Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 82 C 1526 -- S. Hugh Dillin, Judge.
Flaum, Circuit Judge, Pell, Senior Circuit Judge, and Kellam, Senior District Judge.*fn*
Plaintiffs-appellants, James R. Stone and Myra E. Stone, appeal from the grant of summary judgment in favor of the defendant, Pinkerton Farms, Inc. For the following reasons, we affirm the grant of summary judgment.
This diversity action arises from a trucking accident in which Michael Leist, driving his tractor and trailer, rear-ended a tractor and trailer being driven by James Stone. Both trucks were proceeding in the same direction on the highway. Stone was traveling at 50-55 miles per hour; Leist obviously was driving at a quicker pace. Stone was, and still remains, severely impaired due to the injuries sustained during the impact.
Leist, at the time of the accident, was driving his own tractor and trailer. He was hauling soybeans for Pinkerton Farms (hereinafter "PFI"), from PFI's grain elevator to Central Soya in Indianapolis. The status of Leist in relationship to PFI is the issue presented for review in this case. The Stones assert that Leist was an employee of PFI and that the accident occurred during the course of his employment thereby making PFI liable for Stone's negligently inflicted injuries. In the alternative, assuming Leist was only an independent contractor, the Stones assert that PFI is liable to them for employing an incompetent driver. PFI asserts that Leist was an independent contractor and that they exercised due care in hiring him.
The Stones brought suit against Leist, Leist's father, and, subsequently, amended the complaint to include PFI as a defendant. Leist's father was dismissed as a defendant. Leist thereafter filed for bankruptcy and all claims against him were discharged. PFI moved for summary judgment on both theories of liability. The district court granted the defendant's motion for summary judgment. Plaintiffs appeal.
In reviewing a grant of summary judgment, this court must determine, in viewing the reasonable inferences to be drawn from the underlying facts in the light most favorable to the non-moving party, whether "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Rule 56, Federal Rules of Civil Procedure; Korf v. Ball State University, 726 F.2d 1222 (7th Cir. 1984). In reviewing the grant of summary judgment in favor of PFI, we will raise facts as relevant to the discussion of the applicable Indiana law.
The test for determining whether a master-servant relationship, or, more appropriately, an employer-employee relationship, exists is whether the alleged employer has the right to control the conduct of the alleged employee "at the time the negligent act occurred." Gibbs v. Miller, 152 Ind. App. 326, 283 N.E.2d 592, 595 (1972). The "right to control" refers to the right and not to actual exercise of control in any particular circumstance. Id. at 595.Indiana courts look to the following several factors in determining whether the employer has the right to control thereby making a person an employee: (1) right to discharge; (2) mode of payment; (3) supplying of tools by the employer; (4) belief by the parties in the existence of a master-servant relationship; (5) control over the means used or result reached; (6) length of employment; and (7) establishing of work boundaries. Id. at 595. We will consider these factors in relation to the circumstances presented in this case.
The parties, in essence, do not disagree on the relevant factors, but do disagree as to the inferences to be drawn from those facts. We look to those facts drawing reasonable inferences in the light most favorable to the Stones.
Due to the nature of the work, it is difficult to determine whether PFI had the right to discharge Leist, or whether it merely had the right to refuse to contract with Leist further (see plaintiffs-appellants' brief pp. 16-17). Each haul appears to be arranged on a day-to-day basis, with PFI calling Leist to haul whenever it needed a driver. It is clear that PFI could have refused to allow Leist to haul further loads. Furthermore, Leist could refuse to haul for PFI on any given occasion and he did, at times, refuse. PFI returned to him as a driver even after these refunds. PFI certainly could not stop or "discharge" Leist in the middle of a haul once Leist left the loading area and this fact leads to no inference for either party. The right to terminate a contract or discharge Leist in the middle of a haul ...