OPINION ENTERED: January 15, 2009
CLAIM NO. 07-01554
KENTUCKY UNINSURED EMPLOYERS FUND PETITIONER
VS. APPEAL FROM HON. JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE
WILLIAM STRIBLING (DECEASED)
JEFF MOORE D/B/A JEFF MOORE LOGGING COMPANY
GERALD PILE AND ANNETTA PILE
and HON. JAMES L. KERR,
ADMINISTRATIVE LAW JUDGE RESPONDENTS
OPINION AFFIRMING
* * * * * *
BEFORE: GARDNER, Chairman, COWDEN and STIVERS, Members.
COWDEN, Member. The Kentucky Uninsured Employers Fund (“UEF”) appeals from an opinion and order rendered by Administrative Law Judge (“ALJ”) James L. Kerr who dismissed Gerald and Annetta Pile (“Piles”) as parties on the ground the Piles used their land principally for agriculture and therefore were exempt from being potential up the ladder contractors for workers’ compensation purposes. In the same opinion and order, ALJ Kerr determined a joint enterprise did not exist between the Piles and Jeff Moore (“Moore”) so as to impose liability on the Piles. The UEF also appeals from an order dated August 12, 2008 denying its petition for reconsideration. On appeal, citing to KRS 342.610(2)(a), the UEF argues the Piles have liability as an “up the ladder” contractor because the evidence in this case demonstrates the land owned by the Piles was not “principally” used for agriculture and therefore the exemption to KRS 342.610(2)(a) does not apply. The UEF also argues the Piles were joint venturers with Moore when they contracted to share the risk of market loss, exercised control over the selection of property subject to timbering and agreed to an indefinite period for the work to be completed and contributed their raw materials to the venture.
This claim originated with the filing of the Form 101 which alleged that on July 24, 2007, the decedent William Stribling (“Stribling”) was killed while cutting trees when a limb fell from another tree struck him. Public records from the Breckinridge County Coroner reflect Stribling died of a closed head injury due to blunt force trauma.
Jeff Moore testified he grew up logging. He noted he had occasion to do logging work for the Piles. He testified he started working for the Piles a couple of days prior to Stribling’s death. He identified Stribling’s brother-in-law as Dwight Blankenship who originally was hired by the Piles to do the timber work on their property. Blankenship, however, retired before he could start on the project. It was Stribling who approached Moore and said he probably could get work with the Piles. As a result, Moore and Stribling approached the Piles and an agreement was reached in which Moore and the Piles agreed to split the proceeds from the timber sale on a 50/50 basis. He estimated the tract of land owned by the Piles contained about 150 trees valued at between $5,000 - $6,000. He was to drag the timber out of the woods to a flat spot where the timber would be cut up, loaded and hauled to the mill. He further testified he and Stribling worked together on a small job prior to working with the Piles. He was to pay Stribling $50.00 per day and Stribling would work between 6 to 7 hours each day. The tools used by Stribling were owned by Moore which included a chainsaw, sledge, wedge and chainsaw wrench. Moore also owned the skidder and loader. Moore also paid Stribling’s son $50.00 per day to perform timber work on the Piles’ property. Stribling did not bring any tools to the worksite.
After the accident occurred, Moore testified he continued working on the job and at the time of his deposition, the job was almost complete. He estimated he has obtained about $4,000.00 for the job and he has sold between $8,000 - $10,000 worth of timber taken from the Piles’ property. He did not discuss with the Piles where the lumber was to be taken for sale.
Moore testified as to the events which transpired on July 24, 2007 leading up to the fatality. He acknowledged picking Stribling up around 8:00 a.m. that morning. Stribling’s job that day was to load logs off the property. As Moore was walking up the hill, Stribling’s son started hollering at Moore to run over the hill. The accident occurred when Stribling had cut a tree which caused a limb to break off another tree striking Stribling on the head.
