Supreme Court, Appellate Division, Second Department, New York.

Bryan J. PACELLI, et al., respondents,

v.

INTRUCK LEASING CORP., et al., defendants, EMH Consulting, et al., appellants. (Action No. 1).

National Interstate Insurance Company, as subrogee of Schoolman Transportation System, Inc., et al., respondents,

v.

Intruck Leasing Corp., et al., defendants, EMH Consulting, appellant. (Action No. 2).

Certain Underwriters at Lloyd’s London, as subrogee of EMH Consulting, Inc., plaintiff,

v.

Westbury Paper Stock Corp., et al., defendants. (Action No. 3).

Michelle Galluzo, respondent,

v.

Intruck Leasing Corp., et al., defendants, EMH Consulting, et al., appellants.(Action No. 4).

Kristine Blume, respondent,

v.

Intruck Leasing Corp., et al., defendants, EMH Consulting, Inc., et al., appellants. (Action No. 5).

Debra Loscalzo, et al., plaintiffs-respondents,

v.

Intruck Leasing Corp., et al., defendants, EMH Consulting, et al., appellants,

Schoolman Transportation System, Inc., defendant-respondent. (Action No. 6).

Thomas P. Zimmardi, et al., respondents,

v.

Jose Alfredo Garcia Ortiz, et al., defendants, EMH Consulting, appellant. (Action No. 7).

Bryan Pacelli, et al., plaintiffs,

v.

Austin Environmental Corp., defendant. (Action No. 8).

National Interstate Insurance Company, as subrogee of Schoolman Transportation System, Inc., et al., plaintiffs,

v.

Austin Environmental Corp., et al., defendants. (Action No. 9).

National Interstate Insurance Company, as subrogee of Schoolman Transportation System, Inc., et al., plaintiffs,

v.

Omni Recycling of Westbury, Inc., defendant. (Action No. 10).

G.E.I.C.O., as subrogee of Catherine Cohen, respondent,

v.

Intruck Leasing Corp., et al., defendants, EMH Consulting, Inc., etc., et al., appellants. (Action No. 11).

Bryan J. Pacelli, et al., respondents,

v.

Jamaica Ash and Rubbish Removal Co., Inc., et al., appellants, et al., defendant. (Action No. 12).

May 20, 2015.

Attorneys and Law Firms

Lipsius–BenHaim Law, LLP, Kew Gardens, N.Y. (David BenHaim and Ira S. Lipsius of counsel), for appellant EMH Consulting in Action Nos. 1, 2, 4, 6, and 7, and appellant EMH Consulting, Inc., in Action Nos. 5 and 11.

Lester Schwab Katz & Dwyer, LLP (Mauro Lilling Naparty LLP, Woodbury, N.Y. [Matthew W. Naparty and Seth M. Weinberg], of counsel), for appellant Westbury Paper Stock Corp. in Action Nos. 1, 4, 5, and 11, appellant Jamaica Ash and Rubbish Removal Co., Inc., in Action Nos. 4, 5, 6, 11, and 12, and appellant Omni Recycling of Westbury, Inc., in Action No. 4.

Campolo, Middleton & McCormick, LLP, Ronkonkoma, N.Y. (Scott D. Middleton and Christine Malafi of counsel), for Schoolman Transportation System, Inc., appellant in Action Nos. 1, 5, and 11, and respondent in Action Nos. 2 and 6, and respondent National Interstate Insurance Company, as subrogee of Schoolman Transportation System, Inc., in Action No. 2.

Levin & Grossman, Mineola, N.Y. (Steven Sachs of counsel), for respondents Bryan J. Pacelli and Kelly Pacelli in Action Nos. 1 and 12.

Siben & Siben, LLP, Bay Shore, N.Y. (Alan G. Faber of counsel), for respondent Kristine Blume in Action No. 5.

Kelner & Kelner, New York, N.Y. (Joshua D. Kelner and Michael B. Grossman of counsel), for respondents Thomas P. Zimmardi and Marcie S. Zimmardi in Action No. 7.

MARK C. DILLON, J.P., RUTH C. BALKIN, ROBERT J. MILLER, and JOSEPH J. MALTESE, JJ.

