United States Court of Appeals,
Fifth Circuit.
No. 94-60446
Summary Calendar.
Michael Ray McKEE, Plaintiff-Appellant,
v.
Leroy BRIMMER, et al., Defendants,
Reid Pulpwood, Inc., Defendant-Appellee.
Dec. 5, 1994.
Appeal from the United States District Court for the Northern
District of Mississippi.
Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Michael Ray McKee ("McKee") appeals from a summary judgment
granted in favor of Reid Pulpwood, Inc. ("Reid"), in which the
district court found that Reid's relationship with the party
responsible for McKee's damages was that of independent contractor.
We affirm.
FACTS AND PROCEDURAL HISTORY
Jessie Doubleday, doing business as Doubleday Logging
("Doubleday") began negotiations with Magnolia Farms for a contract
to cut and haul timber. In March 1991 Doubleday approached Reid
and offered to sell Magnolia Farms timber to Reid. Magnolia Farms'
owners were willing to sell their timber, but wanted a contract
with someone with $1,000,000 of liability insurance coverage, which
Doubleday could not provide.
On April 8, 1991, Reid entered into a Hardwood Saw Timber Sale
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Agreement with Magnolia Farms. Reid then made a verbal agreement
with Doubleday for Doubleday to cut and haul the timber pursuant to
the Reid-Magnolia Farms contract. This was the first and only time
Reid contracted with Doubleday. Reid paid Doubleday on a
production basis for timber Doubleday cut and hauled to Reid's
purchasers. Reid made no loans or advances to Doubleday, and did
not deduct any taxes from the payments. Doubleday used its own
equipment, trucks, fuel and employees to do the job and Reid made
no inspections of Doubleday's equipment or work. There is no
evidence in the record that Reid had the right to control or
actually controlled the time, manner or routes used in hauling the
timber to Reid's purchasers, the aspect of Doubleday's work from
which McKee's injury arose.
On May 22, 1991, around 5:00 a.m., Leroy Brimmer, a Doubleday
employee, was operating a tractor-trailer owned by Doubleday loaded
with logs cut from Magnolia Farms. As he entered Interstate
Highway 55 South in Panola County, Mississippi, he collided with
McKee's truck, causing McKee both personal injury and property
damage.
McKee sued Brimmer, Doubleday and Reid to collect damages.
Doubleday defaulted and Brimmer filed an answer pro se. Both
Doubleday and Brimmer are uninsured and judgment proof. After
discovery, McKee filed a motion for partial summary judgment on the
issue of Reid's liability for the wrongful acts of
Brimmer/Doubleday based on the doctrine of respondeat superior.
Reid responded and filed its own motion for summary judgment
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requesting a dismissal, claiming that Brimmer/Doubleday were
independent contractors, thus Reid was not liable for their acts.
The district court denied McKee's motion and granted summary
judgment for Reid, holding that Doubleday was an independent
contractor and Reid was not liable for Doubleday's wrongful
conduct.
STANDARD OF REVIEW AND CHOICE OF LAW
We review a district court's ruling on motion for summary
judgment de novo, applying the same standards as those that govern
the district court's determination. Lodge Hall Music, Inc. v. Waco
Wrangler Club, Inc., 831 F.2d 77, 79 (5th Cir.1987). Summary
judgment must be granted if the court determines that there is no
genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). To
ascertain whether genuine issues of material fact are present in
this Mississippi based diversity action, we look to the substantive
law of Mississippi. Lavespere v. Niagara Machine & Tool Works,
Inc., 910 F.2d 167, 177-78 (5th Cir.), reh'g denied, 920 F.2d 259
(1990). We must view the evidence in the light most favorable to
McKee, the nonmoving party. Barhonovich v. American Nat. Ins. Co.,
947 F.2d 775 (5th Cir.1991).
DID THE CONTRACT MAKE REID LIABLE FOR DOUBLEDAY'S NEGLIGENCE?
Generally, an employer is liable for the negligent acts of
its employee1 done in the course and scope of his employment under
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The employer/employee relationship is sometimes referred to
as the master/servant relationship. See Richardson v. APAC-
Mississippi, Inc., 631 So.2d 143, 148 (Miss.1994). For purposes
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the doctrine of respondeat superior, but an employer is not liable
for the negligence of an independent contractor. W.J. Runyon &
Son, Inc., 605 So.2d 38, 45 (Miss.1992).
For many years Mississippi engaged in an elaborate factoring
analysis to determine whether or not one was engaged in an
employer/employee or independent contractor relationship. In W.J.
Runyon & Son, Inc. v. Davis, 605 So.2d 38 (Miss.1992), the
Mississippi court moved to a singular "right to control" test.
However, in Richardson v. APAC-Mississippi, Inc., 631 So.2d 143
(Miss.1994), the court overruled Runyon to the extent that it was
inconsistent with Richardson and moved back to a factoring
analysis. Through all the changes, the right to control and actual
control have always been primary factors. As the court observed,
"At last, and in any given case, it gets back to the original
proposition whether in fact the contractor was actually
independent." Richardson, 631 So.2d at 148. Where the facts are
undisputed, determining the type of relationship is a legal
question. Id. at 152.
McKee argued in his motion for summary judgment that the
contract between Reid and Magnolia Farms imposed on Reid an
obligation and corresponding right to control Doubleday. The
district court rejected that argument, finding that the relevant
inquiry was to determine what type of relationship existed between
Reid and Doubleday and not the relationship between Reid and
of clarity, this opinion will use the term "employer/employee
relationship."
