JOHN MAHAFFEY, Plaintiff v. GENERAL SECURITY INSURANCE CO.; ET AL Defendants REDLAND INSURANCE CO., Third-Party Defendant-Appellant, v. FIRST COAST INTERMODAL SERVICE INC.; GENERAL SECURITY INSURANCE CO.; ARTHUR WYNN, Defendants-Third-Party PlaintiffsAppellees.

C.A.5,2008.

JOHN MAHAFFEY, Plaintiff

v.

GENERAL SECURITY INSURANCE CO.; ET AL Defendants

REDLAND INSURANCE CO., Third-Party Defendant-Appellant,

v.

FIRST COAST INTERMODAL SERVICE INC.; GENERAL SECURITY INSURANCE CO.; ARTHUR WYNN, Defendants-Third-Party PlaintiffsAppellees.

No. 07-31132

United States Court of Appeals, Fifth Circuit.

September 26, 2008

Appeal from the United States District Court for the Middle District of Louisiana

Before REAVLEY, STEWART, and OWEN, Circuit Judges.

PER CURIAM:

Appellant Redland Insurance Company (Redland) appeals a grant of summary judgment in favor of appellee General Security Insurance Company (GSI). The district court ruled that Redland provided primary insurance coverage for a commercial truck accident, holding a “nontrucking use” endorsement in the Redland policy did not exclude coverage because the driver was not “in the business of” the trucking- company lessee at the time of the accident. Because we hold that the driver was in the business of the lessee as a matter of law, we reverse and render judgment for Redland.

I

In 1999, Farr Auto Sales (Farr) leased a truck and provided a driver, Arthur Wynn, to First Coast Intermodal Service (First Coast) to haul a load from Bowling Green, Kentucky, to New Orleans, Louisiana. Wynn dropped the load off in New Orleans at approximately 4 p.m. and called the First Coast dispatcher. The dispatcher told Wynn to “take the rest of the night off and call [First Coast dispatch] in the morning to see if they had a load.”  After speaking with the First Coast dispatcher, Wynn drove the truck without its trailer (“bobtailed”   ) to a truck stop where he ate dinner, watched television, took a shower, and played some slot machines. In total, Wynn stayed at the truck stop for between six and seven hours.

See SAUL SORKIN, GOODS IN TRANSIT § 45.01 (2008) (defining “bobtailing” as “[t]he operation of a tractor without an attached trailer”).

Although Wynn usually slept in the cab of his truck, a leak left the mattress in the main cabin wet, and Wynn decided to go to a motel for the night. On his way to the motel, Wynn was involved in an automobile accident with John Mahaffey. Mahaffey brought suit in Louisiana state court against Wynn, First Coast, and First Coast’s insurance provider, GSI (collectively, Defendants). First Coast and GSI removed the case to the Middle District of Louisiana.

Following removal, Defendants filed a third-party complaint against Redland Insurance Company (Redland), alleging that because Wynn was bobtailing at the time of the accident, the Redland insurance policy provided primary coverage.

Redland provided an insurance policy on the truck that included liability, personal-injury, uninsured-motorist, and collision coverage, as well as coverage for other specified causes of loss. The coverage was subject to exclusions and endorsements, including a nontrucking use endorsement. Although insurance with a nontrucking use endorsement is often referred to as “bobtail insurance,” the coverage is not described in terms of bobtailing. Rather, the endorsement provides that “the insurance does not apply to … [a] covered ‘auto’ while used to carry property in any business … [or] a covered ‘auto’ while used in the business of anyone to whom the ‘auto’ is rented.”

The terms of the lease agreement between Farr and First Coast required Farr to carry nontrucking use liability insurance and required First Coast to maintain its own public liability, property, and cargo insurance. Pursuant to a “deduction notice” Farr signed, First Coast paid the nontrucking liability insurance premiums and deducted the premiums from amounts paid to Farr under the lease agreement. At the time of the execution of the lease agreement between Farr and First Coast, the annual premium for the nontrucking use policy was $360.00 per year, payable in advance in $30.00 monthly installments. Although the deduction notice provided a fixed amount to be deducted for nontrucking use liability insurance, the lease agreement also gave First Coast the right to change the amount to be deducted for nontrucking use liability insurance to the amount established by the insurance company.