Opinion

 

*1 In twelve related actions to recover damages for personal injuries, the defendant EMH Consulting appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Iannacci, J.), entered January 7, 2013, as denied its motions for summary dismissing the complaints in Action Nos. 1, 2, 4, 6, and 7 insofar as asserted against it, the defendant EMH Consulting, Inc., appeals, as limited by its brief, from so much of the same order as denied its motions for summary judgment dismissing the complaints in Action Nos. 5 and 11 insofar as asserted against it, the defendants Westbury Paper Stock Corp., Jamaica Ash and Rubbish Removal Co., Inc ., and Omni Recycling of Westbury, Inc., separately appeal, as limited by their brief, from so much of the same order as as denied their motions for summary judgment dismissing the complaints in Action Nos. 1, 4, and 11 insofar as asserted against the defendant Westbury Paper Stock Corp., dismissing the complaints in Action Nos. 4, 5, 6, 11, and 12 insofar as asserted against the defendant Jamaica Ash and Rubbish Removal Co., Inc., and dismissing the complaint in Action No. 4 insofar as asserted against the defendant Omni Recycling of Westbury, Inc., and the defendant Schoolman Transportation System, Inc., separately appeals, as limited by its brief, from so much of the same order as denied its motions for summary judgment dismissing the complaints in Action Nos. 1, 5, and 11 insofar as asserted against it.

 

ORDERED that the order is modified, on the law, (1) by deleting the provisions thereof denying those branches of the motions of the defendant EMH Consulting which were for summary judgment dismissing the causes of action alleging negligent entrustment and vicarious liability in Action Nos. 1, 2, 4, 6, and 7, insofar as asserted against it, and substituting therefor provisions granting those branches of its motions, (2), by deleting the provisions thereof denying those branches of the motions of the defendant EMH Consulting, Inc., which were for summary judgment dismissing the causes of action alleging negligent entrustment and vicarious liability in Action Nos. 5 and 11 insofar as asserted against it, and substituting therefor provisions granting those branches of its motions, and (3) by deleting the provisions thereof denying the motions of Schoolman Transportation System, Inc., for summary judgment dismissing the complaints in Action Nos. 1, 5, and 11 insofar as asserted against it, and substituting therefor provisions granting those motions; as so modified, the order is affirmed insofar as appealed from, with one bill of costs to the plaintiffs Bryan J. Pacelli and Kelly Pacelli, the plaintiff Kristine Blume, and the plaintiffs Thomas P. Zimmardi and Marcie S. Zimmardi appearing separately and filing separate briefs, payable by the defendants Westbury Paper Stock Corp., Jamaica Ash and Rubbish Removal Co., Inc., and Omni Recycling of Westbury, Inc., and, upon searching the record, summary judgment is awarded to Thomas P. Zimmardi dismissing the complaints insofar as asserted against him in Action Nos. 1, 5, and 11.

 

*2 On March 15, 2006, Thomas P. Zimmardi was driving a charter bus owned by Schoolman Transportation System, Inc. (hereinafter Schoolman), in the high-occupancy-vehicle (hereinafter HOV) lane of the westbound Long Island Expressway (hereinafter the LIE), near exits 39 and 40. Several people were passengers on the bus, including Michelle Galluzo, Kristine Blume, Debra Loscalzo, and Catherine Cohen. Jose Alfredo Garcia Ortiz was driving a tractor-trailer containing recycling waste in the right westbound lane of the LIE, in the immediate vicinity of the bus. The trailer was owned by EMH Consulting, also sued herein as EMH Consulting, Inc ., in Action Nos. 5 and 11 (hereinafter EMH), and leased by New Brothers Transport Corp. (hereinafter New Brothers). The tractor was registered to Intruck Leasing Corp. The truck was carrying waste that had been loaded at a facility which was owned or operated by Westbury Paper Stock Corp. (hereinafter Westbury), Jamaica Ash and Rubbish Removal Co., Inc. (hereinafter Jamaica), and Omni Recycling of Westbury, Inc. (hereinafter Omni), and the waste belonged to some or all of those companies. Bryan J. Pacelli was driving a passenger car owned by his wife Kelly Pacelli in the same area.

 

The truck veered across several lanes of the LIE and struck the divider separating the eastbound and westbound HOV lanes. The truck pushed the Pacelli vehicle across the regular traffic lanes and into the westbound HOV lane, at which point the bus struck both the truck and the Pacelli vehicle. As a result of the accident, Bryan J. Pacelli, Zimmardi, and several passengers on the bus were injured. Numerous actions were commenced by the parties involved in the accident.

