JASON BECKNER and JODI BECKNER v. Maxim Crane Works , L.p.

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2929
JASON BECKNER and JODI BECKNER ,
Plaintiffs-Appellants,
v.
M AXIM C RANE WORKS , L.P.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:21-cv-01395-SEB-TAB — Sarah Evans Barker, Judge.
____________________
A RGUED J UNE 5, 2024 — DECIDED J ULY 30, 2024
____________________
Before EASTERBROOK, BRENNAN , and JACKSON -A KIWUMI ,
Circuit Judges.
PER C URIAM . Jason Beckner worked for Commercial Air,
Inc. constructing a home. To lift trusses onto the roof, Com-
mercial Air rented a crane for one day from Maxim Crane
Works, L.P., which provided the crane, equipment, and an
operator. Beckner contends that the operator injured him, and
he sued Maxim Crane for negligence, under a theory of vicar-
ious liability.

-- 1 of 12 --

2 No. 23-2929
Indiana’s Worker’s Compensation Act is the exclusive
civil remedy for an employee injured by an employer or co-
employee. I ND. C ODE § 22-3-2-6. The parties agree that if the
crane operator and Beckner were both employees of Commer-
cial Air, then the Act bars Beckner’s tort suit against Maxim
Crane.
The district court ruled at summary judgment that the
crane operator was also employed by Commercial Air and
was therefore Beckner’s co-employee. Because that question
is fact-based and genuinely disputed, we vacate the judgment
and remand this case to resolve fact issues.
I
A. Factual Background
In reviewing summary judgment, we construe the record
in the light most favorable to the non-moving parties, the
Beckners. Perez v. K & B Transp., Inc., 967 F.3d 651, 653 (7th Cir.
2020).
In November 2019, Beckner worked for Commercial Air at
a jobsite constructing a home in Zionsville, Indiana. Commer-
cial Air contacted Maxim Crane to rent a crane for one day to
lift roof trusses. Commercial Air signed a short-term service
agreement for a crane, equipment, and crane operator. The
agreement contains provisions that Maxim Crane submits are
relevant to the question of who employed the crane operator.
First, the contract provides that “[i]f Equipment is furnished
with an operator, the services of such operator will be per-
formed under the complete direction and control of Customer
and operator shall be considered Customer’s employee for all
purposes other than the payment of wages, worker’s compen-
sation, and their benefits.” Second, it states that “the

-- 2 of 12 --

No. 23-2929 3
Equipment and all persons operating or maintaining such
Equipment, including Maxim’s employees, agents or inde-
pendent contractors, are under Customer’s exclusive jurisdic-
tion, possession, supervision, and control.” Commercial Air
maintains that the crane operator’s conduct and manual are
also relevant to the question of who employed him.
On November 11, 2019, Maxim Crane dispatched a crane,
rigging equipment, and one of its employees, Emmitt Pugh,
to operate the crane for a single day. Pugh arrived on a sched-
ule different from the Commercial Air employees. After
reaching the job site, he advised a Commercial Air supervisor
how to rig the trusses with the crane. After this discussion,
workers strapped individual trusses to the crane’s hook so
that Pugh, with the help of a signalman, could lift them onto
the roof, where other workers unhooked the load and in-
stalled it.
Pugh operated the crane alone. He did so faster than the
Commercial Air employees wanted. The Commercial Air su-
pervisor testified that trusses were “smack[ing]” into each
other and that workers on the roof worried that someone
“[was] going to get hurt.” The supervisor told Pugh to slow
down, but he kept returning to his chosen, higher speed. Mid-
lift, Pugh stopped momentarily to suggest that the workers
reinforce the already-installed trusses with some cross-brac-
ing. Consistent with Pugh’s conduct, the crane operator man-
ual he used gave him the sole power “to stop and refuse to lift
loads until safety is assured.” The manual said the crane op-
erator was “the only one who can be relied upon to assure the
safety of yourself and those around you.”
Beckner was injured at the end of the day. After most
trusses had been set, Commercial Air’s supervisor told Pugh

