Kern v. Steele County

WAHL, Justice

(dissenting).

I respectfully dissent. I would affirm the determination of the trial court that the Kerns are employees of Steele County within the meaning of the county’s liability insurance policy. Not only have they met the most important tests of an employer-employee relationship, Iverson v. Independent School District No. 547, 257 N.W.2d 572 (Minn.1977), strong public policy considerations demand such a conclusion.

The most important of the five factors in Iverson is the employer’s right to control the means and manner of an employee’s performance, Holzemer v. Minnesota Milk Co., 259 N.W.2d 592 (Minn.1977). As the trial court noted, in the memorandum accompanying its order, Steele County social workers

were extensively involved in accumulating information for licensing of foster homes, monitoring the appropriateness of food and clothing * * *, providing permission for foster parents to take extended trips, monitoring medical assistance to foster children * * *, general approval of foster home activities and procedures * *, and authority to remove foster children from the home at will.

Such close monitoring indicates that the foster-care parent is in a very different situation from that of the independent contractor who, we have noted, “is subject to his employer’s control only as to the end product or final result of his work.” Hammes v. Suk, 291 Minn. 233, 235, 190 N.W.2d 478, 481 (1971).

An employer need not be continually present or wholly in control of an employee’s activities for the court to conclude that his “right of control” is enough to justify a finding of an employer-employee relationship. In Ossenfort v. Associated Milk Producers, Inc., 254 N.W.2d 672 (Minn.1977), *190we found the relationship between a dairy •association and a milk hauler to be that of employer and employee despite the fact that the contract between them described the hauler as an independent contractor and provided that the association had “no control over the time, manner, means or method of [the hauler’s] performance with respect to routes and schedules.” Id. at 677. The determinative factor in the jury’s conclusion, upheld by this court on review, was that the association’s fieldmen could ride on the haulers’ trucks to be sure that they “pulled into the farms safely, picked up the milk sample correctly, kept the samples cool, and kept themselves and the equipment clean.” Id. at 678. The parallels between the monitoring of milk haulers in Ossenfort and the supervision of foster homes in the case at bar leads to the conclusion that the relationship between Steele County and the Kerns is that of employer and employee.

Huber v. Hennepin County Welfare Board, 249 Minn. 561, 83 N.W.2d 511 (1957), is not dispositive of this issue, since Huber’s status was very different from that of the Kerns. Huber was a nurse who was paid by Hennepin County for services to a recipient of old-age assistance. Her services were more limited in scope than those of a foster parent; she was paid on either a monthly or per diem basis; and she was required to follow the instructions of the attending physician, not those of the county.

The Kerns’ voluntary status precludes a finding that the county’s mode of payment makes them independent contractors.1 The majority notes that the Kerns receive a monthly stipend from the county and concludes that this “mode of payment” indicates that they are independent contractors rather than employees. In so concluding, the majority ignores the fact that the purpose of the stipend is not to pay foster parents for their services but to provide foster children with necessities. Most parents would agree that they could not be paid enough for their services in parenting their children. Like other parents, foster parents render their parenting services voluntarily.

The guidelines listed in Iverson are factors to be considered in evaluating a particular relationship. They may not all be present in any one relationship, and I agree with the majority that all five factors are not present here. However, the degree of the county’s control over a foster parent’s activities, the voluntary status of the foster parents, and what the majority calls the county’s “de facto right of discharge” are sufficient to establish a foster parent’s status as an employee for purposes of coverage under the county’s liability insurance policy.

To hold that foster parents are not county employees for purposes of a county liability policy covering the county and “any employee” will undermine the goals of our foster-care program. The county, state and in some cases federal governments are responsible for providing for children in foster care. See Minn.Stat. §§ 260.242, 261.27 (1980). These children need homes. A family is acting on behalf of society at large when it takes on this responsibility. It is in the interests of the people of this state, and especially of the children themselves, to encourage participation of foster parents in the foster-care program. If foster parents are excluded from a county’s liability policy, individuals may be reluctant to volunteer their services.

I would hold that, for the purposes of liability coverage, the Kerns are employees of Steele County and that Minnesota Mutual Fire and Casualty and Western Casualty and Surety Company should share liability in proportion to the limits of their respective policies.

. Voluntary workers may be employees. See, e.g., Minn.Stat. § 176.011, subd. 9 (1980).