Hemphill v. State Farm Ins. Co., 84-536

Citation472 So.2d 320
Decision Date26 June 1985
Docket NumberNo. 84-536,84-536
PartiesCharles HEMPHILL, et al., Plaintiffs-Appellants, v. STATE FARM INSURANCE COMPANY, et al., Defendants-Appellees.
CourtCourt of Appeal of Louisiana (US)

Charles E. Joiner, West Monroe, McKinley & O'Neal, Hodge O'Neal, III, Monroe, for plaintiffs-appellants.

Mayer, Smith & Roberts, Caldwell Roberts, Shreveport; Gaharan & Wilson, Donald R. Wilson, Jena; Gold, Simon, etc., Sam Poole, Jr.; Stafford, Stewart & Potter, Russell L. Potter; Bolen & Erwin, Marsha Hopper and Gregory S. Erwin, Alexandria, for defendants-appellees.

Before GUIDRY, KNOLL and KING, JJ.

GUIDRY, Judge.

On April 14, 1983, a multi-vehicle collision occurred on U.S. Highway 165 in LaSalle Parish. One of the vehicles involved in the accident was a truck and trailer owned by Robert Cloer and being driven by Larry Salter. At the time of the accident, Cloer and Salter were hauling ten oilfield engines to Trout, Louisiana, for C.L. Harvey. Among the parties named as defendants in the three lawsuits filed as a result of this accident were C.L. Harvey and his insurer, Shelter Insurance Company (Shelter). 1 Harvey and Shelter were also third partied by other defendants. In the pleadings referred to, Harvey was alleged to be the employer of Cloer and Salter and therefore vicariously liable for the damages occasioned by their fault. Alternatively, it was alleged that Harvey was independently negligent for hiring Cloer and Salter.

Motions for summary judgment were filed by both Harvey and Shelter in all three cases. In his motions for summary judgment, Harvey contends that there is no genuine dispute as to any fact material to a finding that he is not the employer of Cloer and Salter nor was he negligent for contracting with such individuals. Shelter, in its motion, makes the same contentions as Harvey and, in the alternative, urged that the policies issued by it to Harvey do not provide coverage for any liability which might arise on the part of Harvey as a result of this accident.

Harvey's motion was supported by the introduction of his affidavit and the depositions of Cloer and Salter. Shelter supported its motion by introduction of the policies issued by it to Harvey as well as the affidavit of one of its executives. The opponents to the motion for summary judgment relied upon the depositions of Cloer, Salter and Harvey.

The trial court granted Harvey and Shelter's motions for summary judgment on the basis that Cloer and Salter were not employees or servants of Harvey at the time of the accident. Furthermore, the trial court found that the policies issued by Shelter to Harvey did not cover this accident even if there would have been a finding of vicarious liability on the part of Harvey.

Appeals were taken by the opponents to the motions for summary judgment. Inasmuch as the three lawsuits were based upon common facts, they were consolidated at the trial level. The cases remain consolidated on appeal, and we this day render separate decisions in the companion cases entitled Hemphill v. State Farm Mutual Automobile Insurance Company, 472 So.2d 325 (La.App. 3rd Cir.1985), and Dezendorf v. State Farm Insurance Company, 472 So.2d 325 (La.App. 3rd Cir.1985).

The issues presented on appeal are: (1) Is there a genuine issue of material fact concerning whether Salter and Cloer were servants or employees of Harvey? (2) Is there a genuine issue of material fact concerning Harvey's lack of personal fault? (3) Is there a genuine issue of material fact concerning applicability of the Shelter insurance policies issued to Harvey? For reasons explained below, we answer the first two questions in the negative and thus need not consider the third issue.

