THIS CAUSE having come on to be heard before the Court of Compensation Claims. The sole issue in this matter was for a determination of the compensability of the accident.

Claimant Joseph Barry was represented by Richard B. Berman Esquire the employer/carrier Jerry Good Refrigerated Services Inc. (Hereinafter referred to as Jerry Good) and National American Insurance Company by Harlan Gladstein Esquire; and Gulf Insurance Company the compensation indemnity carrier for Jerry Good Refrigerated Services Inc. by Janet M. Greene Esquire and David F. Famulari Esquire.

An Agreed Order on National American Insurance Company's Motion to Bifurcate the trial was entered by this court on August 10 1993 limiting the issue to the compensability of the claim. The pretrial Stipulation was approved by the undersigned Court of Compensation Claims on June 4 1993.

The Issue presented to this court on April 27 1994 was for determination of the compensability of the accident or whether claimant was an employee or an independent contractor/owner-operator at the date of the accident. A final hearing to close evidence was held on July 19 1994.

Claimant presented his case as a three (3) pronged argument that was; 1. whether the putative employer Jerry Good had a contractual obligation to provide coverage to claimant thereby making Jerry Good a self-insurer for purposes of providing Workers' Compensation coverage to claimant; 2. whether Jerry Good was estopped from denying Workers Compensation benefits to claimant based upon the theory of promissory estoppel; and 3. whether claimant was an employee of Jerry Good notwithstanding Florida Statute SEC. 440.02 (13) (d) (1) (c) (1990).

The employer/carrier defended the claims in that claimant was an independent contractor based the controlling law and thus was not an employee of Jerry Good. Florida Statute SEC. 440.02 (13) (d) (1) (c) (1990) The employer/carrier asserted that claimant was an owner-operator of a motor vehicle transporting property under a written contract with a motor carrier that Joseph Barry assumed the responsibility of an employer for the performance of the contract and was required to furnish all the necessary costs incidental to performance of the contract including but not limited to fuel taxes licenses and repairs. Further the employer/carrier defended the claim in that Joseph Barry was an owner/operator paid a commission for transportation services and was not paid by the hour or some other time measured basis.

Documentary evidence was taken and received. The Court of Compensation Claims entered the following evidence:

Court EXHIBITS

1. Pre-trial Stipulation dated June 4 1993.

CLAIMANT'S EXHIBITS

1a. Driver's Application for Employment pre-employment Urinalysis Consent Agreement Employment History fact Sheet Employment Eligibility Verification (form I-9) Addendum to Lease Agreement Certification of Road Tests written Examinations Medical Examiner Certificate Driver's Qualification and Identification Certificate.

2a. Jerry Good's rules and regulations.

3a. Driver log Analysis.

4a. Safety Award program.

5a. Driver and owners log.

EMPLOYER/CARRIER EXHIBITS

1a. Permanent Lease Agreement between Jerry Good and claimant.

2a. Refrigerated trailer rental agreement.

3a. Certificate of Insurance.

4a. Joseph Barry's 1991 income tax returns with attached schedules.

5a. Joseph Barry's NAIT (National Association of Independent Truckers) application consisting of two (2) pages.

JUDICIAL NOTICE BY AGREEMENT OF PARTIES

By agreement of the parties the undersigned reviewed and took judicial notice of the following:

1. Florida Statute 440.02 (1990).

2. 49 CFR chapter 111 Section 391.31

3. 49 CFR chapter 111 Section 391.33

4. 49 CFR chapter 111 Section 391.35 5. 49 CFR chapter 111 Section 391.37

6. 49 CFR chapter 111 Section 391.41

7. 49 CFR chapter 111 Section 391.43

8. 49 CFR chapter 111 Section 391.63

9. 49 CFR chapter 111 Section 391.65

10. 49 CFR chapter 111 Section 391.103.

11. 49 CFR chapter 111 Section 392.7.

12. 49 CFR chapter 111 Section 392.60.

13. 49 CFR chapter 111 Section 392.61.

14. 49 CFR chapter 111 Section 395.1.

15. 49 CFR chapter 111 Section 395.8.

16. 49 CFR chapter 111 Section 390.21.

17. 49 CFR chapter 111 Section 391.1.

18. 49 CFR chapter 111 Section 383.3.

19. 49 CFR chapter 111 Section 383.31.

