Gray v. ABS Global, Inc.


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Docket Number: 2002-CA-00482-COA

Court of Appeals: Opinion Link
Opinion Date: 07-15-2003
Opinion Author: Irving, J.
Holding: Affirmed

Additional Case Information: Topic: Contract - Independent contractor - Vicarious liability
Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Thomas, Lee, Myers, Chandler and Griffis, JJ.
Procedural History: Summary Judgment
Nature of the Case: CIVIL - CONTRACT

Trial Court: Date of Trial Judgment: 03-11-2002
Appealed from: Grenada County Circuit Court
Judge: Joseph H. Loper
Disposition: SUMMARY JUDGMENT FOR APPELLEE
Case Number: 200-95CVL

  Party Name: Attorney Name:  
Appellant: Chad Gray




CARLOS EUGENE MOORE A. E. (RUSTY) HARLOW



 

Appellee: ABS Global, Inc. WILLIAM C. MURPHREE THOMAS P. HENEGHAN CHRISTINE COONEY MANSOUR  

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Topic: Contract - Independent contractor - Vicarious liability

Summary of the Facts: Chad Gray sued ABS Global, Inc. over the loss of bull semen when a liquid nitrogen freezer unit used to store the semen failed. ABS filed a motion for summary judgment wherein it alleged that it was entitled to summary judgment because it owed no duty to Gray and was not vicariously liable for the acts of Brad Brewer, its independent sales representative. The court granted summary judgment in favor of ABS, and Gray appeals.

Summary of Opinion Analysis: Gray argues that there is a genuine dispute of material fact or at least reasonable doubt as to whether Brewer was the employee of ABS. All Gray submitted to rebut ABS’s motion for summary judgment was his affidavit which is not a particularization of facts but is Gray's personal summary characterization of Brewer's relationship with ABS, unsupported by any specific facts which led him to make the characterization. To determine if an individual is an independent contractor, the court should consider 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 sub-employees and to fix their compensation; and whether he is obliged to pay the wages of said employees. The undisputed facts show that ABS had the power to terminate the agreement at will or for cause upon proper notice to Brewer; that Brewer was compensated in the form of a standard commission based on the products that he sold for ABS; that Brewer controlled how much he sold and how much he was paid; that Brewer furnished all of the supplies, equipment, and materials, except a large liquid nitrogen storage container; that Brewer used his own vehicle to call on his customers; that ABS provided no office for Brewer; that ABS did not provide Brewer with any type of insurance or any other employment benefits; and that ABS did not control the details of the manner in which Brewer completed his work. Based on these undisputed facts, the relationship between ABS and Brewer was not one of employer/employee nor master/servant. Without more affirmative steps on the part of ABS to service Gray, there is no vicarious liability of ABS to Gray.


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