 

Schoolman moved, EMH separately moved, and Westbury, Jamaica, and Omni (hereinafter collectively the Westbury defendants) together separately moved for summary judgment dismissing the complaints in the various actions insofar as asserted against each of them. In an order entered January 7, 2013, the Supreme Court denied the respective motions, and those parties appeal from the respective portions of the order that were adverse to them.

 

“[T]he emergency doctrine holds that those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency” (Bello v. Transit Auth. of N.Y. City, 12 AD3d 58, 60; see Vargas v. Akbar, 123 AD3d 1017; Quinones v. Altman, 116 AD3d 686, 687). “Although the existence of an emergency and the reasonableness of the response to it generally present issues of fact, those issues ‘may in appropriate circumstances be determined as a matter of law’ “ (Vitale v. Levine, 44 AD3d 935, 936, quoting Bello v. Transit Auth. of N.Y. City, 12 AD3d at 60 [citations omitted] ).

 

*3 Here, Schoolman established its prima facie entitlement to judgment as a matter of law dismissing the complaints in Action Nos. 1, 5, and 11 insofar as asserted against it by demonstrating that its driver, Zimmardi, was faced with an emergency situation not of his own making when the truck suddenly veered into his lane of traffic, and that he acted reasonably in the context of that emergency (see Vargas v. Akbar, 123 AD3d 1017; Quinones v. Altman, 116 AD3d at 687). In opposition, the several plaintiffs failed to raise a triable issue of fact as to whether the emergency doctrine was applicable. Accordingly, the Supreme Court erred in denying Schoolman’s motions for summary judgment dismissing the complaints in Action Nos. 1, 5, and 11 insofar as asserted against it. For the same reasons, we award summary judgment to Zimmardi, as the operator of Schoolman’s bus, dismissing the complaints insofar as asserted against him in Action Nos. 1, 5, and 11, pursuant to our authority to search the record and award summary judgment to a nonappealing party with respect to an issue that was the subject of the motions before the Supreme Court (see Utica First Ins. Co. v. Mumpus Restorations, Inc., 115 AD3d 938, 939; Mack v. Brown, 82 AD3d 133, 142).

 

Additionally, the Supreme Court erred in denying those branches of the motions of EMH which were for summary judgment dismissing, in Actions No. 1, 2, 4, 5, 6, 7, and 11, the negligent entrustment causes of action and the causes of action alleging that it was vicariously liable for the conduct of Ortiz and New Brothers. EMH established its prima facie entitlement to judgment as a matter of law in connection with the vicarious liability causes of action by demonstrating, prima facie, that the Graves Amendment (49 USC § 30106) applied to shield it from liability for the plaintiffs’ injuries by virtue of its status as a commercial lessor of motor vehicles that was free from negligence in maintaining the subject vehicle (see Castillo v. Amjack Leasing Corp., 84 AD3d 1297, 1297–1298; Graham v. Dunkley, 50 AD3d 55, 57–58). Further, EMH established its prima facie entitlement to judgment as a matter of law dismissing the negligent entrustment causes of action insofar as asserted against it by demonstrating that it did not possess special knowledge concerning a characteristic or condition peculiar to New Brothers that rendered the use of the leased vehicle by New Brothers unreasonably dangerous (see Burrell v. Barreiro, 83 AD3d 984, 986; Byrne v. Collins, 77 AD3d 782). In opposition, the several plaintiffs failed to raise a triable issue of fact.

 

The Supreme Court properly denied the Westbury defendants’ motions. To meet their burden of establishing their prima facie entitlement to judgment as a matter of law, the Westbury defendants were required to show that their negligence, if any, was not a substantial contributing factor to the events which produced the injury (see Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315). Although “issues of proximate cause are generally fact matters to be resolved by a jury” (Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 659), “[t]here are certain instances … where only one conclusion may be drawn from the established facts and … the question of legal cause may be decided as a matter of law” (Derdiarian v. Felix Contr. Corp., 51 N.Y.2d at 315; see Ramirez v. Velarde, 248 A.D.2d 697). The Westbury defendants failed to show that the manner in which they loaded the truck was not a proximate cause of the accident. Since the Westbury defendants failed to meet their initial burden, the Supreme Court properly denied their motions for summary judgment dismissing the complaints in Action Nos. 1, 4, and 11 insofar as asserted against Westbury, dismissing the complaints in Action Nos. 4, 5, 6, 11, and 12 insofar as asserted against Jamaica, and dismissing the complaint in Action No. 4 insofar as asserted against Omni, regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853).