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Magnolia Farms. McKee claims that the court below erred by not
assigning controlling weight to the contract, citing four
Mississippi cases that looked to a written contract in determining
parties' legal relationships. These cases all involve a contract
to which the alleged employer and the alleged employee were
parties2, and are not authority for the proposition that the court
should examine a contract between A and B to determine whether C is
the employee of B.
McKee's argument hinges on the theory that Reid's contractual
duties to Magnolia Farms gave Reid the power to control Doubleday.
Although Reid may have owed certain contractual obligations to
Magnolia Farms, this contract does not purport to, and cannot, give
Reid control over Doubleday, since Doubleday was not a party to the
contract. We, therefore, hold that the district court did not err
in finding that the contract was irrelevant to the inquiry here,
which was to determine what type of relationship existed between
Reid and Doubleday.
WAS THERE A FACT ISSUE THAT PRECLUDED SUMMARY JUDGMENT?
In addition to the basic question of control versus
independence, Mississippi considers the following factors relevant
in determining if a relationship is that of employer/employee or
independent contractor:
Whether the principal master has the power to terminate the
2
See Richardson v. APAC-Mississippi, Inc., 631 So.2d 143
(Miss.1994); Webster v. Mississippi Publishers, 571 So.2d 946
(Miss.1990); Magee v. Transcontinental Gas Pipe Line Corp., 551
So.2d 182 (Miss.1989); Texas Co. v. Jackson, 174 Miss. 737, 165
So. 546 (1936).
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contract at will; whether he has the power to fix the price
in payment for the work, or vitally controls the manner and
time of payment; whether he furnishes the means and
appliances for the work; whether he has control of the
premises; whether he furnishes the materials upon which the
work is done and receives the output thereof, the contractor
dealing with no other person in respect to the output;
whether he has the right to prescribe and furnish the details
of the kind and character of work to be done; whether he has
the right to supervise and inspect the work during the course
of employment; whether he has the right to direct the details
of the manner in which the work is to be done; whether he has
the right to employ and discharge the subemployees and to fix
their compensation; and whether he is obliged to pay the
wages of said employees.
Richardson v. APAC-Mississippi, Inc., 631 So.2d 143, 148
(Miss.1994) (quoting Kisner v. Jackson, 159 Miss. 424, 132 So. 90
(1931)).
McKee contends that the evidence before the court created a
genuine issue of material fact on the issue of the proper
characterization of Reid's relationship with Doubleday. McKee
relies on the following evidence:
* The written contract between Reid and Magnolia Farms.
For the reasons set out above, the contract is irrelevant to
the issue.
* Doubleday was covered on Reid's workers' compensation insurance.
McKee relies on Mr. Reid's statement during a deposition that
"Had Mr. Brimmer's case been reported as far as getting
injured, knowing my workman's comp company, they would have
covered him. They've never refused anybody. The way they
look at it, if they are doing a job on behalf—of course,
they're going to cover anyway."
Although Mr. Reid's statement may be some evidence that Reid's
worker's compensation insurance might have covered McKee's
injuries, there is no evidence that the policy covered only Reid's
"employees," as defined by Mississippi respondeat superior law, so
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as to create a fact issue concerning the employer/employee
relationship between Reid and Doubleday.
* There was no definite length of time that Doubleday would render
services to Reid and Reid could terminate the arrangement at
will. Further, the Reid/Doubleday agreement was not in
writing.
Neither of these facts address the central issue of
independence. The record conclusively demonstrates that Reid had
no duty or ability to control Doubleday or Doubleday's employees.
Neither the indefinite length of their agreement nor the fact that
it was not a written agreement is a disputed issue of material
fact. They are simply facts that appear in the record that do not
change the legal conclusion that Doubleday was Reid's independent
contractor.
McKEE'S PUBLIC POLICY ARGUMENT
The Mississippi Supreme Court in Richardson added an explicit
factor which had previously been implicit to the balancing test
used in determining the nature of a relationship:
When, however, third parties are adversely affected, this
Court will carefully scrutinize the contract to see if public
policy should permit the transformation of an ordinarily
employer/employee relationship into that of an independent
contractor. A necessary condition precedent for the
application of this factor, however, is that the party
challenging the claimed relationship will be adversely
affected, and denied an adequate legal remedy.
Richardson, 631 So.2d at 150.
McKee argues that Reid was aware of the poor financial
condition of Doubleday at the time of their agreement and so should
be liable for allowing Doubleday to operate without adequate
insurance. Further he claims that he will be denied an adequate
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remedy at law if he is barred from recovering from Reid because
Brimmer and Doubleday are judgment proof and uninsured.
The district court found that Doubleday was clearly performing
work as an independent contractor when the accident occurred and
Reid should not be held liable for damages to the plaintiff simply
because McKee had the misfortune to be involved in an accident with
an uninsured independent contractor performing work for its
principal. We agree.
The public policy factor from Richardson becomes an issue
when the relationship between the alleged employer and the alleged
employee would "ordinarily" be characterized as that of an
employer/employee, but they have a contract which defines their
relationship as that of independent contractors. In that case, the
court will scrutinize the contract to see if the parties should be
allowed to transform an employer/employee relationship into that of
an independent contractor. Richardson, 631 So.2d at 150. In
essence, an employer will not be allowed to escape liability by
drafting a contract which labels its employee an independent
contractor, but retains employer-like control over him. Since the
evidence establishes that Doubleday was an independent contractor,
and there is no evidence of an attempt by Reid to control Doubleday
through a written contract or otherwise, McKee's public policy
argument fails.
CONCLUSION
For the foregoing reasons, the district court's summary
judgment in favor of Reid is AFFIRMED.
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