Although conceding that the GSI policy provided coverage to Mahaffey for his claim, Defendants filed a motion for partial summary judgment asking the court to hold that the Redland policy provides primary coverage and the GSI policy provides excess coverage. The magistrate judge recommended granting the motion, concluding that because Wynn had no “pending, definite assignment” and “no requirement from First Coast that he stay in New Orleans” the night of the accident, Wynn was not in the business of First Coast at the time of the accident and that, therefore, the Redland policy provided primary coverage. The district court adopted the magistrate’s recommendation.

Redland first appealed the district court’s grant of partial summary judgment in March 2002. This court held the appeal was premature. Redland then filed a motion to make the judgment final pursuant to Federal Rule of Civil Procedure 54(b). The district court granted the motion. Redland again appeals the district court’s grant of summary judgment, arguing that Wynn was in the business of First Coast at the time of the accident.

II

We review a district court’s grant of summary judgment de novo.    Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.    In determining whether there is a genuine issue of material fact, we view facts and inferences in the light most favorable to the nonmoving party.

Essinger v. Liberty Mut. Fire Ins. Co., 529 F.3d 264, 269 (5th Cir.2008).

FED.R.CIV.P. 56(c).

Essinger, 529 F.3d at 269.

GSI contends that certain deposition testimony of the corporate representative of First Coast and of Farr was inadmissible lay opinion testimony, lacks foundation, and has no basis other than hearsay. It is not clear whether the magistrate judge or the district court relied on this testimony in any way. Because the case does not turn on this testimony, we do not consider it or its admissibility.

III

The parties agree Louisiana law applies. Under Louisiana law, “[i]nterpretation of an insurance contract generally involves a question of law.”      The words of the insurance contract “must be given their generally prevailing meaning.”      If the language in the insurance policy is clear and unambiguous, the insurance contract must be enforced as it is written.

In re Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir.2007) (citing Bonin v. Westport Ins. Corp., 05-0886 (La.5/17/06); 930 So.2d 906, 910).

Id. at 207 (quoting LA. CIV.CODE ANN. art.2047 (1987)).

Id.(citing Cadwallader v. Allstate Ins. Co., 02-1637 (La.6/27/03); 848 So.2d 577, 580).

We have held that the phrase “in the business of” in a nontrucking use endorsement is unambiguous.    “That ‘contractual language may, on occasion, pose difficult factual applications … ‘ and that the parties disagree as to coverage, does not create ambiguity.”      Although the application of the endorsement to these facts may pose difficult questions, the difficulty of the questions does not create an ambiguity. Because “in the business of” as used in the nontrucking use endorsement is unambiguous, the issue is properly resolved as a matter of law on a motion for summary judgment.

Empire Fire & Marine Ins. Co. v. Brantley Trucking, Inc., 220 F.3d 679, 681 (5th Cir.2000); accord Liberty Mut. Ins. Co. v. Conn. Indem. Co., 55 F.3d 1333, 1335 (7th Cir.1995) (holding the exclusion “while used in the business of anyone to whom [it] is rented” to be unambiguous).

Brantley Trucking, 220 F.3d at 681 (quoting Hartford Ins. Co. v. Occidental Fire & Cas. Co., 908 F.2d 235, 239 (7th Cir.1990)).

The Louisiana Supreme Court has not yet considered when an independent trucker is acting in the business of a lessee. In the absence of a decision interpreting a particular insurance clause, we must ascertain how the Louisiana Supreme Court would rule if faced with interpreting the insurance provision   0 by looking to guidance from the constitution, codes, and statutes of the state of Louisiana;   1   decisions from Louisiana intermediate appellate courts and federal courts applying Louisiana law;   2   and decisions from other jurisdictions. 3

0. See Cochran v. B.J. Servs. Co. U.S.A., 302 F.3d 499, 502 (5th Cir.2002).

1. In re Katrina Canal Breaches Litig., 495 F.3d at 206.

2. Cochran, 302 F.3d at 502.

3. See Stanley v. Trinchard, 500 F.3d 411, 423-24 (5th Cir.2007) (noting that in making an “Erie-guess,” this court may consult “decisions from other jurisdictions”).

