Opinion
No. 29761-2-II.
Filed: March 23, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 02-2-06738-2. Judgment or order under review. Date filed: 12/06/2002. Judge signing: Hon. Lisa Ruscitti Worswick.
Counsel for Appellant(s), Boyd Scott Wiley, Campbell Dille Barnett Smith Wiley, 317 S Meridian, PO Box 488, Puyallup, WA 98371-0164.
Counsel for Respondent(s), Laurence Ross Weatherly, Attorney at Law, 1201 3rd Ave Ste 3200, Seattle, WA 98101-3276.
Alleging vicarious liability, Janet Sample sued The Tacoma News, Inc. d/b/a The Tacoma News Tribune (TNT) after being struck by a car driven by a newspaper carrier. The trial court found that the carrier was an independent contractor as a matter of law and granted TNT's motion for summary judgment. We affirm.
FACTS
On August 12, 2000, Brandy McMillin struck and injured Sample with her car while Sample was crossing the street. At the time of the collision, McMillin was delivering papers for TNT.
McMillin filed for bankruptcy following the accident, and the bankruptcy court allowed only those claims that would be covered by insurance. However, because a "policy exclusion" applied, McMillin's insurer denied coverage for the accident. Sample then sued TNT under a theory that TNT was vicariously liable for McMillin's acts as her employer and that TNT's denial of liability was against public policy, based on state law requiring that drivers carry liability insurance.
McMillin and the TNT were parties to The Independent Motor Dealer Agreement and Addendum (Agreement). The Agreement provides that McMillin, the motor dealer, "as an independent wholesale distributor and not as an employee, agrees to buy, distribute, and deliver, copies of The News Tribune." Clerk's Papers (CP) at 11. Under the Agreement, TNT assigns a particular territory to McMillin, the motor dealer, and leases to her a list of subscribers. The Agreement states that the motor dealer shall "sell and deliver newspapers with [her] own equipment, according to [her] own methods, all of which shall be under [her] exclusive control, including the employment of such assistant as [she] deems necessary." CP at 12. The Agreement provides that the motor dealer "has no right of reimbursement from [TNT] for expenses of any nature incurred by [her]." CP at 12.
Moreover, under the Agreement, a motor dealer is "free to engage in any activities [s]he desires (including services for other publications) so long as they do not interfere with [her] accomplishment of the results described in this Agreement." CP at 13. The Agreement requires that McMillin post a $2,000 bond to "reimburse for any damages sustained because of default by [McMillin]." CP at 13. The contractual relationship was to last for one year, although either party could terminate with 30 days' notice without cause, or for cause at any time with written notice.
The Agreement contains certain performance specifications: that subscribers should receive their papers in a timely manner; that the papers should be received in good condition, along with any advertising or product samples (for which the motor dealer would be paid extra); and that the motor dealer should keep track of names and addresses of subscribers, handle the territory in accordance with the accepted business practices of an independent dealer and, if absent, arrange for a substitute. The Agreement also specified that the motor dealer must meet the reasonable delivery requests of each subscriber and not exceed a set number of complaints per 1,000 papers delivered. In addition, the Agreement set a minimum price for each newspaper. It required the motor dealer to increase the business in the territory if subscriptions dropped below a certain number, and it provided that the motor dealer would be paid commissions for securing new subscriptions.
Finally, the Agreement provided that McMillin was to "hold harmless [TNT] against all claims . . . resulting from [McMillin's] performance of this agreement" (CP at 13), and it required her to "procure and maintain" automobile liability insurance (CP at 12).
Relying on the Agreement, TNT moved for summary judgment on the ground that McMillin was an independent contractor as a matter of law. The trial court granted TNT's summary judgment motion and Sample appeals.
ANALYSIS (1) Summary Judgment
Sample does not allege any disputed material facts. Instead she contends that summary judgment was inappropriate because the question of whether McMillin was a TNT employee or an independent contractor was a question of fact for the jury. We disagree.
(A) Standard of Review
When reviewing an order of summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment is appropriate if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law. CR 56(c). Like the trial court, we must consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wilson, 98 Wn.2d at 437. The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or on having its affidavits considered at face value. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). And the trial court should grant summary judgment only if, from all the evidence, reasonable persons could reach but one conclusion. Wilson, 98 Wn.2d at 437.
