Opinion
No. 44078.
Filed April 30, 1982.
1. Workmen's Compensation: Jurisdiction. The Nebraska Workmen's compensation Act is not applicable to a nonresident employer and resident employee where the contract of employment was made in this state for services to be performed in another state and the employer was not, at the time of the contract, engaged in any trade business, profession, or vocation in this state. 2. ___: ___. The Nebraska Workmen's Compensation Act is not applicable where a resident employee's employment by a nonresident employer for services to be performed outside the state of Nebraska was neither in nor incidental to any trade, business, profession, or vocation carried on by the employer in this state.
Appeal from the Nebraska Workmen's Compensation Court. Affirmed.
John B. Ashford of Bradford, Coenen Ashford, for appellant.
Douglas L. Kluender of the Healey Law Office, for appellee.
Heard before KRIVOSHA, C.J., BOSLAUGH, McCOWN, CLINTON, BRODKEY, and HASTINGS, JJ.
This is a workmen's compensation case in which the Nebraska Workmen's Compensation Court dismissed plaintiff's petition against the defendant, Floair, Inc. Plaintiff has appealed.
In 1970, following his retirement from the Navy, Clifford Jensen sought a job as an aircraft pilot. In 1971 Jensen applied in person to Floair, Inc., at its offices in Wichita, Kansas, and made test flights. On December 26, 1971, Floair telephoned Jensen at his home in Bellevue, Nebraska, and offered him a position as a pilot for the defendant. Jensen accepted the offer by telephone, and the next day went to Wichita, Kansas, and began work for the defendant. Thereafter, Jensen continued to work for Floair as a ferry pilot, primarily in connection with international deliveries.
On October 31, 1977, Jensen was assigned to deliver an airplane to Sydney, Australia. Upon his return from Australia, Jensen was a passenger on a commercial flight which was routed through Denver, Colorado. While Jensen was at Denver's Stapleton Airport on November 10, 1977, Jensen suffered a fatal heart attack.
Jensen's widow, the plaintiff, filed this action under the Nebraska workmen's compensation laws on November 9, 1979, alleging that the decedent's heart attack arose out of and in the course of his employment with Floair. In particular, the plaintiff contends that the decedent's heart attack was due to work-related strain while piloting the plane to Australia and on the return trip from that destination.
The defendant's answer alleged that the Nebraska Workmen's Compensation Court did not have jurisdiction to determine the dispute, and that the death of Clifford Jensen did not arise out of and in the course of his employment with defendant, and requested dismissal of the petition.
The evidence established that Floair, Inc., is a Kansas corporation which maintains its business offices in Wichita, Kansas, and operates two major divisions, one of ferrying aircraft to various international and domestic destinations and the other of maintaining fixed-base operation activities. It has no business offices, hangars, or other facilities in any state other than Kansas. At the time of Jensen's death, Floair did no business in Nebraska, maintained no agents or agencies in Nebraska, and did not deliver any planes to Nebraska. The president of Floair testified that, in his memory, none of its pilots had ever delivered a plane to Nebraska. Most pilots employed by Floair lived in the area of Wichita, Kansas, but a few lived in other areas. All flight assignments are made in Wichita. Jensen was employed in the international division of the ferrying operation. Ordinarily, a Floair ferry pilot would pick up an airplane at either a factory or some other location and ferry it to Wichita where test flights were conducted. A pilot would then ferry the plane to its destination overseas and return to Wichita on a commercial air flight after completing the delivery.
At the initial hearing in the Nebraska Workmen's Compensation Court, the court determined that it had jurisdiction of the case under Neb. Rev. Stat. § 48-115(2)(C) (Reissue 1978) because the initial contract of employment was accepted by telephone in Nebraska in 1971, but the court determined that the plaintiff had failed to sustain her burden of proving that the decedent's death arose out of and in the course of his employment by Floair, and dismissed plaintiff's petition.
