GKN Co. v. Magness

ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:

RONALD J. WAICUKAUSKI JAMES H. YOUNG

HEIDI G. GOEBEL Young & Young
White & Raub, LLP Indianapolis, Indiana
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

GKN CO., formerly known as GUST K. )
NEWBERG CONSTRUCTION COMPANY, )
) Supreme Court Cause Number
Appellant-Defendant, ) 49S02-0002-CV-116
)
v. )
)
LARRY MAGNESS, ) Court of Appeals Cause Number
) 49A02-9811-CV-896
Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT #1
The Honorable David A. Jester, Judge
Cause No. 49D01-9405-CT-434

ON PETITION TO TRANSFER

March 13, 2001

RUCKER, Justice

Case Summary

A truck driver sued his general contractor for injuries sustained
while working on a highway construction project. Contending the truck
driver was its employee, the general contractor responded with a motion to
dismiss for lack of subject matter jurisdiction. According to the general
contractor, the truck driver’s exclusive remedy rested with the Indiana
Worker’s Compensation Act. The trial court denied the motion, and the
general contractor pursued an interlocutory appeal. Concluding that a
majority of the factors outlined by this Court in Hale v. Kemp, 579 N.E.2d
63 (Ind. 1991), weighed in favor of the general contractor, the Court of
Appeals reversed in a memorandum decision. GKN Co. v. Magness, No. 49A02-
9811-CV-896 (Ind. Ct. App. June 22, 1999). Having previously granted
transfer, we now affirm the trial court’s judgment. In this opinion we
hold the following: (1) the factors set forth in Hale must be weighed and
balanced against each other; (2) the right of control is the most important
factor in determining the existence of an employment relationship; and (3)
the allegations in the complaint determine who has the burden of
demonstrating the exclusivity of the Indiana Worker’s Compensation Act.

Facts

GKN Co., formerly known as the Gust K. Newberg Construction Company,
was the general contractor of an I-465/I-65 highway construction project.
Starnes Trucking, Inc. entered into a written agreement with GKN to haul
various materials to and from a GKN job site known as a “batch plant”—a
facility where water, cement, and gravel are mixed to create concrete to be
used during construction. In turn, Starnes Trucking hired Larry Magness to

drive a cement truck. Specifically Magness was required to haul concrete
from the batch plant to various highway construction sites.
While present at the batch plant on July 14, 1992, Magness proceeded
to refuel his truck. The tank containing the fuel was surrounded by a
concrete-covered retaining wall designed to contain the fuel in the event
of a spill. Magness was standing on the wall trying to reach the fuel
nozzle on top of the tank when the wall collapsed. Falling to the ground,
Magness sustained injuries to his right wrist and forearm.
Magness received worker’s compensation from Starnes Trucking. He also
filed a complaint for damages against GKN complaining of negligence in the
maintenance and construction of the retaining wall. Relying on Indiana
Trial Rule 12(B)(1), GKN filed a motion to dismiss the complaint for lack
of subject matter jurisdiction contending Magness was an employee of GKN.
Thus, according to GKN, Magness’ exclusive remedy rested with the Indiana
Worker’s Compensation Act. The trial court denied the motion without
reciting its reasons or entering factual findings. On interlocutory
review, the Court of Appeals reversed the judgment of the trial court. On
transfer, we now affirm the trial court’s judgment.

