Bettinger v. Idaho Auto Auction, Inc.

• Citation: 128 Idaho 327,912 P.2d 695
• Decision Date: 12 March 1996
• Docket Number: No. 21698,21698
• Parties: James P. BETTINGER, an individual, Plaintiff-Appellant-Cross Respondent, v. IDAHO AUTO AUCTION, INC., an Idaho corporation, Defendant-Respondent-Cross Appellant.
• Court: Idaho Court of Appeals

Page 695

912 P.2d 695

128 Idaho 327

James P. BETTINGER, an individual, Plaintiff-Appellant-Cross Respondent, v. IDAHO AUTO AUCTION, INC., an Idaho corporation, Defendant-Respondent-Cross Appellant.

No. 21698.

Court of Appeals of Idaho.

March 12, 1996.

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Deborah Ann Bail, District Judge. Hon. A. Richard Grant, Magistrate.

Order of district court, on appeal from magistrate division, vacating jury verdict and remanding for entry of judgment, affirmed award of attorney fees, vacated and remanded.

Thomas G. Maile IV, Boise, for appellant.

Cantrill, Skinner, Sullivan & King, Boise, for respondent. Tyra H. Stubbs, argued.

PERRY, Judge.

James P. Bettinger was involved in a traffic accident in which another driver, Robert Young, was negligent. Young had an agreement with Idaho Auto Auction, Inc. (IAA) to transport vehicles for salvage. A trial ensued to determine the amount of damages and whether IAA was responsible for Young's negligence under the doctrine of respondeat superior. At the close of Bettinger's case, IAA moved for a directed verdict on the basis that the evidence presented was insufficient to establish that Young was an employee of IAA. The magistrate denied the motion, and the jury rendered a verdict in favor of Bettinger. IAA appealed to the district court which held that the magistrate erred in failing to grant a directed verdict on behalf of IAA. The district court vacated the jury's verdict, remanded the case for the entry of a judgment in favor of IAA and awarded attorney fees to IAA pursuant to Idaho Code Section 12-120. Bettinger now appeals from the district court's order.

I. FACTS AND PROCEDURE

James P. Bettinger stopped his vehicle near the intersection of Fairview and Cole in Boise to allow the vehicle in front of him to make a left turn. The vehicle behind Bettinger also stopped. The next vehicle in line was a tow truck driven by Young. Young failed to stop and ran into the vehicle in front of him, which then collided with Bettinger's vehicle. Young was towing a vehicle for IAA at the time of the incident. Bettinger initially filed suit against Young and two other drivers involved in the accident. Bettinger amended the complaint and named IAA as the defendant, on a theory that IAA was Young's employer and thereby liable for his actions pursuant to the doctrine of respondeat superior. ¹

The parties stipulated that Young was negligent and caused the collision. A dispute arose at trial as to whether Young was an independent contractor or an employee of IAA based on the following evidence. IAA operates a wholesale automobile auction. IAA had established a business relationship with a Portland company which owned two salvage yards. IAA sold vehicles for the Portland company and received a commission. The Portland company contacted Young with a proposal that he transport vehicles to IAA's premises for sale. Although no written contract was entered, an agreement was reached whereby Young began transporting the vehicles to IAA. IAA contacted Young with "pick up" orders for certain vehicles and requested that he deliver them. Young was paid for his services by IAA. This arrangement existed for several months prior to the accident involving Bettinger. Young had owned a towing business called A-1 Towing when the arrangement with IAA began, but he sold the assets of that business and purchased a new tow truck prior to the accident.

At the close of Bettinger's case, IAA moved for a directed verdict. The magistrate reviewed the testimony and denied the motion. The trial continued and the case then went to the jury, which awarded $5,085 to Bettinger. The magistrate ordered IAA to pay costs in the amount of $320 and attorney fees in the amount of $10,583.

IAA appealed to the district court. The district court ruled that the magistrate erred in failing to grant the directed verdict. The district court vacated the jury's verdict and remanded the case for entry of judgment in favor of IAA. The district court awarded costs and fees incurred on appeal to IAA in the amounts of $701.55 and $2,061 respectively.

Bettinger asserts that substantial evidence supported the jury's finding that Young was an employee and, therefore, the district court's order holding that a directed verdict should have been entered was erroneous. Bettinger further argues that the district court erred in awarding attorney fees to IAA, that the magistrate properly awarded attorney fees to Bettinger and that he is also entitled to attorney fees on appeal. IAA cross-appeals, claiming that the district court erred by limiting the attorney fees awarded to IAA to those incurred on appeal and by failing to award IAA the attorney fees incurred in the trial before the magistrate.

