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J-A11016/02
2002 PA Super 192
STATE AUTOMOBILE MUTUAL
:
IN THE SUPERIOR COURT OF
INSURANCE COMPANY,
:
PENNSYLVANIA
Appellant
:
:
v.
:
:
WILLIAM F. CHRISTIE, JR., ZOEY
:
CHRISTIE, CHRISTIE CONSTRUCTION
COMPANY, WILLIAM AND ZOEY
CHRISTIE t/d/b/a CHRISTIE
CONSTRUCTION COMPANY, KEVIN E.
ATWOOD AND STONE CONSTRUCTION
EQUIPMENT, INC.,
:
Appellee
:
No. 1521 WDA 2001
Appeal from the Order Entered on August 8, 2001
In the Court of Common Pleas of Beaver County,
Civil Division at No. 2000-10274
BEFORE: JOHNSON, BENDER and MONTEMURO*, JJ.
OPINION BY BENDER, J.:
Filed: June 18, 2002
¶ 1
State Automobile Mutual Insurance Company (State Auto) appeals
from an order entered in a declaratory judgment proceeding that determined
that State Auto was obliged to defend and indemnify William F. Christie, Jr.,
Zoey Christie and Christie Construction Company in a tort action filed by
Kevin E. Atwood (Atwood). We reverse.
¶ 2
William Christie, a self-employed general contractor t/d/b/a Christie
Construction Company, (collectively Christie) performs commercial and
residential construction. Atwood spoke with Christie about work availability,
intending to submit a bid for roofing work. Christie informed Atwood that he
* Retired Justice assigned to Superior Court.

J. A11016/02
only used subcontractors, and that Atwood could work as a "mason tender"
on a kennel building project. Atwood agreed to work in that capacity.
¶ 3
On June 15, 1992, Atwood was injured while cleaning a cement
machine, which was used to mix mortar.1 He filed a Workers' Compensation
(WC) claim petition seeking benefits. Christie filed an answer denying that
Atwood was an employee. Christie acknowledged that he did not maintain
WC coverage because he had no employees. No adjudication of the WC
claim took place because Atwood withdrew the claim upon receipt of $8,000
from Christie. No release was signed. Subsequently, Atwood instituted a
civil action against Christie and Stone, claiming that he worked for Christie
as a laborer. In the suit, Atwood sought damages for the injury he claims he
suffered when cleaning the cement machine.
¶ 4
Christie maintained commercial liability insurance coverage under a
policy from State Auto, which was in effect at the time that Atwood was
injured. The policy provided liability insurance coverage for bodily injury,
but excluded "[a]ny obligation of the insured under a workers compensation,
disability benefits or unemployment compensation law or any similar law."
Record, Exhibit A, Insurance Policy at 15. The policy further stated that
coverage did not apply to bodily injury to "[a]n employee of the insured
arising out of and in the course of employment by the insured." Id.