Standard of Review

When an employer defends against an employee’s negligence claim on the
basis that the employee’s exclusive remedy is to pursue a claim for
benefits under the Indiana Worker’s Compensation Act, the defense is
properly advanced through a motion to dismiss for lack of subject matter
jurisdiction under Indiana Trial Rule 12(B)(1). Foshee v. Shoney’s, Inc.,
637 N.E.2d 1277, 1280 (Ind. 1994). In ruling on a motion to dismiss for
lack of subject matter jurisdiction, the trial court may consider not only
the complaint and motion but also any affidavits or evidence submitted in
support. Indiana Dep’t of Highways v. Dixon, 541 N.E.2d 877, 884 (Ind.
1989); Borgman v. State Farm Ins. Co., 713 N.E.2d 851, 854 (Ind. Ct. App.
1999), trans. denied. In addition, the trial court may weigh the evidence
to determine the existence of the requisite jurisdictional facts. Borgman,
713 N.E.2d at 854.
The trial court standard for evaluating Trial Rule 12(B)(1) motions to
dismiss is not in dispute. However, the standard for appellate review of a
trial court’s grant or denial of such a motion requires clarification. For
example, it has been declared that when evaluating the trial court’s ruling
on a motion to dismiss for lack of subject matter jurisdiction, a reviewing
court will affirm the judgment of the trial court upon any theory supported
by the evidence of record. See, e.g., M.V. v. Charter Terre Haute
Behavioral Health Sys., Inc., 712 N.E.2d 1064, 1066 (Ind. Ct. App. 1999);
Ransburg Indus. v. Brown, 659 N.E.2d 1081, 1083 (Ind. Ct. App. 1995),
trans. denied; Tapia v. Heavner, 648 N.E.2d 1202, 1206 (Ind. Ct. App.
1995). By contrast it has also been declared that where the facts are not
in dispute, a court of review will look de novo at the trial court’s ruling
on a Trial Rule 12(B)(1) motion to dismiss. See, e.g., Save the Valley,
Inc., v. Indiana Dep’t of Envtl. Mgmt., 724 N.E.2d 665, 668 (Ind. Ct. App.
2000), trans. denied; Fratus v. Marion Cmty. Schs. Bd. of Trs., 721 N.E.2d
280, 284 (Ind. Ct. App. 1999), trans. granted, 735 N.E.2d 232 (2000);
McEnroy v. St. Meinrad Sch. of Theology, 713 N.E.2d 334, 336 (Ind. Ct. App.
1999), trans. denied, cert. denied, 120 S. Ct. 1675 (2000); Common Council
of City of Hammond v. Matonovich, 691 N.E.2d 1326, 1328 (Ind. Ct. App.
1998), trans. denied; Rieheman v. Cornerstone Seeds, Inc., 671 N.E.2d 489,
491 (Ind. Ct. App. 1996), trans. denied.
A review of the case authority shows that the standard of appellate
review for Trial Rule 12(B)(1) motions to dismiss is indeed a function of
what occurred in the trial court. That is, the standard of review is
dependent upon: (i) whether the trial court resolved disputed facts; and
(ii) if the trial court resolved disputed facts, whether it conducted an
evidentiary hearing or ruled on a “paper record.”
If the facts before the trial court are not in dispute, then the
question of subject matter jurisdiction is purely one of law. Under those
circumstances no deference is afforded the trial court’s conclusion because
“appellate courts independently, and without the slightest deference to
trial court determinations, evaluate those issues they deem to be questions
of law.” Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind. 2000). Thus, we
review de novo a trial court’s ruling on a motion to dismiss under Trial
Rule 12(B)(1) where the facts before the trial court are undisputed.
If the facts before the trial court are in dispute, then our standard
of review focuses on whether the trial court conducted an evidentiary
hearing. Under those circumstances, the court typically engages in its
classic fact-finding function, often evaluating the character and
credibility of witnesses. Anthem Ins. Cos., Inc. v. Tenet Healthcare
Corp., 730 N.E.2d 1227, 1238 (Ind. 2000). Thus, where a trial court
conducts an evidentiary hearing, we give its factual findings and judgment
deference. Menard, Inc. v. Dage-MTI, Inc., 726 N.E.2d 1206, 1210 (Ind.
2000). And in reviewing the trial court’s factual findings and judgment,
we will reverse only if they are clearly erroneous. Id. Factual findings
are clearly erroneous if the evidence does not support them, and a judgment
is clearly erroneous if it is unsupported by the factual findings or
conclusions of law. Id.
However, where the facts are in dispute but the trial court rules on a
paper record without conducting an evidentiary hearing, then no deference
is afforded the trial court’s factual findings or judgment because under
those circumstances a court of review is “in as good a position as the
trial court to determine whether the court has subject matter
jurisdiction.” MHC Surgical Ctr. Assocs., Inc. v. State Office of Medicaid
Policy & Planning, 699 N.E.2d 306, 308 (Ind. Ct. App. 1998). See also
Farner v. Farner, 480 N.E.2d 251, 257 (Ind. Ct. App. 1985) (agreeing with
the proposition that “where a case is tried wholly upon documents or
stipulations, the appellate tribunal is in as good a position as the trial
court to determine the force and effect of the evidence.”) Thus, we review
de novo a trial court’s ruling on a motion to dismiss where the facts
before the court are disputed and the trial court rules on a paper record.
In this case, several facts before the trial court were in dispute and
just as important even for those facts not in dispute, the parties disagree
about the inferences to be drawn from those undisputed facts. Further, the
trial court did not conduct an evidentiary hearing, rather it ruled upon a
paper record consisting of the parties’ complaints, contract, affidavits of
witnesses, and excerpts of deposition testimony. Accordingly, in reviewing
the factual findings as well as the conclusions of law in this case, we
apply a de novo standard of review. In so doing, we will affirm the
judgment of the trial court on any legal theory the evidence of record
supports. However, the ruling of the trial court is presumptively correct,
and we will reverse on the basis of an incorrect factual finding only if
the appellant persuades us that the balance of evidence is tipped against
the trial court’s findings.
Discussion
I.
The Indiana Worker’s Compensation Act (the “Act”) provides the
