Ronald Davis v. Tube-Tech Services, Inc. & American Liberty Insurance Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-573

RONALD DAVIS

VERSUS

TUBE-TECH SERVICES, INC. AND
AMERICAN LIBERTY INSURANCE COMPANY

**********

APPEAL FROM THE
OFFICE OF WORKERS’ COMPENSATION, DISTRICT 4
PARISH OF ACADIA, NUMBER 23-06351
PAULA MURPHY, WORKERS’ COMPENSATION JUDGE

**********

SHARON DARVILLE WILSON
JUDGE

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Court composed of Sharon Darville Wilson, Gary J. Ortego, and Clayton Davis,
Judges.

AFFIRMED.

Davis, J., dissents and assigns written reasons.

Donovan J. O’Pry, II
Bernard R. Minyard
Grant J. Bratcher
Miles C. Hesterly
O’PRY LAW FIRM
2014 West Pinhook Road, Suite 507
Lafayette, Louisiana 70508
(337) 415-0007
COUNSEL FOR CLAIMANT/APPELLANT:
Ronald Davis

David B. Parnell, Jr.
BLUE WILLIAMS, LLC
1060 W. Causeway Approach
Mandeville, Louisiana 70471
(504) 831-4091
COUNSEL FOR DEFENDANTS/APPELLEES:
Tube-Tech Services, Inc. and American Liberty Insurance Company

WILSON, Judge.

Claimant, Ronald Davis (Davis), appeals the ruling of the Workers’

Compensation Judge (WCJ) dismissing his claim for benefits against Tube-Tech

Services, Inc. (Tube-Tech). For the following reasons, we affirm.

I.

ISSUES

Davis alleges the following assignment of error: “The trial court erred in

granting Tube-Tech’s Exception of No Right of Action, as [] Davis was an employee

when he was injured in the course and scope of his employment.” The issue is

whether Davis was an independent contractor or an employee. If we find that Davis

was an independent contractor, we must then determine whether the manual labor

exception applies such that he would be eligible for benefits under the Louisiana

Workers’ Compensation Act.

II.

STANDARD OF REVIEW

It is well-settled that “[t]he distinction between employee and independent

contractor is a factual determination to be decided on a case-by-case basis.”

Fontenot v. J.K. Richard Trucking, 97-220, p. 7 (La.App. 3 Cir. 6/4/97), 696 So.2d

176, 180. Furthermore, “[w]hether an individual’s job involves manual labor is to

be considered from the particular facts and circumstances of each case[,]” and

whether an individual spends “a substantial part of his work time in manual labor”

is a finding of fact. Coleman v. Landstar Ranger, 03-1943, p. 2 (La.App. 1 Cir.

6/24/04), 886 So.2d 472, 473.

Factual determinations in workers’ compensation cases and rulings on

peremptory exceptions of no right of action where evidence is introduced at the

hearing are all subject to the manifest error standard of review. “[T]he issue to be

resolved by the reviewing court is not whether the trier of fact was right or wrong,

but whether the factfinder’s conclusion was a reasonable one.” Stobart v. State

through Dep’t of Transp. & Dev., 617 So.2d 880, 882 (La.1993). Furthermore,

“[e]ven though an appellate court may feel its own evaluations and inferences are

more reasonable than the factfinder’s, reasonable evaluations of credibility and

reasonable inferences of fact should not be disturbed upon review where conflict

exists in the testimony.” Id.

III.

FACTS AND PROCEDURAL HISTORY

Davis was hired by Tube-Tech as a truck driver in October of 2022. Tube-

Tech is a company that inspects and cleans oilfield pipe for its customers. Tube-

Tech hires drivers to pick up and deliver the pipe. Tube-Tech owns one truck, which

is a cab and flatbed trailer, and uses a third-party company for additional trucks as

needed.

Blake Granger (Granger), the manager of Tube-Tech, testified that after about

two weeks of employment, Davis came to him to ask what Davis could “do to make

a little extra money.” Granger testified that he told Davis that “he could switch [from

W-2] to 1099, and there was a lot of tax benefits with it, . . . . So that was something

that we discussed with him, and he agreed upon that . . . . [s]o he could collect a

little extra money[.]” After the switch from W-2 to form 1099, Davis was paid $1.25

per mile and $15.00 per hour for any time he had to wait for the truck to be unloaded

by the customer. This amount was charged back to the customer by Tube-Tech.

