IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1998 Term
MARLIN W. FITZWATER and
VIRGINIA FITZWATER, HIS WIFE,
Plaintiffs Below, Appellants,
JERRY HARDING, d/b/a J&J TRANSPORTATION,
and APPALACHIAN LOG STRUCTURE, INC.,
A WEST VIRGINIA CORPORATION,
Defendant Below, Appellees.
Appeal from the Circuit Court of Nicholas County
Honorable Gary L. Johnson, Judge
Civil Action No. 95-C-12
Submitted: September 23, 1998
Filed: December 4, 1998
M. Slack, III
Sean P. McGinley Jackson & Kelly
DiTrapano, Barrett & DiPiero Charleston, West Virginia
Charleston, West Virginia Attorney for Appellee
Attorneys for Appellants Appalachian Log Structure, Inc.
The Opinion was delivered PER CURIAM.
SYLLABUS BY THE COURT
circuit court's entry of summary judgment is reviewed de novo." Syllabus point 1, Painter
v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
motion for summary judgment should be granted only when it is clear that there is no
genuine issue of fact to be tried and inquiry concerning the facts is not desirable to
clarify the application of the law." Syllabus point 3, Aetna Cas. & Sur. Co.
v. Federal Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
are four general factors which bear upon whether a master-servant relationship exists for
purposes of the doctrine of respondeat superior: (1) Selection and engagement of the
servant; (2) Payment of compensation; (3) Power of dismissal; and (4) Power of control.
The first three factors are not essential to the existence of the relationship; the
fourth, the power of control, is determinative." Syllabus point 5, Paxton v.
Crabtree, 184 W.Va. 237, 400 S.E.2d 245 (1990).
Marlin and Virginia Fitzwater,
plaintiffs below/appellants (hereinafter referred to as "the Fitzwaters"),
appeal a summary judgment ruling by the Circuit Court of Nicholas County. The circuit
court dismissed the Fitzwaters' action against Appalachian Log Structure, Inc., defendant
below/appellee (hereinafter referred to as "Appalachian"), after determining
Appalachian had played no role in the personal injuries sustained by the Fitzwaters. This
appeal followed. Based upon the record, and the pertinent authorities, we reverse the
Circuit Court of Nicholas County.
On November 16, 1994,
Marlin Fitzwater was driving his car in Summersville, West Virginia. At an intersection,
he was struck by a tractor trailer being driven by Bobby L. Shockley. Mr. Fitzwater
sustained serious and life-threatening injuries from the accident. The tractor trailer
driven by Mr. Shockley was owned by his employer Jerry Harding, d/b/a, J&J
Transportation (hereinafter referred to as "J&J"). At the time of the
accident, Mr. Shockley was returning from a delivery that he had made for Appalachian.
Mr. and Mrs. Fitzwater filed this action against Appalachian and J&J as a result of the accident.See footnote 1 1 A settlement was eventually reached between J&J and the Fitzwaters.See footnote 2 2 After extensive discovery, Appalachian moved for summary judgment. Appalachian asserted that because it was neither the employer of Mr. Shockley nor the owner of J&J, it was not liable to the Fitzwaters. Opposing summary judgment, the Fitzwaters argued that genuine issues of material fact were in dispute as to whether J&J was an independent contractor and whether the overloading of J&J's trucks by Appalachian was a proximate cause of the accident. By order dated September 8, 1997, the circuit court granted summary judgment to Appalachian. This appeal followed.
STANDARD OF REVIEW
We have held that
"[a] circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1,
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). "A motion for summary
judgment should be granted only when it is clear that there is no genuine issue of fact to
be tried and inquiry concerning the facts is not desirable to clarify the application of
the law." Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York,
148 W.Va. 160, 133 S.E.2d 770 (1963). This Court has determined that "[s]ummary
judgment is appropriate if, from the totality of the evidence presented, the record could
not lead a rational trier of fact to find for the nonmoving party, such as where the
nonmoving party has failed to make a sufficient showing on an essential element of the
case that it has the burden to prove." Syl. pt. 2, Williams v. Precision Coil, Inc.,
