NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                     No. 11-3573
                                    _____________

               NATIONWIDE MUTUAL INSURANCE COMPANY,

                                                    Appellant

                                         v.

                       TIMOTHY SHAW, individually;
              TIMOTHY SHAW, d/b/a Shaw Brothers Donkey Ball Co.;
                          ROBERT EISENBERRY
                             _____________

            APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                        (Civ. Action No. 3:10-cv-00374)
                  District Judge: Honorable James M. Munley
                                ______________

                                Argued June 5, 2012
                                 ______________

        Before: SCIRICA, GREENAWAY, JR., and COWEN, Circuit Judges.

                          (Opinion Filed: August 6, 2012)

Krista M. Kochosky, Esq. (argued)
O’Malley & Magley
5280 Steubenville Pike
Pittsburgh, PA 15205
Charles E. Haddick, Jr., Esq.
Dickie, McCarney & Chilcote
425 North 21st Street
Plaza 21, Suite 302
Camp Hill, PA 17011
       Counsel for Appellant Nationwide Mutual Insurance Company

Michael R. Goffer, Esq. (argued)
Law Offices of Goffer & Cimini
1603 Monsey Avenue
Scranton, PA 18508
      Counsel for Appellees Timothy Shaw, Timothy Shaw d/b/a Shaw Brothers Donkey
      Ball Co., and Robert Eisenberry

                                     ______________

                                        OPINION
                                     ______________

GREENAWAY, JR., Circuit Judge.

       Appellant Nationwide Mutual Insurance Company (“Nationwide”) appeals the

District Court’s Order denying its motion for summary judgment and granting summary

judgment in favor of Appellees Timothy Shaw (“Shaw”), individually and d/b/a Shaw

Brothers Donkey Ball Co., and Robert Eisenberry (“Eisenberry”). For the reasons that

follow, we will vacate the District Court’s Order and remand for further proceedings.

                                I.     BACKGROUND

       Because we write primarily for the benefit of the parties, we recount only the

essential facts.




                                            2
        Shaw was the sole proprietor of a business that provided donkeys for charity

basketball events. 1 The donkeys were housed and cared for in a New York barn that

Shaw leased in the name of his business. For several decades, the business operated

under the name “Shaw Brothers Donkey Ball Company.” Around 2003, on the advice of

his attorney, Shaw changed the name of the business to “Shaw Brothers Donkey Ball,

LLC.”

        Shaw had a commercial general liability policy for the business with Nationwide

(the “Insurance Policy”), providing coverage for claims of bodily injury or property

damage, among other areas of coverage. The Insurance Policy contained a number of

exclusions to coverage. The relevant exclusion provision at issue here stated:

              2.     Exclusions

                     This insurance does not apply to:

                     e.     Employer’s Liability

                            “Bodily injury” to:

                            (1) An “employee” of the insured arising out of
                            and in the course of:

                            (a) Employment by the insured; or

                            (b) Performing duties related to the conduct of
                            the insured’s business

(App. 160.) In other words, Nationwide expressly removed from coverage a bodily

injury to one of Shaw’s “employees.”

        1
        Shaw’s family started the business, which Shaw assumed sole control of in
approximately 2001. Shaw earned money from admission fees charged to those
attending the fundraising events. He closed the business around August 2009.
                                             3
       The Insurance Policy, however, did not define who constitutes an employee of the

business. Instead, the Insurance Policy merely stated that an “employee” includes a

“leased worker” but does not include a “temporary worker.” (App. 170.) Those two

terms are defined in the Insurance Policy:

               10.    “Leased worker” means a person leased to you by a
               labor leasing firm under an agreement between you and the
               labor leasing firm, to perform duties related to the conduct of
               your business.      “Leased worker” does not include a
               “temporary worker.”

               19.   “Temporary worker” means a person who is furnished
               to you to substitute for a permanent “employee” on leave or
               to meet seasonal or short-term workload conditions.

