Commission's Finding That Mortimer Was Not an Independent Contractor And That Mortimer Was Acting Within the Scope of His Employment for Riviera at the Time of the Accident.
Riviera argues that the evidence shows that Mortimer was an independent contractor, not an employee. There was evidence that Mortimer was told that he was an independent contractor and that he understood that he was to be responsible for his own insurance and taxes. Riviera paid him a flat amount every two weeks. There were no deductions taken from his check. Additionally, Dean Mortimer testified that Lynn said that Riviera could not tell him what hours he had to work because he was an independent contractor.
The Commission, however, found that the evidence preponderated in favor of an employee/employer relationship between Mortimeraddition to being one of the owners of Riviera, is also the majority stockholder in First Financial Corporation, a mortgage lending and real estate business. First Financial Corporation carried worker's compensation insurance through American States Insurance Company. After the accident, Lynn Mortimer was placed on the First Financial payroll; in submitting his compensation claim he named both Riviera and First Financial as employers. At the Commission's hearing on the liability issue, Riviera claimed that First Financial was Lynn Mortimer's employer.
The Referee found that Lynn Mortimer was not an employee of First Financial Corporation, instead finding that he was put on the First Financial payroll and paid with a First Financial check for the purposes of attempting to gain worker's compensation coverage under First Financial's worker's compensation insurance policy.