Brian J. Bauermeister v. Sandra J. Churchman and The Courier-Journal, Inc. (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jun 16 2016, 8:23 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEES
Marc S. Sedwick Thomas R. Schultz
New Albany, Indiana Justin C. Wiler
Schultz & Pogue, LLP
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Brian J. Bauermeister, June 16, 2016
Appellant-Plaintiff, Court of Appeals Case No.
88A05-1601-CT-96
v. Appeal from the Washington
Superior Court
Sandra J. Churchman and The The Honorable Frank Newkirk,
Courier-Journal, Inc., Jr., Judge
Appellee-Defendant. Trial Court Cause No.
88D01-1408-CT-462
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Plaintiff, Brian J. Bauermeister (Bauermeister), appeals the trial
court’s summary judgment in favor of Appellee-Defendant, The Courier-
Journal, Inc. (The Courier), concluding that Sandra J. Churchman
(Churchman) 1 was neither an agent nor an employee of The Courier at the time
of the vehicle accident.
[2] We affirm.
ISSUES
[3] Bauermeister raises one issue, which we restate as the following two issues:
(1) Whether the trial court properly determined that there was no genuine
issue of material fact that Churchman was not acting as an agent for The
Courier; and
(2) Whether the trial court properly determined that there was no genuine
issue of material fact that Churchman was not an employee of The
Courier at the time of the accident.
FACTS AND PROCEDURAL HISTORY
1
Although a party before the trial court, Churchman did not file a motion for summary judgment and
accordingly is not part of this appeal. However, we will include facts related to Churchman in so far as they
are relevant to Bauermeister’s appeal.
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[4] On February 17, 2013, Churchman was traveling northbound on Becks Hill
Road, in Washington County, Indiana, while Bauermeister was traveling
southbound. As Bauermeister reached the crest of the hill, he noticed
Churchman’s vehicle sitting in the northbound lane. He moved his vehicle a
little to the right and went off the roadway. Bauermeister attempted to correct
his vehicle, came back onto the roadway, but then lost control and went off the
other side of the roadway. Bauermeister’s vehicle crashed through a fence and
rolled over before coming to a stop.
[5] At the time of the accident, Churchman was delivering the Sunday newspaper
published by The Courier. Since October 1, 1992, Churchman has delivered
the Sunday newspaper under a written agreement, which designates her to be
an “independent contractor for all purposes.” (Appellee’s App. p. 7). Pursuant
to the terms of the contract, Churchman receives payment dependent on the
number of newspapers she delivers to The Courier’s customers. She is not
included in The Courier’s benefit plan and does not receive any type of
compensation package or retirement plan. The Courier does not withhold taxes
and does not provide her with a W-2 form. Churchman uses her own vehicle
for the delivery of the newspapers and must maintain all necessary licenses and
insurance. Churchman picks up the newspapers from The Courier and
assembles them in bags supplied by advertisers or other publishers. She has to
deliver the newspapers in a dry and readable condition at the customers’
addresses provided by The Courier. Although Churchman believed that all
newspapers should be delivered by 7:00 a.m., the agreement with The Courier
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does not provide a set time for delivery nor does it specify a specific delivery
route. In addition to her Sunday newspaper delivery, Churchman is employed
fulltime by Hitachi Cable.
[6] On August 7, 2014, Bauermeister filed his Complaint for Damages against
Churchman and The Courier, asserting that Churchman negligently operated
her vehicle and that The Courier is vicariously liable for Churchman’s negligent
behavior because Churchman was its employee or agent. On September 3,
2015, The Courier filed its motion for summary judgment contending that
Churchman was an independent contractor, not its employee, and therefore
could not be held vicariously liable for her actions. On November 20, 2015,
Bauermeister filed his response in opposition to The Courier’s motion for
summary judgment. Thereafter, on December 7, 2015, The Courier filed its
reply. On December 18, 2015, after a hearing, the trial court issued its
summary judgment in favor of The Courier, concluding that there is no genuine
issue of material fact that Churchman is not an employee or agent of The
Courier and, therefore, The Courier cannot be held vicariously liable.
