Dague v. Fort Wayne Newspapers, Inc.

Decision Date15 March 1995
Docket NumberNo. 57A03-9409-CV-351,57A03-9409-CV-351
Citation647 N.E.2d 1138
PartiesSharon DAGUE, individually, and Sharon Dague, as Personal Representative of the Estate of Donald W. Dague, deceased, Appellants-Plaintiffs, v. FORT WAYNE NEWSPAPERS, INC. and Mark A. Ruble, Appellees-Defendants.
CourtIndiana Appellate Court
OPINION

STATON, Judge.

Sharon Dague ("Dague"), individually and as personal representative of the estate of her husband, Donald W. Dague, appeals from the trial court's grant of summary judgment in favor of Fort Wayne Newspapers ("Fort Wayne"). In her appeal, Dague presents one issue for our review: whether the trial court erred in granting summary judgment in Fort Wayne's favor.

We reverse and remand.

The facts most favorable to the judgment reveal that on August 2, 1991, Mark A. Ruble ("Mark") was in his automobile delivering newspapers for Fort Wayne when he was involved in a collision with a motorcycle operated by Donald Dague. At the time of the accident, Mark was acting as a substitute newspaper carrier for his wife, Christine Ruble ("Christine"), who was a newspaper carrier for Fort Wayne. Donald Dague died as a result of injuries sustained in the accident.

Dague subsequently brought a wrongful death action against Fort Wayne and Mark alleging that Mark was an employee of Fort Wayne and pursuant to the doctrine of respondeat superior, Fort Wayne was liable for the negligent acts of its employee. Fort Wayne filed a motion for summary judgment to dismiss Dague's complaint. After entering extensive findings of facts and conclusions of law, the trial court granted Fort Wayne's motion. This appeal ensued.

Dague now contends that the trial court erred when it granted Fort Wayne's motion for summary judgment because genuine issues of material fact exist precluding summary judgment.

When reviewing the grant or denial of summary judgment, we use the same standard used by the trial court. Ramon v. Glenroy Construction Co., Inc. (1993), Ind.App., 609 N.E.2d 1123, 1127, trans. denied. Summary judgment is appropriate only when the evidentiary matter designated by the parties shows that there are no genuine issues as to any material fact and that the moving party is entitled to a judgment as a matter of law. Id.; Ind.Trial Rule 56(C).

Where material facts conflict or undisputed facts lead to conflicting inferences, summary judgment is inappropriate, even if the court believes the non-moving party will not succeed at trial. Greathouse v. Armstrong (1993), Ind., 616 N.E.2d 364, 366.

Specific findings and conclusions entered by the trial court when ruling on motions for summary judgment merely afford the appellant an opportunity to address the merits of the trial court's rationale. Campbell v. Spade (1993), Ind.App., 617 N.E.2d 580, 582. The specific findings and conclusions also aid in our review by providing us with a statement of reasons for the trial court's actions. However, they have no other purpose. Id. Rather than relying upon the trial court's findings and conclusions, we must base our decision upon the T.R. 56(C) materials properly presented to the trial court. Id.

The trial court found that Christine was an independent contractor and that Mark was acting as her subcontractor on the date of the accident. The court stated that no employer-employee relationship existed between Fort Wayne and Christine or Mark and therefore Fort Wayne could not be held liable to Dague under the doctrine of respondent superior.

The crux of Dague's claim on appeal is that genuine issues of material fact exist regarding whether Fort Wayne had the necessary control and direction over Christine's conduct during the course of her job performance to demonstrate the existence of an employer-employee relationship.

Generally, a principal who controls or has the right to control the physical conduct of his agent in the performance of a service is an employer upon whom liability for the torts of the agent may be imposed. In contrast, the employer of an independent contractor is generally not liable for the torts of that contractor. Detrick v. Midwest Pipe & Steel Inc. (1992), Ind.App., 598 N.E.2d 1074, 1077.

