Santiago v. Phoenix Newspapers, Inc.

• Decision Date: 03 July 1990
• Docket Number: No. CV-89-0042-PR,CV-89-0042-PR
• Citation: 794 P.2d 138,164 Ariz. 505
• Parties: William SANTIAGO, a single man, Plaintiff/Appellant, v. PHOENIX NEWSPAPERS, INC., an Arizona corporation, Defendant/Appellee.
• Court: Arizona Supreme Court

Page 138

794 P.2d 138

164 Ariz. 505

William SANTIAGO, a single man, Plaintiff/Appellant, v. PHOENIX NEWSPAPERS, INC., an Arizona corporation, Defendant/Appellee.

No. CV-89-0042-PR.

Supreme Court of Arizona, In Banc.

July 3, 1990.

[164 Ariz. 506] Law Offices of James F. Brook by James F. Brook, Steven L. Reed, Tempe, for plaintiff-appellant.

Teilborg, Sanders & Parks, P.C. by James A. Teilborg, Jean E. Huffington, Phoenix, for defendant-appellee.

OPINION

SARAH D. GRANT, Chief Judge, Court of Appeals.

The appellant, William Santiago (Santiago), asks this court to review the court of appeals' decision affirming the trial court's entry of summary judgment in favor of Phoenix Newspapers, Inc. (PNI). We granted review to consider whether the trial court correctly found as a matter of law that PNI was not vicariously liable for the injuries Santiago sustained in a collision with a PNI delivery agent. See Rule 23, Ariz.R.Civ.App.P., 17B A.R.S. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.

PROCEDURAL HISTORY

On April 20, 1986, a car driven by Frank Frausto (Frausto) collided with a motorcycle driven by Santiago. At the time Frausto was delivering the Sunday edition of the Arizona Republic on his route for PNI. Santiago filed a negligence action against Frausto and PNI, alleging that Frausto was PNI's agent. Both parties moved for summary judgment. The court, finding no genuine issues of material fact, concluded that Frausto was an independent contractor. The court of appeals agreed, stating that "[p]arties have a perfect right, in their dealings with each other, to establish the independent contractor status in order to avoid the relationship of employer-employee, and it is clear from the undisputed facts that there was no employer-employee relationship created between PNI and Frausto." Santiago v. Phoenix Newspapers, Inc., 162 Ariz. 86, 90, 781 P.2d 63, 67 (1988). Santiago seeks review of this ruling. ¹

FACTS

We view the facts most favorably to Santiago, as the party opposing the summary judgment. See, e.g., Tribe v. Shell Oil Co., 133 Ariz. 517, 652 P.2d 1040 (1982).

Frausto began delivering papers for PNI in August 1984 under a "Delivery Agent Agreement," prepared by PNI. The agreement provided that Frausto was an "independent contractor," retained to provide prompt delivery of its newspapers by the times specified in the contract. Although Frausto had the right to operate the business as he chose, he could engage others to deliver papers on his route for no more than 25% of the delivery days. He was free to pursue any other business activities, including delivering other publications, so long as those activities did not interfere with his performance of the PNI contract. Frausto was also required to provide PNI with satisfactory proof of liability insurance, a valid driver's license, and a favorable report from the Arizona Motor Vehicle Division.

The contract was for a period of six months, renewable at PNI's option. Either party could terminate the agreement prior to six months without cause with 28 days notice and for cause with no notice. Under the contract, cause for termination by PNI existed if complaints from home delivery subscribers exceeded an undefined "acceptable" level, or if Frausto failed to maintain "acceptable" subscriber relations or provide "satisfactory service," defined as banding and bagging newspapers to insure they were received in a dry and readable condition. PNI was also free to breach the agreement if it ceased publishing the paper, defined in the contract as "excusable non-compliance." There is no correlative definition of cause for termination by Frausto. Customers paid PNI directly and any complaints about delivery were funnelled through PNI to Frausto. Additionally, the contract required Frausto to allow a PNI employee to accompany him on his route "for the purposes of verifying distribution, subscriber service, or regular newspaper business."

Early each morning, Frausto drove to a PNI-specified distribution point to load the papers into his car. He then delivered the papers before a PNI-specified time to addresses on a delivery list provided and owned by PNI. He could deliver the papers to listed addresses only. When customers were added to and taken from this list by PNI, Frausto was required to incorporate these changes into his route. According to Frausto, the number of papers delivered fluctuated by as much as thirty papers. For these services, PNI paid Frausto a set amount each week. That amount did not vary when addresses within or beyond the contracted delivery area were added to or taken away by PNI from the delivery list. PNI provided Frausto with health and disability insurance, but did not withhold any taxes.