-- 3 of 12 --

4 No. 23-2929
that work at the site was ending because of high winds. Pugh
exited the crane and began breaking it down on his own. A
gust of wind caused some trusses to collapse and to trap two
Commercial Air employees, including Beckner. A Commer-
cial Air employee asked Pugh to set the crane back up to free
the trapped workers, which Pugh did by himself. The local
fire chief arrived just before Pugh left. Although Pugh had
fully deconstructed the crane again, the fire chief asked Pugh
to set the crane back up to lower Beckner to the ground, which
Pugh did, also alone.
B. Procedural History
Beckner, a citizen of Indiana, sued Maxim Crane and
other related entities in Indiana state court, claiming negli-
gence. He sought to recover for his injuries, medical costs, and
lost wages; his wife also sued for loss of consortium. The de-
fendants—citizens of Delaware, Pennsylvania, and New
York—removed the case to federal court on the basis of diver-
sity jurisdiction. See 28 U.S.C. § 1441(b). The parties later
agreed to dismiss all defendants except Maxim Crane.
Maxim Crane filed two motions. First, it moved to dismiss
the suit for lack of subject-matter jurisdiction. It argued that,
because Pugh was co-employed by Maxim Crane and Com-
mercial Air, Beckner’s exclusive remedy was under Indiana’s
Worker’s Compensation Act. See I ND. C ODE §§ 22-3-2-6, -13.
The Beckners responded that Commercial Air did not employ
Pugh. While that motion was pending, Maxim Crane moved
for summary judgment, reiterating that Commercial Air also
employed Pugh and adding that it was not negligent. The
Beckners responded by incorporating their arguments on the
(still-pending) motion to dismiss that Commercial Air did not
employ Pugh and by fleshing out their negligence claim.

-- 4 of 12 --

No. 23-2929 5
The district court ruled on both motions. First, it decided
that the exclusivity of the Worker’s Compensation Act af-
fected the merits, not jurisdiction. Later, the court ruled that
under Indiana law Pugh and Beckner both worked for Com-
mercial Air, so Beckner’s exclusive remedy was the Act. The
court applied a seven-factor test to assess whether Commer-
cial Air employed Pugh. See Hale v. Kemp, 579 N.E.2d 63, 67
(Ind. 1991). The factors are: “(1) the right to discharge; (2) the
mode of payment; (3) supplying tools or equipment; (4) belief
of the parties in the existence of an employer-employee rela-
tionship; (5) control over the means used in the results
reached; (6) length of employment; and (7) establishment of
the work boundaries.” Id. The court reasoned, and the parties
agree, that the second, third, and sixth factors favor the Beck-
ners: Commercial Air did not pay Pugh, supply his equip-
ment, or use his services for long. But to the district court, the
remaining factors—including the fifth, which Indiana deems
the most important, of “control”—favored Maxim Crane. The
Beckners appeal the district court’s decision.
II
A. Preliminary Issues
Before reaching the merits of the parties’ arguments, we
discuss three threshold questions: which test applies to decide
if Commercial Air employed Pugh; whether the existence of
an employment relationship is a question of law or fact; and
whether, in response to Maxim Crane’s summary judgment
motion, the Beckners waived any argument that they seek to
raise here.
We begin by considering the proper test to apply. The In-
diana Supreme Court has formulated two similar tests for a

-- 5 of 12 --

6 No. 23-2929
case of this type: a seven-factor test to determine the existence
of an employer-employee relationship, Hale, 579 N.E.2d at 67,
and a ten-factor test that distinguishes between an employee
and an independent contractor, Moberly v. Day, 757 N.E.2d
1007, 1010 (Ind. 2001). The district court and Maxim Crane
both say the Hale test is better. The Beckners prefer the
Moberly test. Although we think that the Hale test better tracks
the co-employee question at the heart of this case, we apply
both. Ultimately the choice of test does not determine the out-
come of this appeal.
Next we look at whether the existence of an employer-em-
ployee relationship is a question of fact or law. The answer
turns on the jurisdictional basis of the suit. In a diversity case
like this, the “‘fixing of the boundary between questions of
law and questions of fact’ is a matter of federal procedural
law, not state substantive law.” Jadair Int’l, Inc. v. Am. Nat’l
Prop. & Cas. Co., 77 F.4th 546, 552 n.4 (7th Cir. 2023) (quoting
Dilworth v. Dudley, 75 F.3d 307, 309 (7th Cir. 1996));
see also Reynolds v. Henderson & Lyman, 903 F.3d 693, 697
(7th Cir. 2018) (citing Byrd v. Blue Ridge Rural Elec. Co-op, Inc.,
356 U.S. 525, 538–39 (1958)) (“[S]tate law does not dictate the
allocation of tasks between the judge and the jury in a federal
court.”).
The existence of an agency relationship—of which an em-
ployer-employee relationship is one kind, see Spitz v. Proven
Winners N. Am., LLC, 759 F.3d 724, 731 (7th Cir. 2014)—is a
mixed question of fact and law. See Simpkins v. DuPage Hous.
Auth., 893 F.3d 962, 965 (7th Cir. 2018). To decide whether
such a relationship exists, a court weighs the effect of multiple
factors. When it does so, however, by resolving disputed facts
in the moving party’s favor (in this case, Maxim Crane), then

