Cann, Katheryn v. Royal Indemnity Company--Appeal from 24th District Court of Victoria County

NUMBER 13-00-137-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

KATHERYN CANN, Appellant,

v.

ROYAL INDEMNITY COMPANY, Appellee.

 
On appeal from the 24th District Court

of Victoria County, Texas.

O P I N I O N

Before Chief Justice Valdez and Justices Dorsey and Rodriguez

Opinion by Chief Justice Valdez

Katheryn Cann appeals a summary judgment granted in favor of appellee Royal Indemnity Company ("Royal"). Royal, the workers' compensation carrier for Cann's employer, the Victoria Advocate (the "Advocate"), moved for summary judgment on grounds that Cann worked for the Advocate as an independent contractor rather than an employee, and thus was not entitled to workers' compensation benefits for injuries sustained on the job. On appeal, Cann asserts that: (1) there is a question of fact regarding the status of her working relationship with the Victoria Advocate, and (2) the trial court improperly granted the Advocate's motion for summary judgment. Both issues focus on Cann's status as an employee or independent contractor. We reverse and remand.

Background

Cann worked as a newspaper delivery person for the Advocate. According to the summary judgment evidence, she believed that the delivery route that she had been assigned was dangerous insofar as it required her to drive on the left side of the road, repeatedly cross a busy highway, and make numerous stops. Cann alleges that she proposed an alternate route for her deliveries, but the Advocate refused to allow her to change the details of her route. Thereafter, while making deliveries on her route, Cann was involved in an automobile accident. Cann's vehicle was struck by an intoxicated driver while she was stopped, as required by her delivery route, on the left side of the highway.

Cann brought suit against the Advocate for the injuries sustained in this accident. Cann premised her suit on grounds that she was an independent contractor, and the Advocate owed her a common law duty to provide a safe place to work. The trial court granted summary judgment in favor of the Advocate. The order granting summary judgment provides in part:

If Defendant, The Victoria Advocate, did have the right to control the details of the work performed by Plaintiff, Katheryn Cann at the time of the incident in question, then Katheryn Cann . . . is an employee of The Victoria Advocate, and the Texas Worker's Compensation Law precludes Plaintiffs' Katheryn Cann and Kenneth Cann [sic] lawsuit against The Victoria Advocate.
If Defendant, The Victoria Advocate, did not have the right to control the details of the work performed by Plaintiff, Katheryn Cann at the time of the incident in question, then the Defendant, The Victoria Advocate, is not liable to Plaintiffs' Katheryn Cann and Kenneth Cann as a matter of law.
The order thus provides alternative bases for the trial court's ruling in favor of the Advocate.

Cann then filed a workers' compensation claim which was denied on grounds that she was an independent contractor. Cann pursued this claim through administrative procedures, and ultimately appealed this decision to the district court. In district court, Royal, the workers' compensation carrier for the Advocate, filed a motion for summary judgment on the basis that Cann was an independent contractor and therefore not entitled to workers' compensation benefits. The trial court granted Royal's motion for summary judgment, and this appeal ensued. The pivotal question in this case is Cann's status as an employee or an independent contractor. Cann's position on this issue has changed since inception of her original suit against the Advocate. Cann originally alleged that she was an independent contractor, but currently alleges that she was an employee of the Advocate.

Standard of Review

In a summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. American Tobacco Co., v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Id. Every reasonable inference must be indulged in favor of the nonmovant, and any doubts must be resolved in favor of the nonmovant. Id. When a defendant moves for summary judgment on its affirmative defense, it must prove each element of its defense as a matter of law, leaving no issues of material fact. See, e.g., Gross v. Kahanek, 3 S.W.3d 518, 519 (Tex. 1999).

Applicable Law

An independent contractor is any person who, "in the pursuit of an independent business, undertakes to do a specific piece of work for other persons, using his own means and methods, without submitting himself to their control in respect to all its details." Pitchfork Land & Cattle Co. v. King, 162 Tex. 331, 346 S.W.2d 598, 602-03 (1961); see Bennack Flying Serv., Inc. v. Balboa, 997 S.W.2d 748, 751 (Tex. App.-Corpus Christi 1999, writ dism'd w.o.j.). The test to determine whether a worker is an employee or an independent contractor is whether the employer has the right to control the progress, details, and methods of operations of the employee's work. Thompson v. Travelers Indemn. Co., 789 S.W.2d 277, 278 (Tex. 1990);Newspapers, Inc. v. Love, 380 S.W.2d 582, 585-90 (Tex. 1964). This test is commonly referred to as the "right of control" test. See, e.g., Texas Workers Compensation Fund v. Del Ind., 35 S.W.3d 591, 595 (Tex. 2000). This same test applies whether the claim arises at common law or under workers' compensation. Thompson, 789 S.W.2d at 278; Elder v. Aetna Cas. & Sur. Co., 236 S.W.2d 611, 613 (Tex. 1951).