II. ANALYSIS

A. Directed Verdict

1. Standard of review

Whether a motion for a directed verdict should be granted is a question upon which the parties are entitled to full review by the appellate court without special deference to the views of the trial court. On review, we apply the same standard that governed the trial court's decision--whether, viewing the evidence in the record in the light most favorable to the non-moving party, there is substantial evidence upon which a jury could properly have found in favor of the non-moving party. Cannon Builders, Inc. v. Rice, 126 Idaho 616, 622, 888 P.2d 790, 796 (Ct.App.1995). This Court is called upon to make the legal determination as to whether there was evidence sufficient to create an issue of fact. Quick v. Crane, 111 Idaho 759, 763, 727 P.2d 1187, 1191 (1986). Because the moving party admits the truth of the adverse evidence, this Court, in determining whether there is substantial evidence to submit the case to the jury, will examine the evidence in favor of the plaintiff and will not consider any conflicting evidence presented by the defendant. Curtis v. DeAtley, 104 Idaho 787, 789, 663 P.2d 1089, 1091 (1983).

2. Sufficiency of the evidence

The doctrine of respondeat superior states that an employer is responsible for the torts of its employee when the torts are committed within the scope of employment. The issue of dispute between the parties in this case is whether Young was serving as an employee or as an independent contractor. IAA's right to control Young is central to the question of whether IAA was Young's employer and may, therefore, be imputed with liability for Young's tortious act. Van Vranken v. Fence-Craft, 91 Idaho 742, 747, 430 P.2d 488, 493 (1967). The right to control test has been explained by the Idaho Supreme Court in reference to the worker's compensation statutes. Kiele v. Steve Henderson Logging, 127 Idaho 681, 905 P.2d 82 (1995). The Supreme Court has recognized four factors used to determine whether a right to control exists: (a) direct evidence of the right to control; (b) method of payment; (c) furnishing major items of equipment; and (d) the right to terminate the relationship at will. Kiele, 127 Idaho at 683, 905 P.2d at 84, citing Mortimer v. Riviera Apartments, 122 Idaho 839, 844, 840 P.2d 383, 388 (1992). See also Livingston v. Ireland Bank, 128 Idaho 66, 910 P.2d 738 (1995).

(a) Direct evidence of IAA's right to control

Bettinger claims that two components of the working relationship indicate that IAA had the right to control Young's performance and was therefore his employer: (1) the requirement that Young pick up the vehicles on a specified date; and (2) the volume of work which Young performed for IAA.

Bettinger asserts that because that Young was required to pick up the vehicles on a specified date, IAA controlled Young's performance. Review of the record makes it clear that the date of delivery was, in fact, flexible unless a check had already been prepared to pay for storage costs of the vehicle. If IAA had already issued a check, IAA requested that the vehicle be picked up on the date indicated on the check to prevent additional storage charges. However, if Young was unable to accomplish the delivery on the date specified, he paid for the additional storage charge and was then reimbursed by IAA.

Several cases have discussed the exertion of control over the time when work was to be done and whether this indicated an employment relationship. Notably, these discussions deal with the daily working schedule of the parties. The party who decides when work starts in the morning, when lunch and intermediate breaks will occur and when the work day will end, exerts control over the execution of the duties involved. See Olvera v. Del's Auto Body, 118 Idaho 163, 795 P.2d 862 (1990); Sines v. Sines, 110 Idaho 776, 718 P.2d 1214 (1986); Anderson v. Farm Bureau Mutual Insurance Co. of Idaho, 112 Idaho 461, 732 P.2d 699 (Ct.App.1987). Here, Young scheduled his own day. In fact, Young, not IAA, determined if the dates on the checks could be met and, if not, arranged to pick up the vehicles at a later date. Specifying a date of delivery would not, in itself, amount to control over Young's performance of his duties. The district court noted that the mere fact that IAA gave dates on which Young was to pick up the salvage vehicles was no more than the direction necessary to achieve the desired result of bringing the vehicles into IAA's storage yard for eventual disposition and did not rise to the level of control of Young's work necessary to establish an employee relationship. We agree. Requesting that a task be performed on a certain date, under the facts of this case, does not equate to control over the time, manner and method of performance.

Bettinger next argues that the volume of work given to Young in the months prior to the accident evidences that IAA exerted control over Young's job performance. However, Young was not bound to accept the assignments from IAA. At times, Young refused jobs offered by IAA because the vehicles were located too far away. There was no...