         IMPORTANT NOTICE
    NOT TO BE PUBLISHED OPINION


THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
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                                                       RENDERED: MAY 5, 2016
                                                         NOT TO BE PUBLISHED

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                              2015-SC-000362-WC


UNINSURED EMPLOYERS' FUND                                              APPELLANT



                   ON APPEAL FROM COURT OF APPEALS
V.                     CASE NO. 2014-CA-1556-WC
                  WORKERS' COMPENSATION NO. 10-00493



DARLENE CROWDER;
PULASKI FRANCHISES, INC.;
QFA ROYALTIES, LLC.;
EUGENE DAVIS; JAMES DICK;
HONORABLE J. GREGORY ALLEN,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS' COMPENSATION BOARD                                            APPELLEES



                  MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING

      Appellant, Uninsured Employers' Fund ("UEF"), appeals a Court of

Appeals decision which affirmed that Appellee, QFA Royalties, LLC, ("QFA") did

not have up-the-ladder liability for workers' compensation benefits paid to

Darlene Crowder, and that Appellees, Eugene Davis and James Dick, are also

not jointly and severally liable to pay for the benefits in question. For the

below stated reasons, we affirm the Court of Appeals.

      On February 27, 2009, Davis and Dick purchased an existing Quiznos

sandwich shop in Somerset, Kentucky, from a third party. Davis purchased
45% of the business and was to participate in the day-to-day management of

the Quiznos. Dick purchased the remaining 55% but was not active in

management. Davis and Dick signed the transfer agreements and franchise

agreement with QFA in their individual capacity. The franchise agreement

required Davis and Dick to pay QFA a one time transfer fee of $12,500 and a

monthly 7% royalty fee based on sales. Several days after signing the

contracts, on March 2, 2009, Davis and Dick created Pulaski Franchises, Inc.

("Pulaski") for the purpose of owning and operating the Quiznos. Davis owned

45% of Pulaski and Dick 55%. However, the record indicates that neither the

franchise agreement nor the assets of the restaurant were transferred into

Pulaski's name. Nevertheless, all of the restaurant's cash flow was placed into

accounts held by Pulaski. The employees' wages, taxes, and royalty payments

to QFA were also paid from the Pulaski account.

      Davis hired Tyler Hibbard to manage the Quiznos. Hibbard, in turn,

hired Crowder to serve as his assistant. Crowder's first day of work was April

3, 2010. On April 15, 2010, she severely injured her left eye while working at

the Quiznos. At the time Crowder suffered her work-related injury, the

workers' compensation insurance for Quiznos, that was held in Pulaski's name,

had lapsed. Crowder filed a Form 101 Application for Resolution of Injury

Claim. QFA, Pulaski, Davis, and Dick were all joined as parties. The UEF was

also joined as a party due to the lack of a workers' compensation insurance

policy.




                                        2
      QFA's designated corporate representative, Lori Christensen, testified by

deposition. She stated that QFA is in the business of licensing franchises and

                                                  o
makes profit from the initial franchise fee and monthly royalties from its

franchisees. Christensen testified that QFA has never owned or operated any

Quiznos sandwich shops. However, another corporate entity which is part of

the "Quiznos family" did briefly operate corporate owned restaurants.

Christensen did testify that while QFA is not in the business of running the

day-to-day operations of Quiznos restaurants, it did have an interest in making

sure the individual franchises lived up to a certain standard to provide a

consistent experience for its customers.

      UEF filed a copy of the franchise agreement entered into between QFA,

Davis, and Dick. The franchise agreement set out with great specificity the

parties' rights and obligations with respect to operating the franchise. The

franchise agreement stated that QFA must approve the location for the

Quiznos, the lease, the type of equipment used, and the signage. The

agreement also stated that the franchisees must comply with the operations

manual which provided even greater detail into how the Quiznos must be

managed. The operations manual gave rules on how many employees must be

on duty at all times, what the daily hours of the restaurant must be, and how

to make and wrap sandwiches, among other rules.

      Davis testified that he was initially responsible for the day-to-day

operation of the Quiznos, but hired Hibbard to take over all management

duties. Davis stated that his primary employment was as a snack food



                                           3
salesman. Dick testified that he was just a passive investor in the business

and had no knowledge of the daily operations. However, there was no contract

or agreement limiting Dick's involvement in the enterprise. His primary

employment was as a funeral director. Both Davis and Dick testified that they

set up Pulaski to own the Quiznos, but neither came up with a reason as to

why the franchise was not transferred to the corporation. However, Davis

stated that all of the Quiznos's receipts were placed into and payments were

made out of an account in Pulaski's name. Neither Davis nor Dick knew that

the workers' compensation coverage for Pulaski had lapsed.

