FULTON BY FULTON v. Westvaco Corp.

• Decision Date: 27 March 1995
• Docket Number: Civil Action No. 2:94-0975-18 to 2:94-0977-18.
• Citation: 930 F. Supp. 1115
• Parties: Brittany Necole FULTON by her Parent and Natural Guardian Anita Joanne FULTON, Plaintiff, v. WESTVACO CORPORATION, Defendant. Geneva FULTON, Plaintiff, v. WESTVACO CORPORATION, Defendant. Anita Joanne FULTON, Plaintiff, v. WESTVACO CORPORATION, Defendant.
• Court: U.S. District Court — District of South Carolina

930 F. Supp. 1115

Brittany Necole FULTON by her Parent and Natural Guardian Anita Joanne FULTON, Plaintiff, v. WESTVACO CORPORATION, Defendant.

Geneva FULTON, Plaintiff, v. WESTVACO CORPORATION, Defendant.

Anita Joanne FULTON, Plaintiff, v. WESTVACO CORPORATION, Defendant.

Civil Action Nos. 2:94-0975-18 to 2:94-0977-18.

United States District Court, D. South Carolina, Charleston Division.

March 27, 1995.

Alexander B. Cash, Charleston, SC, Joseph F. Kent, North Charleston, SC, Richard Rosen, P. Brandt Shelbourne, Charleston, SC, for plaintiff.

G. Dana Sinkler, Charleston, SC, for defendant.

ORDER

NORTON, District Judge.

This is an action in tort arising out of an automobile accident between the Plaintiffs and Marvin Britton ("Britton"). Britton worked for the Laurie Ard Logging Company which was cutting and hauling timber for Westvaco Corporation. Plaintiffs have sued Westvaco on the theory that Britton was an employee of Ard Logging which, Plaintiffs allege, was an agent, servant, or employee of Westvaco.

Westvaco has moved for Summary Judgment on the ground that Ard Logging was an independent contractor and, as such, Westvaco is not liable for the torts of Ard Logging's employees. I agree and hereby grant Westvaco's Motion for Summary Judgment.

SUMMARY JUDGMENT STANDARD

To grant a motion for summary judgment, this court must first find that "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The judge is not to weigh the evidence, but rather to determine if there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986). If no material factual disputes remain, then summary judgment should be granted 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 the party bears the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). All evidence should be viewed in the light most favorable to the nonmoving party. Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-23 (4th Cir.1990); Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir.1985). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate." Teamsters Joint Council No. 83 v. CenTra, Inc., 947 F.2d 115, 119 (4th Cir.1991); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 2516, 91 L.Ed.2d 202 (1986).

FACTUAL BACKGROUND

In this case, the facts are not in dispute. Westvaco operates a chip mill in Andrews, South Carolina. In order to supply wood to the mill, Westvaco enters into contracts with independent logging companies. At the time of the Plaintiffs' accident, Ard Logging was operating under one such contract called a Cut & Haul Agreement. Under this Agreement, Westvaco was "entitled to the cutting and hauling of wood on the conditions set forth in the Agreement" but had "no right to control the manner of performance by Ard Logging." Under the Agreement, Ard Logging agreed to:

• Furnish its own equipment;

• Hire, fire and supervise its own employees;

• Pay its own employees;

• Keep all employee records and make all payroll payments and deductions;

• Set its own schedule of work;

• Be responsible for everything necessary for its performance under the Agreement;

• Obtain and maintain its own insurance, including general liability, public liability, and worker's compensation; and

• Adhere to good forestry practices.

Westvaco paid Ard Logging for wood "by the ton" at the end of each week. Deductions were taken from Ard Logging's compensation for insurance¹ and to repay a bank loan with South Carolina National Bank.² Ard Logging chose to have these deductions made and expressly agreed to these deductions each week.

The Agreement was a valid and binding contract. While Ard Logging cut and hauled almost exclusively for Westvaco, it had the right under the contract to work for anyone. Both parties adhered to the terms of the Agreement.

• Ard Logging always supplied all of its own equipment. Ard Logging, for its own convenience, left its equipment at the job site. The vehicle Britton was driving at the time of the Plaintiffs' accident belonged to Ard Logging.

• Ard Logging had eight of its own employees. All of the employees were hired, supervised, disciplined, and fired by Ard Logging.

• Ard Logging paid its employees directly, by check, which the employees picked up from Laurie Ard's home.

• No income or social security taxes were withheld by Westvaco from Ard Logging's compensation.

• Ard Logging withheld taxes for each of its employees.

• Ard Logging had its own bookkeeper.

