Shaffer v. Acme Limestone Co., Inc.

• Citation: 524 S.E.2d 688,206 W.Va. 333
• Decision Date: 03 December 1999
• Docket Number: No. 26114.,26114.
• Court: Supreme Court of West Virginia
• Parties: Lisa Sue King SHAFFER, Administratrix and Personal Representative of the Estate of Virginia Dare Keeling King, Deceased, Plaintiff Below, Appellee, v. ACME LIMESTONE COMPANY, INC., a West Virginia Corporation; J.L. Spade Trucking, Inc.; Jack L. Spade, Individually and Doing Business as J.L. Spade Trucking; and Jonathan Dale Riffey, Defendants Below, Appellants.

524 S.E.2d 688

206 W.Va. 333

Lisa Sue King SHAFFER, Administratrix and Personal Representative of the Estate of Virginia Dare Keeling King, Deceased, Plaintiff Below, Appellee, v. ACME LIMESTONE COMPANY, INC., a West Virginia Corporation; J.L. Spade Trucking, Inc.; Jack L. Spade, Individually and Doing Business as J.L. Spade Trucking; and Jonathan Dale Riffey, Defendants Below, Appellants.

No. 26114.

Supreme Court of Appeals of West Virginia.

Submitted October 6, 1999.

Decided December 3, 1999.

Robert B. Allen, James P. McHugh, Allen, Guthrie & McHugh, Charleston, West Virginia, Attorneys for the Appellant.

Mary H. Sanders, Shawn Romano, Huddelston, Bolen, Beatty, Porter & Copen, Charleston, West Virginia, Attorneys for the Appellees. DAVIS, Justice:

Lisa Sue King Shaffer, appellant/plaintiff, (hereinafter referred to as "Ms. Shaffer"),¹ appeals from an order of the Circuit Court of Greenbrier County granting summary judgment to Acme Limestone Company, Inc., appellee/defendant (hereinafter referred to as "Acme"). Originally, this action was filed by Ms. Shaffer against three separate defendants: Acme; J.L. Spade Trucking (hereinafter referred to as "Spade Trucking"); and Jonathan Dale Riffey (hereinafter referred to as "Mr. Riffey").² The circuit court granted summary judgment to Acme concluding that Acme and Spade Trucking maintained an independent contractor relationship. Therefore, Acme was not liable for the wrongful death caused by Spade Trucking and its employee, Mr. Riffey. In this appeal, Ms. Shaffer contends that factual issues are in dispute as to whether an independent contractor relationship existed between Acme and Spade Trucking. Alternatively, Ms. Shaffer asserts that if an independent contractor relationship existed between Acme and Spade Trucking, certain exceptions to the independent contractor defense exist which preclude summary judgment. Based upon the parties' arguments on appeal, the record designated for appellate review, and the pertinent authorities, we affirm in part, and reverse in part, the decision of the Circuit Court of Greenbrier County.

I. FACTUAL AND PROCEDURAL HISTORY

Acme operates a stone quarry facility near Fort Spring, Greenbrier County, West Virginia. Acme sells its products to government agencies and private customers. In most cases, Acme is required to transport its products to the location designated by the customer. In order to transport its products to its customers, Acme retains the services of persons and companies owning trucks, including Spade Trucking.

On December 15, 1997, Virginia Dare Keeling King was killed when the car she was driving was involved in a collision with a truck owned by Spade Trucking. The truck was being driven by Mr. Riffey, a Spade Trucking employee. Mr. Riffey failed to stop at an intersection stop sign and struck the victim's car.³ Immediately prior to the accident, Mr. Riffey had delivered stone to one of Acme's customers. At the time of accident, Mr. Riffey was returning to Acme with Spade Trucking's empty truck.

After the accident, Ms. Shaffer filed the instant wrongful death action. Ms. Shaffer alleged that Mr. Riffey's employer, Spade Trucking, was operated and controlled by Acme. After discovery was completed, Acme moved for summary judgment. The trial court found that no material issue of fact existed on the issue of Spade Trucking's status as an independent contractor. Therefore, the circuit court granted summary judgment to Acme.⁴ It is from the summary judgment order that Ms. Shaffer now appeals.

II. STANDARD OF REVIEW

"A circuit court's entry of summary judgment is reviewed de novo ." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). This Court has made clear that "[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. pt. 3, Aetna Cas. & Surety Co. v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). "Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syl. pt. 4, Painter, 192 W.Va. 189, 451 S.E.2d 755. We have further held that "[t]he question to be decided on a motion for summary judgment is whether there is a genuine issue of material fact and not how that issue should be determined." Syl. pt. 5, Aetna Cas., 148 W.Va. 160, 133 S.E.2d 770. Moreover, we have explained that:

Roughly stated, a "genuine issue" for purposes of West Virginia Rule of Civil Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue does not arise unless there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict for that party. The opposing half of a trialworthy issue is present where the non-moving party can point to one or more disputed "material" facts. A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law.