On October 20, 2023, Davis was delivering a load in Texas and stopped to re-

secure it. When he exited the truck, he allegedly fell and injured his neck and back.

He filed a claim for workers’ compensation benefits, and Tube-Tech and its insurer,

American Liberty Insurance Company, filed an exception of no right of action,
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alleging that Davis was not an employee of Tube-Tech and was performing services

as an independent contractor. The WCJ found that Davis was an independent

contractor and that the manual labor exception was not applicable. Accordingly, the

WCJ granted the exception of no right of action and dismissed Davis’ claims with

prejudice. This appeal followed.

IV.

LAW AND DISCUSSION

Independent Contractor Status

“Inherently, workers’ compensation is a remedy between an employer and an

employee; it follows then that absent an employer-employee relationship generally

there can be no compensation recovery.” Hillman v. Comm-Care, Inc., 01-1140, p.

6 (La. 1/15/02), 805 So.2d 1157, 1161. There is a statutory presumption of

employment status,1 which the employer can rebut by establishing that the person

was performing services as an independent contractor. Id. (footnote added).

Louisiana Revised Statutes 23:1021(7) defines an “[i]ndependent contractor”

as:

any person who renders service, other than manual labor, for a specified
recompense for a specified result either as a unit or as a whole, under
the control of his principal as to results of his work only, and not as to
the means by which such result is accomplished, and are expressly
excluded from the provisions of this Chapter unless a substantial part
of the work time of an independent contractor is spent in manual labor
by him in carrying out the terms of the contract, in which case the
independent contractor is expressly covered by the provisions of this
Chapter. The operation of a truck tractor or truck tractor trailer,
including fueling, driving, connecting and disconnecting electrical lines
and air hoses, hooking and unhooking trailers, and vehicle inspections
are not manual labor within the meaning of this Chapter.

While “[t]he essence of the [employer-employee] relationship is the right to

control[,]” there are “four primary evidentiary factors considered in deciding”

1
“A person rendering service for another in any trades, businesses or occupations covered
by this Chapter is presumed to be an employee under this Chapter.” La.R.S 23:1044.
3

whether such a relationship exists. Hillman, 805 So.2d at 1162 (alteration in

original), quoting Alexander v. J.E. Hixson & Sons Funeral Home, 44 So.2d 487,

488 (La.App. 1 Cir. 1950). The four factors are:

1. Selection and engagement;

2. Payment of wages;

3. Power of [d]ismissal;

4. Power of control.

Id. (alteration in original).

This court in Fontenot, 696 So.2d at 180, quoted Stovall v. Shell Oil Co., 577

So.2d 732, 738–39 (La.App. 1 Cir.), writ denied, 582 So.2d 1309 (La.1991), to

define the conditions that must be met in order to find that a principal and

independent contractor relationship exists:

1. There is a valid contract between the parties;

2. The work being done is of an independent nature such that the
contractor may employe non-exclusive means in accomplishing it;

3. The contract calls for specific piecework as a unit to be done
according to the independent contractor’s own methods without
being subject to the control and direction of the principal, except as
to the result of the services to be rendered;

4. There is a specific price for the overall undertaking; and

5. Specific time or duration is agreed upon and not subject to
termination at the will of either side without liability for breach.

The WCJ carefully considered each Hillman factor as well as each condition

listed in Fontenot, 696 So.2d 176. The WCJ gave a detailed analysis of each Hillman

factor based on her evaluation of the testimony. She issued thorough reasons for

judgment that outlined her application of the Hillman factors to this case as well as

her resolution of the factual disputes in the testimonies of Granger and Davis and the

credibility determinations that were required to make such resolutions. She found

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that all of the Hillman factors weighed in favor of finding that Davis was an

independent contractor, and we agree.

There is an obvious dispute over whether Davis’ election to switch the method

of his payment from form W-2 to form 1099 changed the nature of his employment.

Tube-Tech contended that Davis chose to become an independent contractor who

would get offered a run that he could either accept or decline, was in control of his

route (with Tube-Tech’s sole concern being that the delivery was made at the

specified time), and was paid by the mile without any tax deductions. The WCJ

found that Davis “voluntarily re-negotiated his selection and engagement to a status

more akin to an independent contractor.”