In ruling on the summary judgment motion, the court considered the affidavits of Frausto and David L. Miller, a delivery agent and former employee driver. Frausto stated in his affidavit that, despite the contractual nomenclature, he considered himself an employee and delivered the papers any way his supervisor directed him to. This included placing the paper in a particular spot if requested by a customer. If he did not comply with these requests, his supervisor would speak to him and he could be fired. Miller stated in his affidavit that he had been a service driver, later switched to being a delivery agent, and that, in his view, there was no significant difference between the level of supervision provided to those holding the two positions.

DISCUSSION

The court may grant summary judgment only if no dispute exists as to any material facts, if only one inference can be drawn from those facts, and if the moving party is entitled to judgment as a matter of law. Tribe, 133 Ariz. at 518, 652 P.2d at 1041; Corral v. Fidelity Bankers Life Ins. Co., 129 Ariz. 323, 326, 630 P.2d 1055, 1058 (App.1981). Even when the facts are undisputed, summary disposition is unwarranted if different inferences may be drawn from those facts. Tribe, 133 Ariz. at 519, 652 P.2d at 1042; Smith, Arizona Civil Trial Practice, § 314 at 277 (1986). If the inference in this case is clear that no master-servant relationship exists, the trial court was correct in granting summary judgment; if it is not clear, the case should have been presented to the jury to decide. See Restatement (Second) of Agency § 220 comment c (1958); Northern Contracting Co. v. Allis-Chalmers Corp., 117 Ariz. 374, 376, 573 P.2d 65, 67 (1977). We apply the rule in this case by asking whether the courts below correctly decided that no inferences could be drawn from the material facts suggesting Frausto was acting as PNI's employee when the accident occurred.

Section 220 of the Restatement (Second) of Agency, adopted by Arizona, see Driscoll v. Harmon, 124 Ariz. 15, 17, 601 P.2d 1051, 1053 (1979); Lundy v. Prescott Valley, Inc., 110 Ariz. 362, 363, 519 P.2d 61, 62 (1974); Throop v. F.E. Young & Co., 94 Ariz. 146, 150-51, 382 P.2d 560, 563 (1963), defines a servant as "a person 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." The Restatement lists several additional factors, none of which is dispositive, in determining whether one acting for another is a servant or an independent contractor. We now review those factors, along with the cases considering them, for evidence of an employer-employee relationship which could preclude the entry of summary judgment.

As a prefatory note, we reject PNI's argument that the language of the employment contract is determinative. ² Contract language does not determine the relationship of the parties, rather the "objective nature of the relationship, [is] determined upon an analysis of the totality of the facts and circumstances of each case." Anton v. Industrial Commission, 141 Ariz. 566, 568, 688 P.2d 192, 194 (App.1984); Home Ins. Co. v. Industrial Commission, 123 Ariz. 348, 350, 599 P.2d 801, 803 (1979). Chief Judge Cardozo states that

We think there is evidence to sustain the finding of the board that claimant was a servant employed to sell the milk and cream of his employer in return for a commission. The contract is adroitly framed to suggest a different relation, but the difference is a semblance only, or so the triers of fact might find.

Glielmi v. Netherland Dairy Co., 254 N.Y. 60, 62, 171 N.E. 906, 906-07 (1930).

The fundamental criterion is the extent of control the principal exercises or may exercise over the agent. Central Management v. Industrial Commission, 162 Ariz. 187, 190, 781 P.2d 1374, 1377 (App.1989); Hamilton v. Family Record Plan, Inc., 71 Ill.App.2d 39, 47, 217 N.E.2d 113, 117 (1966); see also Greening v. Gazette Printing Co., 108 Mont. 158, 165, 88 P.2d 862, 864 (1939) (contract terms between carrier and printer not binding on third party; "[i]f one is injured by the servant of another, it is immaterial to him what the terms of the agreement between employer and employee might be. The liability must come from the fact that the employer exercises control over the actions of the person in his employment."); Femling v. Star Publishing Co., 195 Wash. 395, 405, 81 P.2d 293, 298, set aside on other grounds, 195 Wash. 395, 84 P.2d 1008 (1938) (question of employer-employee relationship was for jury, notwithstanding contractual provision that carrier was not an employee in any sense).

In determining whether an employer-employee relationship exists, the fact finder must evaluate a number of criteria. They include:

1. The extent of control exercised by the master over details of the work and the degree of supervision;

2. The distinct nature of the worker's business;

3. Specialization or skilled occupation;

4. Materials and place of work;

5. Duration of employment;

6. Method of payment;

7. Relationship of work done to the regular business of the employer;

8. Belief of the...