exclusive remedy for recovery of personal injuries arising out of and in
the course of employment. Ind.Code § 22-3-2-6. Although the Act bars a
court from hearing any common law claim brought against an employer for an
on-the-job injury, it does permit an action for injury against a third-
party tortfeasor provided the third-party is neither the plaintiff’s
employer nor a fellow employee. I.C. § 22-3-2-13. Here, Magness contends
that he is entitled to recover against GKN because he was not employed by
GKN at the time he was injured. Rather, according to Magness, Starnes
Trucking employed him. GKN does not dispute that Starnes Trucking employed
Magness. It contends, however, that Magness was a “dual employee” of both
GKN and Starnes Trucking.
The Act contemplates that one worker may simultaneously have two
employers. I..C. § 22-3-3-31. Where two employers “so associate
themselves together that both are in direct control of the employee and he
is made accountable to both, he will be considered an employee of both
employers . . . .” U.S. Metalsource Corp. v. Simpson, 649 N.E.2d 682, 685
(Ind. Ct. App. 1995) (quoting Jackson Trucking Co. v. Interstate Motor
Freight Sys., 122 Ind. App. 546, 104 N.E.2d 575, 580 (1952)). Determining
whether an employer-employee relationship exists ultimately is a question
of fact. Detrick v. Midwest Pipe & Steel, Inc., 598 N.E.2d 1074, 1077
(Ind. Ct. App. 1992). In making this determination, the fact-finder must
weigh a number of factors, none of which is dispositive. This Court has
identified the most important of those as: (1) right to discharge; (2) mode
of payment; (3) supplying tools or equipment; (4) belief of the parties in
the existence of an employer-employee relationship; (5) control over the
means used in the results reached; (6) length of employment; and, (7)
establishment of the work boundaries. Hale v. Kemp, 579 N.E.2d 63, 67
(Ind. 1991). Cf. Mortgage Consultants, Inc. v. Mahaney, 655 N.E.2d 493,
495-96 (Ind. 1995) (applying a non-exhaustive list of ten factors as set
forth in the Restatement (Second) of Agency § 220(1) cmt. c (1958)). A
number of cases suggest that if a majority of the seven Hale factors is
present, then an employer-employee relationship exists.[1] However,
consistent with Hale, we now reaffirm that the factors must be weighed
against each other as a part of a balancing test as opposed to a
mathematical formula where the majority wins. As explained in greater
detail below, when applying this balancing test, the trial court should
give the greatest weight to the right of the employer to exercise control
over the employee.
In Rensing v. Indiana State University Board. of Trustees., 444
N.E.2d 1170 (Ind. 1983), this Court declared for the first time, “[T]he
primary consideration is that there was an intent that a contract of
employment, either express or implied, did exist. In other words, there
must be a mutual belief that an employer-employee relationship did exist.”
Id. at 1173 (emphasis added).[2] In reaching this conclusion, we cited Fox
v. Contract Beverage Packers, Inc., 398 N.E.2d 709 (Ind. Ct. App. 1980),
and Gibbs v. Miller, 152 Ind. App. 326, 283 N.E.2d 592 (1972). However,
upon closer examination, we conclude that these two cases do not support
that precise holding. Fox merely stated “the courts have also uniformly
held that in order for there to be an employer-employee relationship there
must be a contract, either express or implied.” Fox, 398 N.E.2d at 712.
Gibbs, on the other hand, declared that “[t]he general test in determining
the existence of a[n] [employer-employee] relationship is the right to
direct and control the conduct of the alleged servant at the time the
negligent act occurred.” Gibbs, 283 N.E.2d at 594-95.
Our research does reveal that the intent or belief of the parties may
be an important factor but only to the extent that it indicates an
assumption of control by one party and submission to control by the other
party. See Restatement (Second) of Agency § 220(2) cmt. m. This is so
apparently because of the subjective nature of an inquiry concerning the
parties’ intent. On the other hand, a determination concerning control is
more objective. Among other things, it suggests a certain economic
interdependency and implicates the employer’s right to establish work
boundaries, set working hours, assign duties, and create job security.[3]
We conclude therefore that although not dispositive, the right to control
the manner and means by which the work is to be accomplished is the single
most important factor in determining the existence of an employer-employee
relationship.
II.
We next address who bears the burden of proof in this case. The lack
of subject matter jurisdiction may be raised as an affirmative defense
either in the answer to the complaint or in a motion to dismiss. See
Ind.Trial Rule 8(C); T.R. 12(B)(1). As a general proposition, the party
challenging subject matter jurisdiction carries the burden of establishing
that jurisdiction does not exist. Methodist Hosp. of Ind., Inc. v. Ray,
551 N.E.2d 463, 467 (Ind. Ct. App. 1990), opinion adopted by 558 N.E.2d 829
(Ind. 1990). Because there is a strong public policy favoring the coverage
of employees under the Act, a number of decisions have declared that once
an employer raises the issue of the exclusivity of the Act, the burden
automatically shifts to the employee.[4] However, as Judge Kirsch
explains, this public policy is not advanced where its effect “immunize[s]
third-party tort feasors and their liability insurers from liability for
negligence which results in serious injuries to one who is not in their
employ.” Nowicki, 711 N.E.2d at 544 (Kirsch, J., dissenting). We agree.
Indeed this Court has never endorsed the proposition that an employee
automatically bears the burden of proof on the question of jurisdiction
when the issue is raised in the context of a worker’s compensation claim.
Rather, we have held:
[W]hen the plaintiff’s own complaint recites facts demonstrating the
employment relationship and its role in the injuries alleged, the
burden shifts to the plaintiff to demonstrate some grounds for taking
the claim outside the Worker’s Compensation Act.

