STONEART OFS LLC v. NORTH DAKOTA WORKFORCE SAFETY AND INSURANCE FUND (2020)

Supreme Court of North Dakota.

STONEART OFS LLC, d/b/a Scotty Fain Construction and Scotty Fain, Individually, Appellant v. NORTH DAKOTA WORKFORCE SAFETY AND INSURANCE FUND, Appellee

No. 20200063

Decided: June 29, 2020

Stephen D. Little, Bismarck, ND, for appellant. Jacqueline S. Anderson, Special Assistant Attorney General, Fargo, ND, for appellee.

[¶1] Stoneart OFS LLC d/b/a Scotty Fain Construction, and Scotty Fain individually (together “Fain”), appealed from a district court judgment affirming an administrative law judge's (“ALJ”) order determining Dennis Teems was acting as Fain's employee during an accident that resulted in Teems’ death.

[¶2] Fain asserts there is no evidence Teems was performing services for remuneration and therefore the ALJ improperly applied the statutory presumption that Teems was an employee. See N.D.C.C. § 65-01-03(1) (stating an individual who performs services for remuneration is presumed to be an employee unless it is proven he or she is an independent contractor under the common law test).

[¶3] We conclude the ALJ's finding that Teems was performing services for remuneration is supported by a preponderance of the evidence. See SAEJ Enters., LLC v. Workforce Safety and Ins., 2020 ND 61, ¶ 3, 940 N.W. 2d 611 (applying the preponderance of the evidence standard to an ALJ's finding of fact). We summarily affirm under N.D.R.App.P. 35.1(a)(5).

Per Curiam.

[¶4] Jon J. Jensen, C.J. Gerald W. VandeWalle Jerod E. Tufte Daniel J. Crothers Lisa Fair McEvers