Granger described the arrangement as follows: Davis lived about an hour

away from the shop so they would have to offer it to another driver or hire a third

party if it was an “on the spot” run. If Tube-Tech had a run for Davis, they would

call or text him, and if he was available, he would come to the shop. He would then

wait for Tube-Tech’s truck to be loaded. Granger testified that Davis was

responsible for the load and was expected to make sure that it was loaded according

to Department of Transportation standards. Davis was given a delivery time, and he

was free to use his discretion as to what time he needed to leave and what route he

would take so long as he made the delivery on time. Davis testified that the route he

took was his choice and that Tube-Tech did not prohibit him from taking any

particular road. Tube-Tech did not control Davis’ time of departure, the route he

took, or the clothes he wore. He did not have a set schedule. Because Tube-Tech

owned the truck, Tube-Tech was responsible for insurance, gas, and repairs.

Davis could work in the yard at Tube-Tech for an hourly rate if he wanted to,

but Granger said “unfortunately, he didn’t choose to do that often.” Davis did work

in the yard during the first two weeks at Tube-Tech before he switched to form 1099.
5

After the switch, Davis was not required to be at Tube-Tech to wait for a run. He

was paid by the mile plus $15.00 per hour for any wait time, and his work was subject

to there being a load available. The WCJ noted Granger’s testimony that the person

who replaced Davis at Tube-Tech is a salaried employee who, unlike Davis, is

required to be at Tube-Tech at 7:00 a.m.: “[he] is an employee that works full time

when the truck is not running. And when the truck is running, he hops in the truck

and is paid no extra. He is salaried.”

Davis testified: “the word ‘contract’ is being thrown around. But I mean, the

truth is I was an employee, you know.” Davis testified that he was there ninety-five

percent of the time when they needed him and that he was “pretty sure” he worked

in the yard more than the one day in 2023 that was indicated in the pay documents.

He testified that he did not have any records of that because he had an iPhone that

deleted all of his messages after thirty days. He did admit that on the one occasion

that he worked in the yard after switching to form 1099 status, he was issued a form

W-2 for that work. While Davis would not classify the call for a delivery as an

“offer,” he testified that he “definitely accepted it” because it was his job. He

acknowledged that he did turn down some runs because he had other things to do.

The WCJ noted that “there was no evidence presented that he was obligated to accept

any specific request as would be expected by a traditional employee.”

Granger also testified that Tube-Tech could terminate the relationship with

Davis at any time or for cause, but he clarified that termination would occur for a

breach of contract. In response to the WCJ’s questions, Granger confirmed that

nothing changed in the way that Davis got the delivery or how the runs were made;

however, the WCJ did not find that this alone was dispositive of the issue of whether

Davis was an independent contractor or an employee based on the totality of the

factors considered.
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The WCJ gave no credence to Davis’ testimony that he wanted to switch back

to employee status but felt coerced to stay on form 1099 status. Davis’ discovery

responses stated that he did not contact Tube-Tech about switching back, but he

testified at trial that he did.

Chaisson v. La. Rock Monsters, LLC, 13-1423, p. 4 (La.App. 4 Cir. 4/2/14),

140 So.3d 55, 58, is analogous to this case:

In the instant case, it is undisputed that Mr. Chaisson was hired
each day to perform a specific project for an agreed upon price.
Louisiana Rock Monsters exercised no control over how or when Mr.
Chaisson performed the work, nor did it direct or supervise Mr.
Chaisson’s work. Mr. Chaisson used Louisiana Rock Monsters’ truck
and supplies. Louisiana Rock Monsters ensured that all drivers
complied with the Department of Labor’s mandatory pre-trip
inspections on its trucks. Louisiana Rock Monsters also maintained the
trucks. Although no contract existed between Mr. Chaisson and
Louisiana Rock Monsters, he was paid using a 1099 form and no
employment or other taxes were withheld from his pay. Based on the
totality of the circumstances, the OWC judge found that Mr. Chaisson
was an independent contractor. We find no error in that finding.

The WCJ’s evaluations of credibility were reasonable. We find no manifest

error in her conclusion that Davis was an independent contractor at the time of the

alleged accident.

Manual Labor Exception

Louisiana Revised Statutes 23:1021(7) provides that an independent

contractor is expressly excluded from the provision of the Workers’ Compensation

Act “unless a substantial part of the work time . . . is spent in manual labor by him

carrying out the terms of the contract, in which case the independent contractor is

expressly covered by the provision of this Chapter.” “In sum, ‘manual labor’

consists of work in which the physical predominates over the mental; and a

‘substantial part’ of work time is spent performing manual labor at a rate that is more

than ‘insubstantial or immaterial.’” Knox v. Elite Prot. Sol., 21-419, p. 16 (La.App.