20. 49 CFR chapter 111 Section 383.33.

21. 49 CFR chapter 111 Section 383.35.

22. 49 CFR chapter 111 Section 387.7.

23. 49 CFR chapter 111 Section 387.17.

24. 49 CFR chapter 111 Section 387.25.

25. 49 CFR chapter 111 Section 40.1.

26. 49 CFR chapter 111 Section 40.21.

UNDISPUTED FACTS

There was no dispute before Court that claimant was injured on or about February 18 1992. Claimant's testimony at the Final Hearing was that on the date of the accident he was an owner-operator of a motor-vehicle (tractor/trailer) transporting property under a written contract with a Jerry Good. (Claimant's Exhibit 1a Employer/Carrier's Exhibit 1a) Additionally Mr. Barry testified he leased a refrigerated trailer to enable him to transport of a variety of goods. (Employer/Carrier's Exhibit 2a)

Mr. Barry testified that he assumed the responsibility of the performance of the contract and was required to furnish the necessary motor vehicle equipment and all costs incidental to the performance of the contract. These costs included but were not limited to the fuel taxes licenses repairs and hired help. Further Mr. Barry testified that he was paid a commission for his transportation service and was not paid by the hour or some other time measured basis.

It was undisputed that Mr. Barry received National Association of Independent Trucker's (hereinafter referred to as NAIT) occupational accident coverage benefits for one year after the accident. These benefits included a portion of Barry's salary and medical benefits. NAIT membership and insurance coverage were only available to independent trucker owner-operators.

(Employer/Carrier's Exhibits 3a 5a)

Further Mr. Barry's testimony at the Final Hearing was that Jerry Good withheld funds for payment on behalf of claimant for a number of expenses including insurance on the tractor-trailer and NAIT coverage. No funds were withheld for workers' compensation coverage on behalf of Mr. Barry.

Additionally Mr. Barry's testimony was that he was a long haul trucker prior to working with Jerry Good he had previously operated as an independent owner-operator of a motor vehicle; and was experienced in the operation of a business as an independent contractor/owner-operator of a motor vehicle. Mr. Barry listed his occupation on his 1991 Federal Income taxes as self employed and a long haul trucker. (Employer/Carrier's Exhibit 4a) By Mr. Barry's own admission he was an independent owner-operator.

FINDINGS OF FACT AND LAW

1. From my observations of the live witnesses my thorough review of the deposition testimony documentary evidence and the laborious consideration of the recorded tapes it is that I make these findings:

2. It is within the jurisdiction of this court to act as the finder of fact and to Court the sincerity and credibility of the witnesses.

3. An agreed order was entered by the court on August 10 1993 bifurcating the Final Hearing and limiting the issue to that of compensability. On April 27 1994 a Final hearing was held before this court. The issue before Court was whether Joseph Barry was an Employee/Claimant on the date of the accident or whether Joseph Barry was an owner-operator and thus an independent contractor as defined by the workers' compensation act. At the Final Hearing Joseph Barry stipulated that he was not proceeding on the theory of statutory employee.

4. I find that Joseph Barry was an independent contractor/owner-operator of a motor vehicle (a tractor or diesel operated truck) transporting property under a written contract with a motor carrier and thus was an independent contractor operating his own business.

5. I find that Joseph Barry was an independent contractor/owner-operator and Florida Statute SEC..02(13)(d)(1)(c)(1992) applies to claimant thereby barring the claim.

6. That from Mr. Barry's own testimony he stated that he entered into a contractual relationship establishing an independent contractor/owner-operator relationship with Jerry Good Refrigerated Services.

7. I find that neither National American Insurance Company nor and Gulf Insurance Company provided workers' compensation coverage for Joseph Barry.

8. I find that Mr. Barry was an independent businessman and as a matter of law was not an employee of Jerry Good. Mr. Barry was exempt from the statutory coverage requirements and obligated by contract if he chose to elect to do so to procure coverage on his own. (Employer/Carrier's Exhibit 1a)

9. By written agreement of the parties this court took judicial notice of and considered the Federal Highway Administration DOT regulations. These regulations govern the actions of motor carriers and drivers. These federal standards requiring action by the motor carrier and the driver do not constitute sufficient control to establish an employer/employee relationship where one did not exist. La Grande v. B & L Services Inc. 432 So. 2d 1364 1376 (Fla 1st DCA 1983).

