No. 91-558
IN THE SUPREME COURT OF THE STATE OF MONTANA
JAN M. LOOS for Gary E. Loos,
Deceased,
Petitioner, Respondent and
Cross-Appellant,
--
-vs-
JIM WALDO, (f/d/b/a Waldo's Acton Bar),
Defendant, Appellant and
Cross-Respondent,
and
UNINSURED EMPLOYERS FUND,
Defendant, Appellant and
Cross-Respondent.
APPEAL FROM: State of Montana Workers' Compensation Court
The Honorable Timothy Reardon, Judge presiding.
COUNSEL OF RECORD:
For Appellant Waldo:
Phillip R. Oliver, Oliver & Graves, Billings,
Montana
For Appellant Loos:
Randall G. Nelson, Felt, Martin, Frazier & Lovas,
Billings, Montana
For Respondent:
David A. Scott, Dept. of Labor & Industry, Helena,
Montana
Submitted on Briefs: October 29 1992
March :
~ ~ ~ i d ~ d 17, y 9 9 3
Filed:
i
Clerk
Justice R. C. McDonough del%vered the Opinion of the Court.
This action arises from a claim for worker's compensation
death benefits filed by Jan M. Loos against Jim Waldo, f/d/b/a
Waldo's Acton Bar, and the Uninsured Employers' Fund, Department of
Labor and Industry (UEF). On appeal is a judgment of the Workers'
Compensation Court, finding that Gary Loos was an employee of
Waldo's Acton Bar and granting death benefits to Jan Loos.
Af finned.
The issues for our review are:
1. Whether the Workers' Compensation Court erred in determining
that Gary Loos was an employee of Waldo's Acton Bar, rather
than its proprietor.
2. Whether the Workers' Compensation Court erred in denying Jan
Loos* costs and attorney fees.
On September 28, 1988, an armed robber shot and killed Gary
Loos while Loos was working at Waldo's Acton Bar in Acton, Montana.
His death left Jan Loos a widow.
Two weeks earlier, on September 14th, Waldo and Loos entered
an oral lease agreement whereby Loos would purchase the liquor
license and inventory of Waldo's Acton Bar. They also agreed that
Loos would lease the realty and the bar's equipment. Along with
the inventory, Waldo gave Loos 790 dollars cash to cover payouts
from the poker machines and generally run the bar. Loos had not
paid for the inventory or made a lease payment before his death.
Initially, Loos planned to get an advance from his trust fund
to pay for the bar. When his plan fell through, he and Waldo
2
agreed that he would pay Waldo for the inventory and liquor license
out of the bar's profits.
Waldo testified that he agreed to sell the liquor license to
Loos for one dollar. Apparently, they planned to put the license
in escrow and if Loos defaulted on the bar lease, the license and
the bar would revert back to Waldo. The testimony indicates that
the parties intended to draft a written lease agreement and
formally transfer the liquor license in the near future. Yet when
Loos died, the license was still in Waldo's name.
Before September 14th, Loos was a frequent patron of the bar,
but did not work there. On that date, Loos and Waldo's wife took
inventory of the bar's saleable items. Thereafter Loos operated
the bar. He hired and paid employees, kept the books, paid the
bills, contrived promotions, extended credit, received a share of
the poker machine profits, and kept the profits of the bar.
Because the business was changing hands, meter readings were taken
on the electric meter, propane tank, poker machines and keno
machines.
Loosf name was added to the checking account. Waldo
relinquished control over the bar keys and check book to Loos.
Waldo's name remained on the account, but Loos wrote all the checks
between September 14th and the date of his death. During that
time, the creditors sent the bills to Loos rather than Waldo.
After September 14th, Loos representedto friends and business
associates that he had leased the bar from Waldo. He told the
Coca-Cola distributor that he had leased the bar and would assume
responsibility for all future bills. He borrowed shot glasses from
another bar for his grand opening. He told the vending machine
repair person that he had leased the bar and would be in charge of
vending machine matters. In addition, Jan Loos told a bank officer
that she and her husband were leasing the bar from Waldo.
On the other hand, Waldo told a State Compensation Insurance
Fund field investigator that Loos had attempted to buy the bar, but
had been unsuccessful so Loos was managing the bar instead. The
field investigator had preconceived that Loos was an employee
before the investigation.
Law enforcement officers examined the scene after Loos1 death
and found 1,255 dollars cash remaining in the bar. Waldotestified
that he kept the money to pay Loos' bills and that he gave the
remaining money to Jan Loos.