Upon rehearing before a three-judge panel of the court, the panel found that a 1973 amendment to 48-115(2), purportedly extending jurisdiction to any case in which the original contract of hire was made in Nebraska, had no retroactive effect. The court then determined that it was without jurisdiction to hear the case, and that it was unnecessary to decide whether Jensen's death arose out of his employment. The court again dismissed plaintiff's petition, and this appeal followed.
The plaintiff contends that because Jensen's original contract of hire in 1971 was concluded by his telephone acceptance in Nebraska, the Nebraska Workmen's Compensation Court has jurisdiction under 48-115(2).
In workmen's compensation cases in the area of conflict of laws, the principal problem is what range of application to persons and things outside the state will be given by a state to its own workmen's compensation statute. Restatement (Second) of Conflict of Laws 181 (1971) states the permissible range of territorial application of workmen's compensation law: "A State of the United States may consistently with the requirements of due process award relief to a person under its workmen's compensation statute, if
"(a) the person is injured in the State, or
"(b) the employment is principally located in the State, or
"(c) the employer supervised the employee's activities from a place of business in the State, or
"(d) the State is that of most significant relationship to the contract of employment with respect to the issue of workmen's compensation under the rules of 187-188 and 196, or
"(e) the parties have agreed in the contract of employment or otherwise that their rights should be determined under the workmen's compensation act of the State, or
"(f) the State has some other reasonable relationship to the occurrence, the parties and the employment." Sections 187 and 188 are not materially relevant here.
Section 196 provides: "The validity of a contract for the rendition of services and the rights created thereby are determined, in the absence of an effective choice of law by the parties, by the local law of the state where the contract requires that the services, or a major portion of the services, be rendered, unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in 6 to the transaction and the parties, in which the [sic] event the local law of the other state will be applied." Section 6 sets out general choice of law principles and is not directly material here.
Under the evidence in the case at bar, a major portion of Jensen's services were to be performed in Kansas, and virtually all other significant relationships of the employer and the employment were in Kansas. The only relationship which Nebraska had to the contract of employment was the fact that Jensen accepted the initial contract of employment by telephone in 1971 in Nebraska.
This court has consistently held that the Workmen's Compensation Act of Nebraska is not applicable to a nonresident employer and resident employee where the contract of employment was made in this state for services to be performed in another state and the employer was not, at the time of the contract, engaged in any trade, business, profession, or vocation in this state. Watts v. Long, 116 Neb. 656, 218 N.W. 410 (1928). See, also, Freeman v. Higgins, 123 Neb. 73, 242 N.W. 271 (1932); Rigg v. Atlantic, Pacific Gulf Oil Co., 129 Neb. 412, 261 N.W. 900 (1935).
The Workmen's Compensation Court proceeded on the premise that the basic jurisdictional issue was to be determined by whether the contract of hire provision of 48-115(2) was applicable to this case. Neither party has, therefore, briefed or argued conflict of laws jurisdictional issues. We note that 48-115(2) applies only to "an employee subject to this act," and refers to "Every person in the service of an employer . . . as described in section 48-106 . . . ." Neb. Rev. Stat. § 48-106 (Reissue 1978) provides in part that the provisions of the Workmen's Compensation Act shall apply "to every employer in this state, including nonresident employers performing work in the State of Nebraska." (Emphasis supplied.) That language has remained unchanged since 1957. The evidence in the present case is clear that the employer defendant was not engaged in business or performing work in Nebraska at any time.
We have held that the Nebraska Workmen's Compensation Act is not applicable where a resident employee's employment by a nonresident employer for services to be performed outside the State of Nebraska was neither in nor incidental to any trade, business, profession, or vocation carried on by the employer in this state. See Freeman v. Higgins, supra.
While the reasons given by the Workmen's Compensation Court for rejecting jurisdiction may have been erroneous, the determination that the Nebraska Workmen's Compensation Court did not have jurisdiction in this case was correct.
The judgment of the Workmen's Compensation Court is affirmed.
AFFIRMED.
WHITE, J., participating on briefs.