 

*4 The appellants’ remaining contentions are without merit.

Gregory A. Collins (Deceased), Employee, Claimant, Respondent, v. Seko Charlotte and Nationwide Mutual Ins. Co., Petitioners, v. West Expedited & Delivery Service, Inc., Defendant, v. Seko Worldwide and Federal Ins. Co., Defendants, v. Uninsured Employers Fund, Respondent.

 

Opinion No. 27519

 

SUPREME COURT OF SOUTH CAROLINA

 

2015 S.C. LEXIS 172

 

March 5, 2015, Heard

April 29, 2015, Filed

 

 

OPINION

 

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS

JUSTICE BEATTY: This matter is before the Court on a writ of certiorari to the Court of Appeals to review the decision in Collins v. Charlotte, 400 S.C. 50, 732 S.E.2d 630 (Ct. App. 2012). The Court of Appeals reversed the Workers’ Compensation Commission’s (Commission) decision which found that Gregory Collins was not a statutory employee of Seko Charlotte at the time of his death. We affirm.

 

I. Facts

Collins worked for West Expedited & Delivery Service, Incorporated (West Expedited) and was killed in an automobile collision while returning to South Carolina after making a delivery in Wisconsin for Seko Charlotte. West Expedited, as a subcontractor, [*2]  contracted with Seko Charlotte to make an interstate delivery of parts. Seko Charlotte, like West Expedited, is in the cargo delivery business.

Collins made deliveries to Wauwatosa and Menomonee Falls, Wisconsin. Although there is no written contract, Seko Charlotte engaged in business with West Expedited roughly two to three times per month. In this case, as was customary, Seko Charlotte paid West Expedited for mileage one way, however, West Expedited included the cost of the return trip in the mileage rate charged Seko Charlotte.

As a result of Collins’ work-related death, Collins’ dependents filed a workers’ compensation claim against West Expedited1 Seko Worldwide, Federal Insurance Company, Seko Charlotte2 and Nationwide Mutual Insurance Company (Nationwide).3 The case was heard by a single commissioner of the Workers’ Compensation Commission. The single commissioner applied the three tests from Voss v. Ramco, Inc., 325 S.C. 560, 482 S.E.2d 582 (Ct. App. 1997)4 and determined that Collins was Seko Charlotte’s statutory employee at the time of his fatal accident pursuant to section 42-1-410 of the South Carolina Code.5

 

1   The Uninsured Employers Fund was brought into the case because West Expedited did not carry workers’ compensation insurance at the time of Collins’ fatal accident.

2   Seko Charlotte [*3]  and Nationwide Mutual Insurance Company were brought into the case after Seko Worldwide, LLC filed a motion to add them as parties.

3   Nationwide is Seko Charlotte’s workers’ compensation insurance carrier.

4   Voss states:

 

To determine whether the work performed by a subcontractor is a part of the owner’s business, this Court must consider whether (1) the activity of the subcontractor is an important part of the owner’s trade or business; (2) the activity performed by the subcontractor is a necessary, essential, and integral part of the owner’s business; or (3) the identical activity performed by the subcontractor has been performed by employees of the owner.

 

 

Voss, 325 S.C. at 568, 482 S.E.2d at 586 (emphasis added).

5   Section 42-1-410 reads:

 

[HN1] When any person . . . referred to as “contractor,” contracts . . . with any other person . . . for the execution or performance by or under the subcontractor of the whole or any of the work undertaken by such contractor, the contractor shall be Liable to pay to any workman employed in the work any compensation under this Title which he would have been liable to pay if that workman had been immediately employed by him.

 

 

S.C. Code Ann. § 42-1-410 (1985).

Additionally, Collins was determined to be a traveling employee.6 Therefore, Seko Charlotte, [*4]  and its insurance company, Nationwide, were liable.

 

6   “It is well settled that [HN2] ‘traveling employees are generally within the course of their employment from the time they leave home on a business trip until they return, for the self-evident reason that traveling itself is a large part of the job.'” Hall v. Desert Aire, Inc., 376 S.C. 338, 357, 656 S.E.2d 753, 762 (Ct. App. 2007) (quoting Arthur Larson, Larson’s Workers’ Compensation Law, § 14.01 (Lexis-Nexis 2004)).