The bar closed following Loos' death. A few days later, Waldo
resumed operating the bar and paid Loos' business creditors.
A claims examiner from the compliance bureau of UEF
investigatedto determine whether Waldo owed any fines or penalties
for not having worker's compensation insurance on Loos. She
concluded that Waldo did not owe anything because there was no
evidence that Loos was an employee.
After Loos' death, Jan Loos submitted a claim for workers1
compensation death benefits. In November 1988, the UEF denied her
benefits on the grounds that her husband was not an employee at the
time of his death.
Jan Loos then requested administrative review of the UEF's
decision. After a contested hearing, a hearing examiner from the
Department of Labor and Industry denied Jan Loos1 claim, holding
that Loos was not an employee at the time of his death.
On October 9, 1990, the Workerst Compensation Court reversed
and dismissed the hearing examiner's order. The court stated that
the Department did not have jurisdiction over the issue. Jan Loosf
attorneys then Eiled a request for mediation. After a mediation
conference, the workers' compensation mediator filed a
recommendation and report stating that Loos was not an employee at
the time of his death.
Jan Loos then filed a petition with the Workersr Compensation
Court. The court held that upon his death Loos was an employee of
Waldo's Acton Bar, thus Jan Loos was entitled to Workers'
Compensation benefits. The court also held that Jan Loos was not
entitled to attorney fees because the insurer did not act
unreasonably in denying coverage. This appeal followed.
I.
Did the Workers1 Compensation Court err in determining that
Loos was an employee of Waldo's Acton Bar, rather than its
proprietor?
This issue presents questions of both law and fact. Where the
parties challenge both factual determinations and legal conclusions
of the Workers1 Compensation Court, two different standards of
review apply. v. ,
~ o i g Graveley (1991) 248 Mont. 59, 61, 809 P.2d
12, 13. We defer to the fact finder where substantial credible
evidence exists to support the court's factual determinations.
However, where we face an issue that raises only a question of law,
we are free to determine whether the court was correct in its
conclusions. m, 809 P.2d at 13.
Waldo and UEF contend that the Workers1 Compensation Court
erred by exclusively using the statutory independent contractor
test in determining that Loos was an employee rather than a
proprietor. This issue presents solely an issue of law, so we draw
our own conclusions as to whether the court was correct. See Doig,
809 P.2d at 13.
The Workers' Compensation Act generally does not cover a
person who is a sole proprietor or a working partner. Section 39-
71-401(2) (d), (3) (a), MCA. There is no statutory definition of
sole proprietor.
In determining that Loos was an employee, the court used the
independent contractor test by analogy, because there is no test to
determine whether a person is a sole proprietor. Cf. T, 39-71-
120(1), MCA, (elements necessary for independent contractor
status): Sharp v. Hoerner Waldorf Corp. (l978), 178 Mont. 419, 424,
584 P.2d 1298, 1301-02, (four factors used to determine freedom
from an employer's control).
The court did not balance the freedom from control factors,
rather it strictly adhered to the statute and case law delineating
the independent contractor test. Under the statute, a person who
performs services for remuneration is an employee, unless that
person meets the elements of an independent contractor. See T, 39-
71-120(2), MCA. The case law holds that a finding of independent
contractor status requires a convincing accumulation of the freedom
from control factors and the statutory elements. See, e.g., Sharp,
584 P.2d at 1302. In contrast, employee status "can if necessary
often be solidly proved on the strength of one of the four [freedom
from control factors]." See, e.g., Sharv, 584 P.2d at 1302.
The court concluded that it was bound by the constraints of
the independent contractor test. We hold that the Workers'
Compensation Court did not err by exclusively using the independent
contractor test in determining that Loos was an employee rather
than a sole proprietor.
In ruling on a related issue, the court found that Waldo did
not sell the bar to Loos and did not intend to sell it. Waldo and
UEF contend that the court's finding was erroneous. Because the
issue presents a question of fact, we will uphold the Workers'
Compensation Court's decision if substantial credible evidence
supports it. See w, 809 P.2d at 13.
Waldo originally thought that Loos would purchase the
inventory items on a cash basis. They did not enter into any
written agreements. Waldo testified that because Loos could not
acquire the necessary cash, they agreed Loos would make payments on
the inventory along with lease payments on the building and
equipment. They did not set a price, however, and Loos did not pay
for the inventory.
