Stewart v. Lofton Timber Company, LLC, et al.
| Docket Number: | 2005-CA-01396-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-07-2006 Opinion Author: LEE, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Personal injury - Employment status - Joint venture - Public policy Judge(s) Concurring: KING, C.J., MYERS, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ. Procedural History: Summary Judgment Nature of the Case: CIVIL - PERSONAL INJURY |
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| Trial Court: |
Date of Trial Judgment: 06-13-2005 Appealed from: Attala County Circuit Court Judge: Joseph H. Loper Disposition: SUMMARY JUDGMENT FOR APPELLEES Case Number: 04-0138-CV-L |
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| Party Name: | Attorney Name: | |||
| Appellant: | JAMES STEVEN STEWART AND RENEE
STEWART |
JENNIFER P. BURKES |
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| Appellee: | LOFTON TIMBER COMPANY, LLC AND GEORGIA PACIFIC CORPORATION | CECIL MAISON HEIDELBERG |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Employment status - Joint venture - Public policy |
| Summary of the Facts: | After suffering serious injuries when a log truck driven by Cleansy Barksdale collided with his truck, James Stewart and his wife, Renee, filed a complaint against Cleansy Barksdale; Albert Nickerson, individually and d/b/a Nickerson Trucking; Lofton Timber Company, LLC; Georgia Pacific Corp.; Charles Donald, individually and d/b/a Charles Donald Pulpwood, Inc.; and John Doe Defendants A-D. The logging truck driven by Barksdale was owned by Albert Nickerson, d/b/a Nickerson Trucking. Barksdale had been hired to take a load of wood from Lofton Timber Company’s storage facility to a mill owned by Georgia Pacific in Monticello. The complaint alleged gross negligence against Barksdale and vicarious liability and/or liability under the doctrine of respondeat superior against the remaining defendants. Defendants Charles Donald and Charles Donald Pulpwood, Inc., were later dismissed without prejudice. Lofton Timber and Georgia Pacific moved for summary judgment. The Stewarts moved for partial summary judgment. The circuit court granted summary judgment for Lofton and Georgia Pacific holding Nickerson Trucking solely responsible for the accident. The Stewarts appeal. |
| Summary of Opinion Analysis: | The Stewarts argue that summary judgment for Lofton Timber was inappropriate because a factual question exists as to whether Nickerson was an employee of Lofton rather than an independent contractor, or, in the alternative, that Nickerson’s relationship with Lofton was a joint venture. The determination of whether a person is an independent contractor or an employee depends upon the power of control which the employer is entitled to exercise over the person in question. The factors to be considered to determine if a person is an independent contractor or employee are whether the principal master has the power to terminate the 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 the 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. Nickerson was under no contractual obligation to haul for Lofton. Nickerson used his own trucks to haul the lumber. Lofton had control over the wood yard where the timber was stored but had no control over Nickerson’s trucks. The equipment used to load the trucks was supplied by Lofton. The trucks that hauled the wood, the ultimate job in question, were owned by Nickerson. Lofton did not inspect Nickerson’s trucks or do background checks on the drivers. Nickerson’s employees mapped their own routes. Nickerson’s drivers were responsible for making sure the wood was properly bound on the truck. Lofton did not hire or fire Nickerson’s employees or set their salaries. The control exercised by Lofton was not enough to make Nickerson an employee rather than an independent contractor. Therefore, the trial court’s grant of summary judgment finding that Nickerson was an independent contractor is affirmed. The Stewarts also argue that Nickerson and Lofton were joint venturers, because Nickerson provided the truck and labor and shared the money paid by Georgia Pacific. However, no evidence was presented that this was an enterprise entered into to share profits and losses nor was there any evidence that either company had any voice in the management of the other. The two operated as completely separate businesses. The Stewarts argue that they will be denied an adequate remedy if they can only recover from Nickerson, and, therefore, Lofton should be a party defendant in the interests of public policy. Since this relationship is not one that would ordinarily be characterized as employer/employee, and there is no evidence of an attempt to control Nickerson through a written contract or otherwise, the Stewarts’ public policy argument fails. Having found that Nickerson is not an employee of Lofton, there is no need to determine if a jury question exists as to whether Lofton was an employee of Georgia Pacific. If Lofton is not vicariously liable for the acts of Nickerson, then Georgia Pacific cannot be held vicariously liable for the acts of Nickerson acting through Lofton. |
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