Makarova v. United States
201 F.3d 110 (2000)
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Rule of Law:
A performer is considered an employee, rather than an independent contractor, when the employer exercises significant control over the means and manner of the performance, making workers' compensation the exclusive remedy for work-related injuries.
Facts:
- Natalia Makarova, a renowned ballerina, was injured when a piece of scenery fell on her while she was performing in the musical 'On Your Toes' at the Kennedy Center.
- The Kennedy Center acted as the producer, contracting for rights to the show, hiring staff, paying performers, and maintaining workers' compensation insurance for them.
- Makarova's services were engaged through a contract between the Kennedy Center and her personal services corporation, NMK Productions, Inc.
- Makarova personally signed a rider to the contract, agreeing to be bound by its terms and the rules of the Actors' Equity Association.
- The contract required Makarova to play a specific part, adhere to a set rehearsal and performance schedule, have her hair styled in a particular way, wear shoes and make-up provided by the Kennedy Center, and provide her exclusive services to the producer during the contract term.
- Prior to the main injury, Makarova had sustained a separate minor injury during a rehearsal and received medical treatment paid for by the Kennedy Center's workers' compensation insurer.
Procedural Posture:
- In 1984, Natalia Makarova filed a federal administrative claim against the Kennedy Center for her injuries.
- In 1997, Makarova filed a civil lawsuit against the United States in the U.S. District Court for the Southern District of New York pursuant to the Federal Tort Claims Act (FTCA).
- The United States filed a motion to dismiss the complaint for lack of subject matter jurisdiction under Rule 12(b)(1).
- The district court granted the motion to dismiss, holding that Makarova was an employee whose exclusive remedy was workers' compensation, thus barring the FTCA claim.
- Makarova, as appellant, appealed the district court's dismissal to the United States Court of Appeals for the Second Circuit; the United States was the appellee.
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Issue:
Is a performer, who is subject to significant control by the producer over the details of her work, considered an employee whose exclusive remedy for a work-related injury is workers' compensation, thereby barring a tort claim against the producer under the Federal Tort Claims Act?
Opinions:
Majority - McLaughlin, Circuit Judge
Yes. A performer is considered an employee when the producer exercises sufficient control over the details of the work, making workers' compensation the exclusive remedy and barring a tort claim. The court determined Makarova was an employee of the Kennedy Center under both New York and District of Columbia law, thus her tort claim under the Federal Tort Claims Act (FTCA) was properly dismissed. The reasoning was twofold. First, applying the 'right to control' test, the Kennedy Center dictated Makarova's role, schedule, appearance, and had exclusive rights to her services, demonstrating sufficient control to establish an employment relationship. Precedent from New York courts supports classifying performers under such control as employees. Second, under D.C. law, Makarova was a person 'in the service of another under any contract of hire,' fitting the statutory definition of an employee. The court also noted an equitable consideration: Makarova had previously accepted benefits from the Kennedy Center's workers' compensation insurance for a minor injury, which estopped her from now denying her employee status to pursue a more lucrative tort claim. The court dismissed arguments that her 'star' status or the use of a Form 1099 for a small portion of her pay altered this conclusion.
Analysis:
This decision reaffirms the primacy of the 'right to control' test in distinguishing employees from independent contractors, even for highly skilled and famous professionals. It illustrates that contractual formalities, such as payment through a personal services corporation or the issuance of a Form 1099, are less determinative than the actual degree of control exercised by the employer. The case establishes a strong precedent for producers in the entertainment industry, solidifying that if they maintain artistic and logistical control over performers, those performers will likely be deemed employees for liability purposes. Consequently, the exclusive remedy provision of workers' compensation acts as a crucial shield against more substantial tort liability for workplace injuries.
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