Opinion
Consolidated Nos. 1:02-cv-063 177, Edgar / Carter
October 14, 2003
MEMORANDUM AND ORDER
This case arises out of a motor vehicle accident in Chattanooga, Tennessee. Plaintiffs Julie E. Arledge and her husband, Charles Dayne Arledge, bring this action under Tennessee law claiming they are entitled to recover compensatory damages for personal injuries caused by the defendants' common law negligence and negligence per se. Plaintiffs invoke the Court's diversity jurisdiction under 28 U.S.C. § 1332. There are two motions before the Court.
I. Plaintiffs' Motion To Set Deadline For Defendant's Objections To Videotape Deposition [Court File No. 51]
Plaintiffs move pursuant to FED. R. Civ. P. 16 for the Court to set a deadline for the defendants to state their objections, if any, to the questions posed to Gregory Ball, M.D., during his videotaped deposition taken on June 16, 2003. [Court File No. 51]. The motion is GRANTED. If the defendants have any objections under the FEDERAL RULES OF EVIDENCE concerning the videotaped deposition of Dr. Gregory Ball, defendants shall file their objections in writing with the Court no later than October 17, 2003.
II. Motion By Defendant Omega Meats, Inc. For Summary Judgment [Court File No. 23]
Defendant Omega Meats, Inc. ("Omega") moves for summary judgment pursuant to FED. R. Civ. P. 56. [Court File No. 23]. Omega contends it is not liable for the alleged tortious conduct of defendant Willis Collins, III ("Collins") at the time of the motor vehicle collision based on the doctrine of respondeat superior. Omega argues that Collins was not its agent and that Collins was an independent contractor. Plaintiffs oppose the motion.
After reviewing the record, the Court concludes that Omega's summary judgment motion is DENIED. There is a genuine issue of material feet in dispute whether Collins was an independent contractor and the issue must be determined by a jury at trial.
Whether there is a principal-agent relationship exists or a person is an independent contractor for purposes of applying the doctrine of respondeat superior is ordinarily an issue of fact to be decided by the trier of fact. It depends on the unique facts and circumstances of the particular relationship between Omega and Collins. If the material facts concerning the relationship are undisputed and support only one possible conclusion, then it becomes a question of law and the Court may grant summary judgment. Stratton v. United Inter-Mountain Tel. Co., 695 S.W.2d 947, 953 (Tenn. 1985); Seals v. Zollo, 205 Tenn. 463, 469, 327 S.W.2d 41, 43-44 (1959);Ascolese v. Misco, Inc., 1989 WL 25588, * 2 (Tenn.Ct.App. March 22, 1989).
In determining whether Collins was acting either as an agent of Omega or an independent contractor, the following factors are considered:
1. Whether Omega had a right to exercise control over the details of Collins' work;
2. The right of termination;
3. The method of payment;
4. Whether Collins furnished his own helpers;
5. Whether Collins furnished his own tools and work equipment;
6. Whether Omega is doing work for another;
7. Whether Collins scheduled his own work hours;
8. Whether Collins was free to render services to other entities or employers;
9. Whether Collins was engaged in a distinct occupation or business;
10. Collins' kind of work with reference to whether, in the locality of Chattanooga, Tennessee, such work is usually done under the direction of an employer or by a specialist without supervision;
11. The degree and level of skill required by the kind of work performed by Collins;
12. The length of time for which Collins was to be employed;
13. Whether the work performed by Collins is part of the regular business of Omega;
14. What Omega and Collins believe concerning the nature of their relationship; and
15. Whether Omega is in business.
These various factors are recognized in Tennessee caselaw. Galloway v. Memphis Drum Service, 822 S.W.2d 584, 586 (Tenn. 1991); Stratton, 695 S.W.2d 947; Carter v. Sparta Elec. Sys., 690 S.W.2d 218 (Tenn. 1985); Masiers v. Arrow Transfer Storage Co., 639 S.W.2d 654 (Tenn. 1982); Beare Co. v. State, 814 S.W.2d 715 (Tenn. 1991); Ascolese, 1989 WL 25588 at * 2-3; Youngblood v. Wall, 815 S.W.2d 512 (Tenn.Ct.App. 1991); see also 8 Tennessee Pattern Jury Instructions — Civil § 12.10 Comment (3rd ed. 1997).