(App. 170, 172.) Separately, the Insurance Policy defined a “volunteer worker” as a

“person who is not your ‘employee,’ and who donates his or her work and acts at the

discretion of and within the scope of duties determined by you, and is not paid a fee,

salary or other compensation by you or anyone else for their work performed for you.”

(App. 172.)

       Eisenberry was a retired farmer who had known Shaw for approximately ten to

twelve years at the time of the accident that precipitated this litigation, though the two

were not “close family friend[s].” (App. 17.) Eisenberry was introduced to Shaw

through Mr. Parks, who baled hay for Shaw. Mr. Parks informed Shaw that Eisenberry

could help him (Shaw) whenever needed. At some point thereafter, Eisenberry began

working at the New York barn that housed Shaw’s donkeys. Eisenberry’s responsibilities

included unloading and moving hay, cleaning the donkey stalls, and feeding and watering

the donkeys.

                                              4
       On September 4, 2007, Eisenberry was in possession of Shaw’s truck. At some

point, Eisenberry arrived at the farm and began helping Shaw and another man unload

bales of hay from a wagon. Eisenberry was stacking bales of hay on the second floor of

the barn when he fell through the floor due to missing planks that were covered by pieces

of hay. Eisenberry was rendered a paraplegic as a result of the fall.

       Eisenberry sued Shaw in the U.S. District Court for the Middle District of

Pennsylvania, asserting premises liability. On February 9, 2010, a jury returned a verdict

in Eisenberry’s favor. 2 On February 19, 2010, Nationwide filed a declaratory judgment

action in the District Court against Shaw, the Donkey Ball business, and Eisenberry.

Nationwide asserted that it was not liable under the Insurance Policy to provide coverage

to Shaw for the accident. Both sides moved for summary judgment. On August 22,

2011, the District Court denied Nationwide’s motion for summary judgment and granted

summary judgment in favor of Shaw, the Donkey Ball business, and Eisenberry.

Nationwide filed a timely appeal.

              II.     JURISDICTION AND STANDARD OF REVIEW

       The District Court had jurisdiction under 28 U.S.C. § 1332. We have jurisdiction

under 28 U.S.C. § 1291.

       Because the District Court’s jurisdiction was premised on diversity, we, like the

District Court, “must apply state substantive law and federal procedural law.” Liggon-

Redding v. Estate of Sugarman, 

, 262 (3d Cir. 2011) (citation omitted). We


       2
        At oral argument, counsel for Nationwide informed this Court that Eisenberry
and Nationwide stipulated to an award of $1 million in damages.
                                             5
exercise plenary review over the District Court’s grant of summary judgment. Doe v.

Luzerne Cnty., 

, 174 (3d Cir. 2011) (citation omitted).

                                   III.   ANALYSIS 3

       The central issue in the declaratory judgment action is whether Eisenberry was

Shaw’s “employee” at the time of the accident, as that term is contemplated in the

Insurance Policy. If Eisenberry assumed employee status, the employee exclusion

provision in the Insurance Policy would apply, and Shaw would be unable to seek

coverage for the accident. On the other hand, if Eisenberry was not Shaw’s employee,

then Nationwide concedes it must provide Shaw with coverage for the accident.

       A.     Insurance Policy’s Definition of “Employee”

       We begin with the terms of the Insurance Policy itself. The parties acknowledge,

and the District Court agreed, that the Insurance Policy fails to provide a complete and

sufficient definition of “employee.” We agree.

       The Insurance Policy states that an employee includes a leased worker but does

not include a temporary worker. Eisenberry was neither. To be a leased worker,

Eisenberry would have had to be furnished to Shaw under a labor leasing agreement. To

be a temporary worker, Eisenberry would have had to be replacing a permanent employee

or meeting Shaw’s short-term needs. Neither situation is factually true here.

