The AUGUSTA CHRONICLE v. JAMES CHANDLER WOODALL ( 2021 )

THIRD DIVISION
DOYLE, P. J.,
REESE and BROWN, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
https://www.gaappeals.us/rules
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COURT. ALL FILINGS MUST BE SUBMITTED WITHIN
THE TIMES SET BY OUR COURT RULES.
June 22, 2021
In the Court of Appeals of Georgia
A21A0493. THE AUGUSTA CHRONICLE et al. v. WOODALL et
al.
BROWN, Judge.
In this interlocutory appeal, The Augusta Chronicle, Gatehouse Media Georgia
Holdings, Inc., individually and d/b/a The Augusta Chronicle, and Gatehouse Media,
LLC, individually and d/b/a The Augusta Chronicle,1 (collectively “The Chronicle
defendants”) contend that the trial court erred in denying their motion for summary
judgment in an action filed by James and Jennifer Woodall, seeking to impose
vicarious liability for a motor vehicle collision involving a delivery driver for The
Augusta Chronicle. For the reasons set forth below, we reverse.
1
The Augusta Chronicle is not an incorporated entity but rather the name by
which Gatehouse Media Georgia Holdings, Inc. operates. Gatehouse Media Georgia
Holdings, Inc. is a wholly owned subsidiary of Gatehouse Media, LLC.
“Summary judgment is proper when there is no genuine issue of material fact
and the movant is entitled to judgment as a matter of law.” (Citation and punctuation
omitted.) Hill v. Jackson, 336 Ga. App. 679, 680 (783 SE2d 719) (2016). “We apply
a de novo standard of review to an appeal from a grant or denial of summary
judgment, and we view the evidence, and all reasonable conclusions and inferences
drawn from it, in the light most favorable to the nonmovant.” (Citation and
punctuation omitted.) Ashton Atlanta Residential v. Ajibola, 331 Ga. App. 231, 232
(770 SE2d 311) (2015).
Viewed in the light most favorable to the Woodalls, the nonmoving party, the
record shows that Timothy Cummings, a newspaper carrier for The Augusta
Chronicle, was backing out of a driveway after delivering a newspaper in the early
morning hours of May 7, 2018, when he collided with a vehicle driven by James
Woodall. Woodall sustained serious injuries and subsequently filed a complaint,
along with his wife, against Cummings and The Chronicle defendants, asserting that
they were vicariously liable for Cummings’ negligence. The Chronicle defendants
filed a motion for summary judgment, contending, inter alia, that they could not be
held vicariously liable because Cummings was an independent contractor rather than
an employee. The trial court denied their motion, finding that a genuine issue of
2
material fact existed as to whether the independent contractor agreement was in effect
at the time of the collision and that evidence in the record showed that The Augusta
Chronicle maintained control over the manner and method of Cummings’ deliveries.
The court certified its order for immediate review, and this Court granted The
Chronicle defendants’ application.
1. As in their motion for summary judgment, The Chronicle defendants contend
that Cummings was acting as an independent contractor and that they did not exercise
sufficient control over the manner and method in which Cummings delivered
newspapers. We agree.
“As a general rule, an employer is not responsible for torts committed by its
employee when the employee exercises an independent business and is not subject
to the immediate direction and control of the employer.” Lopez v. El Palmar Taxi,
297 Ga. App. 121, 123 (2) (676 SE2d 460) (2009). See also OCGA § 51-2-4.
In determining whether the relationship of parties under a contract for
performance of labor is that of employer and servant or that of employer
and independent contractor, the chief test lies in whether the contract
gives, or the employer assumes, the right to control the time, manner,
and method of executing the work as distinguished from the right merely
to require certain definite results in conformity to the contract. Where
the contract of employment clearly denominates the other party as an
3
independent contractor, that relationship is presumed to be true unless
the evidence shows that the employer assumed such control.
(Citation and punctuation omitted.) Grange Indemnity Ins. Co. v. BeavEx, Inc., 342
Ga. App. 601, 602 (804 SE2d 173) (2017). See also OCGA § 51-2-5 (5) (“[a]n
employer is liable for the negligence of a contractor . . . [i]f the employer retains the
right to direct or control the time and manner of executing the work or interferes and
assumes control so as to create the relation of master and servant or so that an injury
results which is traceable to his interference”).
In this case, The Augusta Chronicle contracted with Cummings to provide
newspaper delivery services as an independent contractor. That contract, titled
“Independent Contractor Agreement,” specified that Cummings, as an independent
contractor,
shall be free to determine his/her own means and manner of providing
such services, using his/her own independent and professional judgment.
[The Augusta Chronicle] shall not exercise or retain right to control,
direct or supervise the manner in which [Cummings] performs his/her
services. . . .