No constitutional provision, code, or statute defines when a trucker is acting in the business of a lessee. The only Louisiana Court of Appeal case considering whether a driver is in the business of a lessee is LeBlanc v. Bailey. 4   In LeBlanc, a trucker was involved in an accident while en route to his home after finishing deliveries that day. 5   The lessee carried commercial automobile insurance and the driver carried a bobtail policy that contained an endorsement for nontrucking use, which provided that the bobtail insurance did not apply to “a covered ‘auto’ while used in the business of anyone to whom the ‘auto’ is rented.”   6   The language of this endorsement for nontrucking use is identical to the language in the endorsement for nontrucking use in the Redland policy.

4. 97-0388 (La. Ct.App. 4 Cir. 10/1/97); 700 So.2d 1311.

5. Id. at 1314.

6. Id. at 1313.

The Louisiana Court of Appeal affirmed the trial court’s holding that the bobtail insurance was primary for the accident as a matter of law. 7   Noting that there was not a bright-line rule to determine whether an independent trucker is acting in the business of the lessee, the court emphasized that the driver was “free to go where he pleased [and] … was not subject to [the lessee’s] control or paid for his time or mileage. [The driver] was not under dispatch or standby for further deliveries, and his drive home was more of a personal nature rather than a work-related function.”   8

7. Id. at 1314.

8. Id.

Although the LeBlanc court did not specifically enumerate factors to be considered in determining whether a driver is in the business of another for the purpose of Louisiana insurance law, the decision indicated that relevant considerations include: whether the driver was free to go where he pleased; whether the driver was paid for time or mileage; whether the driver was under dispatch or standby for further deliveries; and whether the activity was more of a personal or work-related function. 9   There is, however, no indication from LeBlanc that these considerations are exclusive. The LeBlanc court also expressed concern that construing the bobtail policy to exclude coverage when the driver was driving home would “render the non-trucking use endorsement meaningless and would defeat [the insured’s] very purpose in securing this type of coverage.”   0

9. See id.

0. Id. at 1314-15.

Applying the reasoning of LeBlanc leads us to conclude that Wynn was acting in the business of First Coast. One of the important considerations in LeBlanc was whether the driver was “under dispatch or standby for further deliveries,” or whether “his drive home was more of a personal nature rather than a work-related one.”   1   Unlike the driver in LeBlanc, who was heading home after completing his deliveries and was not under predispatch for deliveries the following day, 2 Wynn was not heading home, and he was on standby for further deliveries because the First Coast dispatcher told him to “take the rest of the night off and call [First Coast dispatch] in the morning to see if they had a load.”  The First Coast dispatch had not yet released Wynn to return to his home in Missouri. First Coast’s corporate representative testified that First Coast drivers had the option to reject offered loads, but Wynn sought an additional load from First Coast and complied with its request that he take the night off and call the next day about a load. Although Wynn was “free to go where he pleased” in the interim, in the sense that First Coast did not direct his activities that evening, Wynn would have had to stay within close proximity to New Orleans to be available to pick up a load. Wynn was not paid for his time or mileage while waiting for the next load, but he would have lost the opportunity to earn return-trip income if he left before ascertaining whether a load would be available, and First Coast would have lost an available driver. Wynn was furthering First Coast’s commercial interests to have a driver on standby and available to take a load the next day, regardless of whether one actually became available. Finally, unlike driving home after completing deliveries, driving to a motel far from home in order to sleep to be adequately rested, when asked to remain in the area to see if a load becomes available, is a work-related function for a commercial driver because commercial drivers are required to have a certain number of rest hours between hauls. 3   Accordingly, Wynn was acting in the business of First Coast as a matter of law.

1. Id. at 1314 (emphasis added).

2. Id.

3. See49 C.F.R. § 395.1 (2007) (providing time limits on driving hours and minimum rest times).

Our conclusion, based on the reasoning of LeBlanc, that Wynn was in the business of First Coast is consistent with the “commercial interest” test we articulated in Empire Fire & Marine Insurance Co. v. Brantley Trucking, Inc. 4 In Brantley Trucking, this court considered language nearly identical to the nontrucking use policy in this case. 5   Applying Texas law, we held that the language in the endorsement for nontrucking use was unambiguous and “clearly refers to occasions when the truck is being used to further the commercial interests of the lessee.”   6

4. 220 F.3d 679 (5th Cir.2000).

5. See id. at 680, 682 n.3 (excluding policy coverage “while a covered ‘auto’ is used in the business of anyone to whom the ‘auto’ is leased or rented”).

