Nazworth v. Swire Florida, Inc., BI-73

Decision Date04 April 1986
Docket NumberNo. BI-73,BI-73
Citation11 Fla. L. Weekly 791,486 So.2d 637
Parties11 Fla. L. Weekly 791 Florence Mildred NAZWORTH, individually, and as personal representative of the Estate of Henry Roy Nazworth, deceased, and as surviving spouse, Appellant, v. SWIRE FLORIDA, INC., a corporation, United States Fire Insurance Company, a corporation, and the North River Insurance Company, a corporation, Appellees.
CourtFlorida District Court of Appeals

Rutledge R. Liles, and J. Bruce Bickner, of Howell, Liles, Braddock & Milton, Jacksonville, for appellant.

Robert L. Cowles and James R. Barfield of Cowles, Hayden, Facciolo, McMorrow & Barfield, P.A., Jacksonville, and Daniel C. Shaughnessy and Howard C. Coker of Coker, Myers & Schickel, Jacksonville, for appellees.

NIMMONS, Judge.

This appeal arises from consolidated personal injury and wrongful death actions in which a final summary judgment was granted in favor of Swire Florida, Inc. ("Swire") and three insurers, finding that Swire was not responsible for the alleged negligence of an employee of Consultants Realty ("Consultants"), the court ruling that Consultants was an independent contractor as a matter of law. We reverse.

Appellant's husband was killed in an automobile collision between him and Goff, an off-duty police officer employed as a security guard at the Gateway Shopping Center by Consultants which managed the shopping center for Swire, the owner. Goff had received a call that a shoplifter had fled the Montgomery Ward store. He began searching for the suspect in his personal vehicle when he struck the decedent's vehicle about a mile from the shopping center, killing the decedent and seriously injuring his wife, the appellant. She subsequently filed these consolidated actions.

The appellant challenges on appeal the trial court's ruling that Consultants' relationship to Swire was, as a matter of law, that of an independent contractor.

A summary judgment is only appropriate where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. If the evidence is susceptible of several inferences, one of which will support the non-moving party's The record shows that Swire purchased Gateway Shopping Center in the 1970's. At the time of the purchase, Gateway was being managed by Consultants. The written management contract was entered into in 1973 between Consultants and a prior owner of Gateway. The agreement was continued in force after Swire's purchase of Gateway. The operative provisions of the agreement are reproduced in the appendix to this opinion. David Young, an employee of Consultants, was the individual who performed the day-to-day management of Gateway and who carried out Consultants' obligations under the management agreement. In his deposition, Young described Consultants as a realty and management company. It is unclear from the record as to whether Consultants managed any other properties than Gateway.

theory of the case, the issue should be determined by the trier of fact. Burkett v. Parker, 410 So.2d 947 (Fla. 1st DCA 1982).

Young had standing authority from Consultants "to hire X number of security guards" at Gateway. It was Young who hired and supervised Officer Goff.

The general rule, with certain exceptions, is that an owner, employer, or contractee will not be held liable for the torts of an independent contractor or of the latter's employees committed in the performance of the contracted work. 41 Am Jur 2nd Independent Contractors, Section 24; see Webb v. Priest, 413 So.2d 43, fn. 2 at 47 (Fla. 3d DCA 1982); Brien v. 18925 Collins Avenue Corp., 233 So.2d 847 (Fla. 3d DCA 1970); 2 Fla.Jur 2nd Agency and Employment, Section 109.

In the instant appeal, the parties agree that the determinative issue is whether, as to Swire, Consultants was an independent contractor.

In arguing against independent contractor status, Appellant relies, in part, upon the fact that the management agreement refers to Consultants as "Agent." But such reference is of no moment. As pointed out in RESTATEMENT (SECOND) AGENCY 2nd Section 14N:

Section 14 N. Agent and Independent Contractor.

One who contracts to act on behalf of another and subject to the other's control except with respect to his physical conduct is an agent and also an independent contractor.

Comment:

a. Independent contractor as agent. As stated in Section 2, "independent contractor" is a term which is antithetical to the word "servant", although not to the word "agent". In fact, most of the persons known as agents, that is, brokers, factors, attorneys, collection agencies, and selling agencies are independent contractors as the term is used in the Restatement of this Subject, since they are contractors but, although employed to perform services, are not subject to the control or right to control of the principal with respect to their physical conduct in the performance of the services. However, they fall within the category of agent.

See also Id., Section 250. In any event, the agreement's use of a certain descriptive label for one of the contracting parties is not determinative of the actual legal relationship between the parties. See Cantor v. Cochran, 184 So.2d 173, 174 (Fla.1966); LaGrande v. B & L Services, Inc., 432 So.2d 1364 (Fla. 1st DCA 1983).

The standard for determining whether an agent is an independent contractor is the degree of control exercised by the employer or owner over the agent. DeBolt v. Department of Health and Rehabilitative Services, 427 So.2d 221 (Fla. 1st DCA 1983); Restatement, supra, Section 250. More particularly, it is the right of control, and not actual control, which determines the relationship between the parties. Adams v. Department of Labor and Employment Security, 458 So.2d 1161 (Fla. 1st DCA 1984); LaGrande v. B & L Services, Inc., supra.

The management agreement contains specific limitations on various duties and Although the agreement does not specifically address the subject of security at Gateway, Consultants employed security guards with the knowledge and approval of Swire. In fact, although such guards were paid with Consultants' checks, Consultants regularly was reimbursed therefor by Swire. From this record, the trier of fact could conclude that Swire would be entitled to oversee and monitor the provision for security at Gateway, including the employment of security guards by Consultants.

functions of Consultants including the following: Swire had the right to indicate to Consultants its preferred sources of supplies and could require bids; Consultants could pay bills incurred by Swire or Consultants only at the direction of Swire; Consultants could not incur more than $150 expense for collections without the approval of Swire; Consultants could not spend more than $1500 for an individual repair or maintenance problem without approval from Swire; Swire required Consultants to insure the premises in such amount and for such risks as Swire determined.

We also note that, within two months after the accident, Swire terminated the management agreement with Consultants and proceeded to manage Gateway "in house" with its own employees. Young terminated his employment with Consultants and commenced working for Swire, managing the shopping center on site in much the same manner as he had previously.

The record, as developed at this time, is such that the trier of fact could fairly conclude that Swire maintained a degree of control over Consultants in the management of Gateway such that Consultants was not an independent contractor of Swire.

In DeBolt v. Department of Health & Rehabilitative Services, supra, this Court stated:

The terms of the contract appeared to have imposed a number of conditions and limitations upon the [worker] which, at the very least, create a factual dispute as to their status, thus precluding summary judgment.

427 So.2d at 226-227. In DeBolt, the right of control could be inferred in part from contract provisions which required the operators of an "attention home" for juvenile delinquents to report any illnesses of the children in their care, to refrain from entering into agreements to care for other children without contacting the putative employer, and to refrain from incurring any expenses for the children other than those set out in the agreement without first contacting the employer. Despite the reference in the agreement to the "attention home parents" as independent contractors, this court held that summary judgment on the issue of the legal status of such parties was precluded. See also Adams v. Department of Labor & Employment Security, supra.

We find the authorities relied upon by Swire to be distinguishable. For example, in Ortega v. General Motors Corporation, 392 So.2d 40 (Fla. 4th DCA 1981), our sister court ruled that, despite a number of controls over an automobile dealership, the dealership was, as a matter of law, an independent contractor. The court there emphasized that the dealership owned its premises and inventory, and was ultimately responsible for the success...

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