Generally, a principal is not liable for the acts of an independent contractor. DeWater v. State, 130 Wn.2d 128, 137, 921 P.2d 1059 (1996). But vicarious tort liability does arise "where one engaging another to achieve a result controls or has the right to control the details of the latter's physical movements." Kroshus v. Koury, 30 Wn. App. 258, 263, 633 P.2d 909 (1981) (quoting McLean v. St. Regis Paper Co., 6 Wn. App. 727, 732, 496 P.2d 571 (1972)), review denied, 96 Wn.2d 1025 (1982).
Here, there are no disputed facts. The question before us is whether, taking these facts in the light most favorable to Sample, a reasonable person could conclude that McMillin was a TNT employee.
In Bloedel Timberlands Development, Inc. v. Timber Industries, Inc., 28 Wn. App. 669, 626 P.2d 30, review denied, 95 Wn.2d 1027 (1981), the court stated:
If the facts are undisputed and but a single conclusion may be drawn therefrom, it becomes a question of law as to whether one is an employee or an independent contractor. Conversely, where the facts as to the agreement between the parties to the transaction are in dispute or are susceptible of more than one interpretation or conclusion, then the relationship of the parties generally becomes a question to be determined by the trier of the facts. Restatement (Second) of Agency sec. 220, comment c (1958).
28 Wn. App. at 675 (quoting Hollingbery v. Dunn, 68 Wn.2d 75, 80, 411 P.2d 431 (1966)).
Here, the parties do not dispute the basic facts regarding the extent of TNT's control. They dispute only whether that level of control made McMillin an employee or an independent contractor. Because the answer to this question is primarily of legal and not factual significance, it is a question of law for the court, not an issue of fact for a jury. See Allstate Ins. Co. v. Neel, 25 Wn. App. 722, 724, 612 P.2d 6 (1980).
(B) Employee or Independent Contractor
A principal is not vicariously liable for the acts of an independent contractor. DeWater, 130 Wn.2d at 137. Vicarious liability does arise, however, where the person whose actions cause injury is an employee. DeWater, 130 Wn.2d at 137. Although a person may call themselves an independent contractor, if the principal retains the right to control the manner and means of that person's work, they are an employee and the principal will be held to have acted through them. DeWater, 130 Wn.2d at 137.
Washington has adopted the Restatement (Second) of Agency for determining whether a person is an employee or independent contractor. The factors considered are:
(a) the extent of control which, by the agreement, 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 done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular 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.
Hollingbery, 68 Wn.2d at 80-81 (quoting Restatement (Second) of Agency, sec. 220(2) (1958)). In Hollingbery, the Court explained:
All of the factors listed are of varying importance in making the determination. With the exception of the element of control, however, it is not necessary that all remaining factors be present, for no one factor is conclusive and, in the final analysis, all directly or indirectly relate to, or inferentially bear upon, the crucial factor of control or right of control resident in the employer or principal.
68 Wn.2d at 81 (emphasis added).
Thus, the crucial factor is the right of control, which must exist to prove agency. But control is not established if the asserted principal retains the right to supervise the asserted agent merely to determine if the agent performs in conformity with the contract. Bloedel, 28 Wn. App. at 674. An independent contractor is one who renders service in the course of an independent occupation; such person represents the will of his employer only as to the result of the work, and not as to the manner or means by which it is accomplished. Cassidy v. Peters, 50 Wn.2d 115, 119, 309 P.2d 767 (1957).
Here, there is no evidence of TNT's actual control over McMillin. But this is not dispositive. It is the TNT's right to exercise control over McMillin, even if it did not actually do so, that determines the legal relationship between the two. And the extent of TNT's right to control McMillin's actions in delivering its newspapers is set out in the Agreement. The Agreement provides in part:
In consideration of the mutual promises and conditions hereinafter contained, [TNT] agrees to sell and [McMillin], as an independent wholesale distributor and not as an employee, agrees to buy, distribute, and deliver, copies of The News Tribune, including supplements, and to lease [TNT's] list of subscribers and single copy locations, upon the following conditions.
. . . .
4. [McMillin] is engaged in an independent business and as a distributor and shall have no authority to represent or purport to speak for or bind [TNT] in any manner other than that which [s]he is explicitly authorized in writing by [TNT].
5. [McMillin] shall:
(a) Purchase from [TNT] a sufficient number of newspapers to adequately service [her] customers according to [her] own method and with the exclusive control over [her] operations and over any persons [s]he may employ or retain to assist [her].
. . . .
13. [McMillin] shall sell and deliver [her] newspapers with [her] own equipment, according to [her] own methods, all of which shall be under [her] exclusive control, including the employment of such assistants as [s]he deems necessary. [She] has no right of reimbursement from [TNT] for expenses of any nature incurred by [her], including that expense or liability of any nature for a substitute dealer, except as explicitly set forth in this Agreement. [McMillin] warrants prompt and efficient performance of all [her] obligations, each being of the essence.
