Harper ex rel. Daley v. Toler

• Decision Date: 22 October 2004
• Docket Number: No. 2D03-694.,2D03-694.
• Citation: 884 So.2d 1124
• Parties: Mary HARPER, as court-appointed guardian of Marilyn DALEY, Appellant, v. Steve L. TOLER, Eric Vaughn Toler, and Times Publishing Company, Appellees.
• Court: Florida District Court of Appeals

884 So.2d 1124

Mary HARPER, as court-appointed guardian of Marilyn DALEY, Appellant, v. Steve L. TOLER, Eric Vaughn Toler, and Times Publishing Company, Appellees.

No. 2D03-694.

District Court of Appeal of Florida, Second District.

October 22, 2004.

Neal L. O'Toole and Joseph R. Kruk, III, of Law Office of Neal L. O'Toole, P.A., Bartow, for Appellant.

Bradley M. Bole of Rahdert, Steele, Bryan, Bole & Reynolds, P.A., St. Petersburg, for Appellee Times Publishing Company.

No Appearance for Appellees Steve L. Toler and Eric Vaughn Toler.

CANADY, Judge.

The plaintiff in a personal injury action appeals a final summary judgment in favor of the Times Publishing Company. The summary judgment was based on the trial court's determination that a substitute newspaper carrier — who was allegedly responsible for the injuries at issue — was as a matter of law not an employee of the Times. Because we conclude that the relevant facts did not justify the granting of summary judgment, we reverse.

I. BACKGROUND

This appeal arises from a personal injury action filed on the behalf of Marilyn Daley by her court-appointed guardian, Mary Harper, relating to an incident in which Ms. Daley was seriously injured and another person was killed when a vehicle driven by Eric Toler struck the two as they were walking on or along a road. The Times was sued because it was alleged that Eric Toler was acting at the time of the accident in the capacity of a "carrier helper." Eric Toler was serving as a substitute newspaper carrier for Robert Heller, a newspaper carrier for the Times. According to Heller's deposition testimony, he was required by the Times to have a carrier helper to carry out his responsibilities for the Times when he could not do so himself. Steve Toler, Eric Toler's father, who was himself a newspaper carrier for the Times, was added as a defendant because he owned the vehicle involved in the accident.

The depositions filed in the case indicated that Eric Toler had served in the capacity of a carrier helper for his father on numerous occasions. When Heller inquired of a manager employed by the Times as to who might be willing to serve as a carrier helper, the manager suggested Eric Toler. Heller subsequently asked Eric Toler to act as his carrier helper, and Eric Toler was serving in that capacity on the morning that the accident occurred. Deposition testimony revealed that Eric Toler was paid by Heller, not the Times, for his services as a carrier helper. There was no direct contractual relationship between Eric Toler and the Times.

In discovery, the Times produced the employment agreement of Steve Toler. Steve Toler's agreement with the Times was titled "Newspaper Carrier Sales-Staffer Employment Agreement" and was dated November 20, 1991. It set forth the terms of employment, including a provision that stated that the newspaper carrier "will deliver newspapers in the manner and at the time set by" the Times. It also listed a number of benefits that Steve Toler would be eligible to receive, including worker's compensation, unemployment insurance, a pension plan, profit sharing, "Carrier Accident Insurance," life insurance, disability insurance, and optional medical insurance. The agreement also had a specific provision requiring Steve Toler to have a "trained substitute to deliver the route in case of illness, vacation, or days off." Counsel for the Times conceded at oral argument that the agreement between Steve Toler and the Times established an employment relationship.

Harper unsuccessfully sought to obtain a written contract between the Times and Heller from the Times through discovery.¹ Heller's deposition testimony concerning his contractual relationship with the Times was equivocal. Heller became a carrier for the Times in August 2000. When asked if he had "some type of employment contract" with the Times, Heller responded: "I'm sure I did[,] ... but ... I can't tell you for sure." Heller was also asked: "Were you considered an independent contractor for [the Times]? In other words, would you have to pay the extra tax at the end of the year to Uncle Sam?" Heller responded: "Yeah, because I don't think any taxes — no taxes are taken out." Heller went on, however, to testify that "[t]here [was] a health plan" and "retirement type benefits" available to him from the Times. With respect to the benefits provided by the Times for carriers, the deposition testimony of Steve Toler indicated that the Times provided workers' compensation coverage for carriers injured on the job.

