958 F.2d 303 (10th Cir. 1992), 90-1300, Oestman v. National Farmers Union Ins. Co.

Docket Nº90-1300.
Citation958 F.2d 303
Party NameElmer E. OESTMAN, Jr., Plaintiff-Appellant, v. NATIONAL FARMERS UNION INSURANCE CO., a corporation, National Farmers Union Property and Casualty Co., a corporation, National Farmers Union Standard Insurance Co., a corporation, National Farmers Union Life Insurance Co., a corporation, Farmers Union Mutual Insurance Co., a corporation, Farmers Union
Case DateMarch 03, 1992
CourtUnited States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 303

958 F.2d 303 (10th Cir. 1992)

Elmer E. OESTMAN, Jr., Plaintiff-Appellant,

v.

NATIONAL FARMERS UNION INSURANCE CO., a corporation,

National Farmers Union Property and Casualty Co., a

corporation, National Farmers Union Standard Insurance Co.,

a corporation, National Farmers Union Life Insurance Co., a

corporation, Farmers Union Mutual Insurance Co., a

corporation, Farmers Union Mutual Insurance Company of

Denver, Colorado, a corporation, and Farmers Union Service

Association, a corporation, Defendants-Appellees.

No. 90-1300.

United States Court of Appeals, Tenth Circuit

March 3, 1992

John R. Olsen, Olsen and Brown, Boulder, Colo., for plaintiff-appellant.

John M. Husband, Holland & Hart (Peter M. Ludwig, with him, on the brief), Denver, Colo., for defendants-appellees Nat. Farmers Union Property and Cas. Co., Nat. Farmers Union Standard Ins. Co. and Nat. Farmers Union Life Ins. Co.

Karen A. Tomb, Hill & Robbins, P.C. (Robert F. Hill and David R. Fine, with her, on the brief), Denver, Colo., for defendants-appellees Farmers Union Service Ass'n and Farmers Union Mut. Ins. Co.

Before LOGAN and SETH, Circuit Judges, and BRATTON, District Judge [*].

SETH, Circuit Judge.

Appellant, Elmer Oestman, appeals from the district court's grant of summary judgment in favor of defendants on Mr. Oestman's claim under the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (ADEA). The district court concluded that it did not have subject matter jurisdiction

Page 304

over Mr. Oestman's claim because he was an independent contractor and not an employee for the purposes of ADEA. On appeal, Appellant contends that the amount of control exercised over him by Appellees qualifies him as an employee under ADEA. For the reasons that follow we affirm the decision of the district court.

Appellant, an insurance agent, contracted with Appellees to sell insurance beginning in 1963. The engagement contracts, called "local agent agreements," signed by Appellant govern the relationship between Appellant and Appellees. The contracts provide in part:

"2. Responsibilities:

"(a) LOCAL AGENT, acting solely as an independent contractor, is hereby authorized to solicit and submit written applications for the insurance policies and other contracts of INSURER strictly in accordance with the instructions and direction of INSURER...."

(Emphasis added.)

Other limitations on the relationship between the parties also were spelled out in the contracts. For example, the contracts prohibit the agent from initiating any advertising of the insurance policies without the prior written consent of the insurer and the general agent; require the local agent to agree that neither he nor any member of his immediate family residing in his home will solicit or sell any other insurance without the insurer's and general agent's written consent; prevent the local agent from making any modifications or waivers of the prescribed requirements in the insurance applications and the...

