T.C. Memo. 1995-107 (Mar. 16, 1995).
Although Catholic Knights provided office space, access to telephones, secretarial services, and some business machines, agents were not required to use space or materials. Agents had to purchase their own business cards and stationery, and they leased personal computers from Catholic Knights at their own expense.
Lastly, that the hiring party, Catholic Knights, is in the business of selling insurance does not persuade the court to find agents were employees. An entity may hire an independent contractor to assist with its business. In the business of insurance, this is accentuated by the fact that Plaintiffs have not cited one case where an insurance agent was found to be an employee. On the contrary, since the Supreme Court issued the Darden opinion (indeed, even in many cases before), courts have held that insurance agents are independent contractors. Ware v. United States, 67 F.3d 574 (6th Cir. 1995) (applying the common law of agency, the court held that the insurance agent was an independent contractor for tax purposes where the agent received extensive benefits, a paid vacation, health and dental plan, and was eligible for a 401(k) and pension plan); Butts v. Commissioner of Internal Revenue, 49 F.3d 713 (11th Cir. 1995) (deciding, in a tax appeal, that Allstate insurance agents were independent contractors where agents received paid vacation, a pension and 401(k) plan, malpractice insurance, 75% of health insurance costs, and payment of his licensing and professional fees); Deal v. State Farm County Mut. Ins. Co. of Texas, 5 F.3d 117 (5th Cir. 1993) (holding that a State Farm insurance agent, who owned a small independent insurance agency, was not an employee of State Farm for purposes of Title VII and the ADEA); Oestman v. Nat'l Farmers Union Ins. Co., 958 F.2d 303 (10th Cir. 1992) (in an ADEA case using the hybrid test decided weeks before Darden, finding agent to be an independent contractor where agent made own working hours, provided his own transportation, filed taxes as self-employed, and had a contract stating he was an independent contractor); Robinson v. Bankers Life & Casualty Co., 899 F. Supp. 848 (D.N.H. 1995) (applying the "economic realities" test, and finding independent contractor status where the insurance agent signed a contract which specifically defined agents as independent contractors, listed himself as such on his taxes, was paid on a commission basis, and did not have specific hours); Thomason v. Prudential Ins. Co. of Am., 866 F. Supp. 1329 (D. Kan. 1994) (applying the hybrid test and focusing on the amount of the employer's control over the insurance agent, the court ruled that the agent was an independent contractor even though state licensing applications listed agent as employee); Barnes v. Colonial Life & Accident Ins. Co., 818 F. Supp. 978, 982 (N.D. Tex. 1993) ("Courts have consistently held insurance agents not to be employees for purposes of employment discrimination suits.") (citing the following: Dake v. Mutual of Omaha Ins. Co., 600 F. Supp. 63 (N.D. Ohio 1984); Dixon v. Burman, 593 F. Supp. 6 (N.D. Ind. 1983) aff'd mem. 742 F.2d 1459 (7th Cir. 1984); Jenkins v. Travelers Ins. Co., 436 F. Supp. 950 (D. Or. 1977)); Dutson v. Farmers Ins. Exchange, 815 F. Supp. 349 (D. Or. 1993), aff'd mem., 35 F.3d 570 (9th Cir. 1994).
Accordingly, viewing the totality of the circumstances, the court finds that Catholic Knights did not control the means and manner of the agent's work, and that the insurance agent are independent contractors. For the foregoing reasons, the motion of Catholic Knights for summary judgment is granted.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court