10. I find that certain government regulations are designed to protect the shipping and highway traveling public not to facilitate control over the owner/operator of equipment leased to them. Bryant v. Refrigerated Transport Co. Inc. 418 So. 2d 281 284 (Fla. 2d DCA 1982). I find that the rules and regulations promulgated by Jerry Good were to assure the availability of competent able and skilled drivers and were to comply with State and Federal laws. The imposition of rules and Federal regulations were not tantamount to the establishment of an Employer/Employee relationship.

11. My review of the Federal Highway Administrations regulations included specific guidelines which an owner/operator must follow and regulations required of Joseph Barry by Jerry Good. Examples of the Federal regulations are minimal insurance limitation of number of hours markings on the vehicle drug testing and written exams. These requirements do not in and of themselves establish an Employer/Employee relationship. La Grande v. B & L Services Inc. 432 So. 2d 1364 1376 (Fla. 1st DCA 1983). I further find that Jerry Good's intent in the enforcement of the Federal Regulations was to comply with Federal and State laws and did not establish control or an employer/employee relationship.

12. Florida Statute 440.02 (13) (d) (1) (c)(1992) the definition section of the statute which applies to this matter was substantively amended on or about July 1 1990. The legislature added sub section (c) which was not a part of the prior Florida Statute.

The substantive change went to the very issue before Court the definition of what an "EMPLOYEE" does not include. Subsection 440.02 (13) (d) (1) (c) states:

c. An owner-operator of a motor vehicle who transports property under a written contract with a motor carrier which evidences a relationship by which the owner-operator assumes the responsibility of an employer for the performance of the contract provided that the owner-operator is required to furnish the necessary motor equipment and all costs incidental to the performance of the contract including but not limited to fuel taxes licenses repairs and hired help; and the owner-operator is paid a commission for his transportation service and is not paid by the hour or on some other time-measured basis.

13. The legislature specifically addressed individuals such as Joseph Barry who entered into a written agreement with a motor carrier. I find that Joseph Barry as an owner-operators was to be excluded from coverage under the Act and Workers' Compensation policies provided to Jerry Good.

14. Joseph Barry by definition of the law and by his own testimony is not entitled to recover workers' compensation benefits from the employer/carriers herein. Mr. Barry testified he was an owner-operator of a motor vehicle transporting goods for Jerry Good a motor carrier. Mr. Barry was an independent contractor. Barry's actions and the mode of his operation were exactly what the legislature intended in the 1990 revision of 440.02 (13) (d) (1)(c).

15. I find that Mr. Barry met each element of the definition of an independent contractor/owner-operator provided by the legislature in the 1990 amendment. Those elements were:

a) An owner-operator of a motor vehicle; Mr. Barry admitted he owned the vehicle described as a tractor prior to his association with Jerry Good.

b) Who transports property under a written contract; Mr. Barry signed the contract with Jerry Good prior to beginning to hauling and cargo for Jerry Good. (Claimant's Exhibit 1a)

c) Which evidences a relationship by which the owner-operator assumes the responsibility of an employer for the performance of the contract; Barry testified he was the individual responsible for carrying out the contract for hiring lumpers (laborers) to unload the goods for selecting the routes and delivering freight.

d) Provided that the owner-operator is required to furnish the necessary motor equipment and all costs incidental to the performance of the contract including but not limited to fuel taxes licenses repairs and hired help; Barry testified he paid the expenses for operation of the tractor-trailer. (Employer/Carrier's Exhibit 4a)

e) And the owner-operator is paid a commission for his transportation service and is not paid by the hour or on some other time-measured basis; Barry testified he was paid a flat rate or pursuant to a rate schedule for hauling freight and not on a time-measured basis.

16. I find that as a matter of law and based upon claimant's own testimony claimant was an independent contractor/owner-operator not an employee and not entitled to the benefits under Florida Workers' Compensation Law.

WHEREFORE the following shall be ordered and adjudged:

1. That the claim for benefits is denied claimant was an independent contractor/owner-operator not subject to the Florida Workers' Compensation Act.

2. That claimant Joseph Barry was an independent contractor/owner/operator and not an employee of Jerry Good.

3. That coverage was not provided by Florida Workers' Compensation Act.

4. Employee/claimant's claim for Counsel's fees and costs are denied.

5. All remaining arguments made or raised by employee/claimant are hereby denied.