Moberly v. Day, 07S01-0010-CV-605.

CourtSupreme Court of Indiana
Citation757 N.E.2d 1007
Docket NumberNo. 07S01-0010-CV-605.,07S01-0010-CV-605.
PartiesJay MOBERLY and Jenny Moberly, Appellants (Plaintiffs Below), v. William DAY d/b/a Day Farms, Appellee (Defendant Below).
Decision Date15 November 2001

James R. Fisher, A. Richard M. Blaiklock, Ice Miller Donadio & Ryan, Indianapolis, James T. Roberts, Nashville, IN, Attorneys for Appellants.

J. Lee McNeely, Paul A. Logan, McNeely Stephenson Thopy & Harrold, Shelbyville, IN, Attorneys for Appellee.

SHEPARD, Chief Justice.

Appellant Jay Moberly claims Joe Hendershot negligently injured him while the two were doing maintenance work at their father-in-law William Day's farm. Moberly wants Day to pay for the injury. The trial court concluded that Hendershot was an independent contractor, and entered summary judgment for Day. We affirm.

Facts and Procedural History

Day owns and operates a farm in Nashville, Indiana. In 1996, he fell ill with meningitis and became unable to do farm work because of ongoing dizziness, weakness, and difficulty walking.

Two of Day's sons-in-law, Moberly and Hendershot, each live within a quarter mile of the farm. Even before Day's illness, they assisted him in the farming operations upon request, for a half-day to two days at a time. On these occasions Day would pay for the help in an amount he considered fair, after the work was done.

On June 28, 1997, Day asked Moberly and Hendershot to dig up and repair some drainage tile in one of his fields. Hendershot provided a backhoe, as he had on previous occasions when he repaired drainage tile for Day.

Hendershot climbed into the backhoe seat. Moberly also attempted to climb onto the backhoe to ride to the field. As he did so, the backhoe's "boom" activated and swung around, seriously injuring Moberly's leg.

Moberly sued Day, alleging that both he and Hendershot were Day's employees, that Hendershot's negligence caused his injury, and that Day was vicariously liable for Hendershot's negligence.1 Day denied that he was Hendershot's employer and asserted several affirmative defenses.2 He sought summary judgment on the basis that Hendershot was an independent contractor and that employers are not liable for the torts of independent contractors. The trial court granted Day's summary judgment motion.

The Court of Appeals reversed and remanded, finding genuine issues of material fact that made the determination of employee-contractor status inappropriate for summary judgment. Moberly v. Day, 730 N.E.2d 768 (Ind.Ct.App.2000). Judge Friedlander dissented, applying a seven-factor analysis and concluding that Hendershot was an independent contractor as a matter of law. Id. at 770-71. We granted transfer, and now consider whether the undisputed facts support a determination of Hendershot's status as a matter of law.

Summary Judgment Standard of Review

Summary judgment requires evidence that leaves no genuine issues of material fact, so that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C); Ayres v. Indian Heights Volunteer Fire Dep't, Inc., 493 N.E.2d 1229 (Ind.1986). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmovant. Wright v. Carter, 622 N.E.2d 170 (Ind.1993).

On appeal from summary judgment, the reviewing court faces the same issues that were before the trial court and analyzes them the same way, Ambassador Fin. Servs., Inc. v. Ind. Nat'l Bank, 605 N.E.2d 746, 751 (Ind.1992), although the trial court's decision is "clothed with a presumption of validity," Ind. Dep't of State Revenue v. Caylor-Nickel Clinic, P.C., 587 N.E.2d 1311, 1312-13 (Ind.1992).

While the nonmovant bears the burden of demonstrating that the grant of summary judgment was erroneous, we carefully assess the trial court's decision to be sure that the nonmovant was not wrongly denied his or her day in court. Mullin v. Mun. City of South Bend, 639 N.E.2d 278 (Ind.1994). Appellate review of a summary judgment ruling may take into account only those materials designated to the trial court. Rosi v. Bus. Furniture Corp., 615 N.E.2d 431, 434 (Ind.1993) (citing T.R. 56(H)).

