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Brookshire Grocery Co. v. Morgan

Supreme Court of Arkansas

March 1, 2018



          PPGMR LAW, PLLC, by: R. Scott Morgan and Patrick Feilke, for appellant.

          Josephine Linker Hart, Justice.

         This case is once more before this court pursuant to a petition for review filed by Brookshire Grocery Company (Brookshire). On April 3, 2017, Brookshire filed a petition asking us to review an opinion, Brookshire Grocery Co. v. Morgan, 2017 Ark.App. 170, handed down by the court of appeals on March 15, 2017. We noted that in this workers' compensation case, neither the Commission nor the court of appeals had issued a formal opinion. Brookshire Grocery Co. v. Morgan, 2017 Ark. 221. The Arkansas Workers' Compensation Commission (the Commission) merely adopted the administrative law judge's findings of fact and conclusions of law, and the court of appeals issued a memorandum opinion. Id. That memorandum opinion became the impetus for our decision to abolish the practice of disposing of fully briefed cases by memorandum opinion. Id. We overruled In re Memorandum Opinions, 16 Ark.App. 301, 700 S.W.2d 63 (1985) (per curiam), and we amended Arkansas Supreme Court Rule 5-2(e) to require that all opinions issued by the court of appeals "be in conventional form." Brookshire, 2017 Ark. 221.

         We remanded the case to the court of appeals, requiring it to state in conventional-opinion form its reasoning for the disposition of the case. The court of appeals did so, issuing a new opinion on June 21, 2017. Brookshire Grocery Co. v. Morgan, 2017 Ark.App. 387. Brookshire again petitioned for review, and we granted its petition. We also allowed Brookshire to supplement the brief it had filed in the court of appeals. We now consider Brookshire's appeal on the merits, and we reverse and remand.

         Brookshire appeals from a decision of the Compensation Commission (Commission). It found that, at the time of his injury, Deputy Cleon Morgan, Sr., had two employers, the Jefferson County Sheriff's Department and Brookshire. The Commission concluded that as "joint employers, " both were liable for Deputy Morgan's workers'-compensation benefits. On appeal, Brookshire raises four points, which we have renumbered for the sake of simplicity:

I. Appellants cannot be liable for worker's-compensation benefits if Morgan was an independent contractor.
II. When the traditional factors are applied, they demonstrate Morgan was an independent contractor on the day of his injury.
III. The court of appeals erred by considering factors that are wholly irrelevant to the issue of employee versus independent contractor.
IV. The court of appeals erred by inserting facts into the record.

         In considering Brookshire's arguments on appeal, we first wish to make it clear that, consistent with our long-established practices and procedures, when we review a decision by the court of appeals, we treat the case as though it had been originally filed in this court. Askins v. Kroger Ltd. P'ship, 2018 Ark. 23, __S.W.3d__. We will therefore treat Brookshire's arguments accordingly.

         It is undisputed that Deputy Morgan injured his ankle on February 19, 2014, while working a part-time security job at a Brookshire grocery store. He noticed a female in the store who he believed was shoplifting. When he approached her, he found several pieces of merchandise concealed on her person. By his own description, when that occurred, he was in "arrest mode" and his "authority as a deputy kicked in." According to Deputy Morgan, he "sweet-talked" the suspect into accompanying him upstairs to the manager's office. Deputy Morgan recalled that sometimes the manager will decline to press charges and instead ban the shoplifter from the store. However, on the night in question, the manager insisted that the shoplifter go to jail. There, he handcuffed her and formally placed her under arrest. She then asked to be uncuffed so that she could use the restroom. When the restraint was unlocked, she bolted. Deputy Morgan sprained his ankle while sprinting after her down the stairs.

         Deputy Morgan informed the sheriff's department of his injury. Initially, Deputy Morgan's medical expenses were submitted to his health-and-accident insurance carrier, but personnel at the sheriff's department told him it was a workers'-compensation claim. He eventually was held out of work for five weeks.

         Brookshire contested its liability for Deputy Morgan's workers'-compensation benefits, arguing that he was an independent contractor, not an employee. The issue was tried before an ...

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