ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE:
RONALD J. WAICUKAUSKI JAMES H. YOUNG
HEIDI G. GOEBEL Young & Young
White & Raub, LLP Indianapolis, Indiana
SUPREME COURT OF INDIANA
GKN CO., formerly known as GUST K. )
NEWBERG CONSTRUCTION COMPANY, )
) Supreme Court Cause Number
Appellant-Defendant, ) 49S02-0002-CV-116
LARRY MAGNESS, ) Court of Appeals Cause Number
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
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 drivers exclusive remedy rested
with the Indiana Workers 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 courts 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 Workers
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 planta 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 workers 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 Workers 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 courts judgment.
Standard of Review
When an employer defends against an employees negligence claim on the basis that
the employees exclusive remedy is to pursue a claim for benefits under the
Indiana Workers 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. Shoneys, 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 Dept 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
courts grant or denial of such a motion requires clarification. For example,
it has been declared that when evaluating the trial courts 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 courts ruling
on a Trial Rule 12(B)(1) motion to dismiss. See, e.g., Save the
Valley, Inc., v. Indiana Dept 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 courts 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 courts 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 courts 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
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 courts 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 courts 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 courts findings.
The Indiana Workers 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 plaintiffs 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.
See footnote However, consistent with
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).
See footnote 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 employers
right to establish work boundaries, set working hours, assign duties, and create job
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.
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.
See footnote 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 workers compensation claim.
Rather, we have held:
[W]hen the plaintiffs 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 Workers Compensation Act.
Perry v. Stiter Buick GMC, Inc., 637 N.E.2d 1282, 1286 (Ind. 1994).
Hence, when challenging the trial courts jurisdiction, the employer bears the burden of
proving that the employees claim falls within the scope of the Act unless
the employees complaint demonstrates the existence of an employment relationship. Only where
the employees 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 courts jurisdiction, GKN had the burden
to establish lack of subject matter jurisdiction.
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.
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 plaintiffs] 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.
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 workers 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), affd, 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 Subcontractors 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
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 Teamsters 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
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 GKNs 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.
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
GKNs motion to dismiss for lack of subject matter jurisdiction. We therefore
affirm the trial courts judgment. This cause is remanded for further proceedings.
SHEPARD, C.J., and DICKSON, SULLIVAN and BOEHM, JJ., concur.
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).
Hale also quotes Rensing for this proposition. See Hale, 579 N.E.2d
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
Commn, 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.
Dept 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. Commn,
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. Workmens 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. Dept 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.).
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.