Seko Charlotte and Nationwide timely appealed the single commissioner’s order. The appeal was heard by the Appellate Panel of the Commission. Applying the four factors of the employee/independent contractor test, the Appellate Panel of the Commission concluded Collins was not an employee of Seko Charlotte on the return trip because West Expedited had “the exclusive right of control over [Collins]” after the deliveries were made in Wisconsin. The Appellate Panel of the Commission reversed the single commissioner.

The Uninsured Employers Fund (Fund) appealed to the Court of Appeals. Collins, 400 S.C. at 50, 732 S.E.2d at 630. The court found that the Commission committed an error of law when it applied the employee/independent contractor test instead of the statutory employee test. Id. at 57, 732 S.E.2d at 634. Applying the statutory employee test, the Court of Appeals concluded that [*5]  Collins was Seko Charlotte’s statutory employee, reversed the Commission’s decision, and reinstated the single commissioner’s order. Id. at 58, 732 S.E.2d at 634. This Court granted Seko Charlotte and Nationwide’s petition for a writ of certiorari to review the decision of the Court of Appeals.

 

II. Standard of Review

[HN3] “[Appellate] review is limited to deciding whether the Commission’s decision is unsupported by substantial evidence or is controlled by some error of law.” Hargrove v. Titan Textile Co., 360 S.C. 276, 289, 599 S.E.2d 604, 611 (Ct. App. 2004). [HN4] “The determination of whether a worker is a statutory employee is jurisdictional and, therefore, the question on appeal is one of law.” Fortner v. Thomas M. Evans Constr. & Dev., L.L.C., 402 S.C. 421, 429, 741 S.E.2d 538, 543 (Ct. App. 2013). “As a result, this court has the power and duty to review the entire record and decide the jurisdictional facts in accord with its view of the preponderance of the evidence.” Id. “It is South Carolina’s policy to resolve jurisdictional doubts in favor of the inclusion of employers and employees under the [Workers’ Compensation Act].” Id. at 429-30, 741 S.E.2d at 543.

 

III. Discussion

The issue on appeal is whether the Court of Appeals erred in holding that Collins was a statutory employee of Seko Charlotte at the time of his fatal accident? The statutory employment section of the Workers’ Compensation Act (“WCA”) provides:

 

[HN5] When any person, in [*6]  this section . . . referred to as “owner,” undertakes to perform or execute any work which is part of his trade, business or occupation and contracts with any other person (in this section . . . referred to as “subcontractor”) for the execution or performance by or under such subcontractor of the whole or any part of the work undertaken by such owner, the owner shall be liable to pay to any workman employed in the work any compensation under this title which he would have been liable to pay if the workman had been immediately employed by him.

 

 

S.C. Code Ann. § 42-1-400 (1985). [HN6] “The terms owner and contractor can be used interchangeably.” Fortner, 402 S.C. at 431, 741 S.E.2d at 544. “Thus, depending on the nature of the work performed by the subcontractor, an employee of a subcontractor may be considered a statutory employee of the owner or upstream employer.” Voss, 325 S.C. at 565, 482 S.E.2d at 585 (emphasis added). There are three tests to determine whether a statutory employment relationship exists:

To determine whether the work performed by a subcontractor is a part of the owner’s business, this Court must consider whether (1) the activity of the subcontractor is an important part of the owner’s trade or business; (2) the activity performed by the subcontractor is a necessary, essential, [*7]  and integral part of the owner’s business; or (3) the identical activity performed by the subcontractor has been performed by employees of the owner.

 

 

Id. at 568, 482 S.E.2d at 586 (emphasis added). “If any of these tests is satisfied, the injured worker is considered the statutory employee of the owner.” Id.

[HN7] “The concept of statutory employment provides an exception to the general rule that coverage under the WCA requires the existence of an employer-employee relationship.” Fortner, 402 S.C. at 432, 741 S.E.2d at 544 (citing S.C. Code Ann. § 42-1-410). “The statutory employee doctrine converts conceded non-employees into employees for purposes of the [WCA].” Id. at 432, 741 S.E.2d at 544.