EMPLOYER-EMPLOYEE RELATIONSHIP

Masters and employers are answerable for the damages occasioned by their servants, in the exercise of the functions in which they are employed. La.C.C. Art. 2320. A determination as to whether a person's status is that of independent contractor, in which case there is no vicarious liability, or that of mere servant, in which case the employer is vicariously liable for the torts of his employee, depends in great measure upon whether and to what degree the right to control the work has been contractually reserved by the principal. The supervision and control which is actually exercised by the principal is less significant. Arledge v. Royal-Globe Insurance Company, 401 So.2d 615 (La.App. 3rd Cir.1981). In Odom v. Eaves, 311 So.2d 575 (La.App. 3rd Cir.1975), this court stated:

"The law with regard to who is an independent contractor is set out in Hickman v. Southern Pacific Transport Co., 262 La. 102, 262 So.2d 385 (1972), and Amyx v. Henry & Hall, 227 La. 364, 79 So.2d 483 (1955). In those cases the Supreme Court stated that the independent contractor relationship involves a contract between the parties; the independent nature of the contractor's business; and the nonexclusive means the contractor may employ in accomplishing the work. It must also be shown that a specific price for the overall undertaking is agreed upon; that the duration of the undertaking is for a specific time and not subject to termination or discontinuance at the will of either side without a liability for its breach.

In both Hickman and Amyx the court emphasized that the most pertinent inquiry in determining whether a relationship is one of independent contractor or master-servant is 'the control over the work reserved by the employer.' Hickman v. Southern Pacific Transport Co., 262 So.2d at 391. The court in Hickman stated further:

'In applying this test it is not the supervision and control which is actually exercised which is significant, the important question is whether, from the nature of the relationship, the right to do so exists.' 262 So.2d at 391."

In the instant case, the pertinent facts, as adduced from the affidavits and depositions, are as follows: C.L. Harvey is in the business of buying and selling oilfield equipment. On April 4, 1983, Harvey traveled to Gladewater, Texas to purchase ten oilfield engines from Robert Spears. Spears and Harvey had conducted business on previous occasions. After the sale of the engines was completed, the discussion turned to how the engines would be transported back to Harvey's yard in Trout, Louisiana. Normally, Spears would transport the equipment purchased by Harvey back to Trout, however, on this occasion, Spears could not do so on account of his vehicles being tied up on other deliveries. Spears suggested that Harvey engage the services of Robert Cloer, another local oilfield equipment businessman, to haul the engines. Harvey contacted Cloer and the latter agreed to make the delivery for a fee of $300.00. Cloer, accompanied by his employee, Larry Salter, arrived at Spears' yard to meet with Harvey. Harvey and Cloer had never met before but had spoken over the telephone once or twice before regarding the possible sale of some equipment. They had never transacted any business prior to that date. Harvey paid Cloer the price agreed upon, i.e., $300.00, by check and proceeded to instruct Cloer as to how to get to Trout, however, Cloer immediately indicated to Harvey that he knew how to get there since he had previously engaged in some oilfield work in that area. Harvey informed Cloer that someone would be at his yard in Trout to unload the engines at 4:00 p.m. Cloer was given a key to the yard. The ten engines were loaded by employees of Spears with the aid of Cloer and Salter. Harvey did not participate in the loading in any way except to drive Salter to another local yard in order to retrieve some chains and locking devices owned by Cloer which were to be used to tie down the engines onto Cloer's trailer. Cloer's trailer was a 30 foot gooseneck trailer being pulled by a one-ton 1981 Chevrolet truck. Cloer and Salter left Gladewater around noon and headed for Louisiana. Along the route, the two imbibed alcoholic beverages. Salter drank a six pack of beer and Cloer, at the very least, a half-pint of whiskey mixed with Coke. After reaching Winnfield, Louisiana, Cloer became sleepy and allowed Salter to take over the driving duties. At approximately 8:00 p.m., Cloer became lost on U.S. Highway 165 near Olla, Louisiana. Salter attempted to make a U-turn on the two laned highway. In doing so, the truck became stuck on the shoulder area with the trailer extended across one or both lanes of Highway 165. Within a matter of minutes, one of the plaintiffs' vehicles struck the trailer which was blocking its lane of travel. For an undetermined reason, one of the engines on Cloer's trailer fell onto the highway. A second vehicle struck the motor. The above facts are without genuine dispute.

In Industrial Sand and Abrasives, Inc. v. Louisville and Nashville Railroad Company, 427 So.2d 1152 (La.1983), the Louisiana Supreme Court made the following comments regarding the law on motions for summary judgment:

"The sole purpose for the motion for summary judgment...

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