1 Stone Construction Equipment, Inc. (Stone) manufactured the machine
involved in Atwood's injury and is one of the named defendants in the
underlying tort action brought by Atwood.
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J. A11016/02
¶ 5
State Auto filed a declaratory judgment action to have the court
determine whether Christie was entitled to coverage by State Auto under the
general liability policy in effect at the time. State Auto claimed that the
evidence proved that Atwood was an employee and, therefore, the
exclusions in the policy dictated that no coverage was available under the
policy. In addition to the above recitation of facts, the court also formulated
the following findings concerning Atwood's employment status:
3.
Since the mid-1980's, Christie has had no employees but
utilizes subcontractors to perform his contract work.
. . . .
5.
Christie informed Atwood that he only deals with
subcontractors, not employees.
6.
Subsequently, Atwood informed Christie that he was
willing to perform work for Christie as a subcontractor.
7.
Atwood then joined Christie at a job site in Cranberry
Township, Butler County, which involved the construction of a
kennel.
8.
While Atwood anticipated submitting a bid for roofing
work, Christie intended to use Atwood's services for masonry
work as well as roofing.
9.
Atwood's initial work assignment was as a mason tender.
His principle duties were to mix mortar and supply the mortar to
Christie who was laying concrete block.
10.
Atwood brought his own hammer and trowel. All other
tools, equipment and supplies to mix the mortar were provided
by Christie.
11.
Atwood was paid a daily rate plus expenses by check
issued weekly. There was no agreement between Atwood and
Christie as to benefits such as vacation.
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J. A11016/02
12.
Atwood had signed federal forms which acknowledged his
personal responsibility to pay federal taxes.
13.
Christie did not withhold federal or state income taxes,
social security taxes or medicare taxes from Atwood, did not pay
any such taxes which would have been assessed against him as
an employer, and did not file any tax forms as an employer. He
listed Atwood as a subcontractor on his tax reports.
14.
Atwood either rode to the job site with Christie or operated
one of Christie's vehicles to the job site.
15.
Atwood was not instructed by Christie as to when to start
or end work each day. No overtime rate was paid to him for
work exceeding a minimum hour day.
16.
Christie did not give Atwood instructions as to where or
how to mix the mortar except as to the ratio of sand to mortar.
17.
Christie did not give Atwood instructions as to how to
deliver the mortar mix to Christie nor as to a minimum quantity
of mortar to mix.
18.
Christie provided a power machine with which to mix the
mortar as well as all gas and oil utilized in the machine.
Trial Court Opinion (T.C.O.), 8/8/01, at 1-3.
¶ 6
Based on the facts and the law as set forth in Hammermill Paper Co.
v. Rust Eng'g Co., 243 A.2d 389 (Pa. 1968), and more recently in
Universal Am-Can, Ltd. V. Workers' Comp. Appeal Bd. (Minteer), 762
A.2d 328 (Pa. 2000), the court concluded that Atwood was an independent
subcontractor and not an employee at the time of his injury. Therefore, the
court held that "State Auto had both the duty to defend and the duty to
indemnify Christie in the tort action filed against Christie by Atwood."
T.C.O., 8/8/01, at 6.
- 4 -

J. A11016/02
¶ 7
State Auto now appeals to this Court and presents the following issues
for our review: (1) whether the trial court erred in determining that State
Auto was required to defend and indemnify Christie in the underlying civil
action filed by Atwood where the evidence established that Atwood was an
employee and the general liability policy excluded coverage for bodily injury
to employees, and (2) whether the trial court erred in allowing hearsay
testimony concerning alleged communications from unidentified State Auto
agents that occurred ten years earlier.
¶ 8
We begin by noting that:
Under the Declaratory Judgments Act, the trial court
is empowered to declare the rights and obligations of
the parties involved. "Our standard of review in a
declaratory judgment action is limited to determining
whether the trial court clearly abused its discretion
or committed an error of law." We may not
substitute our judgment for that of the trial court if
the court's determination is supported by the
evidence.
Robson v. EMC Ins. Cos., 785 A.2d 507, 509 (Pa. Super. 2001), appeal
denied, 2002 Pa. Lexis 403 (Pa. March 6, 2002) (quoting Keystone Spray
Equip., Inc. v. Regis Ins. Co., 767 A.2d 572, 574 (Pa. Super. 2001))
(citations omitted).
¶ 9
The central issue before this Court concerns Atwood's status, i.e.,
whether he was an employee or an independent contractor at the time he
was injured. If we conclude that Atwood was Christie's employee, then
State Auto is relieved of the obligation to defend and indemnify Christie
- 5 -