      Al.,J Allison Jones entered an interlocutory opinion and order on

December 6, 2012, on the bifurcated issues of whether QFA had up-the-ladder

liability per KRS 342.610(2); whether Pulaski, Dick, or Davis was Crowder's

employer; and whether QFA can be held liable if it did not have a written

agreement with Crowder's employer. Al.,J Jones found QFA was in the

business of granting and overseeing franchise agreements, and that making

and selling sandwiches to customers is not a regular and recurrent part of its

business. She found that while QFA provides very detailed instructions to its

franchises, it is not involved in operating or managing the stores. Al.,1 Jones

found QFA's role in this matter was indistinguishable from the scenario in

Doctors' Associates, Inc. v. Uninsured Employers' Fund, 364 S.W.3d 88 (Ky.

2011). ALJ Jones reasoned that QFA did not have up-the ladder liability, and

dismissed it from the case. ALJ Jones then further found that Pulaski was

Crowder's employer based on bank records and the parties' testimony. She



                                        4
dismissed Davis and Dick from the claim. Thus, Pulaski would be responsible

to repay the UEF for any workers' compensation benefits paid to Crowder.

      The UEF filed a petition for reconsideration asking for additional findings

of fact and conclusions of law on the question of whether Davis, Dick, and

Pulaski were involved in a joint venture and were therefore jointly and severally

liable. The elements essential to find that there was a joint enterprise/venture

are: "1) an agreement, express or implied, among the members of the group; 2)

a common purpose to be carried out by the group; 3) a community of pecuniary

interest in that purpose among the members; and 4) an equal right to a voice in

the direction of the enterprise, which gives an equal right of control."   Huff v.

Rosenberg, 496 S.W.2d 352 (Ky. 1973).

      Applying the facts of this matter, ALI Jones determined that Davis, Dick,

and Pulaski were not involved in a joint enterprise/venture because the first,

third, and fourth element of the Huff test were not satisfied. ALJ Jones found

the first element was not satisfied because there was no agreement between

Dick, Davis, and Pulaski to jointly operate and run the Quiznos. The third

element was not satisfied because ALJ Jones found that there was no evidence

the three parties shared profits from the Quiznos. Instead, ALJ Jones believed

that all of the profits from the restaurant were treated as corporate profits and

retained by Pulaski to put back into the business. Finally, A1,J Jones found

that the fourth element was not satisfied because Dick testified that he was a

passive investor and exercised no control over the business. The Al.,J further




                                          5
opined that the parties made a mutual mistake when Dick and Davis

purchased the franchise in their personal capacity and not in Pulaski's name.

      A1.0 Gregory Allen was assigned to the matter after ALJ Jones was

appointed to the Court of Appeals. He adopted AL I Jones's findings regarding

the parties' liability to pay Crowder's workers' compensation benefits. Al.,J

Allen then ordered Pulaski to reimburse UEF per KRS 342.760(4) for any

benefits paid. He awarded Crowder temporary total disability benefits and

permanent partial disability benefits enhanced by the three multiplier per KRS

342.730(1)(c)1. The Workers' Compensation Board ("Board") and Court of

Appeals affirmed, and this appeal followed.

      The Board's review in this matter was limited to determining whether the

evidence is sufficient to support the ALJ's findings, or if the evidence compels a

different result. W. Baptist Hosp. v. Kelly, 827 S.W.2d 685, 687 (Ky. 1992).

Further, the function of the Court of Appeals is to "correct the Board only

where the Court perceives the Board has overlooked or misconstrued

controlling statutes or precedent, or committed an error in assessing the

evidence so flagrant as to cause gross injustice."   Id. at 687-88. Finally, review

by this Court "is to address new or novel questions of statutory construction,

or to reconsider precedent when such appears necessary, or to review a

question of constitutional magnitude." Id. The ALJ, as fact-finder, has the sole

discretion to judge the credibility of testimony and weight of evidence.

Paramount Foods, Inc. v. Burkhardt, 695 S.W.2d 418 (Ky. 1985).




                                         6
          I. QFA DOES NOT HAVE UP-THE-LADDER LIABILITY TO
             REIMBURSE THE UEF FOR CROWDER'S WORKERS'
                       COMPENSATION BENEFITS

      UEF first argues that QFA should have up-the-ladder liability to pay for

Crowder's workers' compensation benefits. UEF contends that QFA was a

contractor and Davis, Dick, and Pulaski collectively served as a subcontractor,

as a matter of law. It argues that QFA was as much in the sandwich selling

business as Davis, Dick, and Pulaski, based on Christensen's testimony which

indicated that QFA had an interest in making individual franchises succeed,

and that the franchise agreement provided very specific instructions on how

franchises must run their business. Because the UEF was unsuccessful before

the ALJ and had the burden of proof regarding whether QFA has up-the-ladder

liability, the question on appeal is if, upon consideration of the whole record,

the evidence compels a finding in its favor.   Wolf Creek Collieries v. Crum, 673

S.W.2d 735 (KY. App. 1984).

      KRS 342.610(2) states, "A contractor who subcontracts all or any part of

a contract and his or her carrier shall be liable for the payment of

compensation to the employees of the subcontractor unless the subcontractor

primarily liable for the payment of such compensation has secured the

payment of compensation as provided for in his chapter." Any person who

contracts with another, "To have work performed of a kind which is a regular or

recurrent part of the work of the trade, business, occupation, or profession of

such person shall for the purposes of [the statute] be deemed a contractor, and

such other person a subcontractor." KRS 342.610(2)(b).