Perry v. Stiter Buick GMC, Inc., 637 N.E.2d 1282, 1286 (Ind. 1994). Hence,
when challenging the trial court’s jurisdiction, the employer bears the
burden of proving that the employee’s claim falls within the scope of the
Act unless the employee’s complaint demonstrates the existence of an
employment relationship. Only where the employee’s complaint demonstrates
the existence of an employment relationship does the burden then shift to
the employee to show some ground for taking the case outside of the Act.
Id. Thus, we disapprove of the language in those cases declaring that once
an employer raises the issue of the exclusivity of the Act, the burden
automatically shifts to the employee. See supra note 4.
In this case Magness’ complaint does not recite facts demonstrating
the existence of an employment relationship between Magness and GKN. In
fact, as one might anticipate, in an effort to show that the Act did not
apply, the complaint specifically alleges that Magness was an employee of
Starnes Trucking. As to facts showing the existence of a dual employment
relationship, at most the complaint was ambiguous on this point. R. at 15-
16.
Accordingly, as the party challenging the trial court’s jurisdiction, GKN
had the burden to establish lack of subject matter jurisdiction.
III.
We turn now to an examination of the Hale factors to determine whether
GKN carried its burden of establishing that Magness’ claim lay within the
jurisdiction of the Act. Stated differently, we examine whether GKN
established that the trial court lacked jurisdiction to adjudicate Magness’
claim.