6. Id. at 682.

In Brantley Trucking, the driver of a leased truck, while waiting for cargo to load at the lessee’s terminal yard, bobtailed to have the truck’s oil changed, pick up auto parts, and have other maintenance performed at a service station. 7   On his way back to the lessee’s terminal, the driver was involved in an accident. 8   We held that the driver was acting in the lessee’s business as a matter of law because the driver was furthering the commercial interests of the lessee when he was “only biding his time while the cargo loaded” and was not “out pursuing leisurely engagement.”   9

7. Id. at 680.

8. Id.

9. Id. at 682.

Decisions in other jurisdictions determining whether a driver was acting in the business of a lessee also support our holding that Wynn was acting in the business of First Coast. Unlike driving home, which is generally found to be not in the business of a lessee, 0 Wynn was driving to a motel to sleep with a reasonable expectation that a load would be available the following day. Courts have recognized that a driver can be acting in the business of another when driving to or from a place to sleep or rest. 1

0. See, e.g., Acceptance Ins. Co. v. Canter, 927 F.2d 1026, 1028 (8th Cir.1991) (holding that a driver was not in the business of a lessee where the driver was driving to his home after being told there was no cargo available for hauling and to call back a few days later).

1. See Liberty Mut. Ins. Co. v. Conn. Indem. Co., 55 F.3d 1333, 1334, 1337 n.5 (7th Cir.1995) (holding that a driver was in the business of a lessee when returning to pick up a trailer he left at a truck stop in order to bobtail to spend a night at home and noting the fact that the driver went home instead of a hotel was not determinative as the driver “had to sleep somewhere”); Auto-Owners Ins. Co. v. Redland Ins. Co., 522 F.Supp.2d 891, 898 (W.D.Mich.2007) (holding that a trucker going to find a place to sleep the night before picking up an assigned load was in the business of a lessee because he was “on business far from both his home and the home base of his employer,” the lessee “expected him to get rest so that he would be eligible to pick up a load the next morning,” and the “essential purpose of [the driver’s] actions was to benefit [the lessee] by getting the required hours of sleep and ensuring his ability to make a pick up the following morning”).

Finally, GSI argues that applying the nontrucking use endorsement to exclude coverage in this case would render the nontrucking use policy “meaningless.”  This argument is unavailing. LeBlanc exemplifies circumstances under which the nontrucking use endorsement does not preclude coveragewhen a driver is driving home after dropping a load off without further instructions. 2   We could posit other circumstances in which a vehicle is not being “used in the business of anyone to whom the ‘auto’ is rented,” but we decline to offer what would be advisory rulings. Our holding reflects the Redland policy’s purposely tailored coverage and does not render the nontrucking use policy meaningless.

2. See LeBlanc v. Bailey, 97-0388 (La. Ct.App. 4 Cir. 10/1/97); 700 So.2d 1311.

* * *

Because Wynn was in the business of First Coast at the time of the accident as a matter of law, we REVERSE the trial court’s grant of summary judgment and RENDER judgment for Redland.

Northland Cas. Co. v. Meeks

C.A.8 (Ark.),2008.

United States Court of Appeals,Eighth Circuit.

NORTHLAND CASUALTY COMPANY, Appellee,

v.

Barbara MEEKS, individually and as Special Administratrix of the Estate of Floyd Meeks, Deceased; Floyd Meeks Jr., individually; Jewel Meeks, individually; Lloyd Gene Meeks, individually; Shelia Meeks Hale, individually; James Rual Meeks, individually; Deanie Renee Meeks Hester, individually; Jewel Meeks Webb, individually; Andrew Thomas Meeks, individually; Don Henry Paul Meeks, individually, Appellants.

Northland Casualty Company, Appellee,

v.

Rocky Harrell, doing business as Rocky Harrell Farms, Appellant.

Nos. 07-3057, 07-3199.

Submitted: April 18, 2008.

Filed: Aug. 28, 2008.

GRUENDER, Circuit Judge.

The estate and heirs of Floyd Meeks (collectively “Meeks”) and Rocky Harrell appeal the district court’s  grant of summary judgment to Northland Casualty Company (“Northland”). The district court held that Harrell’s commercial insurance policy with Northland that provided business auto coverage (“the Policy”) did not cover claims arising from the fatal injuries suffered by Floyd Meeks (“Floyd”) because it determined that Floyd was Harrell’s employee. On appeal, Meeks and Harrell argue that the Policy covered their claims because Floyd was either an independent contractor or a temporary worker. For the reasons discussed below, we affirm.