-- 6 of 12 --

No. 23-2929 7
it has legally erred in how it should view the facts at summary
judgment. See Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709,
714 (1986). And here, there is not a factual dispute about a fac-
tor on the margins. Instead, genuine disputes are present as
to factors that materially affect the existence of an employer-
employee relationship. A reasonable jury could rule in the
Beckners’ favor by deciding that Commercial Air does not
employ Pugh.
Maxim Crane does not contend that a factfinder may
never decide whether an employee (such as Pugh) was co-
employed by another company (like Commercial Air). Ra-
ther, Maxim Crane appears to argue only that a court may de-
cide the issue in the absence of disputed material facts. But, as
we discuss later, the record here contains factual disputes
about who “controlled” Pugh (the important fifth Hale factor)
and whether Commercial Air had a “belief” that it employed
Pugh (the fourth Hale factor). A factfinder therefore must re-
solve these disputes by assessing the credibility of the evi-
dence on those factors before it can be determined whether
Commercial Air employed Pugh.
Maxim Crane also contends that at summary judgment
the Beckners failed to raise their current appellate arguments,
and therefore waived those arguments for appeal. At the
same time, Maxim Crane argues that the Beckners violated
Southern District of Indiana Local Rule 56-1 by failing to iden-
tify or designate specific material facts that precluded sum-
mary judgment. We disagree with Maxim Crane. The evi-
dence supporting the Beckners’ response to Maxim Crane’s
summary judgment motion was properly in the record and
before the court through their response to Maxim Crane’s mo-
tion to dismiss. And that motion to dismiss was still pending

-- 7 of 12 --

8 No. 23-2929
when Maxim Crane moved for summary judgment. Local
Rule 56-1 required the Beckners to “serve a response brief and
any evidence (that is not already in the record).” No provision
in that local rule dictates that the Beckners had to repeat the
arguments and recite the evidence they had already offered
and which were pending before the district court. Indeed, in
their summary judgment response, the Beckners referred the
court to their motion to dismiss briefing by citing the proper
docket numbers. By doing so the Beckners did not require the
district court to search the record. Cf. S.D. I ND. L.R. 56-1(h).
We enforce the waiver of an appellate argument when a party
otherwise would be prejudiced by the lack of notice of that
argument. Hernandez v. Cook Cnty. Sheriff’s Off., 634 F.3d 906,
913 (7th Cir. 2011). But Maxim Crane does not persuade us
that it was unaware of the position the Beckners now advance
on appeal.
B. Merits
We next consider whether this case presents fact disputes
about whether Commercial Air employed Pugh. Again, we
view the facts in the light most favorable to the Beckners, the
non-moving parties. Summary judgment is appropriate when
there is no genuine dispute of the material facts and “the rec-
ord permits only one resolution of the factual issue.” Pullman-
Standard v. Swint, 456 U.S. 273, 292 (1982). See generally U.S.
Bank Nat’l Ass’n v. Village at Lakeridge, LLC, 583 U.S. 387 (2018).
Here, the question is whether Commercial Air employed
Pugh.
The parties agree that the fifth factor of the Hale test—who
had “control” over the crane’s operation—is most important.
GKN Co. v. Magness, 744 N.E.2d 397, 403 (Ind. 2001). Two doc-
uments provide conflicting statements about who controlled