On cross-examination, Moore testified, in cutting timber, the landowner would show him the boundary lines and tell him what to cut. He would mostly cut mature trees, but sometimes he would cut the smaller trees because the bigger trees were damaged. Moore confirmed he supplied the equipment used in the timbering operation and the Piles did not supply any equipment, nor did they pay for gas. The Piles did, however, indicate where the property line was and where to cut. He described the Pile’s property as being a small farm. He also acknowledged the Pile’s did raise tobacco on the farm. He estimated Stribling was on the job 3 or 4 days prior to being killed. He further noted the money paid to Stribling came out of his own part of the proceeds. He also stressed the trees on the Pile property were not grown specifically for logging but were wild trees. Moore acknowledged the Piles informed him not to cut the tree containing the deer stand. The only thing the Piles showed him was the boundary line and he acknowledged the Piles did not have any control over any of the operations.
Gerald Pile testified he lives on a 40 acre piece of property which he described as one tract of land, 15 acres of which consisted of open timber land. The property had previously been timbered by his wife’s brother, approximately 10 to 15 years ago. He acknowledged he did not plant any of the trees for the purpose of growing lumber. He described the trees as naturally growing, consisting of oak, poplar and hickory.
Pile testified the agreement made with Moore and Stribling as being “word of mouth” and acknowledged it was his land and his timber which was cut. The agreement provided for a 50/50 split. Pile also verified he walked the fence line with Moore to ensure Moore did not get on a neighbor’s property. He testified he did not provide anything to Moore other than the 15 acre tract of land. Pile also verified he did not lend his truck or tractor nor did he help Moore cut the trees.
Pile acknowledged he has a farm on the tract of land in which he raises 2 ½ to 3 acres of tobacco which he has done every year on the same property ever since he was married. He previously also raised cattle on the property, but ceased this operation in 1983 due to dry weather. He also acknowledged for the calendar year 2007, he grossed $10,500 in tobacco sales and reported a $2,000 income from logs. Pile noted he and his wife raise tobacco with help from his brother and nephew setting, cutting, and hauling the tobacco. Pile also acknowledged there was a barn on his property where the tobacco was hung for curing. Pile verified his main source of income was working for DNA Truck Frames which he described as a factory. He acknowledged the only agricultural pursuit he did on his farm was raising tobacco. He deducted as business expenses from his farming operation, including the expenses of fertilizer and any other materials he used to grow the crop. He testified the income generated from the sales of tobacco helped pay for his house. He also confirmed he had no control over Moore in the timber cutting operations. He acknowledged, out of the money generated from the sale of the timber, Moore was responsible for paying Stribling and any expenses Moore had in the timber operation. None of the equipment used on the timber operation belonged to Pile and the only thing he provided was the timber. Pile confirmed the land he owned was used for nothing other than growing tobacco.
Annetta Pile, Gerald Pile’s wife, verified the Piles owned 40 acres of property and had a home on the tract of land and the Piles have raised tobacco on that property for 29 years. She also confirmed the tobacco was used as a source of income and other than the tobacco, the land was not used for anything else. On cross examination, she also noted the amount of land used in raising tobacco was 2 ½ acres.
Income tax returns filed on behalf of the Piles for the calendar years 2006 and 2007 were also introduced into evidence. In 2006, the Piles reported an adjusted gross income of $21,607.00. Schedule F of the Form 1040 reported gross farm income of $6,298.00 and farm expenses of $11,874.00 for a net farm loss of $5,576.00. In 2007, federal income tax returns reflected an adjusted gross income of $43,100. Schedule D reflected a long-term capital gain of $1,678.00 which represented the Pile’s portion of the sale price for the timber harvested for the 2007 taxable year. Schedule F attached to the tax return reflected total farm income of $13,508.00 and total farm expenses of $24,105.00 for a total net farm loss of $10,597.00.
Stribling’s estate, widow and the UEF previously reached a settlement agreement in the above styled case which was approved on May 13, 2008. The agreement provided for a monetary settlement of $108,905.43. Of this amount, $73,025.43 was to be paid in a lump sum and the remainder was paid at $115.00 per week for 312 weeks. The settlement agreement further provided the UEF reserved all rights to recover all sums paid jointly and severally from Jeff Moore, Gerald Pile and/or Annetta Pile. In addition, Stribling’s widow and estate also did not release any rights to recover or causes of action that they may have against parties other than the UEF.