[7] Bauermeister now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Standard of Review
[8] Summary judgment is appropriate only when there are no genuine issues of
material fact and the moving party is entitled to a judgment as a matter of law.
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Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the
outcome of the case, and an issue is genuine if a trier of fact is required to
resolve the parties’ differing accounts of the truth . . . , or if the undisputed facts
support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756,
761 (Ind. 2009).
[9] In reviewing a trial court’s ruling on summary judgment, this court stands in the
shoes of the trial court, applying the same standards in deciding whether to
affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,
891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we
must determine whether there is a genuine issue of material fact and whether
the trial court has correctly applied the law. Id. at 607-08. In doing so, we
consider all of the designated evidence in the light most favorable to the non-
moving party. Id. at 608. The party appealing the grant of summary judgment
has the burden of persuading this court that the trial court’s ruling was
improper. Id. When the defendant is the moving party, the defendant must
show that the undisputed facts negate at least one element of the plaintiff’s
cause of action or that the defendant has a factually unchallenged affirmative
defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary
judgment must be reversed if the record discloses an incorrect application of the
law to the facts. Id.[10] We observe that in the present case, the trial court did not enter findings of fact
and conclusions of law in support of its judgment. Special findings are not
required in summary judgment proceedings and are not binding on appeal.
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AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.
App. 2004). However, such findings offer this court valuable insight into the
trial court’s rationale and facilitate appellate review. Id.II. Agency
[11] Bauermeister contends that the trial court erred when it issued summary
judgment in favor of The Courier, holding that The Courier could not be held
vicariously liable because Churchman was not The Courier’s agent at the time
of the accident. Specifically, Bauermeister initially asserts that The Courier did
not move for summary judgment on the agency claim and therefore the trial
court was not allowed to make the factual determination that Churchman was
not the newspaper’s agent.
[12] In its Complaint, Bauermeister asserted that The Courier was vicariously liable
for Churchman’s negligence based on two theories, i.e., employment and
agency. In its motion for summary judgment, The Courier only moved for
summary judgment based on Churchman’s alleged employment status; its
motion is silent with respect to the agency theory. However, after Bauermeister
noted in his opposition to The Courier’s motion that he also alleged an agency
theory, The Courier asserted in its reply to Bauermeister’s opposition that it
could not be held vicariously liable under an agency theory. Nevertheless, The
Courier now invites us to review the agency issue, claiming it was before the
trial court despite its failure to move for summary judgment.
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[13] Generally, the trial court may only grant summary judgment for the non
moving party “upon the issues raised by the motion.” Ind. Trial Rule 56(B); see
also Simon Property Group, L.P. v. Michigan Sporting Goods Distributors, Inc., 837
N.E.2d 1058, 1068 (Ind. Ct. App. 2005) (where moving party sought summary
judgment only on the issue of remedies available for breach of lease, the trial
court could not have properly granted summary judgment upon the issue of
breach of lease because that issue was not raised in the motion for summary
judgment, and the trial court properly denied summary judgment upon the non-
raised issue), trans. denied. Here, the sole issue presented in The Courier’s
motion was the vicarious liability claim based on employment. The other
Count of Bauermeister’s Complaint was not implicated by The Courier’s
motion. However, Bauermeister alluded to the agency Count of his Complaint
in his opposition to The Courier’s motion and did not object, but rather
participated, when the issue was raised during the hearing before the trial court.
“A party who neglects to avail himself of a valid objection to a proceeding and
stands by or participates therein until an adverse result is reached must bear the
consequences.” Wisconics Engineering, Inc. v. Fisher, 466 N.E.2d 745, 753 (Ind.
Ct. App. 1984), reh’g denied, trans. denied.
