Cowger v. IC, No. 5-98-0665WC
5th District, 17 April 2000
| RICHARD L. COWGER, Appellant, v. THE INDUSTRIAL COMMISSION et al., (D.J. Baker Trucking, Inc., Appellee). | Appeal from the Circuit Court of Effingham County. Honorable Steven P. Seymour, Judge Presiding. |
JUSTICE RAKOWSKI delivered the opinion of the court:
Claimant, Richard L. Cowger, an Illinois resident, sought benefits pursuant to the Workers' Compensation Act (Act) (820ILCS 305/1 et seq. (West 1998)) for injuries resulting from a single-vehicle accident that occurred in Texas during thecourse of his employment with D.J. Baker Trucking, Inc. (D.J. Baker), which is located in Indiana. The arbitrator concludedthat Illinois had jurisdiction over this matter and determined that claimant suffered 25% permanent partial disability of theperson as a whole. The Industrial Commission of Illinois (Commission) reversed, finding that Illinois lacked jurisdiction,and the circuit court affirmed the Commission. Claimant appeals, contending that Illinois may exercise jurisdiction over thismatter because (1) the last act necessary to form a valid employment contract occurred in Illinois; and (2) his employmentwas principally localized in Illinois. We disagree and therefore affirm.
FACTS
In early October 1992, claimant, an over-the-road truck driver, placed a call from his home in Montrose, Illinois, to JohnBaker in Cambridge, Indiana. John, who is now deceased, and his wife, Evelyn, owned D.J. Baker Trucking, located inCambridge, Indiana. Although claimant was employed as a driver by Tom Land Company (TLC), he called John regardingpotential employment opportunities with D.J. Baker.
Claimant told John that he was looking for work, and John replied that he would be receiving tractors mid-month.According to claimant, when he asked if one of the tractors would be available John replied, "You are not job huntinganymore." Claimant understood this to mean that, as of this conversation, he was hired by John as an employee of D.J.Baker. Accordingly, claimant gave notice to TLC that he would be quitting. After giving notice, claimant made at least onemore run for TLC. During one run, claimant stopped at D.J. Baker's Indiana facility and filled out various employment-related documents, including an application form. Claimant believed that the form was only for record-keeping purposesbecause he had previously worked for John. Claimant also stated that John told him the application was "for the file" asrequired by state law. Claimant was also required to take a drug test, which he did while he was still driving for TLC butafter he gave them notice. Plaintiff admitted that if he had failed the drug test he would not have been hired by D.J. Baker.
Claimant testified that he picked up the tractor, which was owned by D.J. Baker, on the same date that he filled out theapplication form, which was either October 12 or October 17. According to claimant, "that was the day [I] went to work forthem."
Claimant's primary driving route for D.J. Baker was between California and Michigan or Ohio, and took him throughIllinois on each trip. He stopped at his home en route, and was usually there with the truck twice each week. When he washome, he usually tried to "take time off to go on to the West Coast." Claimant testified that he also delivered and picked uploads in Illinois, though he could not remember the number of times he did so.
Whether at home or on the road, claimant always received his instructions regarding where to deliver and pick up loadsfrom the Cambridge facility. Usually, after unloading the truck he would pick up a new load in the immediate vicinity. Ifthere were no loads to pick up in that area, he would take the truck home empty. In that case, he would be dispatched fromhis home to pick up the next load. Claimant estimated that he received less than 25% of his assignments while he was at hishome.
Claimant usually took the truck to Cambridge for service, though on one or two occasions it had been repaired on the road.D.J. Baker was paid by the mile, and claimant was paid a percentage of the gross.
