive, “the ‘extent of control’ factor is the single most

       important factor in determining the relationship.” Walker, 887 N.E.2d at 131

       (citing Wishard Mem’l Hosp., 846 N.E.2d at 1090). On appeal, Vinup argues that

       six of the ten Moberly factors weigh in favor of independent contractor status

       and thus, genuine issues of material fact exist and make summary judgment in

       favor of Joe’s Construction and Property-Owners inappropriate. We address

       each of Vinup’s six challenges in turn.


[14]   First, with regard to the extent of control that Getz exercised, Vinup argues that

       “[t]he mere fact that [Getz] was at the job site does not mean that he was

       exercising ‘control’ over the manner in which [Vinup] dug trenches” and that

       merely telling Vinup what needed to be done did not reflect control as is

       necessary for Vinup to be considered an employee. Appellant’s Br. at 19. Vinup


       Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016   Page 10 of 19
       also notes that, although Getz may have directed Vinup to dig trenches,

       Vinup’s designated evidence shows that he was using a spud bar to stop pipes as

       they rolled off the truck, thus “Vinup had sufficient control . . . at the job site to

       do a different job than that which had been assigned by Getz.” Id. at 22.

       Accordingly, Vinup asserts, the “extent of control” factor weighs in favor of

       finding Vinup was an independent contractor. We disagree.


[15]   Under the first factor, an employee-servant is one “employed to perform

       services in the affairs of another and who with respect to the physical conduct

       in the performance of the services is subject to the other’s control or right to

       control.” Walker, 887 N.E.2d at 131 (quoting Restatement (Second) of Agency

       § 220(1)). Conversely, an independent contractor generally controls the method

       and details of his task and is answerable to the principal as to results only. Id.

       Here, Getz solely determined and assigned what tasks were to be done by

       workers of Joe’s Construction. That is, Getz determined the location where the

       work was to be done, in this case, where on the Aberdeen Project they would be

       working. He determined the workers’ schedules, including work hours and

       breaks, and he had the power to remove anyone from his employment. Joe’s

       Construction provided the tools and equipment, including safety vests, and he

       determined when those were to be worn. Vinup did not use any of his own

       tools in the performance of his work for Joe’s Construction. Contrary to

       Vinup’s assertion, we find that the “control” factor weighs in favor of employee

       status.




       Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016   Page 11 of 19
[16]   Next, Vinup addresses the third Moberly factor, which concerns whether the

       kind of occupation consists of work usually done under the direction of an

       employer or by a specialist without supervision, and he asserts, “it is common

       for independent contractors to be hired on construction jobs” for the type of

       work he was doing on the Aberdeen Project, and, therefore, “this factor slants

       in favor of independent contractor” status. Appellant’s Br. at 25. Vinup’s

       singular statement that often independent contractors are hired for construction

       jobs does not demonstrate whether his particular occupation at Joe’s

       Construction was under the direction of an employer or by a specialist.

       Furthermore, evidence designated by Joe’s Construction, namely Getz’s

       deposition, indicates that the type of work that Vinup and his coworkers were

       doing on the Aberdeen Project was the type of work that, in that locality, was

       typically done under the direction and supervision of an employer. Appellant’s

       App. at 195. Thus, we find this factor weighs in favor of employee status.


[17]   Vinup’s next argument concerns the fourth Moberly factor, addressing the skill

       required for the particular occupation. “Unskilled labor is usually performed by

       employees, while skilled labor is often performed by independent contractors.”

       Walker, 887 N.E.2d at 132 (citing Moberly, 757 N.E.2d at 1010). Vinup

       contends that sometimes he was required to drive a dump truck, which requires

       special skill and weighs in favor of independent contractor status. The

       designated evidence reveals, however, that Vinup was hired to, and did

       perform, general labor for Joe’s Construction that primarily consisted of digging

       trenches and laying water line pipe and sometimes driving a dump truck.


       Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016   Page 12 of 19
       Indeed, Vinup acknowledges in his brief that “he was doing unskilled labor,

       which did not require any special instructions or supervision.” Appellant’s Br. at

       21-22. Getz testified that there were no special skills, training, certification, or

       licensing required for Vinup to perform his job. Appellant’s App. at 194. Vinup

       has failed to show that he was performing skilled labor while working for Joe’s

       Construction.


[18]   Next, Vinup addresses the sixth Moberly factor, which considers the length of

       employment, and argues that Getz did not intend a long-term employment

       relationship with Vinup and, rather, expected only that Vinup would work for

       Joe’s Construction until his debt was repaid to Getz. See Walker, 887 N.E.2d at

       133 (observing that a long-term relationship may indicate employee status,

       especially employment over a period of time with regular hours). With regard

       to the debt, there is little evidence about it, other than Vinup borrowed money

       in various sums from Getz that totaled approximately $363 and that, at the time

       of the accident, Vinup had repaid approximately $50; thus, most of it had yet to

       be repaid. Other designated evidence showed that Vinup had no other

       employment during the time that he worked for Joe’s Construction, he expected

       that his work on the Aberdeen Project – generally, eight hours per day – would

       last several months, and he had no plans to find additional work during this

       time. He anticipated that he would work on the Aberdeen Project “until we got

       it done.” Appellant’s App. at 154. We find these circumstances indicate

       employment over a period of time with regular hours and suggest an employee,

       as opposed to an independent contractor, relationship.


       Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016   Page 13 of 19
[19]   Vinup next addresses the seventh Moberly factor, concerning the method of

       payment, i.e., whether by the time or by the job. “Sporadic payments in lump

       sum amounts for each job performed, instead of payments by the hour or on a

       weekly basis are more typical of an independent contractor than an employee.”

       Walker, 887 N.E.2d at 133. Vinup argues that in his case this factor weighs in

       favor of independent contractor status because, although he was paid an hourly

       rate, he was paid sporadically “however or whenever” the workers desired to be

       paid. Appellant’s App. at 190. Although paid not at consistent intervals, Joe’s

       Construction paid Vinup an hourly wage of ten dollars per hour, and Vinup

       generally worked eight-hour days. Thus, he was still paid by the hour, and not

       according to completion of a job or project. On balance, the seventh factor

       reflects employee status.


[20]   Lastly, Vinup argues that, pursuant to the ninth Moberly factor, regarding

       whether the parties believed that they were creating an employer/employee

       relationship, the designated evidence demonstrates that Joe’s Construction

       intended Vinup’s status to be an independent contractor. Vinup relies on the

       June 2012 letter that then-counsel for Joe’s Construction sent to Vinup, telling

       Vinup that he was an independent contractor and not an employee of Joe’s

       Construction.3 However, the relevant inquiry is what the parties believed, and




       3
         We recognize that Joe’s Construction completely changed its position, initially telling Vinup in the June
       2012 letter that Worker’s Compensation benefits were not available to him, and later taking the position that
       his only remedy is to seek Worker’s Compensation benefits. Joe’s Construction indicates that the June 2012
       letter was an “incorrect assessment by prior counsel,” noting that it was given two months after the incident
       and before a full investigation had been conducted. Joe’s Construction Br. at 26 n.4. Although Joe’s

       Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016                     Page 14 of 19
       Joe’s Construction designated evidence that Getz considered Vinup to be an

       employee of Joe’s Construction during the Aberdeen Project, and Vinup

       considered Getz to be “the boss” when he was working for Joe’s Construction.

       Appellant’s App. at 156, 167, 194. We find that the designated evidence indicates

       that, at the time, Getz and Vinup believed that they had an employee/employer

       relationship.


[21]   Although Vinup does not claim that the four remaining Moberly factors do not

       support an employee status, we nevertheless will address them, as all ten of the

       factors are to be considered in the analysis. Walker, 887 N.E.2d at 131. With

       regard to the second factor, pertaining to whether or not the one employed is

       engaged in a distinct occupation or business, there was no designated evidence

       that Vinup engaged in a distinct occupation during the time that he worked for

       Joe’s Construction. Indeed, the evidence was that Vinup worked solely for

       Joe’s Construction and had no plans to gain other employment during the time

       that he worked for Joe’s Construction. Appellant’s App. at 285.


[22]   The fifth factor examines whether the employer or the workman supplies the

       instrumentalities, tools, and the place of work for the person doing the work.

       Under this factor, “it is particularly significant if an employer provides tools . .

       . and the same would presumably be true if the workman is the provider.”

       Moberly, 757 N.E.2d at 1012. Here, Joe’s Construction provided the tools and




       Construction urges that the letter “has no bearing on this appeal[,]” id., it was designated evidence and
       considered by the trial court during summary judgment proceedings.

       Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016                       Page 15 of 19
       safety equipment; Vinup did not use any of his own tools while working for

       Joe’s Construction. Additionally, Vinup testified that he and the other workers

       would meet at Getz’s home, and Getz would transport them or provide the

       equipment for them to get to the job site. Appellant’s App. at 271, 283. Thus, the

       fifth factor weighs in favor of Vinup’s status as being an employee of Joe’s

       Construction. The eighth factor considers whether the relevant work is part of

       the regular business of the employer. Here, the designated evidence

       demonstrated that the type of work that Joe’s Construction provided on the

       Aberdeen Project was part of the usual and ordinary course of business for Joe’s

       Construction. Id. at 193. The tenth factor considers whether the principal is in

       business. Here, the designated evidence shows that Joe’s Construction is a

       construction business that began in 1989, first starting as a “d/b/a” and later

       converting to a limited liability company. Id. at 190.