Waldo owned the liquor license which permitted the sale of
alcohol on the premises of Waldo's Acton Bar. He neither applied
with the Department of Revenue to transfer the license, nor
assigned the license to Loos. Further, Loos did not apply for
temporary authority to sell liquor pending final approval of a
transfer of the license. See 5 16-4-404(6), MCA; 42.12.208, ARM.
Thus Waldo retained any authority the bar had to sell alcoholic
beverages.
We note that it is a felony to sell alcoholic beverages
without a liquor license. Section 16-6-302, MCA. Loos could not
have run the bar without selling alcoholic beverages and he did not
have a license to do so. Therefore, if Loos owned the bar he could
not have run it without committing a felony.
Waldo gave Loos 790 dollars cash as part of the inventory.
After the robbery, 1255 dollars remained in the bar. Although
Waldo testified that it belonged to Loos, he kept most of the money
for bar operations rather than giving it to Loos' widow.
Finally, the bar's checking account continued after the bar's
alleged sale and Waldo remained an owner of the account. Following
Loos' death, Waldo resumed operating the bar and paid Loos'
business bills.
We hold that there is substantial credible evidence to support
the Workers' Compensation Court's determination that Waldo did not
sell the business to Loos.
Moving to another closely related issue, UEF and Waldo contend
that Waldo's ownership of the bar's liquor license did not
constitute a right to control Loos under the independent contractor
test. They argue that the control factor is not a mere right to
control, but the right to control the details of the person's work.
See Sham, 584 P.2d at 1301. They urge us to apply the reasoning
of a case wherein we said statutes Ismustnot be distorted to allow
persons who are truly independent in their operation to be held
employees merely for tax purposes and resulting benefits derived
from an employer-employee relationship.'' St. Regis Paper Co. v.
U.C.C. of Mont. et al. (lWl), 157 Mont. 548, 552, 487 P.2d 524,
The issue of whether Waldo's ownership of the liquor license
gave him control over Loosl work presents a question of fact.
Consequently, we will defer to the Workers1 Compensation Court if
substantial credible evidence supports its determination. &,
The law governing whether a person is an employee or an
independent contractor is well settled. The Workers' Compensation
Code defines independent contractor as follows:
(1) An "independent contractor" is one who renders
service in the course of an occupation and:
(a) has been and will continue to be free from control or
direction over the performance of the services, both
under his contract and in fact; and
(b) is engaged in an independently established trade,
occupation, profession, or business.
(2) An individual performing services for remuneration is
considered to be an employee under this chapter unless
the requirements of subsection (1) are met.
Section 39-71-120, MCA. We have held that this statute creates a
two-part test, both parts of which must be met to classify a person
as an independent contractor. First, the person must be free from
the employerls control. Second, the person must have an
independently established occupation. SharD, 584 P.2d at 1301.
We use four-factors to determine whether a person is free from
an employer's control:
(1) Direct evidence of right or exercise of control;
(2) Method of payment;
(3) Furnishing of equipment; and
(4) Right to fire.
Sharp, 584 P.2d at 1301-02.
The last three factors tend to indicate that Loos was not
Waldo's employee. First, Loos was not to receive any type of
payment directly from Waldo. Rather, Loos' remuneration would have
come from the profits on inventory sales after his payments to
Waldo. Second, Waldo was not furnishing the equipment for free.
Rather, Loos agreed to purchase the inventory and lease equipment
from him. Finally, Waldo testified that he could not fire Loos.
However, the Workers' Compensation Court concluded that the
right to control factor was dispositive. In ruling on the right to
control, the court stated: "Although Loos fully operated the bar
and made representations regarding his 'lease,'Mr. Waldo retained
his right of control through his ownership of the liquor license
and his status as a signatory on the bar's checking account."
Waldo and Loos agreed that Loos would purchase the inventory,
but would merely lease equipment and the premises. The court
reasoned that a liquor license can be transferred only on the sale
of a business, not on a lease. See 5 16-4-404(6), MCA. The court
determined that because no sale occurred and no sale was intended,
the parties could not have transferred the liquor license even if
Loos had not died.
We note that a liquor license is personal to the licensee.
10
Section 16-4-404(3), MCA. Before a transfer of a liquor license is
effective, the parties must file an application with the Department
of Revenue. Section 16-4-404(6), MCA. Waldo and Loos did not file
an application. Therefore, the purported sale of the liquor
license to Loos was not effective and the liquor license remained
in Waldo's name.
It is a felony to sell alcoholic beverages without a license.
