Richardson v. APAC-Mississippi, Inc.

• Decision Date: 13 January 1994
• Docket Number: INC,APAC-MISSISSIPP,No. 90-CA-1301,90-CA-1301
• Parties: Patricia M. RICHARDSON v.
• Court: Mississippi Supreme Court

Page 143

631 So.2d 143

Patricia M. RICHARDSON v. APAC-MISSISSIPPI, INC.

No. 90-CA-1301.

Supreme Court of Mississippi.

Jan. 13, 1994.

Christy E. Massie, Joe O. Sams, Jr., Columbus, for appellant.

Dewitt T. Hicks, Cynthia E. Daniels, Gholson Hicks Nichols & Ward, Columbus, for appellee.

En Banc.

HAWKINS, Chief Justice, for the Court:

Patricia M. Richardson has appealed a dismissal of her complaint against APAC-Mississippi, Inc. (APAC), on a summary judgment adjudication that one Berg McCandless, doing business as "B & P Trucking Co.," was an independent contractor, and not an employee of APAC at the time of the accident over which this action arose. We affirm the summary judgment dismissal on the The circuit court did not rule upon a late filed motion of Richardson to amend her complaint to allege a separate ground of liability, and we remand for the court to rule on this motion.

ground that McCandless was an independent contractor.

FACTS

Around 10:30 a.m., April 18, 1989, Richardson was emerging on a green light from a parking lot at the intersection of an extension of 18th Avenue North and Highway 45 North, in Columbus, when her vehicle was struck on the left side by a truck driven by Berg (also "Orlanda") McCandless, causing injury to Richardson, including broken bones, a collapsed lung, and various scrapes and bruises.

Richardson filed suit against APAC-Mississippi, Inc. (APAC), on April 28, 1990, in the Circuit Court of Lowndes County, charging APAC with negligence, based solely on the theory of respondeat superior. Richardson alleged McCandless was APAC's employee and, as a result, APAC was liable for his negligent acts. She charged McCandless failed to keep a proper lookout, ran a red light, failed to timely apply his brakes, and was speeding.

Richardson alleged, because of her injuries from the accident, she was totally and permanently disabled. She asked for one million dollars ($1,000,000.00) in damages from APAC.

APAC filed its answer on May 25, 1990. Under its third defense, APAC affirmatively alleged that McCandless was not its agent, servant, or employee at any time, although APAC did do business with an independent contractor named Berg McCandless, d/b/a B & P Trucking. APAC said it did not know if Berg McCandless and Orlanda McCandless were one and the same. APAC contended it was in no way liable to Richardson for any negligent acts of either Orlanda or Berg McCandless.

On June 25, 1990, APAC filed a motion for summary judgment on the ground McCandless was not its servant, agent, or employee, and that it could not be liable under respondeat superior for his negligence. APAC supported its motion with a brief, copies of the complaint and answer, the affidavit of Max Watson, and a copy of the contract between APAC and Berg McCandless d/b/a B & P Trucking.

Watson's affidavit stated he was APAC's safety director and had personal knowledge of the facts set forth in the affidavit. He stated APAC's business was highway construction and APAC produced its own asphalt for its construction projects. He said APAC had never had an employee named Orlanda McCandless, although APAC had a subcontract with Berg McCandless, d/b/a B & P Trucking. Berg McCandless was not, nor had ever been, an employee of APAC, Watson stated; and B & P was an independent contractor who hauled raw materials to APAC's asphalt plant.

Watson further asserted that the vehicle involved in the accident with Richardson was owned by Berg McCandless, not APAC; McCandless was solely responsible for its upkeep and maintenance, insurance, and operating expenses, and APAC exercised no control over where McCandless obtained his materials, supplies, or equipment for his hauling business, nor the prices he paid for those items. APAC provided no financing for any aspect of McCandless's operation, and did not pay him for mileage.

The affidavit continued that McCandless was solely responsible for hiring his own employees, for whom he paid social security and unemployment taxes as well as withholding their income taxes. McCandless was required by the terms of B & P's contract with APAC to furnish his own liability insurance and workers' compensation coverage for his employees. APAC paid no insurance or other benefit for any employee of B & P Trucking and, in fact, did not know whether or not McCandless had any other employees.