       Separately, the Insurance Policy provides that an individual who donates his time

and is not paid a fee or other compensation—what the Insurance Policy classifies as a

       3
        Nationwide raised several points of error in its briefing. At oral argument,
counsel for Nationwide conceded each issue, except the District Court’s application of
the employee liability exclusion provision. Accordingly, we will address only this issue.
                                             6
“volunteer worker”—is not an employee. The record reveals that Eisenberry was paid for

his services in a variety of forms, even though this compensation was not calculated

based on time worked. First, Shaw permitted Eisenberry to take hay from the barn to

feed his (Eisenberry’s) animals. Eisenberry stated that this amounted to approximately

ten to fifteen bales of hay per month, at roughly eighty cents per bale. Second,

Eisenberry was permitted to use Shaw’s truck. Third, on occasion, Shaw gave Eisenberry

about $5 or $10 for gas money. While this multifaceted form of payment was surely

modest, it still constitutes sufficient compensation to remove Eisenberry from volunteer

worker status.

       Because the Insurance Policy does not resolve whether Eisenberry was Shaw’s

employee, the parties agreed in the District Court to have the term “employee,” as used in

the Insurance Policy, be synonymous with the definition of the term provided in

Pennsylvania’s Workers’ Compensation Act (“WCA”). We turn now to the WCA. 4

       B.     Pennsylvania’s Workers’ Compensation Act

       The WCA defines an “employe” 5 as “[a]ll natural persons who perform services

for another for a valuable consideration, exclusive of persons whose employment is

casual in character and not in the regular course of the business of the employer . . . .” 77


       4
         We note that our analysis under the WCA is not intended to be the archetype for
adjudicating whether an employer-employee relationship existed. Our ruling should not
supplant a necessary inquiry into Pennsylvania common law. We consult the WCA
because the parties expressly agreed that the term “employee,” as used in the Insurance
Policy, would be elucidated by the definition of that term in the WCA. Nevertheless, we
adhere to the position that the determination of employee status is determined by
Pennsylvania common law.
       5
         This is the spelling of the term in the statutory text.
                                              7
Pa. Cons. Stat. § 22. Brookhaven Baptist Church v. Workers’ Comp. Appeal Bd.

(Halvorson), 

(Pa. 2006) is the most recent case in this area. In

Brookhaven, the Supreme Court of Pennsylvania iterated that there are three elements to

this definition: “(1) the presence of valuable consideration; (2) whether the employment

was casual in character; and (3) whether the employment was in the regular course of

employer’s business.” 6 

we proceed to analyze these three elements, we address the interplay

between them. As to the first element, the WCA provides that an employee is one who

receives valuable consideration for his services. Absent the exchange of valuable

consideration, Eisenberry could not be Shaw’s employee. The inquiry would end at this

step.

        As the District Court noted, the statutory language regarding the second and third

elements has engendered some debate in Pennsylvania courts. While the second and

third elements are joined by the connector “and” in the statutory text, suggesting by its

plain terms that the presence of both elements is necessary to find that an individual is not

an employee under the WCA, the Brookhaven court found “a certain degree of

ambiguity” in the statute. 

Brookhaven court noted that it has, in prior

cases, found the second and third elements to be both conjunctive and disjunctive. 

statute has been interpreted to exempt from coverage “a person . . . both

casually employed and not engaged in the business of the employer” as well as a person


        6
        As in Brookhaven, the parties here do not dispute that Eisenberry was a “natural
person” under the WCA.
                                             8
who satisfies either of these two criteria. 

cited cases

purportedly supporting both interpretations of the statute, though the Brookhaven court

did not seek to resolve the ambiguity. 

at the forefront of this case. Faced with an unresolved issue of

state law, the District Court applied the disjunctive approach. The District Court

reasoned, without providing any support for its preference, that it “was persuaded by the

reasoning of those decision [sic] that conclude a worker is exempt from coverage—and in

that sense not an employee—if that worker is either employed casually or not engaged in

the business of the employer.” Nationwide Mut. Ins. Co. v. Shaw, No. 3:10-cv-374, 

, at *9 (M.D. Pa. Aug. 22, 2011).