1. Right to Discharge

Thomas Beaty, the GKN supervisor at the batch plant, testified by way
of deposition that if a driver was not performing his duties properly, he
would “give [the driver] three warnings.” Supp. R. at 50. After giving a
driver his first warning, Beaty would call Margie Starnes, the owner of
Starnes Trucking, to let her know that he was having a problem with a
particular driver and she should fix the problem. Supp. R. at 50-51.
After giving a driver a third warning, Beaty would tell that driver that he
was no longer needed at the construction site and he should get in touch
with Margie. Supp. R. at 50. Beaty would then call Margie himself to
inform her of the action taken. Id.
Although Beaty did not have the authority to terminate Magness’
employment with Starnes Trucking, he could terminate Magness’ employment
with GKN by telling Magness that he was no longer needed at the
construction site and informing Margie of the action taken. Indeed, Beaty
had previously discharged other Starnes Trucking employees in such a
manner. Supp. R. at 48-49. In U.S. Metalsource, an employer-employee
relationship was found to exist under similar facts. “Although Metalsource
[the general contractor] did not have the power to terminate [the
plaintiff’s] employment with Whiteford [the subcontractor], it could
terminate his employment with Metalsource by calling a Whiteford supervisor
and
instructing him that it no longer wanted [the plaintiff] to deliver its
steel.” U.S. Metalsource,
649 N.E.2d at 685. This right of discharge factor weighs in favor of a
conclusion that Magness was an employee of GKN.
2. Mode of Payment
The record shows that although Beaty was responsible for signing
Magness’ time card, Magness was paid directly by Starnes Trucking. Starnes
Trucking issued Magness’ paychecks, withheld his taxes, paid his worker’s
compensation insurance premiums, and provided him with health insurance.
Supp. R. at 39. GKN argues “the fact that Magness received his paycheck
from Starnes would not defeat the existence of an employer-employee
relationship between GKN and Magness.” Brief of Appellant at 8. We agree.
However, it is a factor that points to a conclusion that Magness was not
an employee of GKN.
3. Supplying Tools or Equipment
The contract between GKN and Starnes Trucking required Starnes
Trucking to furnish the materials, equipment, and fuel for the construction
project. Supp. R. at 74, 77. If this in fact was the only evidence before
the trial court, then it would appear that Magness was in the employ of
only Starnes Trucking. However, the record shows that the parties’ actual
course of conduct was substantially different than expressed in the written
agreement. Specifically, there was evidence before the trial court that
GKN leased the trucks to Starnes Trucking, performed all maintenance on the
trucks, and provided the fuel and washout equipment for the trucks. Supp.
R. at 40, 41, 66, 67, 123-26. Indeed, GKN owned the fueling equipment that
Magness used when he was injured. Accordingly, this factor also weighs in
favor of a conclusion that Magness was an employee of GKN.
4. Belief of the Parties in the Existence of an Employer-Employee
Relationship
Here, both parties agree, “Neither Magness nor GKN believed at the
time of the project that there was an employer-employee relationship
between them.” Brief of Appellant at 8; Brief of Appellee at 16.
Nonetheless, GKN directs our attention to case authority standing for the
proposition that the absence of such a belief is common in dual employment
situations. See, e.g., U.S. Metalsource, 649 N.E.2d at 686; Beach v. Owens-
Corning Fiberglass Corp., 542 F. Supp. 1328, 1330 (N.D. Ind. 1982), aff’d,
728 F.2d 407 (7th Cir. 1984). In both cases the courts found the existence
of an employment relationship where only the employee did not believe he
was an employee of both businesses. U.S. Metal Source, 649 N.E.2d at 686;
Beach, 542 F. Supp. at 1331. Here, by contrast, neither party believed an
employer-employee relationship existed. Accordingly, this factor weighs
against a conclusion that GKN employed Magness.
5. Control Over the Means Used in the Results Reached
As we have already indicated, although not dispositive, control is
the most important factor when determining whether an employer-employee
relationship exists. The contract between GKN and Starnes Trucking
provides in pertinent part:
The General Contractor and the Subcontractor to this Agreement have an
independent contractor status in relation to each other. As an expert
in its field of work, the Subcontractor has sole control over the
means and methods by which his work is to be done, including all
requirements for doing the work safely, and the General Contractor is
not in charge of the construction, means and methods, or of the safety
of the Subcontractor’s work.