CP at 11-12.
The Agreement clearly demonstrates TNT's intention that McMillin be an independent contractor and not an employee. In addition, the Agreement shows that the TNT directed the timing of deliveries, but that it did not limit the number of deliveries that could be made in the area, nor did it retain the right to control the manner and means of delivery or even decide who would actually deliver the newspapers. The Agreement specifically states that the driver controls the manner and means of delivery, determines the equipment and supplies needed, bears the responsibility for any expenses for equipment, may hire employees to assist in the timely delivery of the newspapers, and may deliver items for other businesses, so long as these deliveries do not interfere with the timely delivery of the newspapers.
The Agreement was for a one-year term, but McMillin did not receive a salary or benefits from TNT. Her compensation was the difference between the wholesale price she paid for the newspapers and the retail prices of the newspapers delivered in her contracted area. And she bore the loss of any undelivered newspapers. All of these factors indicate that McMillin was an independent contractor and not an employee.
In addition, the parties have directed us to three Washington cases from the 1930s that decided whether newspaper carriers were employees or independent contractors. We find that the most recent of these supports our conclusion here, while the other two cases are distinguishable. In the first case, Wilson v. Times Printing Company, 158 Wn. 95, 290 P. 691 (1930), in upholding a jury verdict for plaintiff, the Court found that whether the newspaper carrier was an independent contractor or an employee of the newspaper could not be determined as a matter of law. 158 Wash. at 100. But we note that a number of factors distinguished Wilson from the present case, including that the contract in Wilson was oral; the carrier was paid a salary; he had a duty to promote goodwill; his services were "personally required"; and his contract could be terminated at any time. In the second case, Femling v. Star Publishing Company, 195 Wn. 395, 81 P.2d 293, vacated on other grounds, 84 P.2d 1008 (1938), upholding a jury verdict for plaintiff, the Court held that the relevant test was whether the newspaper had the right to control the manner of the work, and the requirement that deliveries be completed by a certain time necessitated the use of a bicycle (and the plaintiff's son had been struck and injured by the carrier while he was riding a bicycle). 195 Wash. at 407-09. As such, the jury could have found that the newspaper had the right to control the manner of work. Finally, in Washington Recorder Publishing Company v. Ernst, 199 Wn. 176, 91 P.2d 718 (1939), a publishing company sought a declaratory judgment as to the status of newspaper carriers under the unemployment compensation statute. Based on the statutory factors, which mirrored the common law test, the Court determined that the carriers were not employees. (In so finding, the Court found Wilson distinguishable and dismissed Femling as invalid precedent. Ernst, 199 Wash at 186.).
(2) Public Policy
Sample next contends that TNT's denial of liability is against public policy. In support, she cites to the Financial Responsibility Act, chapter 46.29 RCW, and the Mandatory Liability Insurance Act, chapter 46.30 RCW, and various cases stating that it is the public policy of the state to protect the public from motorists who are unable to compensate their victims. See, e.g., Mendoza v. Rivera-Chavez, 140 Wn.2d 659, 664, 999 P.2d 29 (2000). Sample does not elaborate on this theory or explain how statutes requiring liability insurance for individual operators mandate extending liability to those, such as the businesses, for whom tortfeasors perform work. We will not consider arguments that are not developed in the briefs and for which a party has not cited authority. State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990); RAP 10.3(a)(5) (appellate brief should contain argument supporting issues presented for review, citations to legal authority, and references to relevant parts of the record).
Moreover, we note that the Agreement required McMillin to carry liability insurance:
14. [McMillin] shall procure and maintain in force at the commencement of and during the term of this Agreement the following insurance:
Automobile Liability Insurance including owned, non-owned, and hired motor vehicles (whether driven by [McMillin] or [her] substitute or agent) with a combined single limit of at least $100,000 in respect to bodily injury, including death, and property damage arising from any one occurrence. This insurance shall be endorsed to include [TNT] as an additional insured.
[McMillin], upon request, will furnish [TNT] with certificates of insurance evidencing that the insurance policy(s) described above are in force at the commencement of and during the term of this Agreement. These certificates shall provide for thirty (30) days' prior written notice to [TNT] of cancellation or any material change.
CP at 12. (TNT did not request proof of insurance from McMillin.) On these undisputed facts and under the clear terms of the Agreement, McMillin was an independent contractor. The trial court did not err in granting TNT summary judgment. We therefore affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON and ARMSTRONG, J., concur.