I. BACKGROUND

In August 2002, Floyd and Harrell agreed that Floyd would transport agricultural products for Harrell’s hauling company on an “as needed” basis during the harvest season. Harrell was a farmer who also owned and operated a transportation company that was in the business of hauling agricultural products. While Floyd drove a school bus for the North Little Rock School district, he asked Harrell for a full-time driver position. Harrell denied this request because the work was seasonal. Every week during the harvest season, Harrell told Floyd and the other drivers the loads to pick up, from whom to pick them up, and where to deliver them. The drivers were able to choose the exact times they would pick up the loads and what routes to take to complete the deliveries, so long as the deliveries were completed within a week. Harrell owned the trucks and leased the trailers, but he permitted his drivers to keep them at their houses. Harrell also paid all vehicle operating costs, including licensing, insurance and gas. The drivers could supplement the insurance if they chose to do so. Each driver received weekly payments equivalent to twenty-five percent of the amount charged by Harrell for the loads that driver transported. Harrell paid the drivers even if a customer did not pay him. No taxes were withheld from the drivers’ paychecks, and the drivers received 1099 tax forms, not W-2 forms. While Harrell had no written contracts with his drivers, he prohibited them from hiring subcontractors. Either Harrell or the drivers could terminate the drivers’ employment at any time.

The Policy that Harrell purchased from Northland provided coverage for Harrell’s tractors and trailers with certain exclusions. Section B of the liability coverage section states, “This insurance does not apply to … (4) … ‘Bodily injury’ to: (a.) An ‘employee’ of the ‘insured’ arising out of and in the course of: (1) Employment by the ‘insured’; or (2) Performing the duties related to the conduct of the ‘insured’s’ business….” The Policy also defined the relevant terms as follows:

“Employee” includes a “leased worker”. “Employee” does not include a “temporary worker”.

…

“Leased worker” means a person leased to you by a labor leasing firm under an agreement between you and the labor leasing firm, to perform duties related to the conduct of your business. “Leased worker” does not include a “temporary worker”.

…

“Temporary worker” means a person who is furnished to you to substitute for a permanent “employee” on leave or to meet seasonal or short-term workload conditions.

On October 4, 2002, Floyd was fatally injured in an accident while transporting agricultural products for Harrell using Harrell’s tractor-trailer. After Floyd’s death, Meeks filed a state court action against Harrell under the Arkansas Wrongful Death Statute, Ark.Code Ann. § 16-62-102. Harrell sought defense and coverage from Northland. Relying on our diversity jurisdiction, Northland then brought this declaratory judgment action to disclaim these obligations. Northland filed a motion for summary judgment, which Meeks and Harrell opposed. They argued that a genuine issue of material fact existed as to whether Floyd was an “independent contractor” or a “temporary worker.” Rejecting this argument, the district court held that no genuine issues of material fact existed and that Floyd was Harrell’s employee as a matter of law. In reaching its conclusion, the district court applied Arkansas’s ten-factor test. Alternatively, the court held that Floyd was an employee under Arkansas’s extension of the definition of employee found in 49 C.F.R. § 390.5 to intrastate operations of motor vehicles in Rule 17.1 of the Arkansas State Highway Commission Regulations. Finally, the district court held that Floyd was not covered by the Policy as a “temporary worker” because he was not “furnished to” Harrell by another entity. Meeks and Harrell appeal.

II. DISCUSSION

“We review the district court’s grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party.”Source Food Tech., Inc. v. U.S. Fid. & Guar. Co., 465 F.3d 834, 836 (8th Cir.2006).“We also review the district court’s interpretation of an insurance policy provision de novo.”Id. In this diversity case, we apply Arkansas law. See id.