Section 16-6-302, MCA. As a result, the bar could not legally sell
alcoholic beverages unless Waldo remained in control of the bar.
The Workers1 Compensation Court reasoned that because Waldo
owned the liquor license, he had the right to mandate that Loos
comply with the State liquor laws. The court further reasoned that
Waldo had the right to retake possession of the bar if Loos did not
comply. The court concluded that Waldo retained some right to
control Loos' operation of the bar through the liquor license.
In addition, the court reasoned that Waldo had some right to
control because he could withdraw funds from the account, as his
name was still on the account. After Loos died, Waldo resumed
operation of the bar and paid Loos* business debts. The court
concluded that although Waldo did not have access to the bar's
checkbook, he "in effect had access to the purse strings of the
bar.
Although nearly all of the evidence showed that Loos operated
the bar, the court held that Loos was not an independent contractor
because Waldo retained some right to control the business through
the liquor license and the checking account. We hold that there is
substantial credible evidence to support the court's determination
that Waldo had the right to control Loos' work.
In conclusion, the court reasoned that Loos must have been an
employee because he was not an independent contractor. We note
that the dealings between Waldo and Loos were hardly clear-cut
business transactions. Consequently, this Court will not attempt
to classify them. We merely hold that the Workers' Compensation
Court's determination that Loos was an employee of Waldo's Acton
Bar was not reversible error.
11.
Did the Workers' Compensation Court err in denying Jan Loos'
costs and attorney fees?
A worker's compensation claimant is entitled to reasonable
costs and attorney fees if the Workerst Compensation Court
determines that the insurer acted unreasonably in denying
liability. Section 39-71-611(1)(c), MCA. The standard of review
on the issue is whether the Workers' Compensation Court abused its
discretion. Baeta v. Don Tripp Trucking (1992), 839 P.2d 566, 568-
69, 49 St.Rep. 824, 825.
In this case, the Workers' Compensation Court did not
determine that UEF acted unreasonably. In fact, the Worker's
Compensation Court held that Loos was operating the bar in all
areas except the right to control.
There is no evidence of unreasonable conduct by the insurer.
Workers' compensation covers employees, but does not automatically
cover sole proprietors, working partners, or independent
contractors. See 5 39-71-401(2) (d), MCA. A workers' compensation
mediator and a hearing examiner separately determined that Loos was
not Waldo's employee. In addition, the UEF1s claims examiner
concluded that Waldo did not owe a penalty for noncompliance with
workers1 compensation laws, because she could not find any evidence
that Loos was an employee.
Because it is not clear that Loos was an employee of Waldo's
Acton Bar at the time of his death, the UEF did not act
unreasonably in denying liability. Therefore, the Workers'
Compensation Court did not abuse its discretion in denying Jan
Loos' request for costs and attorney fees. Affirmed. I
Justices
Justice Fred J. Weber dissents as follows:
The majority affirmed the determination by the Workers
Compensation Court that Loos was an employee rather than a sole
proprietor. The majority affirmed the usage of the independent
contractor test in reaching that conclusion. I disagree with the
usage of the independent contractor test in this case.
The majority further concluded there was substantial credible
evidence to support the Workersv Compensation Court in its
determination that Waldo did not sell the bar to Loos and did not
intend to sell it. The record does not support that conclusion.
The Workersv Compensation Court found that Waldo retained his
right of control by ownership of the liquor license and his status
as a signor on the bar checking account. Applying the control
factor from Sharp v Hoerner Waldorf Corp. (1978), 178 Mont. 419,
.
584 P.2d 1298, the Workers' Compensation Court concluded that Loos
was an employee because this was direct evidence of the exercise of
control by Waldo. The key part of the statute relied upon by the
court is the following paragraph of 5 16-4-406, MCA (1987):
(6) Upon a bona fide sale of the business operated
under any license, the license may be transferred to a
qualified purchaser. No transfer of any license ...
shall be effective unless and until approved by the
department, and any . . . proposed transferee who
operates ... under any supposedly transferred license
prior to the approval of such transfer by the department,
... shall be considered as operating without a license
and the license affected may be revoked ...
The Workersv Compensation Court concluded that there was no
sale of the business under the statute, and the absence of a
license transfer provided Waldo with the right of control. The
Workers' Compensation Court stated:
Loos was allegedly leasing the bar from defendant
Waldo. However, according to the statute above, it is
only upon a of the business that a liquor license
can be transferred. Therefore, since there was no sale
and since none was intended, no transfer of the license
could have taken place, even if Loos had not died. This
retention of the liquor license provided defendant Waldo
the right to control the operation of the bar.
