Detrick v. Midwest Pipe & Steel, Inc.

• Decision Date: 08 September 1992
• Docket Number: No. 92A03-9111-CV-338,92A03-9111-CV-338
• Parties: Lucinda G. DETRICK, as Personal Representative of the Estate of Eric C. Detrick, Appellant, v. MIDWEST PIPE & STEEL, INC., Appellee.
• Court: Indiana Appellate Court

Page 1074

598 N.E.2d 1074

Lucinda G. DETRICK, as Personal Representative of the Estate

of Eric C. Detrick, Appellant, v. MIDWEST PIPE & STEEL, INC., Appellee.

No. 92A03-9111-CV-338.

Court of Appeals of Indiana,

Third District.

Sept. 8, 1992.

John C. Theisen, Gallucci, Hopkins & Theisen, P.C., Fort Wayne, for appellant.

Gary J. Rickner, David R. Steiner, Barrett & McNagny, Fort Wayne, for appellee.

STATON, Judge.

Lucinda Detrick, as personal representative of the estate of Eric Detrick, appeals the summary judgment granted to Midwest Pipe & Steel, Inc. on all counts of Detrick's wrongful death complaint. Detrick presents five issues for our review:

I. Whether the trial court erred in determining as a matter of law that truck driver Robert Shaw was an independent contractor rather than an employee of Midwest Pipe.

II. Whether the trial court erroneously granted summary judgment to Midwest Pipe on Detrick's estoppel claim.

III. Whether the trial court erroneously granted summary judgment to Midwest Pipe on Detrick's claim of vicarious liability under Interstate Commerce Commission regulations.

IV. Whether the trial court erred in determining as a matter of law that Midwest Trucking was not controlled as the instrumentality of Midwest Pipe.

V. Whether the trial court erroneously granted summary judgment to Midwest Pipe on Detrick's claim that Midwest Pipe negligently employed Midwest Trucking and Shaw.

We affirm the grant of summary judgment as to the ICC regulations and negligence counts; we reverse the grant of summary judgment as to the remaining counts.

Eric Detrick died on May 23, 1989, as a result of a collision involving Detrick's automobile and a semi tractor-trailer driven by Robert Shaw. The collision occurred when Shaw disregarded a stop sign while consulting his road map. The tractor-trailer, owned by Midwest Trucking, Inc., was loaded with cargo from Midwest Pipe, a steel distributor. No intrastate or interstate commerce operating authority permit was possessed by the driver, Midwest Trucking or Midwest Pipe.

On September 20, 1989, Lucinda Detrick filed a complaint against Midwest Trucking, Inc. Subsequently, she amended the complaint to include Shaw and Midwest Pipe as co-defendants. Cross-motions for summary judgment were filed; on July 8, 1991, hearing was held on all pending motions. On July 26 and August 16, 1991, the trial court granted partial summary judgment against Shaw and Midwest Trucking. On August 19, 1991, the court granted summary judgment in favor of Midwest Pipe on all claims against it.

On an appeal from a summary judgment, we apply the same standard applicable in the trial court. Malachowski v. Bank One, Indianapolis (1992), Ind., 590 N.E.2d 559, 562. We must determine whether the record reveals a genuine issue of material fact and whether the trial court correctly applied the law. Shuamber v. Henderson (1991), Ind., 579 N.E.2d 452, 454. Rational assertions of fact and reasonable inferences therefrom are deemed to be true, and any doubt as to a fact, or an inference to be drawn, is resolved in favor of the nonmoving party. Malachowski, supra. Even if the non-movant may be unsuccessful at trial, summary judgment is inappropriate where material facts conflict or undisputed facts lead to conflicting inferences. Thomas v. Whiteford Nat. Lease (1991), Ind.App., 580 N.E.2d 717, 718, trans. denied.

I. Independent Contractor Determination

Detrick first contends that the trial court erroneously granted summary judgment in favor of Midwest Pipe on the issue of whether Shaw was an independent contractor rather than an employee of Midwest Pipe.

A principal who controls or has the right to control the physical conduct of his agent in the performance of a service is a master, upon whom liability for the torts of the agent may be imposed. Trinity Lutheran Church, Inc. v. Miller (1983), Ind.App., 451 N.E.2d 1099, 1101-2. In contrast, the employer of an independent contractor is generally not liable for the torts of that contractor. Hale v. Peabody Coal Company (1976), 168 Ind.App. 336, 340, 343 N.E.2d 316, 320-21. As a general rule, an independent contractor controls the method and details of his task and is answerable to the principal as to results only. Crabill v. Livengood (1967), 142 Ind.App. 624, 231 N.E.2d 854.

Whether one employed to perform a task acts as an independent contractor or a servant is generally a question of fact. Trinity, supra, at 1104. However, where the relevant facts are undisputed, the court will determine whether the employer has the right to control the alleged employee by considering several 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. Stone v. Pinkerton Farms, Inc. (7th Cir.1984), 741 F.2d 941, 943.