A. Employee/Independent Contractor

Meeks and Harrell argue that summary judgment was not appropriate because there is a genuine issue of material fact as to whether Floyd was an employee under Arkansas law. “Although agency is a question of fact ordinarily determined by the trier of fact, where the facts are undisputed, and only one inference can reasonably be drawn from them, it becomes a question of law.”Howard v. Dallas Morning News, Inc., 324 Ark. 91, 918 S.W.2d 178, 185 (1996); accord Cotton v. Commodore Exp., Inc., No. 02-604, 2007 WL 283135, at(E.D.Ark. Jan. 30, 2007) (stating that an agency determination is “a legal conclusion, requiring both a determination of facts and application of law,” and “where the material undisputed facts permit only one reasonable legal conclusion, summary judgment is appropriate”) (citing Howard, 918 S.W.2d at 185). Because the facts attendant to Floyd’s employment relationship are undisputed, we now review de novo the district court’s legal conclusion that Floyd was Harrell’s employee.

Applying Arkansas law to determine whether Floyd was an employee or an independent contractor, we consider the totality of the circumstances by applying Arkansas’s ten-factor test. See Shelter Mut. Ins. Co. v. Jones, 343 F.3d 925, 926 (8th Cir.2003) (per curiam). The factors we consider are:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by time or by the job;

(h) whether or not the work is a part of the regular business of the employer;

(i) whether or not the parties believe they are creating the relation of master and servant; and

(j) whether the principal is or is not in business.

Blankenship v. Overholt, 301 Ark. 476, 786 S.W.2d 814, 815 (1990) (citing Restatement (Second) of Agency § 220 (1958)). The primary factor in this analysis is the extent of control an employer may exercise over his worker.Shelter, 343 F.3d at 926 & n. 2.“It is the right to control, not the actual control, that determines the relationship.”Ark. Transit Homes, Inc. v. Aetna Life & Cas., 341 Ark. 317, 16 S.W.3d 545, 548 (2000).

Applying these factors, we conclude that the district court did not err in determining that Floyd was Harrell’s employee. Significantly, Harrell had and exerted full control over the critical details of Floyd’s work. Harrell could terminate Floyd’s employment at will, and he prohibited Floyd from subcontracting his work. Harrell also received all customer orders, assigned all delivery requests and required the drivers to complete each delivery within one week. Floyd had to charge all fuel purchases to Harrell’s account at a specified gas station, which limited the routes available to Floyd. Furthermore, Harrell instructed Floyd on proper load handling and required Floyd to contact him directly in case of any problem or emergency.

In addition to the control Harrell established over Floyd, the remaining factors also support the determination that Floyd was an employee. Floyd hauled exclusively for Harrell and was not engaged in an independent hauling business. While Floyd needed some skill to drive a tractor-trailer, that skill was not unique and not more prevalent among independent contractors than employees. Harrell also supplied all necessary equipment to Floyd and paid all operating costs. Although Harrell hired Floyd only for harvest season, Floyd was employed for the entire season and not for one specific job. Additionally, Floyd was paid even if a customer failed to pay Harrell. The loads Floyd hauled were integral and essential to Harrell’s hauling business. The parties understood that Floyd worked directly for Harrell and that Floyd himself, not a worker Floyd subcontracted, would make the deliveries. While Floyd physically controlled the tractor-trailer during transport, Harrell retained ultimate authority and his drivers “follow[ed his] instructions.” Harrell also was the sole proprietor of his trucking business.

Notwithstanding these undisputed facts, Meeks and Harrell argue that the record fails to establish that Floyd was Harrell’s employee. They claim that a fact-finder could reasonably conclude that Floyd was an independent contractor after considering the ten factors. In support of this argument, they claim that Harrell’s issuance of 1099 tax forms, instead of W-2 forms, proves that Floyd was an independent contractor. However, we previously have held that use of a 1099 tax form does not undermine the conclusion that a worker is an employee and not an independent contractor. Shelter, 343 F.3d at 926.In reaching this conclusion, we noted that “in construing [an] insurance policy’s definition of ‘employee,’ economic reality rather than legalistic form should be determinative.”Id. (quoting Eagle Star Ins. Co. v. Deal, 474 F.2d 1216, 1220 (8th Cir.1973)). We likewise conclude that the fact that Floyd received a 1099 tax form does not alter our analysis that Floyd was an employee. Meeks and Harrell also argue that several other facts support a finding that Floyd was an independent contractor, such as Floyd’s ability to determine the exact route and timing of the deliveries and Floyd’s ability to keep the truck at his house between deliveries. However, these facts do not undermine our conclusion regarding the extent to which Harrell had the right to and did, in fact, exercise control over Floyd. Therefore, we find that the totality of the circumstances supports the district court’s conclusion that the only reasonable inference to be drawn from the undisputed facts is that Floyd was an employee of Harrell, not an independent contractor.

