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2007-146, APPEAL OF HARLEYSVILLE INSURANCE CO.
Devine, Millimet & Branch, P.A.
Opinion Issued: December 7, 2007 Argued: October 17, 2007
(New Hampshire Compensation Appeals Board) APPEAL OF HARLEYSVILLE INSURANCE COMPANY
No. 2007-146
Compensation Appeals Board
Shaheen & Gordon, P.A.
Bernard & Merrill, PLLC
Orr & Reno, P.A. ___________________________
Hampshire Association of Domestic Insurance Companies, as amicus curiae.
, of Concord (Martha Van Oot on the brief), for New
Property Casualty Association of America, as amicus curiae.
, of Dover (Sean T. O’Connell on the brief), for
and orally), for State Farm Fire & Casualty Company. THE SUPREME COURT OF NEW HAMPSHIRE , of Manchester (Andrew A. Merrill on the brief
Insurance Company. Elizabeth M. Murphy on the brief, and Mr. Falkenham orally), for Harleysville
, of Manchester (Eric G. Falkenham and
page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 to press. Errors may be reported by E-mail at the following address: editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as After a de
insurer of Al’s Painting, appealed to the CAB. benefits of its employee, Durgin. State Farm Fire & Casualty Company, as the therefore, that Al’s Painting was responsible for the workers’ compensation had hired Durgin at Case’s instruction. The DOL Hearing Officer determined, Kelly’s home, that Beesley was an employee of Al’s Painting, and that Beesley Hearing Officer determined that Al’s Painting was acting as the contractor at Hampshire Department of Labor (DOL). Following the hearing, the DOL report of injury. In January 2006, Durgin requested a hearing with the New Beesley as his employer. In December, Beesley responded with an employer’s In November 2005, Durgin filed a notice of accidental injury naming
was seriously injured. workers’ compensation coverage for Durgin. Shortly thereafter, Durgin fell and roof. Beesley brought Harry Durgin to assist him. Beesley did not have On June 14, 2005, Beesley arrived at Kelly’s home to begin work on the
Tom Beesley, who agreed to complete the job. her that Bisson was now incarcerated. Case referred Kelly to a second roofer, roof, but stopped before the job was complete. Kelly contacted Case, who told Case referred her to David Bisson. Kelly hired Bisson, who began work on the purchased. Kelly asked Case to recommend someone to replace her roof and and Custom Homes, LLC (Al’s Painting), to paint new windows she had In the spring of 2005, Kelly hired Alfred Case, proprietor of Al’s Painting
residence. She moved into the home in October 2004. a home in Epping, which she intended to renovate and use as her primary The following facts appear in the record. In April 2004, Kelly purchased
part. payments to a roofer injured at her home. We affirm in part and reverse in Board (CAB) finding its insured, Jane Kelly, liable for workers’ compensation (Harleysville), appeals a decision of the New Hampshire Compensation Appeals 2
The CAB further determined that Beesley was a subcontractor of Kelly, and CAB ruled that Kelly, rather than Al’s Painting, was acting as the “contractor.”
novo hearing pursuant to RSA 281-A:42-a (Supp. 2007), the
GALWAY, J.
The petitioner, Harleysville Insurance Company
Coughlin, Rainboth, Murphy & Lown
filed no brief.
