# FILED Dec. 31, 1996 Cecil Crowson, Jr . Appellate Court Clerk IN THE COURT OF AP PEALS OF

TENNESSEE WESTERN SECTION AT JACKSON

BRIAN WOLNEY and WIFE, ) MELISSA WOLN

EY ) ) Plaintiff s/Appella nts, ) Shelby Circuit No. 56764

) vs. ) ) Appeal No. 02A01-9508-CV-00169 LISA M. EMM ONS and WELLS ) FARG O ARMORED

SERVICE ) CORPORATION, ) ) Defend ants/ Appe

llees. )

APPEAL FROM THE CI RCUIT COURT OF SHEL BY COUNTY AT MEMPHIS TENNESSEE

THE HONORABLE G

EORGE H. BROWN, JR., JUDGE

For the P laintiff s/Appella nts : For the Defendants/Appellees : Stanley J. Kline Marc O. Dedman Memphis, Tennessee Memphis, Tennessee

AFFIRMED

HOL LY KI RBY LI LL ARD , J.

CONCUR:

AL AN E . HI GHE RS, J

. DAV ID R. F ARM ER, J.OPINION

This is a suit fo

r damag es broug

ht by Plaintif f Bri an Wolney (“Wolney ”), with his wife Melissa Wolney , again st Defendants Wells Far go Armo red Serv ice Corpo ration (“ WFA”) a nd Lis a M. Emmons (“Emmons”). Wolney sued for pe rsonal injuries he sustained in an ac cide nt while riding as a passenger in a ve hicle driven by

Emmons, but owned by WFA. The trial court granted summary judgmen t in favor of WFA, f

indin g th at Wolney’s tort claim ag ainst WFA was barred because Wolney was WFA’s statutory employee. The

Wolney s appeal the grant of summary judgment. We affirm. The facts a

re esse nt ia ll y u ndisputed. Wolney worked as a g uard for Wells Fargo Guard Service (“WFG”). WFG had entered into a written Security Services A greem ent (“Ag reemen t”) with WFA, under wh

ich WFG wo

uld occa sionally

furnish guards to WFA. The Agree ment provided , in pertine nt part: 3. EMPLOYEES: (a) Perso nnel suppl ied b y C ompa

ny [WFG] are its employee s and not Client’s [WFA]. Company is solely re sponsible fo r so ci al se cu ri ty, unemployment and similar taxes applicable to its employ ees . . . (c) Cl ient m ay rea sonably remove a ny employ

ee assigned provided such removal is not in violation of law . . . 4. HIRING: Cl ie nt ag re es th at it wi ll no t, di re ct ly o r i nd ir ec tl y, hire or employ a ny Company em ployee a ssigned to Client while such employee is employed by Company or for one

year the reafter. . . 9. SCOPE OF

SERVICES: This Agreement and written schedule of g uard assignmen ts, p atrol inspections and post orders, which collectively set forth the Security Se rv ic es to be pe rfor me d, ma y b e c hanged with the written approval of Company. Other

amendments to this Agreement must be in writing and signe d by the authorized representatives of the parties thereto. If the re is any c onflict

between the terms of

any other document s and this A greem ent, this A greem

ent shall c ontrol. Ge ne ra ll y, under

the Agreement, either Chris Fowler (“Fowler”), a vault supervisor at WFA,

or his su pervisor, would

call WF G an d request guard services. Charlie Peg rum (“Pegrum”), the operations manage

r at WFG, would

then find an avail able gu ard, noti fy him of the a ssignme

nt, and convey any information about the a ssignment given by WFA. The guard cou ld turn dow n the assignm ent, but once i

t was acc epted, he

had to com

plete it. When the guard

arrived to wo rk, WFA would gi ve the g

uard ord ers as to what task s to perf

orm and ho w to perf

orm them. In this instance, a WFA employee called Pegrum and requested a n unarmedguard

for duty for two day s, providing Peg rum with g eneral informat ion about the assignment. Pegrum then2

notified Wolney of

the assignment at WFA and gave him an ove rview of the type

of work required. Pegrum told Wolney that he would be riding in the pa ssenger side of a truck and would stay inside and push butt ons to let people in an d out of the truck. Pegrum told Wol ney when WFA wantedhim to report to

work. Wolney acc epted the assignment. His first day working for WFA w as uneve ntful. When Wo ln ey r ep or te d t o w or k a t W FA th e s ec on d d ay, he was told by a WFA employ ee to ride in a WFA “bank truck” as an unarmed guard escort, along w ith two of WF A’s own g

uards. Wolney sat in the front passenger seat of the truc k, dr iv en by defendant Emmons. Charles Jones (“Jones”), the messenger guard w ho was effectively

in charge of

the truck, sat

in th e ba ck s eat . It

was the messe

nger g uard’s r esponsibi lity

to tell Wolne

y where to s it in the tr

uck a nd what to do. Wolney’s duties were to a ssist the messenger guard a

nd to stay with the truck while the other guards carried the money

in and out of

the banks

. Later that day , the WFA vehicle in which Wolney w as riding became involved in a serious motor vehicle collision, and Wolney was injured. Su bs eq ue nt ly, Wolney filed thi s suit to recov er dama ges for the injuri es he sust