• Ard Logging acquired insurance through the Davis-Garvin Agency, a company that offered group rates to Westvaco loggers.

• Westvaco did not supervise Ard Logging's operations. A Westvaco representative visited the cut site on occasion to ensure that the wood supplied to the mill complied with contract specifications.

• A safety inspector visited the site where Ard Logging was working on occasion to ensure that the loggers complied with OSHA regulations.

• Ard Logging maintained its own schedule, performing its obligations under the contract at its discretion, whenever it chose.

The facts recited herein are not in dispute and I find that there is no genuine issue as to any material fact.

ANALYSIS

Under South Carolina law, an employer is not liable for the torts of an independent contractor. Duane v. Presley Construction Company, 270 S.C. 682, 244 S.E.2d 509, 510 (1978). An independent contractor is one who "contracts to do a piece of work according to his own methods, without being subject to the control of his employer except as to the result of his work." Bates v. Legette, 239 S.C. 25, 121 S.E.2d 289, 293 (1961). An employee is one who "represents the will of that other, not only as to the result, but also as to the means by which the result is accomplished." Young v. Warr, 252 S.C. 179, 165 S.E.2d 797, 802 (1969).

In determining the nature of the parties' relationship, South Carolina courts consider a number of factors:

(1) The contract between the parties;

(2) Whether there is direct evidence that the employer had the right to, or did, exercise control;

(3) The method of payment;

(4) Which party furnishes the tools and equipment used by the worker; and

(5) Which party has the right to terminate the relationship?

Id. 165 S.E.2d at 805; Chavis v. Watkins, 256 S.C. 30, 180 S.E.2d 648, 649 (1971); Felts v. Richland County, 299 S.C. 214, 383 S.E.2d 261, 263 (Ct.App.1989); Crim v. Decorator's Supply, 291 S.C. 193, 352 S.E.2d 520 (Ct. App.1987).

South Carolina case law is replete with timber cutting and hauling cases which address this specific issue. The case of Norris v. Bryant, 217 S.C. 389, 60 S.E.2d 844 (1950), is particularly persuasive because (1) the contract involved in Norris contained many of the same provisions found in the Westvaco-Ard Logging Agreement; (2) both cases involve an "employer" who hires an independent contractor to perform cutting and hauling services; (3) both "employers" required the logger to cut trees of certain type and dimensions; (4) both of the independent contractors were paid on a "per foot" or "per ton" basis; (5) both contractors were required to obtain insurance; (6) both "employers" deducted money for insurance payments; (7) both contractors were required to comply with state and federal laws; and (8) both cases involve a third person injured by an independent contractor who seeks to hold the "employer" liable. In addition, Norris involved a motion for directed verdict which was granted by the trial judge, Judge J. Robert Martin, Jr., who found the logger to be an independent contractor as a matter of law. This Motion for Summary Judgment requires that I apply a similar standard of review.

In addition to the Norris decision, an analysis of the traditional factors considered by South Carolina courts in determining the character of the parties' relationship compels the conclusion that, as a matter of law, Ard Logging was an independent contractor for Westvaco.

First, considerable weight is given to the contract between the parties. Young, 165 S.E.2d at 805; Deskins v. Boltin, 317 S.C. 310, 454 S.E.2d 322 (Ct.App.1994) (Davis Adv. Sh. No. 1). All of the terms of the Cut & Haul Agreement reinforce the existence of an independent contractor relationship. Furthermore, the parties conducted themselves in accordance with the contract and did nothing to give rise to an inference that anything other than an independent contractor relationship existed between them. The contract states that Ard Logging is an independent contractor of Westvaco, and the parties conducted themselves accordingly. This factor must be given considerable weight.

Second, the right or power to control retained by Westvaco is an "essential criterion." Young, 165 S.E.2d at 802. The reserved control must relate "not only as to what work shall be done, but also how it shall be done." Id. 165 S.E.2d at 805 (emphasis added).

In the timber cases, South Carolina's Supreme Court has consistently found that no master-servant relationship exists where the employer's relationship to the worker is limited to the delivery of a commodity under a contract. See, e.g., Pyett v. Marsh Plywood Corp., 240 S.C. 56, 124 S.E.2d 617 (1962); Norris, 60 S.E.2d 844; Miles v. West Virginia Pulp & Paper Co., 212 S.C. 424, 48 S.E.2d 26 (1948); McDowell v. Stilley Plywood Co., 210 S.C. 173, 41 S.E.2d 872 (1947). In this case, Westvaco did not have the right to, nor did it, exercise control over the method of performance by Ard Logging. This is expressly stated in the parties' contract. Nor did Westvaco have control over...