Kane Furniture Corp. v. Miranda

• Decision Date: 01 April 1987
• Docket Number: 86-1104,Nos. 86-676,s. 86-676
• Citation: 12 Fla. L. Weekly 935,506 So.2d 1061
• Court: Florida District Court of Appeals
• Parties: 12 Fla. L. Weekly 935 KANE FURNITURE CORPORATION, Appellant, v. Romulo MIRANDA, Personal Representative of the Estate of Zinaida Quintos-Miranda, Appellee. KANE FURNITURE CORPORATION, Appellant, v. Joseph P. PERRONE, Appellee.

Page 1061

506 So.2d 1061

12 Fla. L. Weekly 935

KANE FURNITURE CORPORATION, Appellant, v. Romulo MIRANDA, Personal Representative of the Estate of Zinaida Quintos-Miranda, Appellee.

KANE FURNITURE CORPORATION, Appellant, v. Joseph P. PERRONE, Appellee.

Nos. 86-676, 86-1104.

District Court of Appeal of Florida Second District.

April 1, 1987.

Rehearing Denied May 7, 1987.

Sylvia H. Walbolt of Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa and Anne S. Mason of Joseph C. Mason, Jr., P.A., Clearwater, for appellant.

Joseph P. McNulty of Earle and Earle, St. Petersburg, for appellee Romulo Miranda.

Steven C. Ruth of L.D. Beltz and Associates, St. Petersburg, for appellee Joseph P. Perrone.

RYDER, Acting Chief Judge.

Kane is a furniture store which also sells carpeting. Kane sold its carpet installation business to Perrone in 1975, and since that time, Kane has provided carpet installation services through Perrone's installation business (known as Service) as well as through other independent carpet installers.

For the past ten years, however, Perrone has been the principal carpet installer at Kane's St. Petersburg store. Initially, Kane put Perrone on a two-week probationary period during which Kane inspected Perrone's work to determine that Perrone was qualified. Thereafter, Perrone was given a small work area from which to assign installation jobs. Perrone hired other independent carpet installers, such as Kraus, to complete jobs which he could not perform.

On the morning of Saturday, August 6, 1983, Perrone assigned Kraus two installation jobs from Kane. Kraus completed the installation called for by the jobs around noon. Thereafter, Kraus, in his own truck, drove to a bar with his helper, Kevin Carleton, as a passenger. After drinking for approximately four hours, Kraus attempted to drive Carleton to Kane's warehouse parking lot in order that Carleton could retrieve his car. On the way to the parking lot, Kraus, traveling at a speed in excess of 50 m.p.h., ran a stop sign and collided broadside with the Miranda vehicle. Dr. Miranda's wife, Zenaida Quintos-Miranda, a passenger in the Miranda vehicle, died in a hospital soon after the accident.

This consolidated appeal arose from a wrongful death action which Dr. Romulo Miranda brought against Kane Furniture Corporation and Joseph P. Perrone for the death of Zenaida Quintos-Miranda. Kane appeals from the trial court's final summary judgment finding that Perrone was Kane's employee and that Kraus was Kane's subemployee. Kane appeals the jury verdict finding that Kraus was acting within the scope of his employment at the time of the accident. Kane also appeals the jury verdict award of 2.3 million dollars to Dr. Miranda.

We hold that the trial court erred in ruling that Perrone and Kraus were Kane's employees as a matter of law. We vacate the summary judgment and verdict and order the trial court to enter summary judgment for Kane finding that Perrone and Kraus are independent contractors.

Analysis of Restatement Factors.

In Cantor v. Cochran, 184 So.2d 173 (Fla.1966), the Supreme Court of Florida approved the test set out in Restatement (Second) of Agency § 220 (1958) for determining whether one is an employee or independent contractor:

(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

(b) whether or not the one employed is engaged in a distinct occupation or business;

(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;

(d) the skill required in the particular occupation;

(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;

(f) the length of time for which the person is employed;

(g) the method of payment, whether by the time or by the job;

(h) whether or not the work is a part of the regular business of the employer;

(i) whether or not the parties believe they are creating the relationship of master and servant; and

(j) whether the principal is or is not in business.

Upon applying the Restatement test to the facts before us, we come to the conclusion that Perrone and Kraus were independent contractors, not employees.