       Nationwide asserts that the District Court erred in choosing to apply a disjunctive

standard. Specifically, Nationwide argues that, contrary to the declaration of ambiguity

by Pennsylvania’s highest court, we should part ways with the state supreme court and

conclude that the WCA plainly imposes a conjunctive standard through the use of the

connector “and” in the statutory text. As for the cases cited by the Brookhaven court

purportedly advocating the disjunctive approach, Nationwide avers that those cases are

actually consistent with the conjunctive approach. On the other hand, Shaw and

Eisenberry contend that the District Court correctly determined that Pennsylvania law is

ambiguous on this issue and, as a result, the District Court was justified in applying the

disjunctive approach.

       We agree with Nationwide that the District Court erred by not applying a

conjunctive standard, but we cannot disregard Brookhaven as Nationwide suggests.

                                             9
Because jurisdiction in this case was founded on diversity, we must follow any applicable

authoritative rulings from the state supreme court. See Mitchell Partners, L.P. v. Irex

Corp., 

, 203 (3d Cir. 2011) (stating that a “federal court must apply the law

declared by the supreme court of the relevant state”). The Brookhaven court determined

that the WCA was ambiguous to some degree, and we are not permitted to ignore this

determination.

       Although the Brookhaven court found there to be an ambiguity as to whether a

conjunctive or disjunctive standard was warranted, the court declined to resolve the

dispute. Where an issue has not been addressed by the state’s highest court, “we must

predict how the state’s highest court would resolve the issue.” Wayne Moving & Storage

of N.J., Inc. v. Sch. Dist. of Phila., 

, 154 (3d Cir. 2010) (internal quotation

marks and citation omitted). The Brookhaven court’s decision not to resolve the

ambiguity present in the definition of “employee” requires this Court to predict how the

Supreme Court of Pennsylvania would resolve it.

       Upon reviewing Pennsylvania precedent and the text of the WCA, we conclude

that the Supreme Court of Pennsylvania would find that the statutory text “exclusive of

persons whose employment is casual in character and not in the regular course of the

business of the employer” imposes a conjunctive standard. 77 Pa. Cons. Stat. § 22. The

WCA links two elements—whether the employment was casual and whether the work

performed was part and parcel of the business—with the connector “and.” Based on

general principles of statutory interpretation, the connector “and” in a statute signifies a

conjunctive standard. See Rivera v. Phila. Theological Seminary of St. Charles

                                             10
Borromeo, Inc., 

, 8 (Pa. 1986). 7 The Brookhaven court cited two state

supreme court cases purportedly following a different canon of statutory interpretation,

treating the connector “and” as an “or,” and requiring only one of these two elements for

the employee exemption to apply.

      But a closer inspection of these cases reveals that they are not inconsistent with a

conjunctive approach. In Cochrane v. William Penn Hotel, the court agreed with a lower

court that a maintenance worker at a hotel, who died while on the job, was an employee

under the WCA. 

, 44 (Pa. 1940). The court found that because the

maintenance worker was not employed casually, it did not need to consider the propriety

of the lower court’s additional finding that the worker was not engaged in the business of

the hotel. 

standard, the employee would need to be both

employed casually and not working in the regular course of his employer’s business to be

exempt from the definition of employee. That the state supreme court ruled that the

worker was not employed casually was sufficient by itself to support a finding that the

decedent was an employee. 

cited by the Brookhaven court—Marsh v. Groner, 

(Pa.

1917)—is admittedly less clear on this point. In Marsh, a handyman was injured while

remodeling a woman’s home; he argued that the woman owed him workers’

compensation for his injury. 

court focused its inquiry on whether the

handyman was engaged in the woman’s business, reasoning that the woman’s decision to

      7
        Analyzing federal law, we have similarly determined that the word “and”
imposes a conjunctive standard. See Reese Bros., Inc. v. United States, 

,
235-36 (3d Cir. 2006).
                                            11
remodel her home did not rise to the level of a business for which the handyman could be

engaged. 

a result, the court affirmed a lower court ruling that denied

the handyman workers’ compensation. 

approach taken in Marsh is somewhat muddled. On the one hand, the court

concluded that the handyman’s work was not within the regular course of any business

and, therefore, affirmed a finding that the statutory exemption applied. This logic

appears to countenance a disjunctive approach, as the court did not expressly conclude

that it also must find the handyman’s work to be casual to apply the exemption.