In an opinion and award rendered on July 11, 2008, ALJ Kerr made the following findings of fact and conclusions of law as it applies to the issues raised on appeal:
5. The first issue concerns the liability of Gerald and Annetta Pile under KRS 342.610 (2). KRS 342.610 (2) provides:
A contractor who subcontracts all or any part of a contract and his carrier shall be liable for the payment of compensation to the employees of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured the payment of compensation as provided for in this chapter. Any contractor or his carrier who shall become liable for such compensation may recover the amount of such compensation paid and necessary expenses from the subcontractor primarily liable therefore. A person who contracts with another:
(a) To have work performed consisting of the removal, excavation, or drilling of soil, rock, or mineral, or the cutting or removal of timber from land; or
(b) To have work performed of a kind which is a regular or recurrent part of the work of the trade, business, occupation, or profession of such person shall for the purposes of this section be deemed a contractor, and such other person a subcontractor. This subsection shall not apply to the owner or lessee of land principally used for agriculture.
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Agriculture is defined in KRS 342.0011 (18) as:
… the operation of farm premises, including the planting, cultivation, producing, growing, harvesting, and preparation for market of agricultural or horticultural commodities thereon, the raising of livestock for food products and for racing purposes, and poultry thereon, and any work performed as an incident to or in conjunction with the farm operations. It shall not include the commercial processing, packing, drying, storing, or canning of such commodities for market, or making cheese or butter or other dairy products for market.
7. Herein, the injury occurred on property owned by the Piles consisting of a forty acre parcel of land containing a house and a tobacco barn. It had approximately fifteen acres of timber and the Piles grew two and one-half to three acres of tobacco on the property. While Mr. Pile has outside employment and earns other income outside of the farm, he stated that he grossed approximately $10,500 from his tobacco sales the previous year.
8. The statute exempts the owner of land principally used for agriculture from up-the-ladder liability in a contractor-subcontractor relationship. Review of the definition of agriculture includes such activities as planting, cultivating, harvesting, and marketing agricultural commodities. It appears to the undersigned that the farm owned by the Piles clearly fits in with the definition of agriculture found in KRS 342.0011 (18). Mr. Pile plants, cultivates, harvests and markets an agricultural commodity, i.e. tobacco. Thus, KRS 342.610 (2) does not apply to the present situation and the Piles are found not to be contractors as contemplated by the statute and are therefore entitled to dismissal on this theory as a matter of law.
9. The second issue herein is the liability of Gerald and Annetta Pile as joint venturers. The attorney for the defendants, Gerald and Annetta Pile, has done an excellent job in briefing this issue. A joint enterprise has been defined as “an informal association of two or more persons, partaking of the nature of a partnership, usually but not always, limited to a single transaction in which the participants combine their money, efforts, skill and knowledge for gain, with each sharing in the expenses and profits or losses. Roethke v. Sanger, 68 SW2d 352, 364 (Ky. 2002, Eubanks v. Richardson, 353 SW2d 367, 369 (Ky. 1962). Therein, it was established that there would be four elements for a joint enterprise: 1. An agreement, expressed or implied, among the members of the enterprise; 2. A common purpose to be carried out; 3. A community of pecuniary interest in that purpose among the members; and 4. An equal right to a voice in the direction of the enterprise, giving an equal right of control.
10. Herein, while there was an agreement among the members of the enterprise and a common purpose, the other elements are not met. For example, there was no agreement among the parties as to the sharing of profits or losses, as Mr. Moore was to bear total responsibility for the expenses and, further, the Piles had no equal voice in the direction of the enterprise with an equal right to control. While Mr. Pile set certain parameters, such as not to touch his deer stand, Mr. Moore was given great leeway to manage the enterprise, with a portion of the gross proceeds, but not the net profit, going to the Piles. It appears to the undersigned that there was not a joint enterprise between the Piles and Jeff Moore such that the Piles would have any liability to the decedent. Wherefore, as a matter of law, the Piles are found not to be joint venturers.