, of Portsmouth, for Harry Durgin,
Insurance Association, as amicus curiae. Orr & Reno, P.A., of Concord (Martha Van Oot on the brief), for American was no initial contract that Kelly then “subcontracted” in whole or in part to a however, there is but one contract – the one between Kelly and Beesley. There second contract that “subcontracts all or any part of” the initial contract. Here, desiring the work be done and the entity who will perform the work, and a be at least two contracts. There must be an initial contract between the entity subcontracts all or any part of a contract.” RSA 281-A:18. Thus, there must uninsured employees of a subcontractor, there must be a “contractor who To impose liability on a contractor under RSA 281-A:18 for the
section. and shall include a subcontractor of a contractor as defined in this a subcontractor shall be defined as provided in RSA 281-A:2, IV provided in RSA 281-A:2, III . . . . For the purposes of this section,
the purposes of this section, a contractor shall be defined as payment of compensation as provided for in this chapter. . . . For
whole. Appeal of Town of Bethlehem the subcontractor, unless the subcontractor has secured the legislature’s intent as expressed in the words of the statute considered as a In matters of statutory interpretation, we are the final arbiter of the
payment of compensation under this chapter to the employees of bear the liability of the subcontractor of that contract for the A contractor who subcontracts all or any part of a contract shall 3
Painting was not the contractor should be upheld. responsible for Durgin’s benefits, but argues that its determination that Al’s RSA 281-A:18 states, in relevant part: interpretation of the statutes and in finding Kelly to be the contractor as the general contractor. Al’s Painting agrees that the CAB erred in its responsible to pay Durgin’s benefits; and (3) that Al’s Painting was not acting Kelly was liable as a “contractor” under RSA 281-A:18; (2) that Harleysville is On appeal, Harleysville contends that the CAB erred in ruling: (1) that
words that the legislature did not include. Id. as written and will not consider what the legislature might have said or add meaning to the words used. Id. We interpret legislative intent from the statute examining the language of a statute, we ascribe the plain and ordinary
, 154 N.H. 314, 319 (2006). When
denied. This appeal followed. Harleysville both moved for rehearing or reconsideration, which the CAB paying the workers’ compensation benefits owed by her. Durgin and as Kelly’s homeowner’s insurance carrier, Harleysville was responsible for benefits of Beesley’s uninsured employee, Durgin. Finally, the CAB ruled that to RSA 281-A:18 (1999), Kelly was responsible for the workers’ compensation Durgin was Beesley’s employee. Therefore, the CAB concluded that pursuant Affirmed in part; reversed in part
CAB’s finding that Al’s Painting was not the contractor. based upon this testimony that there was competent evidence to support the renovations and that he had otherwise acted as a contractor. We conclude Kelly’s testimony that Case had a more substantial role in arranging the well as similar testimony from his employee, David Garey, and not to credit arrange for Kelly to hire them. The CAB chose to credit Case’s testimony, as Bisson and Beesley, he did not offer any quotes for their work, and did not BRODERICK, C.J., and DALIANIS, DUGGAN and HICKS, J J., concurred. be unjust or unreasonable. Appeal of N.H. Youth Dev. Ctr. Kelly and nothing further. He also testified that while he had recommended error of law, or unless, by a clear preponderance of the evidence, we find it to similar small jobs. He testified that he had been hired to paint windows for percent of his business is painting and the remainder is light carpentry work or 4 evidence. When reviewing the CAB’s decision, we will not disturb it absent an Painting was not the general contractor was contrary to the weight of the During the hearing before the CAB, Case testified that about ninety Finally, Harleysville contends that the CAB’s determination that Al’s
.
487, 490 (1994). 281-A:6. supported by competent evidence in the record. Appeal of Gamas, 138 N.H. Durgin’s benefits, neither is Harleysville. Therefore, we need not address RSA reweigh the evidence, but rather to determine whether the findings are liable for those benefits. Because we have held that Kelly is not liable to pay to determine whether we would have found differently than did the CAB, or to determination, however, was contingent upon the CAB’s ruling that Kelly was reasonable. Appeal of CNA Ins. Co., 148 N.H. 317, 319 (2002). Our task is not responsible to pay Durgin’s benefits was contrary to RSA 281-A:6 (1999). That (2005). We consider the CAB’s findings of fact to be prima facie lawful and Harleysville next contends that the CAB’s determination that it was, 152 N.H. 86, 87
was legal error. transferred to Kelly. We conclude that the CAB’s conclusion to the contrary as contemplated by RSA 281-A:18, and no liability for Durgin’s injuries may be subcontractor. Therefore, there is no contractor to subcontractor relationship