However, the court also noted in its concluding sentences that the handyman’s

employment “was casual in character.” 

tandem with the court’s finding

that the employment was not in the regular course of business, this would imply that a

conjunctive approach was considered.

       We cannot discern which approach curried the favor of the Marsh court, but we

need not resolve that issue in this case. Even assuming the Marsh court applied a

disjunctive standard, countless decisions since Marsh have unequivocally stated that the

WCA imposes a conjunctive standard. See, e.g., McCabe v. Timothy Shanahan & Son,

, 18 (Pa. Super. Ct. 1942) (“In order that the employer be relieved from

liability both elements must be established, i.e., the employment must be (1) casual and

(2) not in the regular course of the business of the employer.”); Diviney v. J. H. France

Fire Brick Co., 

, 110 (Pa. Super. Ct. 1940) (“It is clear from the plain

language of this provision, that in order to exclude an employe[e] under this exception, it



                                            12
must appear that his employment was not only occasional and incidental, but also outside

of the regular course of the business of the employer.”). 8

       Accordingly, we conclude the Supreme Court of Pennsylvania, were it faced with

this issue, would determine that the WCA imposes a conjunctive standard. As a result,

under the WCA, an individual who receives valuable consideration is exempt from

employee status only if that individual was both employed casually and not performing

work in the regular course of the employer’s business. It was error for the District Court

to apply a disjunctive standard to the statutory language “exclusive of persons whose

employment is casual in character and not in the regular course of the business of the

employer.” 77 Pa. Cons. Stat. § 22. Having discussed the interplay between the three

elements present in the WCA’s definition of employee, we now proceed to address the

District Court’s findings regarding each of these elements. Because we will remand for

fact finding on each element, we direct the District Court to apply a conjunctive approach

to subsequent WCA analysis regarding the second and third elements.

              1.     Element 1: Valuable Consideration

       An individual can be considered an employee, pursuant to the WCA, only if he

received valuable consideration. Eisenberry was responsible for caring and maintaining

the donkeys used in Shaw’s business, for which he received some compensation. The

issue is whether that compensation constituted valuable consideration.



       8
         It also is noteworthy that Marsh predates each case cited by the Brookhaven
court in support of the conjunctive interpretation, including Cochrane, which, as we have
determined, is entirely consistent with a conjunctive reading.
                                             13
       Under Pennsylvania law, there is a presumption that “if services are performed for

the payor directly, . . . the amount received is for the service and it is not a gift or

honorarium.” 

. An honorarium, by contrast, “is given to

one who performed services for little or nothing and its tender is decided by the one for

whom the services were performed without an obligation to give it.” 

did not address the valuable consideration prong specifically, but the District Court

did make factual findings germane to determining whether valuable consideration was

exchanged.

       In concluding that Eisenberry was not a “volunteer worker” under the Insurance

Policy, the District Court reasoned that “[a]ll parties agree that Eisenberry received hay

and cash in exchange for feeding donkeys and cleaning the barn. He therefore received a

salary or other compensation for his services . . . .” Shaw, 

, at *8.

This determination would appear to support a finding that Eisenberry received valuable

consideration for his services. Elsewhere in its opinion, however, the District Court

referred to Eisenberry’s compensation as “occasional” and “supplemental and incidental

to his larger purpose for [sic] spending his time on Shaw’s farm.” 

finding paints a somewhat different picture of the compensation, more akin to an

honorarium. The compensation itself amounted to the equivalent of, at most, $144 per

year in hay (fifteen bales per month at eighty cents per bale), $5 or $10 in gas money on

occasion, and the use of Shaw’s truck.