11. Wherefore, the Administrative Law Judge concludes that Gerald and Annetta Pile are relieved of liability in this workers’ compensation matter.
After an unsuccessful petition for reconsideration was filed, the UEF appeals to this Board. On appeal, the UEF alleges the evidence in this case demonstrates the Pile’s land was not “principally” used for agriculture and therefore, the exemption contained in KRS 342.610(2)(a) does not apply. Citing to Wheeler & Clevenger Oil Company, Inc. v. Washburn, 127 S.W.3d 609 (Ky. 2004), the UEF argues the rule in statutory interpretation is that the plain meaning of the statute controls. Referring to the definition of “principal” as defined in Black’s Law Dictionary, “as chief, primary, and most important”, the UEF argues in determining whether the Piles were exempt from statutory up the ladder liability by virtue of contracting with Moore to remove timber from their property, it must be determined whether the Pile’s property was “principally” used for agriculture. By doing so, it argues the “incidental” use of land for agricultural purposes which would amount to a use less than a principal use would not trigger the exemption.
The UEF points out only 3 of the 40 acres owned by the Piles were actually planted, cultivated, harvested or marketed in the form of tobacco production. Citing to Gussler v. Williams, 55 K.L.S8 p. 26, Court of Appeals’ opinion rendered August 8, 2008, not final and currently on appeal to the Supreme Court of Kentucky, the UEF argues timbering 15 to 17 acres did not constitute an agricultural activity. It argues, therefore, based upon analysis of the amount of land used for agricultural purposes compared to residential or timber purposes, the statutory requirement of “principal” use of agriculture could not be satisfied.
The UEF also points out for the 2007 calendar year, of the $45,147.00 reported as earned income on Piles’ federal tax return, only $5,664 or 12.5% was realized from agricultural activities. Citing to Fitzpatrick v. Crestfield Farm, Inc. 582 S.W.2d 444 (Ky. App. 1978), the UEF argues where agricultural proceeds generate only 12.5% of the household income, it can hardly be said that agriculture is the principal use of the land in question. Moreover, citing to Bartlett v. Darrah, 285 P.2d 138 (Idaho, 1955), the UEF argues because the timber was not cut for purposes of furthering agricultural use of the land or by farm employees, proceeds from the timber sale cannot be properly construed as agricultural.
The UEF next argues the definition of agriculture as contained in KRS 342.0011(18) could not have been intended by the Legislature to be so wide ranging so as to encompass the harvesting of trees by a farmer regardless of the circumstances. It points out because KRS 342.0011(18) is silent as to the inclusion of logging/lumbering operations within its definition of agriculture while KRS 246.010(5) and KRS 337.101(2)(b) are not, it must be presumed that the Legislature was deliberate in its omission. Stated otherwise, had the General Assembly intended that all logging activities conducted by farmers on land utilized for the dual purpose of timbering and farming be exempted from coverage under the Act, it would have included such language in KRS 342.0011(18) as it did in the other corresponding definitions. The UEF then concludes by arguing the property is not “principally” used for agriculture where it is primarily a homestead with a separate and distinct incidental use to produce some limited amount of agriculture in the form of tobacco sales and unrelated timber operations. The UEF points out Pile was employed full time, not in agriculture, but at a public job and 3 out of 40 acres were used to grow tobacco producing only $5,664.00 gross sales per year with the remaining 37 out of the 40 acres being unused. The UEF argues the Piles did not primarily rely on farming as their principal source of income and the agricultural activities were minimal in terms of the amount of total acreage actually used for agricultural purposes and the income derived from the agricultural use was also minimal.