The test for determining the existence of an employer-employee relationship is the right to direct and control that conduct of the alleged employee at the time the negligent act occurred. Gibbs v. Miller (1972), 152 Ind.App. 326, 283 N.E.2d 592, 595, trans. denied. Such control refers only to the right of control not necessarily the exercise of control over the employee. Id.

Whether one employed to perform a task acts as an independent contractor or servant is generally a question of fact. Detrick, supra, at 1077. However, when the relevant facts are undisputed, the court will determine whether the employer has the right to control the alleged employee. Id.

The right of control can be determined by a consideration of the following factors: (1) right to discharge; (2) mode of payment; (3) supplying of tools by employer; (4) belief by the parties in the existence of a master servant relationship; (5) control over the means used or result reached; (6) length of employment; and (7) establishing of work boundaries. Id.

Indiana courts have previously examined the employment status of a newspaper carrier. In Wilson v. Kauffman (1973), 156 Ind.App. 307, 296 N.E.2d 432, 436, this court determined that the relationship between a news carrier and the newspaper raised issues of material fact which precluded summary judgment. In Wilson, the court noted that the factual details between the relationship of the parties went beyond the original contractual description of the job of delivering papers and represented a relevant course of conduct between the parties which had to be considered by the trier of fact. Id., 296 N.E.2d at 435. Given that the newspaper determined the type of vehicle and equipment the carrier was to use, gave the carrier a manifest telling him where to deliver the newspapers, furnished a group insurance policy to its carrier, and laid out the carrier's route, the court determined that the facts did not inescapably lead to the conclusion that the carrier was an independent contractor. Id., 296 N.E.2d at 435-436. See also Dispatch Pub. Co. v. Schwenk (1941), 109 Ind.App 223, 34 N.E.2d 150, 152 (competent evidence existed from which the jury could conclude that driver was a servant or agent to publishing company).

However, in Brechbiel v. Hentgen et al. (1937), 103 Ind.App. 481, 8 N.E.2d 1007, 1008, the court concluded that the facts did not show or raise the inference that the newspaper was interested in the manner in which the carrier delivered the papers but was only interested in the result, the subscriber receiving the paper. There, the carrier was solely responsible for payment, for his route of travel, and for obtaining customers. Id. He was not under any time limit for delivery nor was he required to make sales. Id. The court noted that the only requirement of the carrier was that a minimum of papers be sold in the designated territory. Id. Thus, the court determined that the trial court was correct in determining that the carrier was not an employee of the newspaper and properly entered a directed verdict in the newspaper's favor. Id.

The materials presented to the trial court in support of and in opposition of the motion for summary judgment set forth the following: Christine started delivering newspapers for Fort Wayne in December 1990. Prior to commencing work, Christine met with Fort Wayne's district manager who informed her that she should ride with the previous carrier to learn the route. During this meeting, Christine was informed of the boundary lines of her route and given a map for the route. Christine signed a Carrier's Agreement ("the Agreement") with Fort Wayne. The Agreement provided that Christine was an independent contractor of Fort Wayne. The Agreement could be terminated by either party without cause with twenty-eight days notice and it could be terminated immediately by Fort Wayne in the event of a breach by Christine. The Agreement stated that Fort Wayne was concerned only with the result of Christine's performance, delivery of newspapers in a manner satisfactory to the customers, and that Christine controlled the means relating to proper performance and completion of the terms of the agreement. The Agreement further provided that Christine was to be treated as an independent contractor, not as an employee, for federal income tax purposes and that she was responsible for paying her own estimated income tax and self-employment tax.

The record indicates that Christine was solely responsible for delivering the newspapers on her route and was responsible for engaging substitute carriers. Each day she received a subscriber list indicating which persons were to receive papers and which street they lived on. Christine paid for the newspapers and Fort Wayne billed her every two weeks for newspapers purchased. Fort Wayne paid Christine for any money it received by mail from subscribers. In other instances, Christine was responsible for collection and was given a collection book. 1 Fort Wayne provided a price list.

Christine was charged for any customer complaint when the newspaper was...

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