       Given the inherent tension between the District Court’s assessments of

Eisenberry’s compensation and the omission of any analysis on the valuable

                                               14
consideration element, we cannot ascertain, on this record, whether Eisenberry received

valuable consideration for his services. We will remand to the District Court to resolve

this genuine dispute of material fact.

              2.      Element 2: Casual Employment

       The second element of the WCA asks whether the employment was casual.

“[E]mployment is casual in character where it is occasional, irregular, or incidental as

distinguished from regular and continuous.” 

(internal

quotation marks and citation omitted). In other words, work is casual where it “comes

about by chance, fortuitously, and for no fixed duration of time.” 

Wilson, 

, 129 (Pa. 1920)). The District Court found that Eisenberry was

employed casually based on several factual findings: (1) Eisenberry’s employment was

occasional, without a set schedule; (2) Eisenberry’s work served the limited purpose of

caring for the donkeys; and (3) Eisenberry’s compensation was not fixed. Of these

factual findings, only the first is relevant in determining whether Eisenberry worked with

regularity. That Eisenberry’s tasks were limited and his compensation imprecise has no

bearing on the frequency with which he worked.

       As to the regularity of his employment, we conclude that a genuine dispute of

material fact exists that precludes a finding that Eisenberry worked occasionally. In

support of this determination, we look to the “sham affidavit” doctrine. This doctrine

states that “a party may not create a material issue of fact to defeat summary judgment by

filing an affidavit disputing his or her own sworn testimony without demonstrating a

plausible explanation for the conflict.” Baer v. Chase, 

, 624 (3d Cir. 2004)

                                            15
(citation omitted). “[I]f it is clear that an affidavit is offered solely for the purpose of

defeating summary judgment, it is proper for the trial judge to conclude that no

reasonable jury could accord that affidavit evidentiary weight and that summary

judgment is appropriate.” Jiminez v. All Am. Rathskeller, Inc., 

, 253 (3d Cir.

2007). As a remedy, a district court is permitted to disregard the affidavit, 

independent evidence to bolster the contradictory testimony, 

the underlying tort action that Eisenberry brought against Shaw for damages,

Shaw was questioned about the regularity of Eisenberry’s work:

              Q:      Can you tell me how much time that year he would
                      have fed and watered the donkeys?

              A:      10 to 12 times.

              ....

              Q:      Would he – I understand from some testimony they
                      [sic] has given that he would have worked Saturdays
                      and Sundays in feeding and watering the donkeys.
                      Does that sound correct to you?

              A:      No.

              Q:      No? Okay.

              A:      Sundays is a normal day to clean the barn. You know,
                      so it’s possible he could be there a couple of Sundays a
                      year, but . . . .

              Q:      Okay. So your recollection is that he was only there
                      on a few Sundays, a couple of Sundays a year?

              A:      It’s possible that he could have been there, yes.

(App. 18.)


                                               16
       In that same action, Eisenberry was asked a similar line of questioning:

              Q:     And would you work for Tim three days per week?

              A:     Usually two days a week doing the barn, that’s
                     Saturday and Sunday and the rest of the time he’d call
                     me up if he needed me for anything.

              Q:     So what was your primary job with Tim, what was it
                     that you did mostly?

              A:     Clean the barn.
              Q:     And that was usually on a Saturday and Sunday?

              A:     Yup.

              ....

              Q:     You heard him, Tim, testify that you were there,
                     approximately, maybe, 10, 12 times a year?

              A:     I was there a lot more than that. I was there every
                     Sunday.

              Q:     Just helping out at the barn?

              A:     Yeah, cleaning the barn.

(App. 250, 257.) Not only did Eisenberry establish in the prior litigation that he worked

for Shaw at least two days a week, in addition to any days that Shaw requested, but

Eisenberry directly refuted Shaw’s recollection that he (Eisenberry) worked only a

handful of times during the year.