The UEF also argues the Piles were engaged in a joint venture with Jeff Moore in the cutting and removal of timber. The UEF points out the Piles and Moore had an agreement to share the proceeds of the sale of timber, bearing equally the fluxations in market price which might occur between the time of contract and the date of ultimate sale. As such, it is argued the Piles are employers. The UEF notes the Piles contributed the raw material in the form of timber to the joint venture and exercised control of what trees to exclude from cutting by stressing the tree which contained the deer stand was not to be cut. It is the UEF’s position the ALJ misapplied the facts of this case to the application of the law involving joint enterprises as set forth in Roethke v. Sanger, 68 S.W.3d 352 (Ky. 2002). It points out the Piles and Moore had an expressed oral agreement to share the gross receipts on a proportional 50/50 basis over the length of time which passed until the venture was completed or terminated and therefore, by the very nature of that agreement, the parties agreed to share the profits of their joint efforts, amounting to a community of pecuniary interest. The UEF argues Moore contributed the knowledge he had in the timber cutting business and the Piles contributed their raw materials and previous experience in having had their timber cut to the joint enterprise. The UEF also cites to the fact the Piles had an equal voice in the operation of the enterprise inasmuch as 1) they possessed at the outset the choice of whether to enter into the agreement and upon which terms; 2) they had an equal voice regarding whether the agreement should be for a set amount of money for their timber or for a proportional division of the gross sales; 3) they had an equal voice in the decision whether the agreement should be governed by specific completion time or whether it should remain open and thus, subject to fluxations in the market price for the timber over time; and 4) the Piles also had an equal voice to control the direction of the enterprise after the unfortunate death of Stribling.
As it applies to the issue involving the potential liability of the Piles as an up the ladder contractor, KRS 342.610(2)(a) provides as follows:
A contractor who subcontracts all or any part of a contract and his carrier shall be liable for the payment of compensation to the employees of the subcontractor unless the subcontractor primarily liable for the payment of such compensation has secured the payment of compensation as provided for in this chapter. Any contractor or his carrier who shall become liable for such compensation may recover the amount of such compensation paid and necessary expenses from the subcontractor primarily liable therefore. A person who contracts with another: (a) to have work performed consisting of the removal, excavation, or drilling of soil, rock, or mineral, or the cutting or removal of timber from land; . . . shall for the purposes of this section be deemed a contractor, and such other person a subcontractor. This subsection shall not apply to the owner or lessee of land principally used for agriculture. (Emphasis added)
KRS 342.011(18) defines agriculture as follows:
“Agriculture” means the operation of farm premises, including the planning, cultivation, producing, growing, harvesting, and preparation for market of agricultural or horticultural commodities thereon, the raising of livestock for food products and for racing purposes, and poultry thereon, and any work performed as an incident to or in conjunction with the farm operations. It shall not include the commercial processing, packing, drying, storing, or canning of such commodities for market, or making cheese or butter or other dairy products for market.
The burden of proving the application of KRS 342.610(2) falls upon the party (the UEF) seeking to have another party deemed a contractor under the statute (here, the Piles). Since the UEF, the party with the burden of proof in this appeal was unsuccessful before the ALJ, the issue on appeal is whether the evidence compels a contrary conclusion. Wolf Creek Collieries v. Crum, 673 S.W.2d 735 (Ky. App. 1984). Compelling evidence is defined as evidence that is so overwhelming no reasonable person could reach the same conclusion as the ALJ. REO Mechanical v. Barnes, 691 S.W.2d 224 (Ky. App. 1985). So long as any evidence of substance supports the ALJ’s opinion, it cannot be said that the evidence compels a different result. Special Fund v. Francis, 708 S.W.2d 641 (Ky. 1986). It is not enough for the UEF to merely show that some evidence supports its position. See McCloud v. Beth-Elkhorn Corp., 514 S.W.2d 46 (Ky. 1974). So long as the ALJ’s opinion is supported by evidence of substance, the Board may not reverse. Special Fund v. Francis, supra.
