Burlington Insurance Co. v. Malcolm, Civil Action No. 3:00CV90-D-A (N.D. Miss. 1/31/2002), Civil Action No. 3:00CV90-D-A.
| Decision Date | 31 January 2002 |
| Docket Number | Civil Action No. 3:00CV90-D-A. |
| Parties | THE BURLINGTON INSURANCE COMPANY, PLAINTIFF, v. MALCOLM AND MIKE BROCK d/b/a BROCK SCRAP METAL, EDDIE EUGENE BELL JR., and MELINDA K. HUDSON BELL, DEFENDANTS. |
| Court | U.S. District Court — Northern District of Mississippi |
Presently, before the court is the Plaintiff's motion for summary judgment and the Defendants' cross-motion for summary judgment. After hearing oral arguments on said motions and upon due consideration, the court finds that the Plaintiff's motion is well taken and shall be granted. The Defendants' motion is not well taken and shall be denied.
This matter is before the court on the Plaintiff, Burlington Insurance Company's (Burlington), complaint for declaratory judgment. The question to be determined is whether the Defendant Eddie Bell (Bell) was an employee or independent contractor in his relationship with the Defendants Malcolm and Mike Brock d/b/a Brock Scrap Metal (Brock). The court is also asked to construe the effect of that relationship as it pertains to an insurance contract between Brock and Burlington. Brock was in the business of tearing down old buildings and selling scrap metal. Bell was employed by Brock, primarily as a truck driver, to haul the scrap metal from point A to point B. He also drove other heavy equipment for Brock from time to time. There was no contract of employment between Brock and Bell and Bell was always paid between $400 and $500 on Friday of each week. Neither Brock nor Bell paid any taxes.
On September 1, 1995, Bell was injured when he was caught between two grappling hooks of a crane being operated by another of Brock's alleged employees. As a result of his injuries, Bell and his former wife, Melinda, filed an action against Brock entitled, Eddie Eugene Bell Jr., and Melinda K. Hudson Bell v. Malcolm and Mike Brock, d/b/a Brock Scrap Metal, in the Circuit Court of Union County, Mississippi, Civil Action No. U-96244.
An insurance policy, issued by Burlington, covered Brock for claims arising from personal injuries to independent contractors, but excluded coverage for claims of personal injuries to employees. Burlington filed a complaint for a non-jury trial with this court on May 26, 2000, asking the court to adjudicate Burlington's responsibility to defend Brock in the underlying Circuit Court action. Both sides now move for summary judgment asking the court to decide any issues of material fact which might be in dispute as it would in a bench trial of the matter. The court conditionally denied both parties motions in an order dated July 17, 2001. In said order, the court suggested the parties submit a joint stipulation of facts to the court. The court, having considered the joint stipulation of facts, filed on December 21, 2001, and counsels' oral arguments, heard on January 28, 2002, finds that Bell was an employee, not an independent contractor. Accordingly, Burlington has no further duty to defend and/or indemnify the Brocks for any judgment which may be rendered in the underlying Circuit Court action.
On a motion for summary judgment, the movant has the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265, 275 (1986) (). Under Rule 56(e) of the Federal Rules of Civil Procedure, the burden then shifts to the non-movant to "go beyond the pleadings and by . . . affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324, 106 S.Ct. at 2553, 91 L.Ed.2d at 274. That burden is not discharged by "mere allegations or denials." Fed.R.Civ.P. 56(e). All legitimate factual inferences must be made in favor of the non-movant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202, 216 (1986). Rule 56(c) mandates the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322, 106 S.Ct. at 2552, 91 L.Ed.2d at 273. Before finding that no genuine issue for trial exists, the court must first be satisfied that no reasonable trier of fact could find for the non-movant. Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538, 552 (1986).
It appears to the court that Richardson v. APAC-Mississippi, Inc., 631 So.2d 143 (Miss. 1994), is the leading case in Mississippi for determining the employment status of an individual. In Richardson, the Mississippi Supreme Court set out eleven factors that this court will use in determining Bell's employment status. These factors are not listed in any precise order of importance and the court is not required to find that all eleven of these factors are satisfied. They include: (1) whether the principal master has the power to terminate the contract at will; (2) whether he has the power to fix the price in payment for the work, or vitally controls the manner and time of payment; (3) whether he furnishes the means and appliances for the work; (4) whether he has control of the premises; (5) whether he furnishes the materials upon which the work is done and receives the output thereof, the contractor dealing with no other person in respect to the output; (6) whether he has the right to prescribe and furnish the details of the kind and character of work to be done; (7) whether he has the right to supervise and inspect the work during the course of the employment; (8) whether he has the right to direct the details of the manner in which the work is to be done; (9) whether he has the right to employ and discharge the sub-employees and to fix their compensation; (10) whether he is obliged to pay the wages of said employees; and (11) when a contract is made between two parties, that as between themselves creates an independent contractor relationship and involves employment generally performed under a simple master/servant or employer/employee relationship, it will be upheld as between the parties. When, however, third parties are adversely affected, the court must carefully scrutinize the contract to see if public policy should permit the transformation of an ordinary employer/employee relationship into that of an independent contractor. Richardson, 631 So.2d at 148 & 150. The court will consider each of these factors in turn.
First, whether Brock had the power to terminate the contract at will. The court finds that this factor supports the finding that Bell was an employee. The parties agree that Brock had the right to fire Bell and Bell had the right to quit working for Brock at any time. These facts are undisputed by the deposition testimony of both Brock and Bell, as well as, the parties' joint submission of facts.
Second, whether Brock had the power to fix the price in payment for the work, or vitally control the manner and time of payment. The court finds that this factor also supports the finding that Bell was an employee. The deposition testimony of both Brock and Bell stated that at the end of each week, Bell was paid between $400 and $500. His pay was not reliant upon Brock getting paid or making a profit. The manner and the time of payment was controlled by Brock and was determined at the end of each week, depending on what had taken place that week.
Third, whether Brock furnished the means and appliances for the work. The court, again, finds this factor supports the finding that Bell was an employee. It is undisputed that Brock furnished all means and appliances for the work. Both the deposition testimony of Brock and Bell and the joint submission of facts establishes that Brock owned the truck which Bell drove and paid for all of the fuel, tires, and repairs on that truck. Bell owned no trucks or equipment used on the work sites.
Fourth, whether Brock had control of the premises. The court find that this factor also supports the finding that Bell was an employee. It is clear from the pleadings and depositions that Brock did not have an established place of business and work was done at different locations. Brock, however, testified in his deposition that he had control over each work site. Bell also testified in his deposition that Brock told him primarily what to do. Additionally, in the joint submission of facts, the parties agree that Brock was in charge of all demolitions projects.
Fifth, whether Brock furnished the materials upon which the work was done and received the output thereof, the contractor dealing with no other person in respect to the output. The court finds that this factor also supports the finding that Bell was an employee. It is uncontested that Brock negotiated the price of the demolition work and the price of the scrap metal when he sold it. Bell had no authority to make deals on behalf or Brock. Additionally, it is undisputed that the truck, as well as the other equipment to be used on the job, was purchased and paid for by Brock. Bell was reimbursed for any expenses which he paid during the course of his employment.
Sixth and seventh, whether Brock had the right to prescribe and furnish the details of the kind and character of work to be done and whether he had the right to supervise and inspect the work during the course of the employment. The court finds these factors also support the finding that Bell was an employee. Again, in the parties' joint submission of facts, it is undisputed that Brock was in charge of the...
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