       Now, in the present case, just five days before Shaw and Eisenberry filed a motion

for summary judgment, Eisenberry signed an affidavit that was attached to the motion. In

that affidavit, Eisenberry contradicted his prior testimony in the underlying case and

sought to align his testimony with Shaw’s. As to the frequency with which he worked,

                                            17
Eisenberry stated, “Tim would call me when he needed help usually ten (10) to twelve

(12) times per year.” (App. 91.) Eisenberry made no mention of having worked at least

every Saturday and Sunday, as he previously had testified in the underlying case. 9

       Although Shaw testified in the prior action that Eisenberry worked on an irregular

and infrequent basis, Eisenberry flatly disagreed. Perhaps recognizing that his testimony

would possibly put him within the purview of the employee liability exclusion,

Eisenberry reversed course, just days before moving for summary judgment, and sought

to harmonize his testimony with Shaw’s.

       At oral argument, counsel for Shaw and Eisenberry was presented with, and asked

to explain, Eisenberry’s conflicting testimony. Despite his efforts, counsel was unable to

find congruency between the two sets of statements. Counsel instructed this Court to

breathe new meaning into Eisenberry’s prior testimony that he worked at least two days

per week on Shaw’s farm. As counsel stated, Eisenberry’s farming background and

limited education meant that he viewed the term “work” as synonymous with simply

visiting the animals and performing no work at all. We reject counsel’s interpretation.

Not only does this interpretation—that working at least two days a week cleaning a barn

is a rural euphemism for spending quality time with animals—defy common sense,

counsel could identify no independent evidence in the record to bolster this alternative

interpretation.


       9
         One need not look far to perceive the objective of the affidavit. Eisenberry holds
a judgment based on the underlying action against Shaw. Eisenberry seeks enforcement
of the judgment. Given the employee liability exclusion provision, both Shaw and
Eisenberry would be well served if they testified that Eisenberry was a casual worker.
                                            18
       The District Court determined that there was no inconsistency between

Eisenberry’s testimony and his affidavit regarding the frequency with which he worked.

But the District Court provided no justification for its determination, merely stating,

without support, that “Eisenberry’s description of his frequent presence at the barn and

frequent assistance to Shaw does not contradict Eisenberry’s sworn testimony.” Shaw,

, at *7 n.3. We cannot discern how the District Court reached this

conclusion. To the contrary, as counsel for Shaw and Eisenberry eventually conceded at

oral argument, the common sense understanding of Eisenberry’s prior testimony is in

direct conflict with the statement in his affidavit.

       As a result, it was error for the District Court not to disregard Eisenberry’s sham

affidavit. There remains a genuine dispute of material fact regarding the frequency with

which Eisenberry worked. The District Court’s determination that Eisenberry was

casually employed is unsupported on this record. 

testified that

Eisenberry worked ten to twelve times total during the year the accident occurred.

Eisenberry, on the other hand, testified that he worked every Saturday and Sunday and

any other time that he was needed. Remand is necessary to ascertain whether Eisenberry

was casually employed, pursuant to the second element of the WCA framework.

              3.      Element 3: Engaged in Shaw’s Business

       The third factor we must look to under the WCA framework is whether Eisenberry

performed work in the regular course of Shaw’s business.

       While the District Court did not directly address whether Eisenberry was engaged

in Shaw’s business for purposes of the WCA, elsewhere in its opinion the District Court

                                              19
found that Eisenberry’s task of “caring for and feeding donkeys is action arising out of

the business.” Shaw, 

, at *4. The parties do not challenge this

determination. Based on this isolated statement and an application of the conjunctive

approach, Nationwide asserts that one of the two statutory criteria for exemption is

lacking, requiring that we simply reverse the District Court and award summary

judgment in its favor.

       Given the numerous factual disputes in the record and the District Court’s

omission of any analysis on this element, we find it prudent not to hypothesize whether

the District Court would have found that Eisenberry was engaged in Shaw’s business. As

with the other statutory elements, we will remand for factfinding on this third element.

                                 IV.    CONCLUSION

       For the foregoing reasons, we will vacate the District Court’s Order and remand

for further proceedings.




                                            20