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53 practice notes
  • 3 F.3d 1488 (11th Cir. 1993), 92-8221, Daughtrey v. Honeywell, Inc.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eleventh Circuit
    • October 7, 1993
    ...ADEA does not provide relief for discrimination against an independent contractor. See, e.g., Oestman v. National Farmers Union Ins. Co., 958 F.2d 303, 305-06 (10th Cir.1992); Garrett v. Phillips Mills, Inc., 721 F.2d 979, 980 (4th Cir.1983); EEOC v. Zippo Mfg. Co., 713 F.2d 32, 35 (3rd Cir......
  • 920 F.Supp. 934 (S.D.Ind. 1996), IP 95-576, Mukhtar v. Castleton Service Corp.
    • United States
    • Federal Cases United States District Courts 7th Circuit Southern District of Indiana
    • February 26, 1996
    ..."employer" pays social security taxes; and (11) the intention of the parties. E.g., Oestman v. National Farmers Union Ins. Co., 958 F.2d 303, 305 (10th Cir.1992). Cf. Knight, 950 F.2d at 379 n. 2 (characterizing these eleven factors as additional ones for the economic realities Th......
  • The status of graduate students and that of medical residents under the National Labor Relations Act as a starting point for crafting a statutory definition of 'employee'.
    • United States
    • Case Western Reserve Law Review Vol. 59 Nbr. 4, June 2009
    • June 22, 2009
    ...See, e.g., Deal v. State Farm County Mut. Ins. Co. of Texas, 5 F.3d 117, 118-19 (5th Cir. 1993); Oestman v. Nat'l Farmers Union Ins. Co., 958 F.2d 303, 305 (10th Cir. 1992); EEOC v. Zippo Mfg. Co., 713 F.2d 32, 38 (3d Cir. 1983); Garrett v. Phillips Mills, 721 F.2d 979, 981-82 (4th Cir. 198......
  • 15 F.3d 103 (8th Cir. 1994), 93-1642, Wilde v. County of Kandiyohi
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • January 27, 1994
    ...applied a test described as a hybrid of the common-law test and the economic realities test. Oestman v. National Farmers Union Ins. Co., 958 F.2d 303, 305 (10th Cir.1992); Mares v. Marsh, 777 F.2d 1066, 1067-68 & n. 2 (5th Cir.1985); Garrett v. Phillips Mills, Inc., 721 F.2d 979, 981-82......
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52 cases
  • 3 F.3d 1488 (11th Cir. 1993), 92-8221, Daughtrey v. Honeywell, Inc.
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eleventh Circuit
    • October 7, 1993
    ...ADEA does not provide relief for discrimination against an independent contractor. See, e.g., Oestman v. National Farmers Union Ins. Co., 958 F.2d 303, 305-06 (10th Cir.1992); Garrett v. Phillips Mills, Inc., 721 F.2d 979, 980 (4th Cir.1983); EEOC v. Zippo Mfg. Co., 713 F.2d 32, 35 (3rd Cir......
  • 920 F.Supp. 934 (S.D.Ind. 1996), IP 95-576, Mukhtar v. Castleton Service Corp.
    • United States
    • Federal Cases United States District Courts 7th Circuit Southern District of Indiana
    • February 26, 1996
    ..."employer" pays social security taxes; and (11) the intention of the parties. E.g., Oestman v. National Farmers Union Ins. Co., 958 F.2d 303, 305 (10th Cir.1992). Cf. Knight, 950 F.2d at 379 n. 2 (characterizing these eleven factors as additional ones for the economic realities Th......
  • 15 F.3d 103 (8th Cir. 1994), 93-1642, Wilde v. County of Kandiyohi
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Eighth Circuit
    • January 27, 1994
    ...applied a test described as a hybrid of the common-law test and the economic realities test. Oestman v. National Farmers Union Ins. Co., 958 F.2d 303, 305 (10th Cir.1992); Mares v. Marsh, 777 F.2d 1066, 1067-68 & n. 2 (5th Cir.1985); Garrett v. Phillips Mills, Inc., 721 F.2d 979, 981-82......
  • 71 F.Supp.2d 1085 (D.Kan. 1999), 98-2401, Saxon v. Thompson Orthodontics
    • United States
    • Federal Cases United States District Courts 10th Circuit District of Kansas
    • August 19, 1999
    ...is the employer's right to control the 'means and manner' of the worker's performance." Oestman v. National Farmers Union Ins. Co., 958 F.2d 303, 305 (10th Cir.1992) (applying hybrid test to determine whether insurance agent was an "employee" for purposes of ADEA) (quoting Sp......
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