[23]   Upon review of the ten-factor analysis, we find that Vinup has failed to

       establish that a genuine issue of material fact exists on the issue of whether

       Vinup’s status was that of an employee at the time that he was injured. 4



       4
        The Restatement of Employment Law Section 1.01, adopted in May 2014, addresses the distinction
       between an employee and an independent businessperson. Section 1.01, Conditions for Existence of
       Employment Relationship, states:
               (a) Except as provided in §§ 1.02 and 1.03, an individual renders services as an employee of an
               employer if:
                        (1) the individual acts, at least in part, to serve the interests of the employer;
                        (2) the employer consents to receive the individual’s services; and
                        (3) the employer controls the manner and means by which the individual renders services,
                        or the employer otherwise effectively prevents the individual from rendering those services
                        as an independent businessperson.

       Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016                           Page 16 of 19
       Accordingly, the trial court’s grant of summary judgment to Joe’s Construction

       and Property-Owners was not erroneous.


                                     B. Temporary Employee Inquiry

[24]   On appeal and in opposing Property-Owner’s motion for summary judgment,

       Vinup also asserted that Property-Owners “was and remains obligated to

       provide coverage” because he does not fit within the Policy’s definition of an

       employee and, instead, was a “temporary worker” for whom coverage was not

       excluded. Appellant’s Br. at 19. The trial court disagreed and granted summary

       judgment to Property-Owners, finding that Vinup “was an employee of Joe’s

       Construction” at the time that he sustained injuries and that the Policy does not

       provide coverage. Appellant’s App. at 26.


[25]   On appeal, Vinup explains that the Policy provides that that the term

       “Employee” includes a “leased worker” but does not include a “temporary

       worker,” which the Policy defines as follows:

               a person who is furnished to you to substitute for a permanent
               “employee” on leave or to meet seasonal or short-term workload
               conditions.




               (b) An individual renders services as an independent businessperson and not as an employee when
               the individual in his or her own interest exercises entrepreneurial control over important business
               decisions, including whether to hire and where to assign assistants, whether to purchase and where
               to deploy equipment, and whether and when to provide service to other customers.
       Restatement of Employment Law § 1.01 (2015).

       Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016                    Page 17 of 19
       Id. at 109, 112. Vinup argues that the designated evidence reveals that he

       worked for Joe’s Construction intermittently, as opposed to being a permanent

       full-time employee on payroll, and that Joe’s Construction hired him and other

       workers, on an as-needed basis. Joe’s Construction would pay such workers in

       cash or trade, taxes were not withheld, and Joe’s Construction did not issue W-

       2 or 1099 forms. Getz testified that he expected Vinup “would have probably

       moved on down the road” after his debt was paid in full. Id. at 194. Vinup

       argues that these factors indicate that he was “temporary,” and thus the Policy

       does not exclude coverage for him, or that, at a minimum, genuine issues of

       material fact remain as to whether he was a temporary worker and not excluded

       from the Policy’s coverage.


[26]   Property-Owners maintain that Vinup was not a “temporary worker” as that

       term is defined in the Policy. Property-Owners emphasizes that a “temporary

       worker,” as defined in the Policy is someone who is “furnished to the insured to

       substitute for a permanent employee or to meet seasonal or short-term

       workload conditions.” Id. at 112 (emphasis added). Vinup was neither

       “furnished” to Joe’s Construction by some other party nor was he substituting

       for a permanent employee. Therefore, Property-Owners asserts, Vinup did not

       qualify under the Policy’s definition of “temporary worker.” We agree. Vinup

       testified that Getz asked for his help with the Aberdeen Project, and Getz

       testified likewise, stating that he offered the work to Vinup. Id. at 154, 193.

       Under the plain language of the Policy, Vinup was not a “temporary worker,”




       Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016   Page 18 of 19
       and the trial court did not err when it granted Property-Owners’s motion for

       summary judgment.


[27]   Affirmed.5


       May, J., and Crone, J., concur.




       5
         We recognize that, after making its arguments regarding Vinup’s employment status, Joe’s Construction
       states, “Although the above arguments [regarding Vinup’s status as an employee] are dispositive and support
       an affirmance of the trial court’s summary judgment order, it is important to note that Getz [as the owner-
       member of Joe’s Construction, an Indiana limited liability company] is independently shielded from personal
       liability” for any injuries suffered by Vinup while working for Joe’s Construction. Joe’s Construction Appellee’s
       Br. at 31. Joe’s Construction also raised the matter in its motion for summary judgment and at the hearing.
       Appellant’s App. at 256-259; Tr. at 18-19. Vinup did not appear to address the matter either at the trial court
       level, or by reply brief. Appellant’s App. 299-307. However, as Joe’s Construction acknowledges on appeal,
       the dispositive issue is whether Vinup was or was not an employee, which determines whether Worker’s
       Compensation is Vinup’s exclusive remedy. We decline to reach the matter of Getz’s potential personal
       liability, as we find it is beyond the scope of the issue before us.



       Court of Appeals of Indiana | Opinion 58A04-1602-CT-502 | November 30, 2016                        Page 19 of 19