B. Employee/Temporary Worker

Meeks and Harrell also argue that Floyd was not an employee under the Policy because he was a “temporary worker.” The Policy excludes a “temporary worker” from its definition of “employee” and defines “temporary worker” as “a person who is furnished to you to substitute for a permanent ‘employee’ on leave or to meet seasonal or short-term workload conditions.”The Policy does not define the term “furnished to.” Meeks and Harrell argue that Floyd was a temporary worker either because he furnished himself to Harrell or because the “furnished to” requirement does not apply to a worker who was hired “to meet seasonal or short-term workload conditions.”

“Insurance contracts are to be construed strictly against the insurer, but where language is unambiguous, and only one reasonable interpretation is possible, it is the duty of the courts to give effect to the plain wording of the policy.”Smith v. S. Farm Bureau Cas. Ins. Co., 353 Ark. 188, 114 S.W.3d 205, 206 (2003).“[T]he language of an insurance policy is to be construed in its plain, ordinary, and popular sense.”Id. at 206-07 (quotation omitted). The Arkansas Supreme Court has not addressed this issue or interpreted the phrase “furnished to” in an insurance contract. “When there is no state supreme court case directly on point, our role is to predict how the state supreme court would rule if faced with the issues before us.”Cotton v. Commodore Exp., Inc., 459 F.3d 862, 864 (8th Cir.2006). While Meeks and Harrell argue that the term “furnished to” is ambiguous and must be construed in their favor, we find that the Policy’s use of the term “furnished to” is unambiguous and clearly requires the involvement of a third party in furnishing a worker either “to substitute for a permanent ‘employee’ on leave” or “to meet seasonal or short-term workload conditions.”

We first consider whether a third party must furnish the worker to the insured in order to qualify as a temporary worker, or whether, as Meeks and Harrell claim, Floyd could qualify as a temporary worker by furnishing himself to Harrell. Other courts have determined that a third party must furnish the worker based, in part, on the definition of “furnish” in Black’s Law Dictionary and other dictionaries. See AMCO Ins. Co. v. Dorpinghaus, No. 05-1296, 2007 WL 313280, atn. 3 (D.Minn. Jan.12, 2007); Nautilus Ins. Co. v. Gardner, No. 04-1858, 2005 WL 664358, at(E.D.Pa. Mar.21, 2005). Black’s Law Dictionary defines “furnish” as “to supply, provide or equip, for accomplishment of a particular purpose.”Black’s Law Dictionary 675 (6th ed.1990). Webster’s Third New International Dictionary of the English Language defines “furnish” as “to provide or supply with what is needed, useful, or desirable.”Webster’s Third New International Dictionary of the English Language 923 (2002). We believe that the term “furnished to,” in the context of the Policy’s definition of “temporary worker,” “is not ambiguous and necessarily implies that a third party has been involved in providing or supplying the worker to the insured.”Gavan v. Bituminous Cas. Corp., 242 S.W.3d 718, 721 (Mo.2008) (en banc). Thus, we predict that the Arkansas Supreme Court would follow the courts that have determined that the involvement of a third party is required by the use of the term “furnished to” in the definition of “temporary worker.”  See AMCO, 2007 WL 313280, atn. 3;Nautilus, 2005 WL 664358, at *7.

We also believe that the structure of the “temporary worker” definition unambiguously requires the involvement of a third party. If “furnished to” did not require a third party to supply the temporary worker and any worker could furnish himself or herself to an employer as Meeks and Harrell argue, then the term “furnished to” would be meaningless. See AMCO, 2007 WL 313280, at *5.“Construction that neutralizes any provision of [an insurance] contract should never be adopted if the contract can be construed to give effect to all provisions.”Smith, 114 S.W.3d at 207.Under Meeks and Harrell’s interpretation, any worker who substituted for a permanent employee on leave or who met seasonal demands or short-term workload conditions would satisfy the “furnished to” requirement. See AMCO, 2007 WL 313280, at *5. Such an interpretation of the “temporary worker” definition would neutralize the term “furnished to,” and we predict that the Arkansas Supreme Court would not adopt such a definition.