4 Cir. 10/13/21), 366 So.3d 341, 353. The courts have construed the term
7

“substantial part” liberally and noted that “it is not a mathematical formulation.”

Riles v. Truitt Jones Const., 94-1224, p. 10 (La. 1/17/95), 648 So.2d 1296, 1300.

Davis contends that even if he is an independent contractor, he is still entitled

to receive workers’ compensation benefits under the manual labor exception since a

substantial part of his work time was made up of manual labor. Tube-Tech contends

that the time that Davis spent walking around the pipes, adjusting and securing

straps, and inspecting his loads is statutorily excluded from the definition of manual

labor. “The operation of a truck tractor or truck tractor trailer, including fueling,

driving, connecting and disconnecting electrical lines and air hoses, hooking and

unhooking trailers, and vehicle inspections are not manual labor within the meaning

of this Chapter.” La.R.S. 23:1021(7). But, this court has found that doing manual

labor for one and a half hours in a normal work day was a “substantial part” of a

truck driver’s work where he was required to load and unload his trailer for multiple

runs in a day, climb up and down the ladder on the side of his trailer multiple times

a day, inspect and clean out hoses, and open and close valves to begin and end the

loading of his trailer. McGrew v. Quality Carriers, Inc., 11-440, p. 5 (La.App. 3 Cir.

10/5/11), 74 So.3d 1253, 1257.

Granger testified that loading the truck might take ten minutes or more, but

fifty percent of the time or more, the truck was already loaded by the time Davis got

to the yard. Granger testified that a Tube-Tech employee would load the pipe onto

the truck using a forklift. Either Davis or a Tube-Tech employee would place a layer

of three or more boards between each layer of pipe, if necessary. Granger explained

that specifically, the boards would be used if the pipes were being inspected and

cleaned for future use as opposed to being sold or scrapped. Granger estimated that

boarding the pipes was necessary about sixty percent of the time. Davis vehemently

disagreed with Granger’s estimation that more than fifty percent of the time the truck
8

was already loaded when Davis arrived. Davis testified: “I’m not going to say it

didn’t happen, but more times than not, I was the one assisting with the loading.

Sometimes it was already loaded, but most of the times I was the one.” When he

arrived at the delivery location, Davis had to unstrap the load, but the customer

would unload the pipe. Davis was required to remove any boards between the layers

of pipe, put the boards in the basket on the trailer, and roll the straps. Each board

weighed about eight to twelve pounds. Davis testified that unloading larger pipe

took maybe fifteen to twenty minutes while unloading smaller pipe might take forty-

five minutes to an hour.

Tube-Tech contends that any time Davis spent loading or unloading, fastening

straps, or placing or removing boards was insubstantial compared to the time spent

driving to the delivery sites. Tube-Tech asserts that McGrew, 74 So.3d 1253, is

distinguishable because McGrew, unlike Davis, was contracted to make three trips

per day. Davis, on average, seldom made more than one delivery per day. Davis

testified that the most loads he might have done in one day was three and that it was

usually one or two loads. The Tube-Tech office is in Church Point, Louisiana, and

Davis made deliveries to Houma, Louisiana; Cocodrie, Louisiana; Zapata, Texas;

Midland, Texas; and Victoria, Texas.

The WCJ found that the time Davis spent strapping down pipe and placing or

removing boards, while manual, was not a substantial part of his work time when

compared to the time he spent driving. We find no manifest error in this conclusion.

V.

CONCLUSION

For the foregoing reasons, we affirm the dismissal of Ronald Davis’ claims

against Tube-Tech Services, Inc. Costs of this appeal are assessed to Ronald Davis.

AFFIRMED.
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JUDGE CLAYTON DAVIS
1000 Main Street
Lake Charles, LA 70615
(337) 493-3045

24-573 Ronald Davis v. Tube-Tech Services, Inc. & American Liberty Insurance
Company

Davis, J., dissents and assigns written reasons.

I respectfully dissent. The majority employs the manifest error standard of

review, citing Fontenot v. J.K. Richard Trucking, 97-220, p. 7 (La.App. 3 Cir.