[14] Turning to the merits of the agency claim, Bauermeister contends that because
Churchman was acting within the scope of her agency at the time of the
incident, The Courier is vicariously liable for her negligence. “Vicarious
liability is ‘indirect legal responsibility.’” Sword v. NKC Hosps., Inc. 714 N.E.2d
142, 147 (quoting BLACK’S LAW DICTIONARY 1404 (5th ed. 1979)). “It is a
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legal fiction by which a court can hold a party legally responsible for the
negligence of another, not because the party did anything wrong but rather
because of the party’s relationship to the wrongdoer.” Id. Courts employ
various legal doctrines to hold people vicariously liable, including apparent or
actual agency. See id.[15] Bauermeister relies on actual agency to establish The Courier’s liability as
principal. To establish an actual agency relationship, three elements must be
shown: (1) manifestation of consent by the principal, (2) acceptance of
authority by the agent, and (3) control exerted by the principal over the agent.
Demming v. Underwood, 943 N.E.2d 878, 884 (Ind. Ct. App. 2011), trans. denied.
One who asserts that there was an agency relationship has the burden of
proving its existence. Smith v. Brown, 778 N.E.2d 490, 195 (Ind. Ct. App.
2002). These elements may be proven by circumstantial evidence, and there is
no requirement that the agent’s authority to act be in writing. Demming, 943
N.E.2d at 884. Whether an agency relationship exists is generally a question of
fact, but if the evidence is undisputed, summary judgment may be appropriate.
Id.
[16] The designated evidence supports that The Courier, as the principal, expressly
designated Churchman as an independent contractor in its contract. Moreover,
in her deposition, Churchman testified that she was not required to wear a
uniform, her car did not have any indications that she was delivering
newspapers, and she considered herself to be an independent contractor for The
Courier. Based on this evidence, we cannot conclude that The Courier
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manifested its consent to Churchman to act as its agent at the time of the
accident. 2 Because there is no evidence establishing a genuine issue of material
fact as to whether Churchman was The Courier’s agent, the trial court
appropriately granted summary judgment to The Courier.
III. Employment
[17] Next, Bauermeister contends that the trial court erred when it granted summary
judgment to The Courier on its claim that Churchman was The Courier’s
employee at the moment of the incident. Applying the ten-factor test
enunciated in Moberly v. Day, 757 N.E.2d 1007 (Ind. 2001), Bauermeister claims
that there are “numerous issues of genuine fact in dispute as to whether
Churchman was an employee or independent contractor[.]” (Appellant’s Br. p.
19).
[18] Whether one acts as an employee or an independent contractor is generally a
question of fact for the finder of fact. Id. at 1009. However, if the significant
underlying facts are undisputed, the court may properly determine a worker’s
classification as a matter of law. In Moberly, our supreme court proponed a ten-
factor analysis to distinguish employees from independent workers:
(a) the extent of control which, by the agreement, the master may
exercise over the details of the work;
2
Because Bauermeister did not satisfy the first element of actual agency, we do not need to review the
designated evidence with respect to the other two elements.
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(b) whether or not the one employed is engaged in a distinct
occupation of business;
(c) the kind of occupation, with reference to whether, in the
locality, the work is usually done under the direction of the
employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the
instrumentalities, tools, and the place of work for the person
doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the
employer;
(i) whether or not the parties believe they are creating the
relation of master and servant; and
(j) whether the principal is or is not in business.
Id. (quoting Restatement (Second) of Agency § 220(2) (1958)). Under this test,
all factors must be assessed, and no single factor is dispositive. Id. However,
this list of factors is not exhaustive. Mortgage Consultants, Inc. v. Mahaney, 655
N.E.2d 493, 496 (Ind. 1995). If enough of the indicia of an employer-employee
relationship exists, an employer-employee relationship may be found despite
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the parties’ designation of independent contractor status. Id. We will review
each factor in turn.
A. Extent of Control
[19] An employee is one “employed to perform services in the affairs of another and
who with respect to the physical conduct in the performance of the services is
subject to the other’s control or right to control.” Walker v. Martin, 887 N.E.2d
125, 131 (Ind. Ct. App. 2008), reh’g denied, trans. denied. An independent
contractor, however, generally controls the method and details of the task and
answers to the principal only as to the results. Id.[20] The designated evidence supports that Churchman was answerable to The
Courier for results only, not with respect to the particulars of how she went
about accomplishing the assigned task of delivering a newspaper. See Mortgage
Consultants, Inc., 655 N.E.2d at 495. Specifically, beyond assigning a delivery
area and the stipulation that the newspaper must be delivered in a dry, readable
condition, The Courier did not control the means of Churchman’s delivery of
the Sunday newspaper. Churchman testified that she used her own vehicle,
without any distinguishing marks that it was used to make a newspaper
delivery, and supplied her own insurance and vehicular maintenance. She
assembled the newspapers and determined her own route within the delivery
area. She did not wear a uniform and did not receive any benefits. This factor
weighs in favor of Churchman being an independent contractor. See also Snell v.