Supp. R. at 79. In addition to this contractual language, Beaty testified
during his deposition that his only direction to Magness was to give him a
“ticket” for each load of concrete he hauled, inform him where to take each
load of concrete, give him a cut off sign at the end of the day, and tell
him what time to return the following morning. Supp. R. at 52-54.
However, sometimes the State inspector, not Beaty, gave Magness the
“ticket” and told him where to take the load of concrete. Supp. R. at 54,
55. Further, Beaty never met with Magness to discuss his work on the
project, and he never instructed Magness how to maneuver his truck or pour
the concrete. Supp. R. at 53, 55. Although GKN may have exerted some
control over Magness, it did not do so concerning the means used in the
results reached. In this regard, Magness’ relationship with GKN was
typical of that of an independent contractor. See, e.g., Mortgage
Consultants, 655 N.E.2d at 495 (“In contrast to employees, generally ‘an
independent contractor controls the method and details of his task and is
answerable to the principal as to results only.’”) (quotation omitted).
Accordingly, this factor weighs heavily against a conclusion that GKN
employed Magness.
6. Length of Employment
The record shows that Magness had only been working at the
construction site three months when he sustained injury. GKN points out
that Magness was working out of a Teamster’s Union Hall and was hired for
different temporary jobs. In April 1992, Magness was hired to work on the
I-465/I-65 highway construction project of which GKN was the general
contractor. Magness’ three months of employment was also the same length
of time of his employment with Starnes Trucking. The only work that
Magness did for Starnes Trucking was in connection with the GKN project.
He never worked for Starnes Trucking before the accident and has not worked
for Starnes Trucking since then. According to GKN, the foregoing facts
point to a conclusion that Magness was its employee.
We first observe that the longer the length of employment, the more
indicative it is of an employer/employee relationship. Restatement
(Second) of Agency § 220(2) cmt. j. The length of employment here was so
abbreviated that it sheds little light one way or the other as to whether
Magness was an employee of GKN. More importantly, GKN has not shown that
there was any discussion between the parties concerning the length of time
that Magness would work for GKN. See, e.g., Fox, 398 N.E.2d at 712
(finding an employment relationship was indicated because “Contract [the
‘borrowing’ employer] determined the length of time Fox would be required
to work at the plant. . . .”). We conclude that the length of employment
in this case cannot be said to weigh in favor of finding an employment
relationship between Magness and GKN.
7. Establishment of Work Boundaries
Magness contends the work boundaries “were established by the State of
Indiana, by way of plans and specifications and location for the road
repair project.” Brief of Appellee at 32. On the other hand, GKN insists
that it established the work boundaries by virtue of the fact that it
supervised the batch plant, to and from which Magness hauled loads of
concrete.
Although the actual location of the road repair was established by the
Indiana Department of Transportation, it was GKN’s batch plant where
Magness reported to work, received
instructions, picked up cement loads, parked his truck at the end of day,
and sustained injury. This evidence points in favor of an employment
relationship between Magness and GKN.

Conclusion

Balancing the Hale factors and giving considerable weight to the
element of control, we conclude there was sufficient evidence before the
trial court to show that Magness was not an employee of GKN and thus GKN
failed to carry its burden of proving that Magness’ claim of injury fell
within the scope of the Act. Accordingly, the trial court properly denied
GKN’s motion to dismiss for lack of subject matter jurisdiction. We
therefore affirm the trial court’s judgment. This cause is remanded for
further proceedings.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.

-----------------------
[1] See, e.g., Southport Little League v. Vaughan, 734 N.E.2d 261,
268 n.6 (Ind. Ct. App. 2000), trans.denied; Black v. Employee Solutions,
Inc., 725 N.E.2d 138, 143 (Ind. Ct. App. 2000); Nowicki v. Cannon Steel
Erection Co., 711 N.E.2d 536, 540 (Ind. Ct. App. 1999), trans. denied;
Walters v. Modern Aluminum, 699 N.E.2d 671, 675 (Ind. Ct. App. 1998),
trans.denied; Davis v. Cent. Rent-A-Crane, Inc., 663 N.E.2d 1177, 1180
(Ind. Ct. App. 1996); Tapia, 648 N.E.2d at 1207; Williams v. R.H. Marlin,
Inc., 656 N.E.2d 1145, 1153 (Ind. Ct. App. 1995).

