FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEES:
ROBERT R. FAULKNER PATRICK A. SHOULDERS
Evansville, Indiana DAVID A. GUERRETTAZ
RHONDA Y. MILLER
Ziemer, Stayman, Weitzel & Shoulders
Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOSEPH A. FIORETTI, )
)
Appellant-Plaintiff, )
)
vs. ) No. 82A04-0211-CV-556
)
AZTAR INDIANA GAMING CO., LLC, )
d/b/a CASINO AZTAR, and )
BEN McCARTHY )
)
Appellees-Defendants. )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Robert J. Pigman, Judge
Cause No. 82D03-0106-CT-1945
June 26, 2003
OPINION-FOR PUBLICATION
BAKER, Judge
Appellant-plaintiff Joseph A. Fioretti appeals the entry of summary
judgment for appellees-defendants Aztar Indiana Gaming Company (Aztar).
Specifically, Fioretti claims that a genuine issue of material fact remains
as to whether Trooper McCarthy was an employee or agent of Aztar when he
caused Fioretti pain and injury during an arrest. Concluding that the
trial court did not err in entering summary judgment for Aztar, we affirm.
FACTS
The facts most favorable to Fioretti, the nonmoving party, reveal
that Aztar operates a riverboat casino in Evansville. Pursuant to statutes
and administrative regulations, the Indiana State Police (ISP) has officers
at the casino to ensure that gaming regulations are followed by Aztar and
that casino patrons comply with all laws. As part of the regulatory scheme
involving the casinos, Aztar must pay the costs associated with the
presence of the ISP officers, including salaries, benefits, and equipment.
On November 18, 2000, Fioretti and his mother were aboard the casino.
Fioretti was summoned over the public address system to go to the upper
floor of the casino. When Fioretti alighted from the elevator, Trooper
McCarthy told Fioretti he was under arrest for stealing coins and placed
handcuffs on him. During the handcuffing, Trooper McCarthy apparently
twisted Fioretti’s arms. Trooper McCarthy led Fioretti to a security room
where his mother and father were waiting.
On June 16, 2002, Fioretti filed a claim against Aztar and Trooper
McCarthy, seeking damages for battery, intentional infliction of emotional
distress, false imprisonment, negligence, and gross negligence, alleging
that Trooper McCarthy was an employee or agent of Aztar. Additionally,
Fioretti sought recovery under Indiana Code section 34-24-3-1, which allows
monetary recovery for the crime of criminal confinement. Fioretti also
claimed that his civil rights had been violated and, thus, sought recovery
under 42 U.S.C. § 1983. On April 1, 2002, Aztar moved for summary
judgment, alleging that Trooper McCarthy was neither an employee nor an
agent of Aztar. The trial court entered summary judgment for Aztar[1] on
September 18, 2002. Fioretti now appeals.
I. Standard of Review
We first note that when this court reviews a trial court’s ruling on
summary judgment, it applies the same standards used by the trial court in
deciding whether to affirm or reverse the trial court. Creel v. I.C.E. &
Assocs., Inc., 771 N.E.2d 1276, 1279 (Ind. Ct. App. 2002). We will not
weigh evidence but will construe the facts in the light most favorable to
the nonmoving party. Id. Summary judgment should be granted only if the
designated evidence shows 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.
Ind. Trial Rule 56(C).
II. Respondeat Superior - Employee
Fioretti contends that the trial court erred in finding that, as a
matter of law, Trooper McCarthy was not an employee of Aztar.
Specifically, Fioretti asserts that Aztar is required by statute or
regulations to pay for the salaries, benefits, and equipment of ISP
officers assigned to its riverboat. Thus, Fioretti argues, “this
relationship renders the State Police personnel assigned to Riverboat
duties borrowed servants, rented from the State Police.” Appellant’s Br.
p. 8.
Our supreme court developed a seven-factor test in determining
whether a person is the employee of two employers in GKN Co. v. Magness,
744 N.E.2d 397, 402 (Ind. 2001). Specifically, the hallmarks of a borrowed
servant relationship are as follows: “(1) right to discharge; (2) mode of
payment; (3) supplying tools or equipment; (4) belief of the parties in
the existence of an employer-employee relationship; (5) control over the
means used in the results reached; (6) length of employment; and, (7)
establishment of the work boundaries.” Id. Furthermore, our supreme court
has held that “the right to exercise control over the manner and means by
which the work is to be accomplished is the most important consideration.”
Moberly v. Day, 757 N.E.2d 1007, 1010 n.3 (Ind. 2001).