194 W.Va. 52, 459 S.E.2d 329 (1995).
Factual Issues Were In Dispute As To Whether
J&J Transportation Was An Independent Contractor
The circuit court determined that no genuine issue of fact existed regarding the status of J&J as an independent contractor that hauled products manufactured by Appalachian. Before this Court, the Fitzwaters renew their argument that genuine issues of material fact are in dispute as to whether J&J was an independent contractor and whether the overloading of J&J's trucks by Appalachian was a proximate cause of the accident. Appalachian responds that there are no genuine issues of material fact. We held, in syllabus point 5 of Paxton v. Crabtree, 184 W.Va. 237, 400 S.E.2d 245 (1990), that:
[t]here are four general factors which bear upon whether a master-servant relationship exists for purposes of the doctrine of respondeat superior: (1) Selection and engagement of the servant; (2) Payment of compensation; (3) Power of dismissal; and (4) Power of control. The first three factors are not essential to the existence of the relationship; the fourth, the power of control, is determinative.
Accord Syl. pt. 5, Teter v. Old Colony Co., 190 W.Va. 711, 441 S.E.2d 728 (1994). We will examine the evidence in this case under the Paxton test.
engagement of the servant. Appalachian engaged J&J in 1990 to haul its wood
products. While we find it inconceivable that in today's sophisticated economy, two
purportedly independent companies would form a business relationship and fail to place
into writing their working arrangement, no written contract exists which memorializes the
business relationship between J&J and Appalachian. However, evidence in the record
before the circuit court also revealed that Appalachian may have chosen the actual routes
that J&J truck drivers were required to use. During the summary judgment proceeding,
however, Appalachian contested this evidence and contended that the J&J drivers did
not have to follow prescribed routes. Thus, it is evident that this issue concerning truck
routes is in dispute and is material, particularly in light of the absence of a written
contract of the business relationship between the two companies. Thus, there exists a
genuine issue of material fact relating to the selection and engagement of the servant.
compensation. Appalachian paid J&J by the mile for the distance the truck drivers
traveled while carrying Appalachian products. The Fitzwaters presented evidence showing
the compensation provided to J&J was lower than the tariff for haulage required by the
West Virginia Public Service Commission. In response to this evidence, Appalachian
disputed this evidence contending the mileage payment was competitive with the local
market. On the issue of compensation, the Fitzwaters also produced evidence showing that
Appalachian actually kept twenty-five cents for every mile J&J traveled with
Appalachian's products. An expert employed by the Fitzwaters indicated that this was an
unusual arrangement in the trucking industry and that such an arrangement was not
consistent with the status of an independent trucking company. Clearly, there is a dispute
over the issue of whether Appalachian paid compensation to J&J such that Appalachian
may be considered J&J's employer. Hence, the conflicting evidence yields a genuine
issue of material fact concerning the payment of compensation.
Power of dismissal. Before the circuit court, Appalachian contended that all truck drivers were hired and fired by J&J. The Fitzwaters, however, produced evidence of an incident wherein Appalachian was unsatisfied with the appearance of a J&J driver. Based upon Appalachian's complaints, adverse action was taken by J&J against this driver. We believe such evidence demonstrates a genuine issue of material fact regarding Appalachian's ability to dismiss J&J drivers.
Power of control. Appalachian also maintained below that it did not control J&J. However, the Fitzwaters produced contradictory evidence showing that Appalachian instructed J&J truck drivers how to interact with Appalachian customers. Furthermore, there was evidence establishing that J&J maintained its trucks on Appalachian's lot, and that
Appalachian, itself, loaded its freight onto the trucks and used its own
dunnage materials. There was additional evidence that a posting board was used in
Appalachian's office for truck drivers to receive hauling instructions, and that payments
received by Appalachian from its customers were collected by the truck drivers. According
to the Fitzwaters' expert, all of these facts are inconsistent with an independent
trucking company. We believe those facts preclude summary judgment in that a genuine issue
of material fact exists as to Appalachian's power of control over J&J.
In view of the foregoing, we reverse the circuit court's ruling granting summary judgment to Appalachian.
Footnote: 11 Mrs. Fitzwater filed a loss of consortium claim.
Footnote: 22 The record indicates the claim against J&J was settled for $750,000.