                                         7
      Work of a kind that is a 'regular or recurrent part of the work of
      the trade, business, occupation, or profession' of an owner does
      not mean work that is beneficial or incidental to the owner's
      business or that it is necessary to enable the owner to continue in
      business, improve or expand its business, or remain or become
      more competitive in the market. It is work that is customary,
      usual, or normal to the particular business (including work
      assumed by contract or required by law) or work that the business
      repeats with some degree of regularity, and it is of a kind that the
      business or similar business would normally perform or be
      expected to perform with employees.

General Electric Co. v. Cain, 236 S.W.3d 579, 588 (Ky. 2007). Nothing within

KRS 342.610(2) precludes a franchisor, such as QFA, from being considered

the statutory employer of its uninsured franchisee's employee. Doctors'

Associates, Inc., 364 S.W.3d at 92. Whether an individual or business has up-

the-ladder liability is decided on a case by case basis.   Id. at 89

      In this matter, the ALJ's determination that QFA does not have up-the-

ladder liability is supported by substantial evidence. The ALA found that QFA

is in the business of granting and overseeing franchisee agreements and that,

unlike the Quiznos in Somerset, making and selling sandwiches to customers

is not a regular and recurrent part of its business. This finding is supported by

the fact that QFA did not actually operate any Quiznos restaurant. While the

franchise agreement and operating manual do provide detailed instructions on

how to manage the restaurants on a day-to-day basis, these guidelines were

instituted to protect the brand which QFA sold. Keeping the brand strong is a

critical part of QFA's purpose because it derives its revenue from franchise fees

and royalties. Additionally, while the success of individual franchises does

benefit QFA, its primary focus is making Quiznos franchises attractive to



                                          8
investors. Thus, since QFA is not in the business of making and selling

sandwiches to customers and the Quiznos in Somerset was engaged in that

work, QFA cannot be considered the contractor, and does not have up-the-

ladder liability in this matter.


        II. CROWER'S EMPLOYER IS PULASKI, THEREFORE DAVIS
         AND DICK ARE NOT JOINTLY AND SEVERALLY LIABLE TO
            PAY FOR HER WORKERS' COMPENSATION BENEFITS

      UEF also argues that Davis and Dick are jointly and severally liable for

Crowder's workers' compensation benefits because they were engaged in a joint

venture with Pulaski to operate the Quiznos. UEF argues that Davis, Dick, and

Pulaski had a common purpose to make money selling Quiznos sandwiches,

and thus per the Huff test, they were engaged in a joint venture. However the

UEF's focus on whether Davis, Dick, and Pulaski were involved in a joint

venture is misplaced. Clearly, Davis and Dick were involved in a joint venture

to make money from operating a Quiznos franchise and created Pulaski in an

attempt to shield themselves from the liability of running such a business. See

KRS 271B.6-220. The real question here is whether Pulaski is Crowder's

employer despite the fact that Davis and Dick never transferred the assets and

franchise agreement from the Quiznos to the corporation. If Pulaski is

Crowder's employer, then Davis and Dick are shielded from being jointly and

severally liable for the workers' compensation benefits.

       KRS 342.640(1) defines employees as, "Every person including a minor,

whether lawfully or unlawfully employed, in the service of an employer under

any contract of hire or apprenticeship, express or implied, and all helpers and


                                         9
assistants of employees, whether paid by the employer or employee, if

employed with the knowledge, actual or constructive, of the employer."

Crowder was clearly under a contract of hire because she was asked by

Hibbard to work for Quiznos. There is no evidence that Davis or Dick had any

say in hiring Crowder and both testified that Pulaski was incorporated to

operate the Quiznos. Crowder and Hibbard were paid from Pulaski's bank

account and would have received worker's compensation benefits from an

insurance policy held in Pulaski's name if it had not lapsed. Therefore, the

ALJ's conclusion that Crowder was employed by Pulaski is supported by the

record and shall not be disturbed on appeal. The fact that Davis and Dick

never transferred the franchise agreement and restaurant assets into Pulaski's

name does not change the fact that Pulaski was operating the restaurant on

Davis and Dick's behalf. Pulaski is solely responsible to pay the UEF for

Crowder's workers' compensation.

      For the above stated reasons, we affirm the decision of the Court of

Appeals.

      All sitting. All concur.




                                        10
COUNSEL FOR APPELLANT,
UNINSURED EMPLOYERS' FUND:

James Robert Carpenter


COUNSEL FOR APPELLEE,
DARLENE CROWDER:

McKinnley Morgan


COUNSEL FOR APPELLEE,
PULASKI FRANCHISES, INC.;
EUGENE DAVIS; JAMES DICK:

John G. Prather, Jr.
Arden Winter Robertson Huff


COUNSEL FOR APPELLEE,
QFA ROYALTIES, LLC:

Donald Cameron Walton, III
John Patterson




                              11