A. Right to Discharge
Larry A. Qualls, Director of Security at Aztar, stated in his
affidavit that “Aztar did not and does not have the authority to hire and
fire the State Police.” Appellant’s App. p. 29. No evidence was
designated by Fioretti to dispute Qualls’s statement. More importantly,
gaming statutes omit references to casino control over ISP officers. The
statute describing the powers of the Indiana Gaming Commission (IGC) reads,
in relevant part:
The commission shall do the following:
. . . .
(7) Be present through the commission’s inspectors and agents during
the time gambling operations are conducted on a riverboat to do the
following:
(A) Certify the revenue received by a riverboat.
(B) Receive complaints from the public.
(C) Conduct other investigations into the conduct of the
gambling games and the maintenance of the equipment that the
commission considers necessary and proper.
Ind. Code § 4-33-4-3. Indiana Code section 4-33-4-3.5[2] authorizes the
IGC to hire agents to comply with Indiana Code section 4-33-4-3(7).
Neither this statute nor section 1-14-1 of title 68 of the Indiana
Administrative Code, which establishes the Gaming Enforcement Section of
the ISP, gives Aztar the right to discharge an ISP officer. In fact, the
text of Indiana Code section 4-33-4-3(7) seems to indicate that Aztar is
the IGC’s primary target of surveillance. This factor weighs in favor of a
finding that Trooper McCarthy was not an Aztar employee.
B. Mode of Payment and Supplying Tools and Equipment
Fioretti notes that casinos such as Aztar, under section 1-14-2 of
title 68 of the Indiana Administrative Code, are responsible for the
salaries, benefits, and equipment of ISP officers assigned to the
riverboats. Thus, Fioretti argues, the officers are “100% financed” by
Aztar. Appellant’s Br. 8.
In determining whether the payment of funds from Aztar to benefit the
ISP officers constitutes a sufficient factor to raise the issue of
respondeat superior, we note that section 1-14-3 of title 68 of the Indiana
Administrative Code reads as follows:
(a) The [ISP] shall, through interdepartmental bill, assess the costs
listed in section 2 of this rule to the [IGC]. The [IGC] will
reimburse the [ISP] for the amount assessed.
(b) The [IGC] will prepare an invoice that will be sent to the
riverboat licensee or riverboat license applicant. The riverboat
licensee or riverboat license applicant will pay the [IGC] in the
manner directed in the invoice.
Thus, the ISP officers assigned to Aztar are separated from Aztar by two
governmental agencies, the ISP and IGC. The fact that the troopers are two
levels removed from Aztar weighs against a finding that Trooper McCarthy
was an employee or agent of Aztar. See GKN Co. v. Magness, 744 N.E.2d 397,
405 (Ind. 2001) (holding that fact that trucking company paid plaintiff,
withheld his taxes, and paid his worker’s compensation insurance premiums
pointed to the conclusion that plaintiff was employee of trucking company
and not of general contractor, even though general contractor paid trucking
company for work that was solely performed by plaintiff).
C. Belief of the Parties
Fioretti has supplied no evidence of the intent of Aztar and Trooper
McCarthy. The Qualls affidavit states that “at no time did I believe that
the State Police were the agents, employees or servants of Casino Aztar,”
Appellant’s App. p. 29, though such a statement is self-serving inasmuch as
Aztar’s goal is to place as much separation between itself and Trooper
McCarthy as possible. Additionally, Indiana Code section 4-33-4-3, which
establishes the duties of the gaming commission on board a riverboat,
indicates that ISP troopers are assigned to boats to ensure that neither
the riverboats nor their patrons flout Indiana law. Thus, this factor is
not helpful in deciding whether Trooper McCarthy was an Aztar employee.
D. Control Over the Means
Fioretti claims that section 8-2-22(2) of title 68 of the Indiana
Administrative Code shows that Aztar has extensive control over the
Troopers assigned to the riverboat. The regulation in question reads as
follows:
The law enforcement and security section shall include the following:
. . . .
(2) A list of the major law enforcement tasks related to enforcement
of statutory requirements pertaining to riverboat gambling.
According to Fioretti, this section allows Aztar to circumscribe the
activities of the ISP troopers.
The regulation cited by Fioretti is a description of a portion of an
“emergency response plan” that must be submitted to the IGC per section 8-2-
3 of title 68 of the Indiana Administrative Code. In addition to “the law
enforcement and security section” mentioned in section 8-2-22, the
“emergency response plan” also must contain a “medical section,” 68 IAC 8-2-
18, and a “fire and rescue section,” 68 IAC 8-2-21. When read in the
context of the regulation, it is plain that the regulation does not give
control of the troopers to Aztar but informs the IGC of the required law
enforcement tasks in the event of an emergency.