The employer must control not merely the end sought to be accomplished, but also the means and details of its accomplishment as well. Thompson, 789 S.W.2d at 278. Examples of the type of control normally exercised by an employer include when and where to begin and stop work, the regularity of hours, the amount of time spent on particular aspects of the work, the tools and appliances used to perform the work, and the physical method or manner of accomplishing the end result. Id. The court analyzes five factors in determining the amount of control retained by the employer: (1) the independent nature of the workman's business; (2) his obligation to furnish the necessary tools, supplies, and materials to perform the job; (3) his right to control the progress of the work except ast to final results; (4) the time for which he is employed; and (5) whether he is paid by time or by job. Pitchfork Land & Cattle Co., 346 S.W.2d at 603;Sugar Land Properties, Inc. v. Becnel, 26 S.W.3d 113, 117 (Tex. App.-Houston [1st Dist.] 2000, no pet.); Bennack, 997 S.W.2d at 751.
Analysis

Cann argues that the evidence shows that there is a controverted issue of fact regarding whether she served as an employee or independent contractor for the Advocate. Cann concedes that there is evidence that she was hired as an independent contractor and not an employee; however, she asserts that by refusing to allow Cann to vary her route, the Advocate exerted control over the details of her work, and thus essentially converted Cann to an employee for purposes of the workers' compensation statute.

The contract between Cann and the Advocate is styled an "Independent Carrier, Hauler, Newsstand and Vending Machine Agreement." Although the record copy of this agreement is not signed by the parties, Cann does not dispute the applicability of this agreement to her relationship with the Advocate. The agreement provides in part:

Whereas, Publisher requires the services of an Independent Carrier to deliver complete copies of The Victoria Advocate to its customers, collect for said copies, to sell The Victoria Advocate to prospective customers, and to maintain and promote professional customers [sic] relations with the Publisher's subscribers; and
Whereas carrier warrants that it operates and [sic] independent business enterprise which is capable of providing, and desires to provide, the aforementioned services to Publisher . . .
The Carrier shall determine each day the number of newspapers required to service his delivery area . . .
Carrier agrees to pick up newspapers as soon as practicable and thereafter to accomplish delivery of the newspapers as soon as possible, but not later than, under normal conditions 6:00 a.m. on weekdays and 6:00 a.m. on weekends or in any other manner which is satisfactory to publisher's customers and in compliance with [carrier minimum performance standards] . . . .
The agreement further discusses carrier minimum performance standards relating to market penetration and customer complaints. Although the contract is not as explicit as the contracts referenced in Carter Publications, Inc. v. Davis, 68 S.W.2d 640 (Tex. Civ. App.--Waco 1934, writ ref'd), and Mid Continent Freight Lines, Inc. v. Carter Publications, Inc., 336 S.W.2d 885 (Tex. Civ. App.--Fort Worth 1960, writ ref'd), the contract clearly intends to create an independent contractor relationship. However, we may consider evidence outside the contract concerning whether the contract was subterfuge or whether it had been abandoned in whole or part insofar as the right to control the details of the work is concerned. Newspapers, Inc. , 380 S.W.2d at 591-92.

In response to Royal's motion for summary judgment, Cann produced, among other items, a transcription of an audiotape giving her instructions on driving her route. The audiotape gives detailed instructions on when and where to pick up the papers, where to begin the delivery route, which direction to travel, where to turn, and where to leave the newspapers for the customers. The tape also specified which side of the road she was to drive on. Cann also produced portions of her deposition testimony, in which she testified that she was instructed to follow the directions on the audiotape and was not permitted to change the prescribed route. Royal did not raise objections to Cann's summary judgment evidence at the trial level or on appeal. Cann's summary judgment evidence raises a fact issue regarding whether the Advocate had assumed the right to control her work.

Moreover, given the conflicting summary judgment evidence, Cann's status as an employee or independent contractor is a question of fact rather than a question of law susceptible to resolution by summary judgment. When there is no dispute as to the controlling facts and only one reasonable conclusion can be inferred, the issue of whether a person is an employee or an independent contractor is a question of law. Sherard v. Smith, 778 S.W.2d 546, 548 (Tex. App.--Corpus Christi 1989, writ denied); see Crow v. TRW, Inc., 893 S.W.2d 72, 78 (Tex. App.--Corpus Christi 1994, no writ). However, unless the evidence is conclusive and reasonably susceptible to only one inference, the issue is one of fact. Dougherty v. Gifford, 826 S.W.2d 668, 678 (Tex. App.--Texarkana 1992, no writ). The deposition testimony of the Advocate employees and Cann directly conflicts regarding whether Cann requested permission to change her route and whether Cann had the right to change her route regardless of any instructions to the contrary. Therefore, this issue is not amenable to resolution by summary judgment practice.

Because there is a question of fact regarding Cann's status as an employee or independent contractor, we sustain Cann's first issue and reverse and remand this matter to the trial court.

ROGELIO VALDEZ

Chief Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 6th day of August, 2001.