Voluminous depositions in support of the cross-motions on summary judgment were filed in the trial court, disclosing the following undisputed facts. Jerome Henry, the sole owner of Midwest Pipe, and Larry Davis, the sole incorporator of Midwest Trucking, entered into an oral agreement in 1988 whereby truck drivers recruited by Davis would ship Midwest Pipe steel via trucks and trailers owned or leased by Midwest Trucking. ¹ Davis recruited Shaw, who had complied with Department of Transportation ("DOT") requirements for tractor-trailer drivers. No written lease or employment agreement was executed by any of the parties. Midwest Pipe paid Midwest Trucking $30.00 per hour; in turn, Midwest Trucking drivers were paid on an hourly basis. Drivers received no fringe benefits and were responsible for the payment of individual income taxes. Shaw, like other Midwest Trucking drivers, operated a truck which bore no Public Service Commission ("PSCI") or Interstate Commerce Commission ("ICC") permit number. The sole identification on the truck door panel consisted of the word "Midwest." Shortly after the May 1989 accident, Midwest Pipe ceased to ship steel via Midwest Trucking.

In short, the facts relevant to the mode of payment and length of employment are undisputed. However, the parties contest the facts relevant to all other indicia of employee control. Deponent Davis contended that Midwest Pipe possessed the authority to discharge Midwest Trucking drivers, supplied equipment and certain items of work apparel, and controlled the manner in which Midwest Trucking employee services were performed. Davis also claimed that Midwest Trucking employees used Midwest Pipe tools, operated Midwest Pipe equipment, were issued keys to the Midwest Pipe yard, assisted Midwest Pipe hourly employees in loading and unloading trailers, and performed routine maintenance tasks on Midwest Pipe "straight trucks" and fork lifts. He contended that Midwest Trucking hauled exclusively for Midwest Pipe and that "Midwest" was painted on the trucks to "jive with" the paperwork issued to drivers, whereby an impression was created (with Midwest Pipe's acquiescence) that the trucks were Midwest Pipe property. Davis stated that Midwest Pipe issued paperwork designating delivery by Midwest Trucking as delivery via "our truck." [Davis Deposition, pp. 14, 20, 24-5, 29, 31-2, 41, 65, 73, 78, 93, 122, 142, 148-9, 152] Furthermore Davis testified that Midwest Trucking drivers purchased and sold surplus steel for Midwest Pipe and "signed for" incoming loads as agents of Midwest Pipe. [Davis Deposition, p. 81-2, 151] On the other hand, Jerome Henry denied the existence of an agreement with Davis whereby Midwest Trucking would haul exclusively for Midwest Pipe while displaying the name Midwest. He disclaimed knowledge of any conduct by Midwest Trucking designed to create an appearance that Midwest Trucking drivers were "in-house" carriers allegedly exempt from ICC permit requirements. Henry also indicated that Midwest Trucking employees were not supervised by Midwest Pipe supervisors, were not subject to Midwest Pipe hiring/termination directives and did not routinely perform non-driving tasks for Midwest Pipe. Henry denied that Midwest Pipe designated Midwest Trucking employees as in-house shippers; he contended that the shipper designation of "O/T" appearing on Midwest Pipe invoices meant "our responsibility to ship" rather than "our truck." [Supplemental Record pp. 13, 30, 48, 66, 68, 75; Henry Deposition pp. 10, 15, 21, 34, 38, 48-50, 55] The depositions of Midwest Trucking drivers McBride, Hitzfield and Shaw and Midwest Pipe supervisor Firestine disclosed conflicts as to whether: the drivers were subject to supervision and termination by Midwest Pipe employees; the drivers were permitted access to Midwest Pipe equipment; the drivers operated Midwest Pipe vehicles; the drivers considered themselves Midwest Pipe drivers; or the drivers routinely performed non-driving tasks for Midwest Pipe. [Hitzfield Deposition pp. 8, 12, 15-16, 22-3, 25, 31, 37, 41; Shaw Deposition pp. 5, 28, 33, 34-5, 43, 55, 61, 88; McBride Deposition pp. 15, 23, 25; Firestine Deposition pp. 12, 20, 23, 30-31, 35]

The trial court entered extensive "Findings and Conclusions" in support of summary judgment on the issue of Shaw's status as an independent contractor or employee. ² They included:

"[Midwest Pipe supervisor] Firestine could not hire or fire or discipline Midwest Trucking drivers in any way." [Record, p. 486];

"All significant tools and equipment for the drivers were supplied by Midwest Trucking." [Record, p. 488];

"The [Midwest Pipe] hats were simply a marketing tool to get the name of the company out into the market Midwest Pipe served and were not meant to identify the drivers as Midwest Pipe employees." [Record, pp. 489-90];

"Davis had ultimate control over his drivers and Robert Shaw in particular." [Record, p. 488].

The trial court, upon motion for summary judgment, may...