We believe the Workers’ Compensation Board case of Uninsured Employers’ Fund v. Emit Jones a/k/a E.J. Logging and David McIntosh, Claim No. 88-01907, rendered December 8, 1989 is applicable to the facts of this case and is dispositive of the issue involving the applicability of KRS 342.610(2). In that case, an accident occurred when David McIntosh was injured while attempting to bring logs down a mountainside behind a skidder. The skidder went out of control and David McIntosh attempted to jump from the vehicle only to have the rear wheel run over him. As a result, he was seriously injured. The facts of this case reveal Emit Jones was in the business of marketing timber to Begley Lumberyard. David McIntosh was the grandson of Etta Belle McIntosh who acted as the agent or manager of the tract of land which she and other relatives were part owners. The land was located in eastern Kentucky and was somewhat mountainous, but contained timber and also had a small tobacco base allotment as well as a plot of corn. Ms. McIntosh contracted with Jones to sell Jones the timber for $50 per thousand. Jones was free to select which trees he wanted to log and transport for sale to Begley Lumberyard. As part of the oral contract, Jones was to hire Mrs. McIntosh’s grandson.
In affirming the ALJ’s decision in denying the UEF’s motion to join Etta Belle McIntosh as a party defendant pursuant to KRS 342.610(2) the Board ruled as follows:
The evidence is uncontradicted that Mrs. McIntosh did not contract with Jones to cut timber nor to remove timber from the land. She sold Jones standing timber and he was at liberty to cut such trees into logs as he deemed saleable at Begley Mill. The contract between Jones and Mrs. McIntosh was simply an outright sale of standing timber. Were the contract one for cutting of timber or for removal of timber, the property in the timber would have still been that of the owners with Mrs. McIntosh as manager, and they would have been entitled to the sale price of the timber at the mill. The evidence is uncontradicted that Jones received the proceeds of the sale of the timber at Begley’s Lumberyard and thus, was simply selling his own logs to the mill. Elkhorn/Hazard Coal Land Corp. v. Taylor, 539 S.W2d 101 (Ky. 1976) is virtually factually identical with the situation here and holds that KRS 342.610(2) is not applicable if the work being performed on land owned by others is done by an entity in a proprietary capacity. The evidence here is uncontradicted Jones was simply cutting, transporting and selling his own timber.
Secondly, KRS 342.610(2) contains the exception that it is not applicable to the owner or lessee of land principally used for agriculture. From the brief description of the tract in question here and with knowledge of the topography in eastern Kentucky, a good bit of this land was untillable because of its hilly nature. However, there is evidence there was a tobacco crop allotment as well a corn crop on the land, which evidence supports and sustains the ALJ’s finding the land was principally used for agriculture and thus, for that reason, KRS 342.610(2) is inapplicable.
As in Uninsured Employer’s Fund v. Jones, supra, the facts of this case demonstrate the agreement reached between the parties was merely a sale of standing timber. Moore acknowledged the Piles did not discuss with him concerning where the lumber was to be taken for sale. The evidence further reveals other than the tree which contained the deer stand, the Piles did not dictate what trees were to be cut nor did the Piles retain any control of the logging operation, supply any of the equipment in the operation or pay any of the expenses. The evidence further reflects the Piles were not in the timber business and the trees which were cut were naturally growing. The evidence also demonstrates Moore retained a propriety interest in the trees based on the fact he testified he received $4,000.00 from the sale of the trees at the timber company pursuant to the agreement he had with the Piles. Based on the holding in Elkhorn-Hazard Coal Land Corp. v. Taylor, supra, it is clear KRS 342.610(2) is not applicable because the agreement reached between the Piles and Moore was for the sale of timber and not for work or services performed for them as landowners.
Even assuming arguendo the Piles could be considered as potential up the ladder contractors pursuant to KRS 342.610(2), it is clear the agricultural exemption applies in this case to justify the ALJ’s dismissal of the Piles as parties in this case. Moore described the Piles property as being a small farm where tobacco was raised. The Piles testified they raised 2 ½ to 3 acres of tobacco on their property every year for 29 years. The record reflects, for the calendar year 2007, the Piles reported total gross farm income of $13,508 from raising tobacco. The record further reflects the Piles raised this tobacco with the help of relatives in setting, cutting, and hauling it. The tobacco was then hung for curing in a barn located on the Pile property. Pile testified the land he owned was used for nothing other than growing tobacco and the income generated from the sale of tobacco helped pay for his home. Substantial evidence exists to justify the ALJ’s finding the Piles’ land was principally used for agriculture therefore exempting them from “up the ladder” liability pursuant to KRS 342.610(2). See also KRS 342.0011(18).