Seko Charlotte and Nationwide, (collectively Petitioners) argue the Court of Appeals erred in holding that Collins was Seko Charlotte’s statutory employee at the time of this fatal accident because the contractual relationship between West Expedited and Seko Charlotte had terminated. Petitioners argue their contract terminated once the deliveries were made and Collins began his return trip to South Carolina. Petitioners, therefore, submit that without a contractual relationship, no statutory employment relationship may be found to exist between Collins and Seko Charlotte.

Conversely, the Fund argues that Collins was Seko Charlotte’s [*8]  statutory employee because the return trip was “necessarily incidental to [Collins’] statutory employment with Seko.” The Fund represents that each of the three tests for creating a statutory employment relationship were met here. Further, the Fund submits that Collins’ injuries arose out of his employment relationship as he was a “traveling employee” and Collins does not meet the exception to the rule because he “did not deviate from the most direct route to return him to South Carolina.”

This case is fact-driven and under these facts, Collins qualifies as a statutory employee. The circumstances here involve a delivery of goods on a round-trip to Wisconsin and back to South Carolina. Seko Charlotte concedes that Collins was a statutory employee on the trip to Wisconsin. At issue is whether Collins’ status ever changed.

The Court of Appeals was correct in concluding that the Commission erred in applying the employee/independent contractor test when it should have applied the statutory employee test. [HN8] The statutory employee status is an exception to the normal employee/employer relationship. In the statutory employment analysis, active control of the worker is not the focal point. It is [*9]  evident that Seko Charlotte understands this because Seko Charlotte had no more control over Collins on the trip to Wisconsin than it did on the return trip to South Carolina, yet it concedes that Collins was its statutory employee on the trip to Wisconsin.

Seko Charlotte contends that it was the parties’ understanding that the delivery of the cargo to Wisconsin terminated their contract. Assuming this to be so, Seko Charlotte’s and West Expedited’s understanding of when their obligation to each other terminated is not dispositive of our inquiry. This is so because the contract only provides the necessary foundation for the creation of the statutory employee relationship. Once the statutory employee status attaches, the extent of the status is determined by the nature of the work contracted to be performed. We must view this issue from the perspective of when was the employee’s contracted work for the statutory employer completed. Our focus thus becomes the nature of the work itself.

Collins was engaged in an “express hot delivery” from South Carolina to Wisconsin for Seko Charlotte. In this instance, an “express hot delivery” is understood in the trade to mean an immediate and direct [*10]  trip to Wisconsin. It is also understood that it is unlikely that the driver will have cargo on the return trip. Moreover, Morris West, owner of West Expedited, testified that it was unusual to carry cargo on a return trip of an “express hot delivery,” and when West Expedited did have a load it was for the same primary contractor.

Seko Charlotte frequently used West Expedited’s services and knew that the trip was being made especially for them and that, more than likely, the return trip would be without cargo for another West Expedited customer. Indeed, Collins did not pick up any cargo for the return trip to South Carolina. Therefore, the nature of the work required immediate travel to Wisconsin and an expected return trip to South Carolina. As the Court of Appeals stated in Hall, the traveling itself is a large part of the job. Hall v. Desert Aire, Inc., 376 S.C. 338, 357, 656 S.E.2d 753, 762 (Ct. App. 2007). Viewed from this perspective, it is reasonable to conclude that, under the facts of this case, the work for Seko Charlotte ended when Collins returned to South Carolina.

This conclusion is buttressed by the fact that Seko Charlotte concedes that: (1) it is in the cargo delivery business; (2) interstate deliveries are a necessary and integral part of its business; [*11]  and (3) its drivers make similar deliveries as Collins did if it is within 100 miles of Charlotte. The nature of the work for Seko Charlotte’s direct employees is the same as the work performed by Collins. This fits squarely within the requirements of Voss.

Further, the language of [HN9] section 42-1-400 states, “the owner shall be liable to pay to any workman employed in the work any compensation under this title which he would have been liable to pay if the workman had been immediately employed by him.” As such, this section does not allow for partial or conditional statutory employees. Seko Charlotte concedes that its drivers are covered on their return trips. Collins was entitled to the same coverage as Seko Charlotte’s direct employees.

 

IV. Conclusion

The Court of Appeals properly reversed the Commission’s decision and reinstated the single commissioner’s order. We, therefore, affirm the Court of Appeals.

AFFIRMED.

PLEICONES, Acting Chief Justice, KITTREDGE, HEARN, JJ., and Acting Justice James E. Moore, concur.