Syl. pt. 5, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995).

All reasonable doubts regarding the evidence must be resolved in favor of the non-moving party. "A party who moves for summary judgment has the burden of showing that there is no genuine issue of material fact and any doubt as to the existence of such issue is resolved against the movant for such judgment." Syl. pt. 6, Aetna Cas.,148 W.Va. 160,133 S.E.2d 770. Thus, in order for summary judgment to be proper, the movant must demonstrate that there is no evidence to support the non-movant's case and "that the evidence is so one-sided that the movant must prevail as a matter of law." Tolliver v. The Kroger Co., 201 W.Va. 509, 513, 498 S.E.2d 702, 706 (1997). Applying this standard of review to the instant case, we shall examine the facts and application of the law to determine whether there is a genuine issue of fact to be tried by a jury.

III. DISCUSSION

A. Independent Contractor Defense: The Paxton test

The threshold inquiry, as was correctly determined by the trial court, is whether Spade Trucking was an independent contractor. We have recognized that " `the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servant.' " Pasquale v. Ohio Power Co., 187 W.Va. 292, 302, 418 S.E.2d 738, 748 (1992), quoting Peneschi v. National Steel Corp., 170 W.Va. 511, 521, 295 S.E.2d 1, 11 (1982) (quoting Restatement (Second) of Torts § 409 (1976)). We have also recognized that "[t]he defense of `independent contractor' is one which defendants have long favored as a means of denying liability for acts which are done by those whom they neither control nor have a right to control. However, over the years, the defense has proved to be a slender reed and one which the courts have found difficult to apply." Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 625, 225 S.E.2d 218, 221 (1976) (footnote omitted). This is because, as "we have [previously] acknowledged[,]... the independent contractor defense is riddled with numerous exceptions that limit its applicability." Pasquale, 187 W.Va. at 303, 418 S.E.2d at 749. See also West v. National Mines Corp., 168 W.Va. 578, 588, 285 S.E.2d 670, 677 (1981) ("The general rule that an employer is not liable for the torts of an independent contractor is subject to numerous exceptions"). Moreover, "[w]here the evidence relative to whether a particular person is an independent contractor or an employee is in conflict or, if not in conflict, admits of more than one reasonable inference, an issue is presented for jury determination." Syl. pt. 1, Levine v. Peoples Broadcasting Corp., 149 W.Va. 256, 140 S.E.2d 438 (1965).

The seminal case establishing the test for whether an independent contractor relationship exists is Paxton v. Crabtree, 184 W.Va. 237, 400 S.E.2d 245 (1990). In syllabus point 5 of Paxton, this Court held as follows:

There are four general factors which bear upon whether a master-servant relationship exists for purposes of the doctrine of respondeat superior: (1) Selection and engagement of the servant; (2) Payment of compensation; (3) Power of dismissal; and (4) Power of control. The first three factors are not essential to the existence of the relationship; the fourth, the power of control, is determinative.

Accord Syl. pt. 5, Teter v. Old Colony Co., 190 W.Va. 711, 441 S.E.2d 728 (1994); Syl. pt. 5, Davis v. Fire Creek Fuel Co., 144 W.Va. 537, 109 S.E.2d 144 (1959), overruled on other grounds by Yates v. Mancari, 153 W.Va. 350, 168 S.E.2d 746 (1969). "When asserting the independent contractor defense, the employer must first establish that an independent contractor relationship exists." Pasquale, 187 W.Va. at 303 n. 16, 418 S.E.2d at 748 n. 16. In syllabus point 1 of Myers v. Workmen's Compensation Commissioner, 150 W.Va. 563, 148 S.E.2d 664 (1966), we ruled that "[t]o ascertain whether a workman is an employee or an independent contractor each case must be resolved on its own facts and ordinarily no one feature of the relationship is controlling, but all must be considered together." Accord Syl. pt. 2, Barkley v. Workmen's Comp. Comm'r, 164 W.Va. 777, 266 S.E.2d 456 (1980). In the instant case, the circuit court found that Spade Trucking was an independent contractor. On appeal, Ms. Shaffer argues that Paxton's "power of control" element clearly demonstrates that material issues of fact are in dispute. Therefore, we will not review the first three elements of Paxton.⁵ Our analysis will focus solely on the forth element of the Paxton test, "power of control." Ms. Shaffer states that Acme exercised control over Spade Trucking employees. Regarding the element of "control," we have held that "[i]f the...