As it applies to the UEF’s argument the Piles were engaged in a joint venture with Jeff Moore, the Supreme Court of Kentucky noted in Roethke v. Sanger, supra, the following as it applies to this issue:
. . . Sometimes referred to as a joint adventure, a joint enterprise is ‘‘an informal association of two or more persons, partaking of the nature of a partnership, usually, but not always, limited to a single transaction in which the participants combine their money, efforts, skill, and knowledge for gain, with each sharing in the expenses and profits or losses.’’ Eubank v. Richardson, Ky., 353 S.W.2d 367, 369 (1962); see also Drummy v. Stern, Ky., 269 S.W.2d 198, 199 (1954). In Huff v. Rosenberg, Ky., 496 S.W.2d 352 (1973), we enumerated the elements essential to a joint enterprise, viz: ‘‘(1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community of pecuniary interest in that purpose among the members; and (4) an equal right to a voice in the direction of the enterprise, which gives an equal right of control.’’ Id. at 355 (citing Restatement (Second) of the Law of Torts, § 491, cmt. c (A.L.I.1965). . .
In this case, Moore paid for his own expenses and also paid for Stribling’s wages in addition to the wages of Stribling’s son without contribution from the Piles. Moore also paid for his own business expenses including the cost of maintenance and fuel. It is also clear Moore and the Piles did not co-own any property or equipment used to perform the work and each kept the money generated from the sale of the logs, but did not share in the profits. The evidence further reflects there was no equal right to control with respect to the performance of the work. Moore testified, other than showing the boundary lines of the property, Pile did not exert any control of the operation. Of course, the ALJ, as fact finder, has the authority to determine the quality, character, and substance of the evidence and has the sole authority to judge the weight and inferences to be drawn from that evidence. Square D Company v. Tipton, 862 S.W.2d 308 (Ky. 1993); Miller v. East Kentucky Beverage/Pepsico, Inc., 951 S.W.2d 329 (Ky. 1997); Luttrell v. Cardinal Aluminum Co., 909 S.W.2d 334 (Ky.App. 1995). The ALJ may also pick and choose from conflicting evidences. Whittaker v. Rowland, 998 S.W.2d 479 (Ky. 1999). As interpreted by the Roethke court, all four factors must apply for a joint venture to be established. Substantial evidence in the record supports the ALJ’s finding there was no agreement among the parties as to the sharing of profits or losses. Moreover, it is clear there was not an equal right to a voice in the direction of the enterprise giving an equal right of control.
Accordingly, the opinion and order of July 11, 2008 is hereby AFFIRMED.
ALL CONCUR.
COUNSEL FOR PETITIONER
HON DENNIS M STUTSMAN
1024 CAPITAL CENTER DRIVE
SUITE 200
FRANKFORT KY 40602-8204
COUNSEL FOR RESPONDENTS
HON PETER NAAKE
800 REPUBLIC BUILDING
429 W MUHAMMAD ALI BLVD
LOUISVILLE KY 40202
HON DAVID L HOLTON II
7210 DIXIE HWY
LOUISVILLE KY 40258
JEFF MOORE d/b/a
JEFF MOORE LOGGING CO
201 BUTLER LANE
HARNED KY 40144
HON ERIC A HAMILTON
PO BOX 1177
ELIZABETHTOWN KY 42702-1177
HON THOMAS P SHREVE
200 S MAIN STREET
ELIZABETHTOWN KY 42701
ADMINISTRATIVE LAW JUDGE
HON JAMES KERR
SPINDLETOP OFFICE COMPLEX
2780 RESEARCH PARK DR
LEXINGTON KY 40511