Furthermore, we disagree with Meeks and Harrell’s argument that the Policy’s definition of “leased worker” creates ambiguity as to whether the term “furnished to” requires the involvement of a third party in the furnishing of a temporary worker. The Policy’s definition of “leased worker” specifically states that a leased worker must be furnished by a labor leasing firm. Meeks and Harrell contend that if the Policy meant to require another party to furnish a “temporary worker,” then the Policy would have specified that the temporary worker be furnished by such a third party. However, “just because one provision of an insurance policy refers to third-party involvement more explicitly than another provision of the same policy does not mean that third-party involvement is excluded from the latter provision.”Id. at *6. The distinction merely shows that the provisions contemplate differing degrees of specificity. Id. It does not eliminate the requirement that a “temporary worker” must still be furnished by a third party. Therefore, we believe that the Arkansas Supreme Court would determine that the term “furnished to” in the definition of “temporary worker” requires that a third party furnish the temporary worker to the insured.

Next, we determine whether the term “furnished to” unambiguously applies both to the clause “to substitute for a permanent employee” and to the clause “to meet seasonal or short-term workload conditions.”If it only applied to the clause “to substitute for a permanent employee,” the “temporary worker” definition would not make grammatical sense. See Am. Family Mut. Ins. Co. v. Tickle, 99 S.W.3d 25, 30-31 (Mo.Ct.App.2003) (applying a grammatical analysis of the “temporary worker” definition). As the American Family Mutual court reasoned, “[t]he structure of the sentence defining ‘temporary worker’ indicates that the clause ‘who is furnished to you to substitute for a permanent employee on leave or to meet seasonal or short-term workload conditions’ is a subordinate adjective clause modifying ‘person’.”Id. at 30.The phrases “to substitute for a permanent employee on leave” and “to meet seasonal or short-term workload conditions” are parallel infinitive phrases that equally modify the verb “is furnished” because they are separated by the word “or.”  Id. at 30-31.Reading the second clause without the term “furnished to” is “grammatically impossible.”  Id. at 31.Based on this sound grammatical analysis, we predict that the Arkansas Supreme Court would find that the term “furnished to” applies to both “to substitute for a permanent employee on leave” and “to meet seasonal or short-term workload conditions.”Therefore, we reject Meeks and Harrell’s argument that Floyd qualified as a temporary worker merely because he was hired as a seasonal driver.

Meeks and Harrell rely on Bituminous Casualty Corp. v. Mike Ross, Inc. in support of their arguments. 413 F.Supp.2d 740 (N.D.W.Va.2006). The Bituminous court held that “furnished to” was ambiguous and that it only applied to the first part of the “temporary worker” definition, “to substitute for a permanent employee on leave,” and not the second part of the definition, “to meet seasonal demands [or] short-term workload conditions.”Bituminous, 413 F.Supp.2d at 745.However, the majority of courts that have reviewed this policy language in one or both of these contexts have agreed with our conclusion. See, e.g., AMCO Ins. Co., 2007 WL 313280, at(“[A] worker is not furnished to an insured unless a third party-typically a staffing agency-has been involved in providing or supplying the worker to the insured.”); Gavan, 242 S.W.3d at 721;Gen. Agents Ins. Co. of Am., Inc. v. Mandrill Corp., 243 Fed.Appx. 961, 967-68 (6th Cir.2007) (unpublished) (opinion of Kennedy, J.); Carl’s Italian Rest. v. Truck Ins. Exch., 183 P.3d 636, 639-40 (Colo.Ct.App.2007), cert. denied,No. 08SC23, 2008 WL 2008622 (Colo. May 12, 2008) (en banc); Nautilus, 2005 WL 664358, at *6-7;Brown v. Ind. Ins. Co., 184 S.W.3d 528, 537-40 (Ky.2005); Monticello Ins. Co. v. Dion, 65 Mass.App.Ct. 46, 836 N.E.2d 1112, 1115 (2005); Nationwide Mut. Ins. Co. v. Allen, 83 Conn.App. 526, 850 A.2d 1047, 1057 (2004); Am. Family Mut., 99 S.W.3d at 30-31.

We believe that the Arkansas Supreme Court would find that the term “furnished to” unambiguously requires that a third party furnish the temporary worker to the insured. Accordingly, Flo