-- 8 of 12 --

No. 23-2929 9
the crane’s operation here. Maxim Crane emphasizes that the
service contract purported to give Commercial Air control
over the crane’s operation. The contract states that Pugh
“shall be considered” Commercial Air’s “employee” and that
“the services of” the crane operator “will be performed under
the complete direction and control of” Commercial Air. But
as the Beckners point out, the crane operator’s manual vested
solely in Pugh, not Commercial Air, the power to “stop and
refuse” to operate the crane to ensure safety. A factfinder
must assess which of these two documents and conflicting
statements about control governs these facts.
The parties’ conduct, also factually disputed, yields com-
peting answers on the question of control. In the Beckners’
telling of events, Pugh came to the site with the requisite
equipment after receiving dispatch orders from Maxim
Crane, not Commercial Air; he arrived on a schedule different
than Commercial Air’s employees; and once there, he gave
input on how to complete the lift. The Beckners add that Pugh
operated the crane by himself and at his own fast pace, de-
spite the opposition voiced by Commercial Air employees.
Pugh even paused the lift—in the Beckners’ view, another ex-
ercise of his control—to have workers on the roof consider in-
stalling cross-bracing. Maxim Crane disputes most of these
facts and adds others. It contests whether Pugh arrived late,
had any input, or disregarded the Commercial Air employ-
ees’ admonition to slow down. Maxim Crane also adds that
Commercial Air employees signaled to Pugh how to move the
trusses and instructed him to stop work and later to reconfig-
ure the crane so that Beckner could be freed.
Beyond these factual disputes, evidence on the fourth Hale
factor—the “belief” about an employer-employee

-- 9 of 12 --

10 No. 23-2929
relationship—is also in opposition. Again, the contract be-
tween the parties recites that Pugh “shall be considered” a
Commercial Air employee. But Pugh’s dispatch from Maxim
Crane was for only one day of work, not a timeframe suggest-
ing that Commercial Air employed Pugh. As the Beckners
correctly note, “the fact that [a person] only worked … for one
day leads to the inference that he would not have believed
such a[n employment] relationship existed.” Verma v. D.T.
Carpentry, LLC, 805 N.E.2d 430, 434 (Ind. Ct. App. 2004). A
factfinder thus must resolve these opposing inferences.
Although we conclude that under the Hale test a remand
is needed to resolve contested facts, we briefly consider
whether the result is the same under the Moberly test. Recall
that this test discerns whether a person is an employee or in-
dependent contractor. Moberly, 757 N.E.2d at 1010. We agree
with the Beckners that this test is relevant here because “em-
ployee” and “independent contractor” are mutually exclusive
statuses at common law. See Couch v. United States, 694 F.3d
852, 860 (7th Cir. 2012). Therefore, it would be contradictory
for the Moberly test to say that Pugh is an independent con-
tractor but for the Hale test to suggest that Commercial Air
employed him. The ten-factor Moberly test asks a court to ex-
amine:
(a) the extent of control which, by the agree-
ment, the master may exercise over the details
of the work;
(b) whether or not the one employed is engaged
in a distinct occupation or business;
(c) the kind of occupation, with reference to
whether, in the locality, the work is usually

-- 10 of 12 --

No. 23-2929 11
done under the direction of the employer or by
a specialist without supervision;
(d) the skill required in the particular occupa-
tion;
(e) whether the employer or the workman sup-
plies the instrumentalities, tools, and the place
of work for the person doing the work;
(f) the length of time for which the person is em-
ployed;
(g) the method of payment, whether by the time
or by the job;
(h) whether or not the work is a part of the reg-
ular business of the employer;
(i) whether or not the parties believe they are
creating the relation of master and servant; and
(j) whether the principal is or is not in business.
757 N.E.2d at 1010.
The fact disputes identified above also require a trial un-
der the Moberly test. Five of those factors—(a), (e), (f), (g), and
(i)—overlap with the Hale factors. Three more—(b), (d), and
(h)—also favor the Beckners under their view of the facts:
Commercial Air is primarily a heating, ventilation, and air
conditioning company with a regular business distinct from
Maxim Crane, a crane rental service. Commercial Air needed
to rent a crane, rigging equipment, and operator because its
own employees lacked the skills and equipment to operate a
crane. Only factor (c) undisputedly favors Maxim Crane be-
cause crane operation on construction projects typically oc-
curs under the supervision of a site superintendent. The last
factor, (j), appears irrelevant. Because the record permits a
conclusion under the Moberly test that Pugh is an independent

-- 11 of 12 --

12 No. 23-2929
contractor (rather than an employee), this test reinforces the
result that we reached under the Hale test.
III
Genuine issues of material fact exist as to whether Pugh
and Commercial Air had an employee-employer relation-
ship. Accordingly, we VACATE the district court’s judgment
and R EMAND this case for further proceedings to resolve
those fact issues.

-- 12 of 12 --