dissenting
I would affirm the grant of summary judgment in favor of Day, and therefore respectfully dissent.
The trial court determined that Day was entitled to summary judgment based upon its conclusion that, as a matter of law, Hendershot was an independent contractor of Day. The majority determines that the trial court’s conclusion in this regard was erroneous because Hendershot’s status at the time of his injury is a question of fact that is not appropriate for summary disposition. I agree that a worker’s status is ordinarily a question of fact that must be resolved by examining several factors relative to the work being performed at the time of the injury. However, when there is no dispute regarding those underlying factors, the worker’s status may properly be determined by the court as a matter of law. See Hale v. Kemp, 579 N.E.2d 63 (Ind.1991); Fox v. Contract Beverage Packers, Inc., 398 N.E.2d 709 (Ind.Ct.App.1980).
As a preliminary matter, the parties disagree as to which test should be used in determining Hendershot’s employment status. Moberly contends that the court *771should apply the ten-factor test based upon the Restatement (Second) of Agency § 220 (1958), which was cited by our supreme court in Mortgage Consultants, Inc. v. Mahaney, 655 N.E.2d 498 (Ind.1995). Day contends that the trial court correctly applied the seven-factor test set forth in Williams v. R.. H. Marlin, Inc., 656 N.E.2d 1145 (Ind.Ct.App.1995). Presumably, this dispute is based upon the belief that the outcome would change depending upon which test is applied. To the contrary, our supreme court noted in Mortgage Consultants, Inc. v. Mahaney that “the Restatement test is substantially similar to the seven-factor test applied by the courts below in this ease[.]” Mortgage Consultants, Inc. v. Mahaney, 655 N.E.2d at 499 n. 2. Accordingly, either test is valid and the trial court did not err in applying the aforementioned seven-part test. That test consists of the following factors: (1) Right to discharge, (2) mode of payment, (3) supplying of tools by employer, (4) belief by the parties in the existence of a master-servant relationship, (5) control over the means used or result reached, (6) length of employment, and (7) establishing of work boundaries.
After reviewing the facts of the instant case in relation to the factors listed above, I am convinced that the trial court correctly determined that, as a matter of law, Hendershot was an independent contractor of Day at the time Moberly was injured. To summarize those facts, Moberly and Hendershot occasionally worked for their father-in-law on his farm when certain tasks needed to be performed. Both men were employed elsewhere and did not work for Day on a regular basis. Day testified in a deposition that Hendershot was not his employee. On the day of the accident, Day asked Moberly and Hender-shot to repair a drainage tile. Day was not present when Moberly was injured. In fact, Day did not assist on the job that day at all. Rather, he merely told Moberly and Hendershot what he wanted done. He did not specify how the task was to be performed or in any way direct Hender-shot’s and Moberly’s work. In performing the work, Hendershot and Moberly used Hendershot’s equipment, not Day’s. On the day in question, and generally, Hen-dershot did not earn a salary and was not paid an hourly rate. Instead, he was paid by the job. Day always paid Hendershot either with a check or cash and did not withhold taxes.
In my view, with respect to at least five of the seven relevant factors set out in Williams v. R..H. Marlin, Inc., the undisputed facts recited above support Day’s contention that Hendershot was an independent contractor of Day’s when Moberly was injured. It was upon these bases that the trial court granted summary judgment in favor of Day — and I believe correctly so. Based upon my conclusion that the trial court correctly entered summary judgment on the basis of Hendershot’s status as independent contractor, I would not reach the issue of the viability of the borrowed servant doctrine under the Comparative Fault Act. I would affirm the trial court.