Although no single factor is determinative, the Tennessee courts emphasize the importance of the employer's right to control the details — time, place, method, and means — of the work. Galloway, 822 S.W.2d at 586-87; Carver, 690 S.W.2d at 220; Masters, 639 S.W.2d at 656. The test is not whether the right to control was actually exercised, but only whether the right to control existed. Carver, 690 S.W.2d at 220. The more extensive the employer's right to control the details of the work, the more likely it is that a principal-agent relationship exists. In contrast, it is more likely that a person is an independent contractor if he contracts to do the work according to his own methods, free from the employer's control except for the result. Ascolese, 1989 WL 25588 at * 3. Mere control over the end result of the work indicates the status of an independent contractor.
A person will not be considered an agent/employee merely because the employer retains the right to either (1) inspect the work in progress to determine whether it conforms to the contract, or (2) accept or reject the work upon its ultimate completion. Ascolese, 1989 WL 25588 at * 3. A party to a contract can exercise direction and control over the results of the work without destroying the independence of the contract or creating a principal-agent (employer-employee) relationship for purposes of applying the respondeat superior doctrine. Masters, 639 S.W.2d at 656; Barnes v. National Mortgage Company, 581 S.W.2d 957, 959 (Term. 1979).
Some of the factors enumerated supra support a finding that Collins was an independent contractor. On the other hand, some factors also support the opposite finding that a principal-agent relationship existed between Omega and Collins. Based on the proof in the record, it is possible that a rational, objective jury could reasonably find that Collins was Omega's agent and not an independent contractor. Accordingly, it is an issue for the jury to decide and Omega's summary judgment motion must be denied. Hendrix v. City of Maryville, 431 S.W.2d 292, 297 (Tenn.Ct.App. 1968); F. Perlman and Co. v. Gillian, 355 S.W.2d 638, 647 (Tenn.Ct.App. 1961).
In the context of federal employment discrimination law, the Sixth Circuit has said that the determination of employment status — employee vs. independent contractor — is a mixed question of law and fact. Sometimes a judge can make the determination as a matter of law based on undisputed facts. But where there is a genuine issue of material fact in dispute, or where conflicting inferences can reasonably be drawn from undisputed facts, then the issue is to be decided by the trier of fact. Lilley v. BTM Corporation, 958 F.2d 746, 750 n. 1 (6th Cir. 1992); see also Alfred v. Tennessee Farmers Mut. Ins. Co., 8 F. Supp.2d 1024, 1026 (E.D. Tenn. 1997). This view is entirely consistent with the relevant Tennessee precedent.
Omega relies in part on the terms of a contract executed by Collins. In February 26, 2001, Collins executed a contract which identifies him as an "independent subcontractor" but this does not necessarily mean that Collins is an independent contractor as a matter of law. United States v. Boyd, 211 Tenn. 139, 363 S.W.2d 193 (1962), affirmed, 378 U.S. 39 (1962); Pryor v. Southbrook Mall Associates, Ltd., 1998 WL 802005, * 3 (Tenn.Ct.App. Nov. 18, 1998); Henley v. Tom Moore Realtors, Inc., 1991 WL 66506, * 1 (Tenn.Ct.App. May 1, 1991). Whether Omega and Collins believe and intend that their relationship is one where Collins is an independent contractor is a factor to be considered. But the contract and the intentions of Omega and Collins are not controlling. Id.; Franklin Dist. Co. v. Crush International (U.S.A.), Inc., 726 S.W.2d 926 (Tenn.Ct.App. 1986); Hendrix, 431 S.W.2d at 296-97; Rich Printing Co. v. McKeller's Estate, 330 S.W.2d 361 (Tenn.Ct.App. 1959).
Omega also points out that it did not withhold any social security, federal income taxes, and unemployment taxes from Collins. Collins was paid on a commission basis and he was responsible for reporting and paying his own federal income taxes. While the method of payment weighs in favor of a finding that Collins was an independent contractor, it is but one factor among many to be considered. The fact that Omega does not withhold social security and federal income taxes from Collins' wages or sales commissions is insufficient by itself to establish that Collins was an independent contractor. Galloway, 822 S.W.2d at 586; Star/light, Inc. v. Thoni, 773 S.W.2d 908, 910 (Tenn. 1989); Carver, 690 S.W.2d at 221.
Omega's motion for summary judgment [Court File No. 23] is DENIED.
SO ORDERED.