(a) The extent of control which, by the agreement, the master may exercise over the details of the work.

It has been said that the extent of control is the most important factor in determining whether a person is an independent contractor or an employee. T & T Communications v. State, Department of Labor and Employment Security, 460 So.2d 996 (Fla. 2d DCA 1984); VIP Tours of Orlando, Inc. v. State, Department of Labor and Employment Security, 449 So.2d 1307 (Fla. 5th DCA 1984). The right of control as to the mode of doing the work is the principal consideration. VIP Tours 449 So.2d at 1309. If a person is subject to the control or direction of another as to his results only, he is an independent contractor; if he is subject to control as to the means used to achieve the results, he is an employee. D.O. Creasman Electronics v. State, Department of Labor and Employment Security, 458 So.2d 894 (Fla. 2d DCA 1984).

For instance, in Miami Herald Publishing Co. v. Kendall, 88 So.2d 276 (Fla.1956), the court found that a newspaper carrier was an independent contractor and not an employee. In that case, the Miami Herald had entered into a contract with a newspaper carrier to distribute the Miami Herald within a set territory. The contract among other things provided that the carrier was an independent contractor and that the Miami Herald could not control his method of distributing or handling the newspaper. The contract defined the newscarrier's obligations: he was to furnish the names of new subscribers; to pay money collected to the appellant within a certain time; to present within forty-eight hours claims for shortages in papers; to call to appellant's attention within six days errors in statements; to handle the Miami Herald exclusively; to keep in confidence the names of subscribers; to select a substitute in the event he was unable to make his deliveries and be "responsible" for the substitute; to bear all costs of enforcing the contract; to give bond for his faithful performance of the agreement; to acquaint any successor with the route and list of subscribers; to secure delivery of papers in good condition; and to undertake to increase the number of subscribers. Id. at 278.

The Miami Herald set the retail price of the papers and was often the recipient of customer complaints about unsatisfactory delivery of the paper. The Miami Herald, however, did not supervise delivery of the papers. Rather, the court found that the newspaper boy, while making his deliveries, "was acting alone and was a specialist, at least to the extent of following his route, remembering the addresses of subscribers who were in good standing, and collecting and properly accounting for funds coming into his hands." Id. at 279. The newsboy was accountable for papers the publisher delivered to him whether or not he collected from the subscriber. The court stated that "we do not doubt that distribution of newspapers is a part of the regular business of the publisher but there is no reason that this cannot be done by independent contractor." Id.

In T & T Communications, the court found cable installers to be independent contractors primarily because the company's only concern was with the final product or result. Although the cable installers agreed with the cable company to complete the cable installations pursuant to the cable company's plans and specifications, the installers themselves determined the method by which to accomplish the installation. The court stated that further indicia that they were independent contractors were:

The fact that cable installers are normally unsupervised ... are skilled tradesmen ... provide their own tools and transportation ... are not employed for any length of time, are paid per installation, and receive no vacation and fringe benefits.

Id. at 998. See also D.O. Creasman.

In the instant case, although Kane's salesmen diagrammed the installation layout plan, the carpet installers, Perrone and Kraus, had unbridled discretion in the physical performance of their tasks. Perrone did not report to anyone at Kane and had absolute discretion in contracting out installation jobs. The only instructions Kane gave Perrone were that he and the other carpet installers should be neatly attired and not intoxicated while on the job. Kane also instructed Perrone on customer satisfaction.

Once the carpet installer got the job, he was on his own. He performed his work completely without Kane's supervision or any other involvement. Upon completion of his task, the installer was free to go where he pleased: to another job or, unfortunately, to the local bar.

(b) whether or not the one employed is engaged in a distinct occupation or business.

Carpet installing can be viewed as a distinct occupation. Perrone and Kraus each had their own independent installation businesses. Perrone performed his services through a company which he purchased from Kane in 1975. Kraus performed his services through his own company, Mike's Carpet Service.

(c) The kind of occupation with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision.

Carpet installers are skilled workers who routinely perform without supervision. Perrone and Kraus performed work which emanated through Kane sales on an "as needed" basis. Both performed without Kane's supervision. Each was responsible for his own work. Kraus guaranteed his work for one year. Each, personally, was responsible...