Evelyn Baker, owner and secretary of D.J. Baker, testified that the company's only business location was in Cambridge,Indiana. She was responsible for employment-related activities, such as ensuring that the employment records werecomplete, and setting up drug screening tests. It was standard procedure for every driver, including claimant, to complete anapplication, a written driving test and a drug screening test. Claimant completed the application and written test inCambridge, Indiana, and took the drug screening test in Richmond, Indiana. According to Evelyn, no driver is hired beforepassing the drug screening test. When asked when she "received" claimant's drug screening test, Evelyn replied:
"To the best of my knowledge, I think the drug screen was taken around the 19th, and then we can let them go out ona truck on the road, over the phone. When I got the hard copy back from the doctor, I wouldn't even know. I wouldhave to check to see when it was dated."
Evelyn did not know whether her husband, John, hired claimant over the telephone, and she could neither confirm nor denyclaimant's account of his conversation with her husband. However, she testified that claimant was not "put to work on theroad" until after he passed the drug screening test.
Previously, Evelyn's husband worked for a different company, and she knew that claimant had worked for her husband atthat time. She also knew claimant was a qualified driver who was working for TLC, and she was not particularly concernedthat he would fail the drug test or the written driver's test. She did not know whether claimant was given a road test.
Evelyn stated that all assignments were given by phone from Cambridge, Indiana. Additionally, all drivers were required tocall in to Cambridge every morning except Sunday. If a driver was waiting for a load, he was occasionally required to againcall Cambridge later in the day. Evelyn agreed that in 1992 claimant probably picked up some loads in Illinois, though shedid not know how many. She estimated that, as a percentage of all loads picked up, those that were picked up in Illinoisaccounted for less than 10% of the total.
Evelyn knew claimant's route took him through Illinois and that he stopped at his home twice each week. Not all driverswere allowed to take their trucks home. However, claimant was permitted to do so because he lived near the freeway goingto and from California and lived very far from the Indiana office. According to Evelyn, "[i]t's more convenient for him andit's more convenient for us, because he is well on his way when he gets home."
Certain employment-related paperwork was admitted into evidence. The "date of application" on the "Driver's Applicationfor Employment" form is either October 12 or October 17, 1992. The date is handwritten and difficult to read. The "Recordof Road Test" is dated October 22, 1992. The "Request for Information from Previous Employer" was signed by claimantand dated October 12, 1992. The "Employment Eligibility Verification" form was signed by claimant and dated October 11,1992. It was also signed by Evelyn and dated October 22, 1992. The "Written Examination for Drivers" form was datedOctober 22, 1992. The drug screening report indicates that claimant's specimen was taken on October 19, 1992.
The arbitrator concluded that Illinois jurisdiction was appropriate because the contract for hire was formed over thetelephone while claimant was at his home in Illinois. Additionally, the arbitrator found that there was no evidence thatcompletion of any paperwork was a condition precedent to the formation of an employment contract and that the drugscreening test was, at most, a condition subsequent.
The arbitrator concluded that Illinois could also exercise jurisdiction because claimant's employment was principallylocalized in Illinois. The arbitrator reasoned that claimant was domiciled in Illinois, had an Illinois driver's license, andpicked up and delivered loads in Illinois. He further found that claimant spent a "substantial part of his working time in theservice of his employer" while he was in Illinois and that, after the employment relationship began, claimant's contact withIndiana was limited to receiving telephone calls regarding his assignments.
The Commission reversed, finding that the last act necessary to form a valid employment agreement was claimant'scompletion of the drug screening test, which occurred in Indiana. The Commission also found that claimant did not actually"beg[i]n work" until after the drug screening test was done. The Commission rejected the contention that claimant'semployment was principally localized in Illinois. The Commission found that there was no particular center from whichclaimant worked as he picked up and delivered merchandise in various states. Additionally, claimant's source ofremuneration was in Indiana, the employment contract was formed in Indiana, and claimant received his assignments fromIndiana.