Further, Cummings was required to carry his own automobile insurance and use his
own vehicle to deliver papers. Cummings was not paid a salary or an hourly rate by
4
The Augusta Chronicle. Instead, Cummings purchased papers directly from The
Augusta Chronicle at the wholesale rate. He earned money by keeping the difference
between the wholesale price and the retail sales price of the papers he purchased and
delivered. Cummings provided his own invoices to, and collected payment directly
from, some retail customers. Other customers, including individual subscribers, paid
The Augusta Chronicle. Cummings received a 1099 form, was treated as an
independent contractor for tax purposes, and did not receive any kind of employee
benefits through The Augusta Chronicle.
Each day, Cummings was provided a delivery list, which contained customer
addresses and any specific delivery requests relayed directly from the customer to The
Augusta Chronicle. Cummings picked up the papers daily from a specified location
at whatever time he chose so long as his deliveries were timely. He was required to
deliver papers by 5:30 a.m. on weekdays, 6:00 a.m. on Saturdays, and 7:00 a.m. on
Sundays. If Cummings was unable to make his deliveries, he was responsible for
procuring and paying a substitute. The Augusta Chronicle was not required to
approve the substitute. At one point, Cummings started training a second person to
help deliver papers on his route without any approval from The Augusta Chronicle.
Cummings arranged her payment out of his own funds.
5
The Woodalls contend that The Augusta Chronicle exercised control over the
manner, method, and time of the deliveries because Cummings was required to
deliver the newspapers in a certain area, by a certain time, and in a certain manner.2
However, “[t]he right to control the time of doing the job means the right to control
the hours of work. . . . This control over the time, place, and manner of work is
distinguishable from the right merely to require certain definite results in conformity
with the contract.” (Citations and punctuation omitted.) Ward v. DirecTV LLC, 342
Ga. App. 69, 71 (1) (801 SE2d 110) (2017). As to the manner of delivery, the record
shows that these delivery instructions came from the customers, and not The Augusta
Chronicle. Moreover, while Cummings was required to leave the newspapers in a
certain place specified by the customers, it was within his discretion how to carry out
the deliveries.3 Consequently, the evidence shows that The Augusta Chronicle only
2
In support of this argument, the Woodalls also point out that Cummings was
required to purchase rubber bands and plastic bags from The Augusta Chronicle.
While true, the record shows that delivery drivers were not required to use plastic
bags and rubber bands, and it was in their discretion whether to do so.
3
For instance, for the delivery Cummings was completing when the accident
occurred, Cummings was required, by request of the customer, to leave the newspaper
on the customer’s back porch. On the morning of the accident, Cummings chose to
pull into the house’s driveway rather than parking in the road and turning on his
flashers in order to deliver the newspaper. Cummings also delivered the newspapers
on his route in whatever order he chose.
6
retained the right to require results in conformity with the delivery request, and
Cummings retained the right to perform the deliveries by his own means, method, and
manner.4 See Stubbs Oil Co. v. Price, 357 Ga. App. 606, 614 (2) (848 SE2d 739)
(2020) (defendant could not be held vicariously liable where it hired company and its
driver to deliver its fuel products to a retail service station and requested pick-up and
delivery be completed during a particular time window but had no input as to the
driver or the vehicle used, did not monitor or oversee their actions, and did not dictate
driver’s route); BeavEx, 342 Ga. App. at 602 (affirming grant of summary judgment
to defendant on basis that the delivery driver it hired was an independent contractor;
contract stated that driver was an independent contractor, and driver used his own
vehicle and maintained insurance, was required to satisfy any specific conditions set
by the customers, received a 1099 form and did not receive employee benefits);
Thompson v. Club Group, 251 Ga. App. 356, 360 (3) (553 SE2d 842) (2001)
(defendants could not be held vicariously liable for courier’s alleged negligence
where, inter alia, courier provided his own vehicle and insurance, defendants did not
4
The Woodalls have raised some arguments with regard to the Independent
Contractor Agreement. But even in the absence of the presumption raised by the
Agreement, the evidence shows that The Chronicle defendants did not control the
manner and method of delivering the papers.
7
control whether courier hired someone else to assist him, defendants did not provide
him with any employee benefits, and defendants did not supervise the performance
of courier’s services). Accordingly, the trial court erred in denying The Chronicle
defendants’ motion for summary judgment on this basis.5
2. Given our holding in Division 1, supra, we need not address The Chronicle
defendants’ remaining enumerations of error relating to whether The Augusta
Chronicle and Gatehouse Media, LLC are proper parties to this action.
Judgment reversed. Doyle, P. J., and Reese, J., concur.
5
In its order, the trial court relied on Hampton v. Macon News Printing Co.,
64 Ga. App. 150 (12 SE2d 425) (1940). However, that case, as physical precedent
only, is not binding on this Court. Moreover, there was no independent contractor
agreement between the parties as in the instant case. Id.8