6/4/97), 696 So.2d 176. Fontenot took language from Stovall v. Shell Oil Co., 577

So.2d 732 (La.App. 1 Cir. 1991), writ denied, 582 So.2d 1309 (La.1991), which

said determining employment status is a “factual determination.” Not only did

these cases involve trials on the merits, rather than exceptions of no right of action,

but the ultimate source of these dicta statements in Fontenot and Stovall came from

cases that emphasized that each case must be determined on its own facts; nowhere

did the source jurisprudence indicate the court’s employment status conclusion is

purely a factual determination always necessitating the manifest error standard. See

Sones v. Mutual of Omaha Insurance Company, 272 So.2d 739 (La.App. 2

Cir.1972), writ denied, 273 So.2d 292 (La.1973) and Pitcher v. Hydro–

Kem Services, Inc., 551 So.2d 736 (La.App. 1 Cir.), writ denied, 553 So.2d 466

(La.1989).

The determination of employment status is like any other legal issue that

creates or destroys a right of action. It is made by deciding whether the legal

presumption of employment is overcome using a strict statutory definition and

established jurisprudential factors.

Generally, an exception of no right of action is reviewed de novo because

the determination of whether a plaintiff has a right to bring the action is a question

of law. Guidry v. Ave Maria Rosary & Cenacle, Inc., 21-507 (La.App. 3 Cir.

6/1/22), 341 So.3d 779. If the parties introduce evidence at the trial on the

exception of no right of action, appellate courts consider the lower court’s findings

of fact using the manifest error-clearly wrong standard of review. CV Land, LLC v.

Millers Lake, LLC, 23-69 (La.App. 3 Cir. 11/2/23), 373 So.3d 529. However,

where the material facts are not in dispute, the trial court essentially then must only

determine legal issues, and thus, a reviewing court must apply the de novo standard

of review. Kevin Associates, L.L.C. v. Crawford, 03–0211 (La.1/30/04) 865 So.2d

34.

The Louisiana Supreme Court has stated, “[T]he legal findings of the trial

court are subject to review without the great deference standard we attach to

2

credibility determinations.” State v. Payne, 01–3196, p. 6 (La.12/4/02), 833 So.2d

927, 933. Moreover, “It is self-evident…that if the trial court’s decision was based

on its erroneous interpretation or application of law rather than a valid exercise of

discretion, such an incorrect decision is not entitled to deference.” Kem Search,

Inc. v. Sheffield, 434 So.2d 1067, 1071 (La.1983). Therefore, the manifest error

standard applies only to issues of fact, and for issues of law, the appropriate

standard is whether “the lower court’s interpretive decision was legally correct.”

Duhon v. Briley, 12-1137, p. 4 (La.App. 4 Cir. 5/23/13), 117 So.3d 253, 257-58.

Evidence was introduced at the hearing in this matter. However, on the

question of whether the claimant fit the definition of independent contractor, the

workers’ compensation judge did not need to make credibility determinations nor

resolve contested facts. The essential facts were consistent between both parties’

witnesses. Consequently, the issue is whether the lower court correctly applied the

law to the established facts. Therefore, this Court must determine whether the

lower court’s ruling was “legally correct.”

Davis’s Work Relationship Did Not Fit within the Independent Contractor
Definition
By definition, a worker cannot be “independent” from the entity paying him

if his sole source of income comes from that entity, as Davis’s did. Also, the

statutory definition of an independent contractor in part defines such relationship as

3

one that is aimed to accomplish “a specified result either as a unit or as a whole.”

La.R.S. 23:1021(7). In contrast, Davis was hired to make an unspecified number of

deliveries to an unknown number of clients for an indefinite time and perform

general labor hourly.

Likewise, if a per mile payment plus hourly wage qualifies as an agreed

upon specific price for the overall undertaking, nearly every agreement for

compensation in a typical employment agreement would as well. La.R.S.

23:1021(13)(d) specifically addresses employees who perform piecework, so the

mere fact that an employee is not paid hourly or by salary does not destroy his

status as an employee.

Additionally, the duration of Davis’s work was for an indefinite time and he

was not free to carry out his work by his own methods. As stated in Hickman, “It

would be specious to believe that he could radically vary his methods or pattern of

pickup and delivery without provoking a reprimand or disciplinary action…” Id. at

392. Tube-Tech required its drivers to be on their insurance; therefore, Davis could

not hire an assistant driver as a substitute, as an independent contractor would have

the right to do.