The circuit court confirmed the Commission's finding that Illinois did not have jurisdiction over this matter. However,unlike the Commission, the circuit court reasoned that claimant initiated a telephone call to respondent, who was in Indiana,and offered respondent his services. Respondent accepted claimant's offer while he was in Indiana at the only location fromwhich respondent conducted its business. Also, according to the circuit court, claimant would not have been hired if he hadnot taken a driving test, filled out certain paperwork, taken a written driving test and a drug test, and each of these activitiesoccurred in Indiana. Thus, the circuit court concluded that the last act necessary to form a valid contract occurred in Indiana.According to the circuit court, claimant's employment was not principally localized in Illinois because three of the fivefactors relevant to determining situs favored a finding that the situs of the employment relationship was in Indiana. Finally,the circuit court noted that there was no evidence to indicate that claimant spent a substantial part of his working time inIllinois.
ANALYSIS
Pursuant to the Act, Illinois may acquire jurisdiction over a claim (1) if the contract for hire was made in Illinois, (2) if theaccident occurred in Illinois, or (3) if the claimant's employment was principally located in Illinois. 820 ILCS 305/1(b)(2)(West 1998); D.J. Masonry Co. v. Industrial Comm'n, 295 Ill. App. 3d 924, 929-30 (1998). In the instant case, the accidentoccurred in Texas. Therefore, we may exercise jurisdiction over this matter only if the contract for hire was made in Illinoisor if claimant's employment was principally located in Illinois.
I. Whether the Last Act Necessary to Form a Valid Employment Contract Occurred in Illinois or Indiana
" '[E]mployment contracts made in Illinois are normally to be interpreted as including an agreement by the parties to bebound by the Act even when the contemplated employment is exclusively in other States.' " Burtis v. Industrial Comm'n,275 Ill. App. 3d 840, 842 (1995), quoting United Airlines, Inc. v. Industrial Comm'n, 96 Ill. 2d 126, 130 (1983). A contractfor hire is made where the last act necessary for the formation of the contract occurred. Correct Construction Co. v.Industrial Comm'n, 307 Ill. App. 3d 636, 640 (1999); Hunter Corp. v. Industrial Comm'n, 268 Ill. App. 3d 1079, 1083(1994). Whether Illinois has jurisdiction over this matter " 'involves a factual inquiry as well as an application of the law' "to the facts. Correct Construction Co., 307 Ill. App. 3d at 640-41, quoting United Airlines, Inc., 96 Ill. 2d at 131-32.
In determining whether an employment contract has been formed, it is appropriate to give consideration to principles ofcontract law. See Board of Education v. Industrial Comm'n, 53 Ill. 2d 167 (1972) (applying principles of mutual assent,consideration, and conditions precedent). " 'To be valid, an acceptance must be objectively manifested, for otherwise nomeeting of the minds would occur.' " Energy Erectors, Ltd. v. Industrial Comm'n, 230 Ill. App. 3d 158, 162 (1992), quotingRosin v. First Bank, 126 Ill. App. 3d 230, 234 (1984). Here, although claimant may have believed that he was hired as ofhis conversation with John and therefore gave notice that he would be leaving the employ of TLC, the employer-employeerelationship is based on mutual assent (see Board of Education, 53 Ill. 2d at 172), not the understanding of one party. In theinstant case, there is nothing in the record to suggest that either John or Evelyn was aware that claimant gave notice to TLCbefore he traveled to Indiana to complete routine employment procedures. Evelyn testified that it was standard procedurefor all prospective employees to fill out an application, take a written driving test, and pass a drug test, and there is nothingin the record suggesting that John intended to waive these requirements for claimant. Moreover, both claimant and Evelyntestified that if claimant failed to pass the drug test he would not have been hired. It is undisputed that claimant traveled toIndiana to take the drug test. Accordingly, the last act necessary to give validity to the contract for hire was claimant'ssuccessful completion of the drug test, which occurred in Indiana.
Claimant argues that the employment contract was formed as of his conversation with John, and that the drug test wasmerely a condition subsequent to contract formation. However, even if the court accepted claimant's position, he still couldnot prevail. The place of acceptance is the place of contract. See 9 A. Larson & L. Larson, Workers' Compensation Law