THIRD DIVISION
ELLINGTON, P. J.,
ANDREWS and RICKMAN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
August 16, 2017
In the Court of Appeals of Georgia
A17A1722. GRANGE INDEMNITY INSURANCE COMPANY v.
BEAVEX, INC.
ANDREWS, Judge.
This appeal is from the grant of summary judgment for BeavEx, Inc., a delivery
services broker, in an action seeking to impose vicarious liability for a motor vehicle
collision involving a driver BeavEx hired as an independent contractor. We affirm.
On March 17, 2014, as Pathe Sarr was making a delivery to Wells Fargo Bank
pursuant to a BeavEx referral, he collided with the vehicle of Edward and Patricia
Morris. The Morrises sued Sarr and BeavEx to recover for injuries sustained in the
collision. On March 31, 2017, the trial court granted summary judgment for BeavEx
on the grounds Sarr was an independent contractor, not an employee. Grange
Indemnity Insurance Company then filed this appeal as the Morrises’ purported
uninsured/underinsured motorist carrier.
Grange contends the trial court erred in finding Sarr was an independent
contractor to BeavEx, either on the grounds the evidence contained at least an issue
of fact as to the existence of an employer/employee relationship, or on the grounds
Sarr was BeavEx’s statutory employee under the Federal Motor Carrier Safety
Regulations.
In determining whether the relationship of parties under a contract for
performance of labor is that of employer and servant or that of employer
and independent contractor, the chief test lies in whether the contract
gives, or the employer assumes, the right to control the time, manner,
and method of executing the work as distinguished from the right merely
to require certain definite results in conformity to the contract. Where
the contract of employment clearly denominates the other party as an
independent contractor, that relationship is presumed to be true unless
the evidence shows that the employer assumed such control.
(Citation omitted.) Larmon v. CCR Enterprises, 285 Ga. App. 594, 595 (647 SE2d
306) (2007). See also, McLaine v. McLeod, 291 Ga. App. 335, 339 (1) (661SE2d 695)
(2008).
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In the instant case, on August 7, 2012, BeavEx contracted with Sarr to provide
delivery services as an independent contractor for customers located by BeavEx. That
contract specified that Sarr, as an independent owner/operator, “shall be responsible
for the manner and means of securing the end result of the provision of services under
this Contract and shall use its own independent judgment and discretion for the most
effective and safe manner in conducting pick-up and delivery services. Broker shall
exercise no direct control over Owner/Operator, nor the method or means used by
Owner/Operator in the performance of such services, including the selection of
routes.” Further, Sarr had to provide his own vehicle; he had to maintain vehicle and
cargo insurance; he had to pay for all his operating costs and expenses; he had to
satisfy any specific conditions set by the customers; he received a 1099 form and was
not treated as an employee for any tax purposes; he was not covered under BeavEx’s
workers’ compensation or unemployment insurance coverage; and he was not eligible
to participate in any BeavEx pension plan or insurance plans of any type. Due to
security concerns of the customers, Sarr was required to wear an identification badge
bearing BeavEx’s logo and indicating he was an authorized owner/operator for
BeavEx.
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The contract between BeavEx and Sarr clearly described an independent
contractor relationship. But Grange argues the evidence shows that BeavEx
nevertheless asserted sufficient control over the time, manner, and method of Sarr’s
deliveries for his bank customers, that an issue of fact existed as to whether Sarr was
an employee or an independent contractor. Specifically, Grange contends the
following requirements demonstrated BeavEx’s control over Sarr: 1. requiring Sarr
to wear a company shirt and identification badge; 2. requiring Sarr to make the
deliveries within a specified time period; 3. requiring Sarr to provide an annual
driving record and to allow BeavEx to inspect his vehicle; 4. and requiring Sarr to
report any accidents to BeavEx so it could inform the actual customer.
However, regarding the identification badge and company shirt, the contract
between BeavEx and Sarr explains the customers required them due to security
concerns. So that control was attributable to the third party customers, not BeavEx.
Regarding the times set for pickups and deliveries, Sarr testified in his deposition that
when BeavEx assigned a delivery order, it provided a manifest specifying the times
and branch locations, but Sarr did not know whether BeavEx or the customer banks
set the times. But the contract clearly states that the customers, and not BeavEx, set
the times for performance, and that the manifest was provided to owners/operators so
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that they could make an informed decision as to whether to accept or reject an
assignment.
Inspecting Sarr’s vehicle, and the policy of having owners/operators call
BeavEx in case of a problem that delays a delivery, address a legitimate concern that
owners/operators are able to carry out brokered deliveries. Sarr’s compliance with
those requirements pertained to his ability to complete deliveries to customers who
contracted with BeavEx for delivery services, and did not demonstrate BeavEx’s
control over the time and manner of executing the assigned work. “It is . . . well
settled in practically all courts that the right of the employer to exercise a certain
control over the work, where the control reserved does not apply to the manner of
doing the details of the work, and does not thereby take the work out of the hands of
the contractor, but goes merely to a general supervision to insure that the ends
prescribed by the contract shall be substantially met, does not destroy the
independence of the relation.” Bentley v. Jones, 48 Ga. App. 587, 592 (173 SE 737)
(1934).
Grange also contends that even if Sarr is not considered BeavEx’s employee
under traditional legal principles, he was BeavEx’s statutory employee under the
Federal Motor Carrier Safety Regulations (49 CFR §390 et seq.) However, those
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regulations do not apply here. Those regulations apply to “employers, employees, and
commercial motor vehicles that transport property or passengers in interstate
commerce.” 49 CFR §390.3 (a) (1). 49 CFR § 390.5 defines, in pertinent parts, an
employer as “any person engaged in a business affecting interstate commerce who
owns or leases a commercial motor vehicle in connection with that business, or
assigns employees to operate it . . .”; an employee as “any individual . . . who is
employed by an employer and who in the course of his or her employment directly
affects commercial motor vehicle safety. Such term includes a driver of a commercial
motor vehicle . . .”; and a commercial motor vehicle as a “motor vehicle used on a
highway in interstate commerce to transport passengers or property when the vehicle
(1) has a gross vehicle weight rating or gross combination weight rating, or gross
vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more...
or (2) is designed or used to transport more than 8 passengers . . . .”
In the instant case, Sarr was driving his own Honda Civic at the time of the
collision, and nothing in the record shows that such a small passenger sedan met the
above definition of a commercial motor vehicle. Further, Sarr’s delivery routes were
to local banks in the metro Atlanta area, and there was no evidence showing those
deliveries affected interstate commerce. The evidence of record thus provided no
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basis for finding Sarr to be the statutory employee of BeavEx under the provisions of
the Federal Motor Carrier Safety Regulations.
Judgment affirmed. Ellington, P. J., and Rickman, J., concur.
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