Watson's affidavit further set forth that APAC merely notified B & P where and when any hauling work was available, and B & P could choose whether to work or not. APAC did not control how many loads McCandless hauled per day, or how many hours or days he would work. McCandless Four days later, on June 29, 1990, APAC supplemented its motion with the affidavit of Berg McCandless. McCandless stated that he was the Orlanda McCandless involved in the accident with Richardson and, thus, had personal knowledge of the facts in his affidavit. He said he was a public hauler doing business as B & P Trucking on April 18, 1989, when the accident occurred. He further stated that he, and not APAC, owned the truck involved. He said he was hauling raw materials to APAC's asphalt plant on the date of the accident as an independent contractor and was not and had never been an employee of APAC.

chose his own times to work, and also chose his own routes and methods to complete the job, with no instruction whatsoever from APAC. McCandless held B & P Trucking out to the public as an independent trucking company, available for public hire. Watson finally stated that McCandless worked for APAC only on an intermittent basis, also working for other companies during the same time period.

He confirmed Watson's statements that he alone was responsible for his truck insurance, upkeep, and operating expenses. He said APAC furnished nothing, such as supplies, equipment, or materials, for his business. Where to purchase his supplies or how much to pay for them were at his discretion, and he said APAC provided no financing of his operations, not even mileage. McCandless stated APAC paid him solely on the basis of the amount he hauled and, if he did not work, he was not paid. APAC retained no control over his working hours, how many loads he hauled, what routes he took, or how many days he worked. He decided all such matters himself.

McCandless stated he held himself out as a public hauler, available for hire by anyone wanting to engage his services. He further supported APAC's allegation that it did not provide personnel to B & P, or insurance for any of B & P's employees. McCandless said he hired his own people, paid their workers' compensation and unemployment insurance, withheld their taxes, paid social security for those employees, and provided any other benefits.

On July 10, 1990, the circuit judge entered an order setting APAC's motion for summary judgment for hearing on July 31, 1990. A motion for a continuance was filed on July 12, 1990, and another order was entered on August 27, 1990, re-setting hearing for APAC's motion for summary judgment on Friday, September 7, 1990.

Counsel for Richardson, on September 6, 1990, filed an objection to the date of hearing, alleging no notice prior to the setting, and cited prior commitments for September 7, 1990. A subsequent order was entered setting the hearing on APAC's summary judgment motion for 1:30 p.m., September 12, 1990.

At the hearing, Richardson presented a brief in opposition to APAC's motion for summary judgment, as well as three affidavits. Although all three affidavits were dated September 6, 1990, none had been filed with the court nor given to opposing counsel until the hearing on the afternoon of September 12.

First, Richardson presented the affidavit of Bobby Bluitt, a policeman for the City of Columbus, who investigated the accident involving Richardson and McCandless. Bluitt stated McCandless admitted he was at fault and told him "APAC had overloaded him" on the day of the accident. Bluitt further said he had seen APAC's loading area before and "[t]rucks were being loaded by APAC and the truck drivers themselves do not load the trucks...."

An affidavit of Mary Beth Vickers, secretary for Joe O. Sams, Jr., counsel for Richardson, stated she listened to a telephone conversation between Sams and McCandless sometime during December, 1989, at Sams's request. She said McCandless stated he worked for APAC, he went to work when APAC told him to, he left with the rest of APAC's employees, he hauled whatever APAC told him to, he hauled it wherever they told him to take it, and he worked only for APAC. Vickers said McCandless also admitted his fault and said "APAC had overloaded him and that because of the heavy load he was unable to stop the truck in time."

Richardson's final supporting affidavit was from Otis L. Richardson, husband of Patricia Richardson. Richardson stated he met McCandless at the Golden Triangle Regional Medical Center, when McCandless came to check on Mrs. Richardson after the accident. Mr. Richardson said McCandless told him then he worked for APAC. He said McCandless first said his brakes failed, but then later said they would not hold because APAC had overloaded his truck. Otis Richardson also said McCandless said he was "double-covered by both my insurance and by APAC's insurance."

Also on September 12, 1990, Richardson filed a motion for leave to amend her complaint. She attached an amended complaint to that motion, in which she alleged APAC was negligent itself in overloading the truck of McCandless.

The circuit judge entered an order granting APAC's motion for summary judgment on November 14, 1990. In his Findings of Fact and Conclusions of Law, Judge Howard said Richardson did "not allege any negligent acts on the part of APAC" and her action was "based solely on the theory of respondeat superior."

The trial judge also noted the hearing on the motion was originally scheduled for July 31, 1990, but had been "continued on Plaintiff's request to...