Summary
The Nebraska Supreme Court affirmed the dismissal of Robert L. Kohout’s workers’ compensation claim against Bennett Construction and its insurer. The court held that Bennett Construction was neither Kohout’s direct nor statutory employer because Nick Bennett lacked apparent authority to bind Bennett Construction and the evidence did not establish a joint venture or scheme to avoid workers’ compensation liability.
Topics
Practice areas
Questions Presented
- Whether Bennett Construction was Kohout’s statutory employer under Neb. Rev. Stat. § 48-116 because it engaged an uninsured subcontractor through a scheme, artifice, or device to avoid workers’ compensation liability.
- Whether Nick Bennett had apparent authority to bind Bennett Construction to the construction contract with Shook.
- Whether Mark Bennett and Nick Bennett or their businesses formed a joint venture concerning the Shook construction project.
Holdings
- A Workers’ Compensation Court decision may be modified, reversed, or set aside only on the grounds specified in Neb. Rev. Stat. § 48-185; factual determinations are reviewed for clear error or whether they are contrary to law, and questions of law are reviewed independently.
- Bennett Construction was not Kohout’s statutory employer under Neb. Rev. Stat. § 48-116 because Kohout failed to establish that Bennett Construction engaged in a scheme, artifice, or device to avoid workers’ compensation liability through the Shook project.
- Nick Bennett lacked apparent authority to bind Bennett Construction to the contract with Shook; Shook contracted with Nick alone.
- Mark Bennett and Nick Bennett, or their businesses, did not form a joint venture concerning the Shook project.
Key quotations
“Based on the preceding facts, Shook could not have reasonably believed that he was contracting with Mark or Bennett Construction.” (618)
“Accordingly, we hold that neither Mark nor Bennett Construction was engaged in a joint venture with Nick concerning the Shook job.” (623)
Factual background
Robert L. Kohout worked for Nick Bennett, who operated Nick Bennett Construction and Housecraft, on a construction project at Brian Shook’s residence. The project had been obtained, negotiated, performed, and supervised by Nick; Bennett Construction owner Mark Bennett had only limited contact with the site. Nick used Bennett Construction business cards and a proposal form stating that workers were covered by workers’ compensation insurance, although Nick’s businesses had no such insurance and Mark testified he was unaware Nick was still using the materials. Kohout fell from a barn roof on May 4, 2015, and was injured.
Procedural history
Kohout was injured while performing construction work at the Shook residence and petitioned for workers’ compensation benefits from Bennett Construction and its insurer. After trial, the Workers’ Compensation Court found that Kohout was employed by Nick Bennett Construction or Housecraft and that Bennett Construction was neither his direct nor statutory employer under Neb. Rev. Stat. § 48-116. Kohout appealed, arguing that Bennett Construction was his employer under the Nebraska Workers’ Compensation Act.