I disagree with the conclusion that no sale occurred and that none
was intended. The record does not contain evidence to support that
conclusion. Following are portions of significant transcript
testimony by Waldo, the previous owner and seller of the bar, which
establishes that a sale was intended and in fact was made:
Q Did you operate this bar--Previously you testified
that you had owned it since '84.
A Yeah.
Q Did you operate the bar from that time until
September of '88?
A Yes.
Q Did you sell the business and lease the building --
A Yes, I did.
Q --and the equipment to anyone in 1988?
A Yes, I did.
Q Who was that?
A Gary Loos.
Q When did you start discussing with him the
possibility of leasing the bar?
A During the summer of 1988.
Q What date did the.sale and lease take place?
A September 14th, 1988.
Q What were the basic terms, the financial terms of
this sale of the lease?
A $1000 a month for the lease on the building and the
equipment, $280 a month for the insurance and he would
buy the inventory and cash on hand.
Q Did you surrender complete control and convey
everything to him on that day?
A Yes, I did. I didn't even have a key for the
building.
Q Was this--I think you've testified previously that
this was an oral agreement on September 14th?
A Yes.
Q That no formal sale or lease documents had been
signed on that date?
A The only thing that had been signed was the
inventory we took.
Q Did you and Gary intend to memorialize the terms of
the lease in writing of the sale?
A Yes, we did.
Q When did you intend to do that?
A As soon as the paperwork got there from a friend of
mine who had just leased her bar.
Q Now, where were the papers going to come from?
A From Marty Dreiling who owns the Ryegate Bar who has
leased it to the DeBuffs who testified here today.
Q Did you and Gary discuss what the Ryegate deal was
about and why you needed those papers?
A Yes, we did.
Q Did you discuss with him the type of agreement that
you were going to receive in the mail?
A yes.
Q And he agreed to go along with that form and to
change the names and the dates and the amounts to fit
your situation?
A Yes.
Q Mr. Waldo, if you had received the lease agreement
from Martha Dreiling on the 14th--You said you had called
her on the 11th or 12th. If you had received it on the
14th as you thought you would, would all the paperwork
have been completed very promptly?
A Yes, it would have.
Q On the next page it [Ryegate Bar agreement] says
'Isale And Assignment of All-Beverage LicenseIf. The
difference would be your number and how much was going to
be paid. How much did you and Gary agree were going to
be paid for the liquor license?
Q What was the reason for a dollar?
A The reason for the dollar is the guy didn't have
that much money. And we were going to set it up in
escrow, and the year-to-year lease would be that if he
defaulted on the lease it would revert back to me.
Q Essentially, you were just wanting to get out of
the bar business and the amount of the -- had you
received the rent money, that the amount you were selling
the liquor license for wasn't that important?
A That's right, it wasn't that important.
Q And you were talking about an escrow where you would
get the liquor license back if he defaulted?
A Yes.
Q Now, did that mean he would pre-sign a transfer
form on the liquor license that would go into escrow?
A Yes.
Q You testified earlier that once this was signed and
you received it you were going to go down to a lawyer's
office and incorporate this with the transfer forms.
A Yes.
Q And is this something you had done previously --
A Yes.
Q -- when you purchased the bar?
A When I purchased the bar, that's the way it was
done.
Q When you bought the bar, was your transfer already
approved by the time you began to operate?
A NO.
Q On the 14th of September 1988, did Gary Loos own the
business?
A Yes, he did.
Q Did he run it -- Could he run it in any way he
wished?
Any way that he wanted to.
Could you fire him?
Absolutely not.
Could you exercise any control over him?
None whatsoever.
Could he order you off the premises?
Yes, he could.
Did you have a key to the building?
No. I did not.
18
Q Did you tell himhow to do anything so far as
operating the bar?
A I told him how to do nothing. He asked me a couple
things and I explained how I did it.
Q Did you pay him any wages?
A No. I didn't.
The Workers' Compensation Court incorrectly concluded that
while counsel had briefed the issue of whether or not a contract
existed, *'dispositive in this case is defendant Waldo's risht of
control over Loos." As quoted above, the court concluded that
according to the license transfer statute, it is only upon a sale
that a liquor license can be transferred and since there was no
sale here and none was intended, no transfer could have taken
place. Two questions are raised by that conclusion. The first is
whether the facts demonstrate the absence of a sale. The second is
whether the failure to comply with the statute is sufficient to
invalidate the sale.
