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Cowger v. Industrial Commission

April 17, 2000

RICHARD L. COWGER,
APPELLANT,
V.
THE INDUSTRIAL COMMISSION ET AL.,
(D.J. BAKER TRUCKING, INC., APPELLEE).



The opinion of the court was delivered by: Justice Rakowski

Appeal from the Circuit Court of Effingham County. Honorable Steven P. Seymour, Judge Presiding.

Claimant, Richard L. Cowger, an Illinois resident, sought benefits pursuant to the Workers' Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1998)) for injuries resulting from a single-vehicle accident that occurred in Texas during the course of his employment with D.J. Baker Trucking, Inc. (D.J. Baker), which is located in Indiana. The arbitrator concluded that Illinois had jurisdiction over this matter and determined that claimant suffered 25% permanent partial disability of the person as a whole. The Industrial Commission of Illinois (Commission) reversed, finding that Illinois lacked jurisdiction, and the circuit court affirmed the Commission. Claimant appeals, contending that Illinois may exercise jurisdiction over this matter because (1) the last act necessary to form a valid employment contract occurred in Illinois; and (2) his employment was principally localized in Illinois. We disagree and therefore affirm.

FACTS

In early October 1992, claimant, an over-the-road truck driver, placed a call from his home in Montrose, Illinois, to John Baker in Cambridge, Indiana. John, who is now deceased, and his wife, Evelyn, owned D.J. Baker Trucking, located in Cambridge, Indiana. Although claimant was employed as a driver by Tom Land Company (TLC), he called John regarding potential employment opportunities with D.J. Baker.

Claimant told John that he was looking for work, and John replied that he would be receiving tractors mid-month. According to claimant, when he asked if one of the tractors would be available John replied, "You are not job hunting anymore." Claimant understood this to mean that, as of this conversation, he was hired by John as an employee of D.J. Baker. Accordingly, claimant gave notice to TLC that he would be quitting. After giving notice, claimant made at least one more run for TLC. During one run, claimant stopped at D.J. Baker's Indiana facility and filled out various employment-related documents, including an application form. Claimant believed that the form was only for record- keeping purposes because he had previously worked for John. Claimant also stated that John told him the application was "for the file" as required by state law. Claimant was also required to take a drug test, which he did while he was still driving for TLC but after he gave them notice. Plaintiff admitted that if he had failed the drug test he would not have been hired by D.J. Baker.

Claimant testified that he picked up the tractor, which was owned by D.J. Baker, on the same date that he filled out the application form, which was either October 12 or October 17. According to claimant, "that was the day [I] went to work for them."

Claimant's primary driving route for D.J. Baker was between California and Michigan or Ohio, and took him through Illinois on each trip. He stopped at his home en route, and was usually there with the truck twice each week. When he was home, he usually tried to "take time off to go on to the West Coast." Claimant testified that he also delivered and picked up loads in Illinois, though he could not remember the number of times he did so.

Whether at home or on the road, claimant always received his instructions regarding where to deliver and pick up loads from the Cambridge facility. Usually, after unloading the truck he would pick up a new load in the immediate vicinity. If there were no loads to pick up in that area, he would take the truck home empty. In that case, he would be dispatched from his home to pick up the next load. Claimant estimated that he received less than 25% of his assignments while he was at his home.

Claimant usually took the truck to Cambridge for service, though on one or two occasions it had been repaired on the road. D.J. Baker was paid by the mile, and claimant was paid a percentage of the gross.

Evelyn Baker, owner and secretary of D.J. Baker, testified that the company's only business location was in Cambridge, Indiana. She was responsible for employment-related activities, such as ensuring that the employment records were complete, and setting up drug screening tests. It was standard procedure for every driver, including claimant, to complete an application, a written driving test and a drug screening test. Claimant completed the application and written test in Cambridge, Indiana, and took the drug screening test in Richmond, Indiana. According to Evelyn, no driver is hired before passing the drug screening test. When asked when she "received" claimant's drug screening test, Evelyn replied:

"To the best of my knowledge, I think the drug screen was taken around the 19th, and then we can let them go out on a truck on the road, over the phone. When I got the hard copy back from the doctor, I wouldn't even know. I would have to check to see when it was dated."

Evelyn did not know whether her husband, John, hired claimant over the telephone, and she could neither confirm nor deny claimant's account of his conversation with her husband. However, she testified that claimant was not "put to work on the road" until after he passed the drug screening test.

Previously, Evelyn's husband worked for a different company, and she knew that claimant had worked for her husband at that time. She also knew claimant was a qualified driver who was working for TLC, and she was not particularly concerned that he would fail the drug test or the written driver's test. She did not know whether claimant was given a road test.

Evelyn stated that all assignments were given by phone from Cambridge, Indiana. Additionally, all drivers were required to call in to Cambridge every morning except Sunday. If a driver was waiting for a load, he was occasionally required to again call Cambridge later in the day. Evelyn agreed that in 1992 claimant probably picked up some loads in Illinois, though she did not know how many. She estimated that, as a ...


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