ROBERT L. KOHOUT, APPELLANT,
BENNETT CONSTRUCTION AND THE TRAVELERS INDEMNITY COMPANY, APPELLEES.
Workers' Compensation: Appeal and Error.
Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016),
an appellate court may modify, reverse, or set aside a
Workers' Compensation Court decision only when (1) the
compensation court acted without or in excess of its powers;
(2) the judgment, order, or award was procured by fraud; (3)
there is not sufficient competent evidence in the record to
warrant the making of the order, judgment, or award; or (4)
the findings of fact by the compensation court do not support
the order or award.
__. Determinations by a trial judge of the Workers'
Compensation Court will not be disturbed on appeal unless
they are contrary to law or depend on findings of fact which
are clearly wrong in light of the evidence.
__ . An appellate court is obligated in workers'
compensation cases to make its own determinations as to
questions of law.
Workers' Compensation: Independent Contractor:
Insurance. Under Neb. Rev. Stat. § 48-116
(Reissue 2010), a contractor's act of engaging a
subcontractor without actually compelling the subcontractor
to acquire workers' compensation insurance constitutes a
device to escape liability under the Nebraska Workers'
Workers' Compensation: Insurance: Proof.
Under Neb. Rev. Stat. § 48-116 (Reissue 2010), a laborer
has the burden to prove, by a preponderance of the evidence,
that the employer set up a scheme, artifice, or device to
defeat provisions of the workers' compensation laws.
Workers' Compensation. Under Neb. Rev.
Stat. § 48-116 (Reissue 2010), the existence of a
scheme, artifice, or device does not require active fraud or
Neb. 609] 7. Principal and Agent. Apparent
authority is authority that is conferred when the principal
affirmatively, intentionally, or by lack of ordinary care
causes third persons to act upon an actor's apparent
8. __ .
Apparent authority gives a professed agent the power to
affect the principal's legal relationships with third
parties. The power arises from, and is limited to, the
principal's manifestations to those third parties about
Principal and Agent: Liability: Proof.
Apparent authority for which a principal may be liable exists
only when the third party's belief is traceable to the
principal's manifestation and cannot be established by
the actor's acts, declarations, or conduct.
Principal and Agent. For apparent authority
to exist, the principal must act in a way that induces a
reasonable third person to believe that another person has
authority to act for him or her.
. Whether an actor has apparent authority to bind the
principal is a factual question determined from all the
circumstances of the transaction.
. Indicia of authority expressing association with but not
authority from a business may contribute to the impression of
apparent authority, but that impression alone cannot bind the
agent's principal to a third party.
Joint Ventures: Partnerships: Contribution.
A joint venture is in the nature of a partnership and exists
when (1) two or more persons contribute cash, labor, or
property to a common fund (2) with the intention of entering
into some business or transaction (3) for the purpose of
making a profit to be shared in proportion to the respective
contributions and (4) each of the parties have an equal voice
in the manner of its performance and control of the agencies
used therein, though one may entrust performance to the
Joint Ventures: Proof. The moving party
bears the burden to prove a joint venture or enterprise
exists by clear and convincing evidence.
Joint Ventures: Intent. The relationship of
joint venturers depends largely upon the intent of the
alleged parties as manifested from the facts and
circumstances involved in each particular case.
Joint Ventures. A joint venture can exist
only by voluntary agreement of the parties and cannot arise
by operation of law. Even a close relationship between two
parties does not create an implied joint venture.
. In considering whether a joint venture exists, the acts and
circumstances between family members may not have the same
significance as the same acts and circumstances between
strangers might have.
Neb. 610] Appeal from the Workers' Compensation Court:
James R. Coe, Judge. Affirmed.
Michael W. Khalili and Terry M. Anderson, of Hauptman,
O'Brien, Wolf & Lathrop, P.C., for appellant.
A. Jorgensen, of Morrow, Willnauer, Klosterman & Church,
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch,
and Funke, JJ.
L. Kohout sustained an injury while performing construction
work at the residence of Brian Shook. He sued Bennett
Construction and its workers' compensation insurer for
workers' compensation benefits. The Nebraska Workers'
Compensation Court ruled that under Neb. Rev. Stat. §
48-116 (Reissue 2010), Bennett Construction was neither
Kohout's direct employer nor his statutory employer, and
dismissed the complaint. We affirm.
Construction is a sole proprietorship owned and operated by
Mark Bennett. Mark testified that he typically works alone
performing carpentry labor but hires subcontractors for jobs
broader in scope than carpentry. He will also hire estimators
to bid jobs for him during busy periods.
Bennett (Nick) is Mark's son. Nick owns and operates the
sole proprietorships Nick Bennett Construction and
Housecraft. He testified that he works as a contractor and
subcontractor, primarily on roofing and guttering.
and Nick testified that Nick worked for his father, as an
estimator, until the work from a hailstorm in 2013 was [296
Neb. 611] completed. Mark stated that he and Nick decided to
work independently from that point so that Nick could begin
building his own clientele. Nevertheless, Mark continued to
hire Nick as a subcontractor for jobs with metal and gutter
2014, there was a severe hailstorm. The day after the
hailstorm, Shook saw Nick patching a neighbor's roof and
asked Nick to patch his roof as well. Shook testified that
after Nick patched his roof, Nick left him a business card
that included Nick's name, a cell phone number, and a
"Bennett's Construction & Roofing" logo.
testified that he later contacted Nick to provide a bid for
more extensive repairs to his house and barn. Nick provided
Shook an estimate on a proposal form labeled
"Bennett's Construction & Roofing, " with
the business number for Bennett Construction crossed off and
Nick's name and number written on the top. Shook never
signed the proposal form, but both he and Nick testified that
it reflected their verbal agreement. Nick subsequently
completed the work.
testified that he retained the Bennett Construction business
cards and proposal forms from when he previously worked for
the company. Nick stated that he used the proposal forms when
he did not have anything else available and that when using
the forms, he would sometimes explain that he did not work
for Bennett Construction. Mark testified that he was unaware
that Nick still used the company's proposal forms and
portion of the proposal form relevant to this dispute reads:
"Our workers are fully covered by Workmen's
Compensation Insurance." Shook testified that he would
not have hired Nick absent this affirmation. The record
reflects that neither of Nick's sole proprietorships had