With regard to the first point, it is clear that the
uncontradicted facts rebut the holding that there was no sale and
none was intended. I would reverse the factual determination of
the Workers' Compensation Court that there was no sale and none was
intended. I would rely upon the holding of State Comp. Mut. Ins.
Fund v. Lee Rost Logging (l992), 252 Mont. 97, 827 P.2d 85, and
hold that the finding was not supported by substantial evidence and
was, therefore, clearly erroneous.
The next question relates tothe Workers' Compensation Court's
application of 5 16-4-404(6), MCA (1987), when it concluded there
19
was a right of control under that statute which met factor one of
the Sharp test for an employee rather than an independent
contractor. That section does not require such an interpretation.
The section establishes that until a transfer of license has been
approved by the department, such a transfer is ineffective for
licensing purposes and a proceeding may be brought to revoke or
suspend the license. I find nothing in the statute which allowed
the court to conclude that the statute itself gave Waldo a right to
control Loos. The Court apparently concluded that because the
license had not yet been transferred, that necessarily gave Waldo
the right to control Loos. The statute does not warrant such a
conclusion by its wording. In addition, the facts as above set
forth clearly indicate that Waldo did not intend to retain such a
right of control and, in fact, did not exercise any such right of
control. I conclude that the failure to complete the statutory
procedure for license transfer did not give any measure of control
to Waldo. I therefore conclude that the Workers' Compensation
Court and the majority incorrectly applied factor one of the Sham
test in concluding that Waldo retained control over Loos.
I again emphasize that in reaching this conclusion, the
majority failed to rely upon the record but relied only upon the
statute itself. Applying the four factors of the S h a r ~test, we
must conclude as follows: (1) the record demonstrates no evidence
of retention of a right of control by Waldo, (2) the method of
payment did not demonstrate an employee relationship--in fact the
record is totally absent of any proof to demonstrate that Waldo was
to pay anything to Loos whichcould be classed as compensation, (3)
no furnishing of equipment was present which would demonstrate an
employee relationship, and (4) there was no right to fire on the
part of Waldo. Because the record, without contradiction,
establishes that the four factors stated in S h a m have not been
proven, there is no basis to conclude there was an employee
relationship rather than an independent contractor relationship.
The Fund was correct when it contended that Loos was a sole
proprietor and exempt from the Workers* Compensation Act under the
facts of this case. The Act specifically does not apply to the
employment of sole proprietors. Section 39-71-401, MCA (1987), in
pertinent part states:
(2) Unless the employer elects coverage under this
chapter and an insurer allows such an election, the
Workers* Compensation Act does not apply to any of the
following employments: ...
(d) employment of sole proprietors or working
members of a partnership, except as provided in
subsection 3; ...
(3) (a) A sole proprietor ... who holds himself
...
out or considers himself an independent contractor
must elect to be bound personally and individually by the
provisions of compensation plan No. 1, 2 or 3 ...
Because the factual record demonstrates that Loos was not intended
to be an employee and that the test demonstrating an employee
relationship under Sharp had not been met, the issue remaining is
whether or not Loos was a sole proprietor. The record demonstrates
without contradiction that he was such a sole proprietor. Under
the foregoing statute, a sole proprietor may be covered by the Act
if he elects to be bound personally. Such election was not made
here.
I conclude the workers* Compensation Court erroneously found
there had been no sale of the business. I further conclude that
even where the independent contractor test is applied, under the
uncontradicted facts of this case, there was no control present.
Last, I conclude that Loos was a sole proprietor and not an
independent contractor and was not covered by workers*
compensation. I would hold, therefore, that Loos, in fact, was a
sole proprietor and that in the absence of any election under the
statute, he could not be classed as covered by the Act.
I would reverse the Workers* Compensation Court.
March 17, 1993
CERTIFICATE OF SERVICE
I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:
Phillip R. Oliver
OLIVER & GRAVES, P.C.
P.O. Box 1456
Billings, MT 59103
Randall G. Nelson
FELT, MARTIN, FRAZIER & LOVAS, P.C.
P.O. Box 2558
Billings, MT 59103-2558
David A. Scott
Department of Labor and Industry
P.O. Box 1728
Helena, MT 59624
ED SMITH
CLERK OF THE SUPREME COURT
STATE O F M O N T M A