CJ Jenkins Enterprises, Inc., 881 N.E.2d 1088, 1092 (Ind. Ct. App. 2008) (Snell
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was considered an independent contractor where the principal “assigned him to
a delivery area and provided deadlines for delivery [and] did not otherwise
control the means by which Snell accomplished the task of delivering
newspapers.”).
B. Distinct Occupation or Business
[21] The Courier is in the business of compiling the news and publishing a
newspaper, whereas Churchman delivers the newspapers. While both
occupations appear to be distinct enterprises, they cannot be completely
separated, for without a publication there would be no delivery. Moreover, it
was The Courier itself that contracted with Churchman to complete the
distribution part of its business. Accordingly, we find this to be a neutral factor.
C. Kind of Occupation
[22] The designated evidence shows that Churchman remained free under her
agreement with The Courier to provide services for others. In fact, at the time
of the accident, Churchman worked fulltime for Hitachi Cable. As in Snell, we
find this factor to be in favor of a finding of independent contractor status. See
Snell, 881 N.E.2d at 1092.
D. Skill Required
[23] Churchman’s job was to deliver newspapers, “which does not require special
skill and weighs slightly in favor of [her] status as an employee.” Id.E. Supplier of Equipment, Tools, and Work Location
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[24] Churchman provided her own vehicle, insurance, and maintenance. She did
not receive a mileage reimbursement, a cell phone, or a uniform. Although The
Courier provided Churchman with a delivery area, she determined the specific
route used within that area and the time to deliver the newspapers. We find
that this factor weighs in favor of independent contractor status.
F. Length of Employment
[25] Churchman testified that she started working for The Courier on October 1,
1992. While a long-term relationship can indicate employee status, the
relationship must contemplate regular hours. Moberly, 757 N.E.2d at 1012.
Churchman did not work regular hours with a set start and end time, nor was
she required to keep track of her time. Therefore, even though Churchman has
a lengthy employment relationship with The Courier, in the absence of regular
work hours, this factor points toward an independent contractor status.
G. Method of Payment
[26] Because Churchman received payment based on a per newspaper basis,
Bauermeister concedes that this factor favors classifying her as an independent
contractor.
H. Regular Business of The Courier
[27] As noted by Snell, this factor mirrors the second factor discussed above. See
Snell, 881 N.E.2d at 1093. As with factor B above, newspaper publication is not
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entirely distinct from newspaper distribution. Similarly to the second factor, we
also determine this one to be neutral.
I. Belief of the Parties
[28] The parties’ belief as to Churchman’s status weighs in favor of an independent
contractor relationship. The contract entered into between the parties explicitly
classifies Churchman as an independent contractor. During her deposition,
Churchman expressed the belief that she was an independent contractor and did
not consider herself to be an employee.
J. In Business
[29] The Courier was in the news-gathering business at the time of the accident, “so
this factor weighs slightly in favor of [Churchman’s] status as an employee.”
See id.[30] Given the above factors, which largely weigh in favor of Churchman’s status as
an independent contractor, we conclude that Churchman was an independent
contractor rather than The Courier’s employee and therefore affirm the trial
court’s summary judgment in favor of The Courier.
CONCLUSION
Based on the foregoing, we conclude that the trial court properly determined
that there was no genuine issue of material fact that Churchman was not acting
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as an agent or employee of The Courier; therefore, The Courier did not incur
vicarious liability for Churchman’s alleged negligent behavior.
[31] Affirmed.
[32] Kirsch, J. and Pyle, J. concur
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