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STATE OF MICHIGAN COURT OF APPEALS

BRISTOL WEST INSURANCE COMPANY, Plaintiff-Appellant, v AMERISURE MUTUAL INSURANCE COMPANY, Defendant-Appellee.

UNPUBLISHED September 24, 2009

No. 286332 Wayne Circuit Court LC No. 07-709904-CK

Before: Murphy, P.J., and Meter and Beckering, JJ. PER CURIAM. In this no-fault insurance priority dispute, plaintiff appeals as of right the trial court's order granting defendant's motion for summary disposition and denying plaintiff's motion for summary disposition. We reverse the portion of the trial court's order granting defendant's motion for summary disposition and remand for further proceedings consistent with this opinion. This appeal has been decided without oral argument pursuant to MCR 7.214(E). Plaintiff insured the injured truck driver, Bilal Hassan. Defendant insured the company for which he was driving, TJ Truck Company ("TJ Truck"). At issue is whether Hassan was an independent contractor (making plaintiff liable for benefits under MCL 500.3114(1)) or an employee of TJ Truck (making defendant liable for benefits under MCL 500.3114(3)). "An independent contractor is one who, carrying on an independent business, contracts to do work without being subject to the right of control by the employer as to the method of work but only as to the result to be accomplished." Parham v Preferred Risk Mut Ins Co, 124 Mich App 618, 622-623; 335 NW2d 106 (1983), citing Marchand v Russell, 257 Mich 96; 241 NW 209 (1932). Although "employee" is not defined by the no-fault act, MCL 500.3101 et seq., this Court has determined that the "economic reality" test may be applied to determine whether the injured person is an independent contractor or an employee. Id. at 624; Citizens Ins Co v Automobile Club Ins Ass'n, 179 Mich App 461, 464-465; 446 NW2d 482 (1989). The economic-reality test considers four basic factors: (1) control of a worker's duties, (2) payment of wages, (3) right to hire, fire, and discipline, and (4) performance of the duties as an integral part of the employer's business toward the accomplishment of a common goal. This test considers the totality of the circumstances surrounding the work performed. No single factor is controlling and, indeed, the list of factors is nonexclusive and other factors may -1-

be considered as each individual case requires . . . Weight should be given to those factors that most favorably effectuate the objectives of the statute in question. [Mantei v Michigan Pub School Employees Retirement Sys, 256 Mich App 64, 78-79; 663 NW2d 486 (2003) (citations omitted).] These common-law factors were characterized as an eight-part test in McKissic v Bodine, 42 Mich App 203, 208-209; 201 NW2d 333 (1972): First, what liability, if any, does the employer incur in the event of the termination of the relationship at will? Second, is the work being performed an integral part of the employer's business which contributes to the accomplishment of a common objective? Third, is the position or job of such a nature that the employee primarily depends upon the emolument for payment of his living expenses? Fourth, does the employee furnish his own equipment and materials? Fifth, does the individual seeking employment hold himself out to the public as one ready and able to perform tasks of a given nature? Sixth, is the work or the undertaking in question customarily performed by an individual as an independent contractor? Seventh, control, although abandoned as an exclusive criterion upon which the relationship can be determined, is a factor to be considered along with payment of wages, maintenance of discipline and the right to engage or discharge employees. Eighth, weight should be given to those factors which will most favorably effectuate the objectives of the statute. In State Farm Mut Auto Ins Co v Sentry Ins, 91 Mich App 109, 114-115; 283 NW2d 661 (1979), this Court described the legislative intent behind MCL 500.3114(3) as follows: The exceptions in

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