[2] Hale also quotes Rensing for this proposition. See Hale, 579
N.E.2d at 67.
[3] We find further support for this view in those jurisdictions that
have considered the issue. See, e.g., Santiago v. Phoenix Newspapers,
Inc., 794 P.2d 138, 142 (Ariz. 1990) (“Where th[e] right of control exists,
the inference of the employer-employee relationship is strengthened.”);
Empire Star Mines Co. v. California Employment Comm’n, 168 P.2d 686, 692
(Cal. 1946) (“[T]he most important factor [in determining whether an
employer-employee relationship exists] is the right to control the manner
and means of accomplishing the result desired.”), overruled on other
grounds by California v. Sims, 651 P.2d 321 (Cal. 1982); Porter v.
Pathfinder Servs., Inc., 683 A.2d 40, 42 (Del. 1996) (“[In determining
whether an employer-employee relationship exists,] [t]he greatest weight is
given to the issue of control.”); 4139 Mgmt. Inc. v. Dep’t of Labor and
Employment, 763 So. 2d 514, 517 (Fla. Dist. Ct. App. 2000) (“[I]f control
is extended to the means used to achieve the results, there is generally an
employer-employee relationship.”); Ragler Motor Sales v. Indus. Comm’n, 442
N.E.2d 903, 905 (Ill. 1982) (“The right of the employer to control the way
in which the work is performed is an important factor in determining
whether the claimant is an employee . . . .”); Roberts v. Louisiana, 404
So. 2d 1221, 1225 (La. 1981) (“The single, most important factor to
consider in deciding whether the employer-employee relationship exists . .
. is the right of the employer to control the work of the employee.”);
Whitehead v. Safway Steel Prod., Inc., 497 A.2d 803, 809 (Md. 1985)
(“[W]hether the employer has the right to control and direct the employee
in the performance of the work and in the manner in which the work is to be
done is the ‘decisive,’ or ‘controlling’ test.”) (quotations omitted);
Silvia v. Woodhouse, 248 N.E.2d 260, 264 (Mass. 1969) (“[T]he existence of
[an employer-employee] relationship depends on whether there is a right to
control.”); Krause v. Trs. of Hamline Univ. of Minn., 68 N.W.2d 124, 127
(Minn. 1955) (“Undoubtedly the most important single factor in determining
whether an employer-employee relationship exists is that of the right to
control.”); Hutchison v. St. Louis Altenheim, 858 S.W.2d 304, 305 (Mo. Ct.
App. 1993 ) (“The pivotal question in determining the existence of an
employer-employee relationship is whether the ‘employer had the right to
control the means and manner of the service, as distinguished from
controlling the ultimate results of the service.’”) (quoting Howard v.
Winebrenner, 499 S.W.2d 389, 395 (Mo. 1973)); Piantanida v. Bennett, 111
A.2d 412, 414 (N.J. 1955) (In determining whether an employment
relationship exists “[t]he element of control is the one most stressed.”);
Jay Lines, Inc. v. Workmen’s Comp. Appeal Bd., 443 A.2d 1370, 1372 (Pa.
Commw. Ct. 1982) (“[T]he crucial test [in determining whether an employment
relationship exists is] whether the alleged employer assumes control of the
work to be done and the manner in which it is performed.”); Averett v.
Grange, 909 P.2d 246, 249 (Utah 1995) (“In workers’ compensation cases,
this court has consistently held that whether an employer-employee
relations////hip exists depends upon the employer's right to control the
employee.”); Hinds v. Dep’t of Labor & Indus. of State of Washington, 272
P. 734, 735 (Wash. 1928) ([In determining whether an employment
relationship exists,] [t]he final test [is] whether there was the right of
control.”).

[4] See, e.g., Nowicki, 711 N.E.2d at 539; Walters, 699 N.E.2d at 673;
Lawson v. Raney Mfg., Inc., 678 N.E.2d 122, 125 (Ind. Ct. App. 1997),
trans. denied; Fleischmann v. Wausau Bus. Ins. Co., 671 N.E.2d 473, 475
(Ind. Ct. App. 1996), trans. denied; Gonzalez v. Clinton, 663 N.E.2d 1157,
1158 (Ind. Ct. App. 1996), trans. denied; Davis, 663 N.E.2d at 1179.