Most indicative of a lack of control on the part of Aztar is Indiana
Code section 4-33-4-3(7)(C), which allows troopers to “conduct other
investigations into the conduct of the gambling games and the maintenance
of the equipment that the commission considers necessary and proper.” The
statute shows that the IGC—through its agents, the troopers—can investigate
casinos such as Aztar at any time, without Aztar’s direction. This factor
weighs heavily in favor of a finding that Trooper McCarthy is not an Aztar
employee.
E. Length of Employment
This factor seems to be of little use, as neither party provided any
evidence of Trooper McCarthy’s tenure as a trooper with this Aztar
facility.
F. Establishment of Work Boundaries
Fioretti has not presented any evidence of Aztar’s ability to set
work boundaries for Trooper McCarthy. Qualls, on the other hand, stated in
his affidavit that Aztar “did not and could not control the means by which
the Troopers performed their duties, and did not set work boundaries for
the Troopers.” Appellant’s App. p. 29. Thus, the uncontroverted evidence
shows that Aztar had no control over the establishment of work boundaries
for the troopers. As a result, this factor weighs in favor of a finding
that Trooper McCarthy was not an employee or agent of Aztar.
III. Respondeat Superior - Agent
Fioretti contends that the trial court erred in finding that, as a
matter of law, Trooper McCarthy was not an agent of Aztar. Specifically,
Fioretti claims that inasmuch as Aztar has an emergency response plan in
place for law enforcement, Aztar is able to exert control over the
troopers.
We first note that “an agent ‘is a substitute or deputy appointed by
the principal with power to do certain things which the principal may or
can do.’” Woodworth v. Estate of Yunker, 673 N.E.2d 825, 827 (Ind. Ct.
App. 1996) (quoting 3 Am. Jur. 2d Agency § 1 (1964)). “‘[T]he elements of
an actual agency relationship are three: manifestation of consent by the
principal; acquiescence by the agent; and control exerted by the
principal.’” Id. (alteration in original) (quoting Hope Lutheran Church v.
Chellew, 460 N.E.2d 1244, 1247 (Ind. Ct. App. 1984))
As stated in Part II.D, section 8-2-22(2) of title 68 of the Indiana
Administrative Code, which requires submission of an emergency response
plan, does not supply Aztar with control of the troopers but provides the
IGC with information about critical tasks in the event of an emergency.
Furthermore, the designated evidence fails to show that the troopers as a
whole, or Trooper McCarthy in particular, consented to becoming agents for
Aztar. Thus, the trial court did not err in finding that Trooper McCarthy
was not an agent for Aztar.
CONCLUSION
In light of the issues discussed, it is evident that no genuine issue
of material fact remained regarding the question of whether Trooper
McCarthy was an employee or agent of Aztar. Because all relevant factors
contained in the Magness analysis point away from an employment
relationship between Aztar and Trooper McCarthy and because the designated
evidence shows neither Aztar’s control over Trooper McCarthy nor assent by
Trooper McCarthy to an agency relationship, the trial court did not err in
holding that Aztar was entitled to judgment as a matter of law.
Affirmed.
DARDEN, J., concurs.
SULLIVAN, J., concurring with opinion.
IN THE
COURT OF APPEALS OF INDIANA
JOSEPH A. FIORETTI, )
)
Appellant-Defendant, )
)
vs. ) No. 82A04-0211-CV-556
)
AZTAR INDIANA GAMING CO., LLC, )
d/b/a CASINO AZTAR, and )
BEN McCARTHY, )
)
Appellees-Defendants. )
SULLIVAN, Judge, concurring
With the exception of its reliance upon the Belief of the Parties as
in Part C, I believe the majority opinion adequately and correctly
evaluates the factors to determine whether McCarthy was an Aztar employee
or agent.
My problem with the Belief of Parties discussion is that the
affidavit of Qualls, the Security Director for Aztar, is patently self-
serving. It behooves Aztar to place as much separation between itself and
the trooper as possible. It should come as no surprise that Qualls said he
did not believe that the State Police were the agents, employees, or
servants of Aztar. Furthermore, the ISP troopers are not concerned only
with the compliance with the law by “the riverboats themselves” because, as
earlier noted by the majority opinion, their duties include making sure the
patrons comply with the law. I do not think the Belief of the Parties
factor weighs either way in our case.
Subject to the above observation, I concur.
-----------------------
[1] We note that the claims against Trooper McCarthy were not disposed of
on summary judgment.
[2] Indiana code section 4-33-4-3.5 reads as follows: “The commission
may employ or contract for inspectors and agents required under section
3(7) of this chapter. The licensed owners shall, in the manner prescribed
by the rules of the commission, reimburse the commission for the salaries
and other expenses of the inspectors and agents required to be present
during the time gambling operations are conducted on a riverboat.”
