Malpass v. P. James Gibbons Construction & JMG Construction

Insurance Company

Date Decided

July 1, 2014

Panel Members

Elizabeth Elwin

Garry Greene

Tom Pelletier


Employee / er Definitions Findings of Fact


Contractor Employee v. Contractor Lent Employee

File Size

179 KB


Summary from the Troubh Heisler Attorneys

The hearing officer found that Malpass was not an employee of either Gibbons or JMG Construction and denied his petition for award. Malpass and Gaudet were business partners who performed finished carpentry work on a house being built by Gibbons. Gibbons was also building another house nearby, on which JMG was the framing subcontractor. JMG’s framing crew at Malpass and Gaudet for help raising a wall, which fell, injuring Malpass. He filed petitions for award against Gibbons and JMG.

The hearing officer found that Malpass was an independent contractor and therefore not an employee of Gibbons; that he was not a “lent employee” of JMG because he was not an employee of Gibbons who could have been “transferred” to JMG; and that he was not an employee of JMG under an implied contract of employment because he assisted JMG’s employees purely as a volunteer with no expectation of payment and no ability by JMG to control his activities.

The panel affirmed all of those determinations, and also ruled that the hearing officer made adequate findings of fact on the relevant issues and had no obligation to make additional findings on irrelevant issues regarding the relationships among Gibbons, JMG, and their relationships with their work crews.

Page |