Harper and the Times filed cross-motions for summary judgment pertaining to whether Eric Toler was an employee of the Times or an independent contractor. The Times argued that the proper way to analyze the issue was to apply the ten factors in the Restatement (Second) of Agency section 220 to the relationship between Eric Toler and the Times, which it argued would lead to the conclusion that Eric Toler was an independent contractor. Among the arguments offered by Harper in opposition to summary judgment was that Eric Toler was a subemployee of the Times, which Harper asserted made a direct application of the Restatement factors to Eric Toler's relationship with the Times inappropriate.

In support of her motion for summary judgment against the Times, Harper contended that the facts were sufficient to determine that Eric Toler was an employee of the Times. Harper asserted that the facts showed the Times exercised sufficient control over its carriers and substitute carriers to support the legal conclusion that they were employees. Harper also relied on the terms of the employment agreement between the Times and Steve Toler as the basis for an inference that Heller had a similar agreement with the Times. Harper nonetheless acknowledged the "very difficult burden" imposed on the movant in summary judgment proceedings and that the "issue of control is typically resolved by the trier of fact."

The trial court granted the Times' motion for summary judgment, ruling that Eric Toler was an independent contractor. In reaching this conclusion, the trial court applied the ten factors in the Restatement section 220 directly to the relationship between Eric Toler and the Times. It did not address Harper's argument that Eric Toler was a subemployee of the Times.

II. ISSUES ON APPEAL

Harper first argues that Eric Toler was an employee of the Times. Harper argues in the alternative that "[t]he trial court erred when it granted [t]he Times' [m]otion for [s]ummary [j]udgment because at the very least genuine issues of material fact existed as to whether Eric Toler was an employee or an independent contractor of [t]he Times." In making both arguments, Harper contends that Eric Toler was a subemployee of the Times and that the trial court erroneously applied the Restatement factors directly to Eric Toler.

The Times argues that the trial court correctly applied the Restatement factors in determining that Eric Toler was not an employee. The Times also argues that Harper's motion for summary judgment, which was based on the contention that the undisputed facts established that the Times was vicariously liable for the negligence of Eric Toler, estops Harper from contending on appeal that the summary judgment in favor of the Times should be reversed because there were disputed issues of material fact.²

III. ANALYSIS

Summary final judgments are subject to de novo review. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). "When reviewing a summary judgment, we must view the facts in the light most favorable to the nonmoving party." Garden St. Iron & Metal, Inc. v. Tanner, 789 So.2d 1148, 1149 (Fla. 2d DCA 2001). "[R]easonable inferences should be resolved against the movant." Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 853 (Fla.2003). In a negligence case, the de novo review of a summary judgment is guided by the principle that "[s]ummary judgments should be cautiously granted." Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). A summary judgment should be affirmed only if the moving party has met the burden of conclusively proving the nonexistence of "genuine triable issues." Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966). In other words, summary judgment is appropriate only when "`the facts are so crystallized that nothing remains but questions of law.'" Villazon, 843 So.2d at 853 (quoting Shaffran v. Holness, 93 So.2d 94, 97-98 (Fla.1957)); see also Yost v. Miami Transit Co., 66 So.2d 214, 216 (Fla.1953)

("In matters of summary judgment neither the trial court nor the appellate court is justified in weighing facts and meting out justice according to the conclusion reached. The procedure cannot be followed unless the facts are so crystallized that nought remains but a question of law."). "[I]t is well-established that the question of an employer/employee relationship is generally a question of fact, and therefore a question for the trier of fact." Pate v. Gilmore, 647 So.2d 235, 236 (Fla. 1st DCA 1994); see also Villazon, 843 So.2d at 853 ("The existence of an agency relationship is normally one for the trier of fact to decide.").

There are of course circumstances in which the undisputed facts will demonstrate the nonexistence of an employment relationship as a matter of law and thereby establish the proper basis for granting summary judgment. DeBolt v. Dep't of Health & Rehabilitative Servs., 427 So.2d 221, 226 (Fla. 1st DCA 1983) ("If there is no question as to the existence or non-existence of a master/servant or employer/employee relationship, the issue is one then for the court to determine."). Thus, if the only reasonable view of the evidence compels the conclusion that an employment relationship did not exist, a court may determine the issue as a matter of law. See Johnson v. Gourmet Gardens, Inc., 827 So.2d 1020, 1020 (Fla. 2d DCA 2002),

review denied, 845 So.2d 890 (Fla.2003) (upholding summary...