                 IN THE COURT OF APPEALS OF TENNESSEE
                                                                               FILED
                                    AT KNOXVILLE                              March 09, 1999

                                                                            Cecil Crowson, Jr.
                                                                            Appellate C ourt
                                                                                Clerk

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,) AFFIRMED
                             ) 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 IO 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 Contracting, 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 only granted where the movant establishes

there are no genuine issues of material fact, and the movant is entitled to a judgment

as a ma tter of law . Byrd v. H all, 847 S .W.2d 208 (T enn. 19 93).
               The material facts are not in dispute. Plaintiff, at the time of his alleged

injury, was an employee of Steve Mann, d/b/a Mann Mechanical Contracting. At

some time prior to 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-contractor”. At the time of plaintiff’s alleged

accident, Mann was renting trucks, equipment and the sheet metal 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 testimony is not disputed on the business relationship. He testified:

               Q.     Okay. What was the business relationship at the time 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 subcontracting -- I rented all of the trucks and the
                      sheet metal shop to him. And he was -- and paid him -- he
                      subcontracted all my labor and installations. I paid him by the
                      job.

               Q.     Did that business relationship have anything to do with your
                      workers’ comp insurance?

               A.     Well, I didn’t carry it. That was part of the deal, he carried 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, too?

               A.     Wel l, hop ed it w orke d tha t way.

               Plaintiff argues that Mann was an independent contractor. As the

Supreme Court has noted in Stratton v. United Inter-Mountain Telephone Co., 695

S.W.2d 947 (Tenn. 1985), when the facts are essentially undisputed, the question of


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whether one is an employee or an indepe ndent contractor for the p urposes of W orker’s

Compensation, is one of law for the court. The Stratton Court teac hes that certa in

factors are to be considered in determining whether the relationship is one of

employer-em ployee or inde pendent c ontractor, an d that no on e factor ne cessarily

controls. These are:

               1. Right to control the conduct of the work.

               2. Right of termination.

               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 is exercised,

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

               Clearly, the right to control existed in this case. The defendant

contracted with third parties for heating and air-conditioning installations, and he then

contracted with M ann to do th e installation. M ann used the tools, equ ipment,

uniforms and the premises of defendant to carry out the work. The working

arrangement between Mann and defendant was essentially an allocation of overhead

expenses with paymet to Mann for work performed by Mann and his employees. On

this record, Mann only contributed labor to the operation.

               The courts have noted that the statutory scheme under consideration

intended to ensure that all workers are paid benefits when they are injured in the

course of their emplo yment. Stratton. The statutory intent was satisfied by the

payment of Worker’s Compensation benefits to the plaintiff herein. We hold on the


                                                3
undisputed evidence that defendant was within the statute’s umbrella of protection as

an emplo yer and was entitled to judg ment.

              We affirm the judgment of the Trial Court and remand with the cost of

the appeal assessed to plaintiff.




                                          __________________________
                                          Herschel P. Franks, J.


CONCUR:




___________________________
Don T. McM urray, J.




___________________________
Charles D. Susano, Jr., J.




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