Consequently, as the nature of Davis’s work for Tube-Tech fits neither the

statutory nor jurisprudential definition of an independent contractor, and because

the default is a statutory presumption of employment, Davis is an employee of
4

Tube-Tech. However, because the lower court focused on the four factors

highlighted by the Supreme Court surrounding the right to control giving rise to

an employment relationship, I will address those as well below.

The Lower Court Misapplied the Hillman Factors

The lower court’s written reasons found that Davis “voluntarily re-

negotiated his selection and engagement to a status more akin to an independent

contractor” in switching to 1099 reporting. The court believed the selection and

engagement factor supported finding an independent contractor relationship. The

fact that taxes are not withheld from a worker’s pay does not create an independent

contractor relationship. Harrington v. Hebert, 00-1548 (La.App. 3 Cir. 5/23/01),

789 So.2d 649; Lewis v. Teacher’s Pet, Inc., 621 So.2d 867 (La.App. 3 Cir. 1993),

writ denied, 629 So.2d 1140 (La.1993). Rather, it is substance of the relationship

not the label which determines whether a worker is an employee or an independent

contractor. Teel v. Superior Scrap Metals, 95-969 (La.App. 5 Cir. 5/15/96), 675

So.2d 1169, writ denied, 96-1566 (La. 5/1/97), 693 So.2d 749.

Davis’s job duties, tasks he performed, his interaction with the clients, and

the way he was contacted to make deliveries after he switched to a 1099 reporting

stayed the same. Accordingly, the lower court was legally incorrect in giving this

change legal significance.

5

The lower court also found it a “notable distinction” that the driver who

replaced Davis was a full-time salaried employee who had to report at a specific

time and work when there were no deliveries to be made. Therefore, the court

found the way in which Davis was paid (by mile plus an hourly rate for wait time

and yard work) favored finding an independent contractor status.

The recognition that the later employee was paid differently is not in dispute.

However, the earlier employee was paid per mile for deliveries, and Granger

testified they changed the position after Davis left, including changing it to a salary

position. The changing nature of the position gives little credence to the assertion

that being paid per mile supports finding an independent contractor relationship

when the employee preceding Davis was paid per mile for deliveries. Also, the

lower court did not attach the proper legal significance to the fact that Mr. Davis

was paid a bonus and given advances, as is done for an employee, and was also

paid hourly for any wait time or work he performed in the yard.

The lower court further found that the power of dismissal weighed in favor

of finding an independent contractor relationship. This conclusion was legally

incorrect. Not only did Granger testify Tube-Tech had the right to terminate Davis

at will, but there was nothing negotiated between the parties other than pay by mile

for deliveries and by hour in the yard, and that Davis had to submit to background

checks and drug tests. Typically, an independent contractor would perform work
6

for a certain term and negotiate protections from termination during that term as

implied by the statutory and jurisprudential definitions. No protections or

provisions governing termination were ever negotiated; therefore, the record

supports that Davis could have been terminated at will.

The lower court found it significant that Davis did not have a set schedule,

was not bound to accept any specific request (despite trying to accept them all),

had the discretion to ensure the delivery was loaded to his standards,1 and could

travel on any road employing his own driving rules. Based on this, the lower court

found Tube-Tech did not have the power to control Davis.

Davis did not call and negotiate potential future deliveries. He was entirely

dependent on Tube-Tech. The relationship was one-sided as Davis’s schedule was

dictated by Tube-Tech telling him of a pre-scheduled delivery. There is nothing in

the record to indicate that Davis could negotiate a certain number of guaranteed

deliveries or change the delivery times that were set by Tube-Tech and Tube-Tech’s

clients. The very few times Davis “turned down” loads were analogous to an

employee calling in sick or taking vacation.

1
The fact that Davis had the discretion to ensure the delivery was loaded to his standards
is of little weight, as Davis was operating a commercial vehicle between states, making him
subject to the Federal Motor Carrier Safety Regulations. These regulations require all
commercially licensed drivers to inspect and secure their loads.

7

Tube-Tech had the expectation that Davis would consistently make himself

available for runs indefinitely and always called him first when they needed to

make a delivery. Davis had an expectation of an ongoing employment relationship,

as this was his only source of income. Regardless of what labels the parties gave

this arrangement, Davis was an employee of Tube-Tech.

For the above reasons, I respectfully dissent.

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