J. A11016/02
pursuant to the express terms of the insurance policy. If we conclude that
Atwood's status is that of an independent contractor, the exclusions in the
policy are not applicable, and State Auto is required to defend and indemnify
Christie.
¶ 10 "[A] determination regarding the existence of an employer/employee
relationship is a question of law that is determined on the unique facts of
each case." Universal Am-Can, 762 A.2d at 330-31. When deciding this
issue, the criteria set forth in Hammermill Paper are applicable and are to
be followed by a reviewing court. The Supreme Court in Hammermill
Paper stated that:
While no hard and fast rule exists to determine
whether a particular relationship is that of employer-
employee or owner-independent contractor, certain
guidelines have been established and certain factors
are required to be taken into consideration:
"Control of manner work is to be done;
responsibility for result only; terms of agreement
between the parties; the nature of the work or
occupation; skill required for performance; whether
one employed is engaged in a distinct occupation or
business; which party supplies the tools; whether
payment is by the time or by the job; whether work
is part of the regular business of the employer, and
also the right to terminate the employment at any
time."
Id. at 392 (quoting Stepp v. Renn, 135 A.2d 794, 796 (Pa. Super. 1957)).
Whether some or all of these factors exist in any
given situation is not controlling. Further, while each
factor is relevant, there are certain guidelines that
have been elevated to be dominant considerations. ...
[O]ur case law confirms, that control over the
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J. A11016/02
work to be completed and the manner in which
it is to be performed are the primary factors in
determining employee status.
Universal Am-Can, 762 A.2d at 333 (emphasis added).
¶ 11 State Auto extensively discusses the evidence that addresses the
employee/independent contractor issue. It cites Christie's and Atwood's
testimony, referencing payment of wages on a daily basis rather than per
job, travel to and from the job site in one of Christie's vehicles, mixing the
cement to Christie's specifications, and bringing the mortar to the location
where Christie was laying concrete block. The testimony also revealed that
Christie instructed Atwood in how to clean the mixer at the end of the
workday, and that Christie supplied most of the tools. State Auto also
references the WC petition filed by Atwood in which he claimed to be
Christie's employee and which was resolved when Christie paid Atwood
$8,000. Additionally, State Auto points to Atwood's testimony
acknowledging that he did not submit a bid for the cement work, that he
would only get paid for the actual hours worked, that he could be dismissed
if no work was available and that he would be reimbursed for any expenses.
¶ 12 To counter the trial court's determination that any control by Christie
amounted to control of the result and not the means to accomplish the job
itself, State Auto points out that the trial court found that mixing mortar
requires no skill. Therefore, State Auto contends that instructions on how to
mix the cement are in fact the same as directing the result. Furthermore,
- 7 -

J. A11016/02
because Atwood was required to keep up with Christie's need for mortar,
State Auto asserts that Christie directed the speed of Atwood's performance.
¶ 13 State Auto acknowledges that the agreement by the parties to create a
specific type of working relationship is a factor here that supports
independent contractor status. Additionally, the agreement to issue a Form
1099 rather than to withhold federal and state income taxes, social security
and medicare payments also supports a conclusion that Atwood worked as
an independent contractor. However, State Auto contends that these factors
are not dispositive and that the overall picture, in particular the control
factor, dictate a conclusion that Atwood's status was that of an employee.
¶ 14 Having reviewed the record, we conclude that the evidence produced
in this case is insufficient to establish that Atwood was an independent
contractor. An unskilled job, such as a mason tender, is not the type of
distinct occupation contemplated in the Hammermill factors when
compared to a skilled position, such as an electrician, plumber or mason.
Moreover, regardless of the agreement between Atwood and Christie, the
most compelling factor, the control exerted by Christie over Atwood's daily
duties, compels the outcome here.2

2 We also note that although Atwood joins Christie and Stone in the brief to
this Court contending that he acted as an independent contractor, his
complaint in the underlying action asserts:
7. At all times material hereto, Plaintiff Kevin E.
Atwood was employed as a laborer for
Defendants, Christie.
- 8 -

J. A11016/02
¶ 15 Accordingly, we conclude that the trial court erred as a matter of law
when it found Atwood to be an independent contractor. As a result of our
conclusion as to Atwood's status, it follows that State Auto does not have
the duty to defend or indemnify Christie in the underlying tort action.3
¶ 16 Order REVERSED.

8. On or about June 15, 1992 at approximately 3:30
p.m. Plaintiff Kevin E. Atwood was working with
and around the subject cement mixer at the
insistence of and during the normal course and
within the scope of his duties with Defendant
Christie.
Atwood Complaint at 3.
3 Having resolved the issue of Atwood's employment status in State Auto's
favor, we need not reach its hearsay issue.
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