Employees v. Independent Contractors

Hendershot's employment status is the focal point of our analysis because of Indiana's "long-standing general rule ... that a principal is not liable for the negligence of an independent contractor." Bagley v. Insight Communications Co., 658 N.E.2d 584, 586 (Ind.1995) (citing Prest-O-Lite Co. v. Skeel, 182 Ind. 593, 106 N.E. 365 (1914); City of Logansport v. Dick, 70 Ind. 65 (1880)). Whether one acts as an employee or an independent contractor is generally a question for the finder of fact. Mortgage Consultants, Inc. v. Mahaney, 655 N.E.2d 493 (Ind.1995). If the significant underlying facts are undisputed, however, the court may properly determine a worker's classification as a matter of law. See Hale v. Kemp, 579 N.E.2d 63 (Ind.1991)

. The trial court here made such a determination, and granted summary judgment accordingly.

In Mortgage Consultants, Inc., we applied a ten-factor analysis described in the Restatement (Second) of Agency § 220 (1958) to distinguish employees from independent contractors.3655 N.E.2d at 495. These factors are:

(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 relation of master and servant; and

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

Restatement (Second) of Agency § 220(2) (1958). We consider all factors, and no single factor is dispositive. Mortgage Consultants, Inc., 655 N.E.2d at 496.

Applying the Factors

A. Extent of Control over Details of the Work. Restatement (Second) of Agency § 220(1) (1958) defines a servant (i.e. employee) as one "employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control." Comment d. to subsection (1) further describes control or right to control as "important and in many situations ... determinative."

Here, the record does not indicate any formal agreement about the extent of control Day exercised over Hendershot's work. It does, however, describe the working arrangement. Moberly stated:

Q What instructions, if any, did [Day] give you to do those jobs where you helped [Hendershot], other than on the day you were injured?

A He would tell us what he wanted done and we would do it.

Q When he would tell you what he wanted done, was that fix the tile, or more detailed than that? What did he tell you?

A Whatever the job was.

(R. at 53.) Day's description of the day of the accident is consistent:

Q What did you tell [Moberly] to do?

A I just told him to dig the holes up and fill in the tile, fix the tile.

Q You didn't specifically tell him each step?
A No, huh-uh.
Q And you didn't tell him to operate the equipment or to dig the hole or to do the back-filling?
A No.
Q How was that to be decided?

A That was just between them, you know. Whatever needed done. I mean If Joe needs him to do something, I just left that up to them.

(R. at 75 (emphasis added).)4

The evidence offered indicates that Hendershot was answerable to Day for results only, not the particulars of how he went about accomplishing assigned tasks. See Mortgage Consultants, Inc., 655 N.E.2d at 495. See also GKN Co., 744 N.E.2d at 406 (control is the most significant factor in evaluating single-versus dual-employer questions; even where truck driver was given a "ticket" for each load hauled, told where to take each load, and told when to arrive and leave each day, the facts weighed "heavily" in favor of independent contractor status). Therefore, this important factor tilts the scale toward an independent contractor conclusion.

B. Occupation or Business of One Employed. Hendershot worked as a truck driver and heavy equipment operator for a materials company. (R. at 93.) This is a distinct enough occupation to weigh at least slightly in favor of independent contractor status.

C. Kind of Occupation. Unsupervised specialists commonly perform this type of heavy-equipment repair, although employers do sometimes direct such work. This factor is therefore not particularly meaningful in this case.

D. Skill Required. Moberly testified that he was present numerous times when Hendershot operated a backhoe, and that he knew how to run a combine and a bulldozer. However, when asked whether the levers on a bulldozer were comparable to those on a backhoe, he described himself as "unfamiliar" with backhoes. (R. at 154-55.) This testimony supports the inference that special skill is required to operate a backhoe, even for someone experienced in operating other heavy equipment, so this factor weighs toward an independent contractor finding. E. Supplier of Equipment, Tools, and Work Location. Hendershot provided the backhoe that was the most important piece of equipment required on the day Moberly was injured. Hendershot had also supplied the backhoe on previous occasions over a period of years. The materials designated to the trial court contain no evidence indicating who supplied other tools or equipment on this or other occasions. Comment k. to Restatement (Second) of Agency § 220(2) indicates, however, that it is...

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