ained asa result of the accident. Wolney move d for partial summary judgment on this issue of whether he was

a statutory employ

ee o f WFA . WF A moved for summary judgment, claiming that there was no genuine issue of material fact and that summary judgment was proper

as a matter of law. The trial court found tha

t, as a ma

tter of la w, Wolney

was a sta

tu to ry employ

ee unde r the Work

ers’ Compensation Act, Tennessee Code Annotated § 50-6-102 (a)(9) (1991 & S upp. 1996) , and that his tortaction against WFA wa s therefore barred. Consequently , the trial court granted summary judgment in favor of WFA. The Wolney s appeal the decision of the trial court on this issue. Summary judgment is proper when the movant demonstrates that there a re no genuine issues of material fact and that

the moving party

is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.03. The pa rty moving for summary judgme

nt bears the burden of demonstrating that no genuine issue of material fact exists. Byrd v. Ha ll , 847 S.W.2d 208, 210 (Tenn. 1993). On a motion for summary judgme

nt, the court must take the strongest legitimate view of the e vidence in favor of the nonmoving party, a

l low all re asonable

infere nces in f avor of t hat part y, a nd discar d all countervailing evidence. Id. at 210-11. In Byrd , the Tennessee Supreme Court stated: Once it is shown by the moving party that there

is no gen uine issue of mater ial fact , the nonm ovin g party mu st then demonstrate, by af fidavits or discovery ma

terials, that there is a genuine, material fact dispute to warr ant a trial. In this regar

d, Rule 56.05 prov ides that the n onmoving party cannot simply

rely upon his ple adings but must3

set forth specific facts showing that ther e is a ge nuine issu e of mate

rial fact for tria

l. “If he does not so respond, summar y judgment . . . shall be e ntered against him.” Id. at 211 (citations omitted). Summary judgmen t is only appropriate

when the case can be decided

on the legal issues alone. Id. at 210. Because only questions of law are involve d, the re is no presumption of correctness rega rding a trial court’s grant of summary judgme

nt. Johnson v. EMPE, Inc. , 837 S.W.2d 62, 68 (Tenn. App. 1992). Therefore, our review of a trial court’s order g ranting summary judgmen t is de novo on the record

before this Court. See Carvell v. B otto ms , 900 S.W.2d 23, 26 (Tenn. 1995). In thi s appeal , Wolney arg ues that he was not an emp loy ee of WFA , and con sequentl y, h is tortclaim against WFA is not barred by the Workers’ Compensation Act. Wolney contends that he was an independent contractor rather than an employee

. Under the Worke

rs’ Compensation Act, workers’ compensation benefits are a n employee’s exclusive remedy

for personal injuries suffered by accident in the workplace. Tenn. Code Ann. § 50-6-108(a)(1991 & Supp. 19 96). Thus , if Wolney is deeme d an an “ employ ee” of WF

A, his

common law acti on aga

inst WFA would be dism issed bec ause wor

kers’ c ompensa

tion benefit s would be hi s e xc lu si ve re me dy. See Stratton v. United Inter-Mountain Tel. Co. , 695 S.W.2d 947, 948 (Tenn. 1985). However, Tennessee Code Annotated § 50- 6-112 permits an employee to bring

a common law action for damages ag ainst a third party, not his employer. Tenn. Code Ann. § 50-6- 112 (1991 & S upp. 1996) . Therefore, if Wolney was work

ing as a n independent cont

r actor f or WFA, rather tha n an emplo ye e, his tor t action a gainst WF

A would no t be barr

ed by the Worke

rs’ Compensation Act. See Barbe r v. Ralston P

urina , 825 S.W.2d 96, 99 (Tenn. App. 1991). The Workers’ Compensation Act is a remedialstatute, t o be interpreted in favor of persons entitled to its benefits. Tenn. Code Ann. § 50-6-116 (1991 & Supp. 1996) (providing that the strict construction of statutes in derogation of common law does not apply to the Act

); Curtis v. Hamilton Block Co. , 226 Tenn. 275, 466 S.W.2d 220 (1971). Consequently, the Act is given a construction that favors a finding that a worker is an employee rather than an independent contractor. Curtis , 466 S.W.2d at 22 2; Barker v. Curtis , 287 S.W.2d 43, 46 (Tenn. 1956).4

To determine whether a worker is an employ ee or an independe nt contractor under the Workers’ Compensation Act, the following factors are c onsidered: (A) The right to control th

e conduct of the wo

rk; (B) The right of terminat ion; (C) The me

thod of pa

yme nt; (D) The freedo m to selec t and hire helpers ; (E) The furnishings of too ls and equ ipment; (F) Self scheduling of working hours; and (G) The freedo m to offer

service s to other

entities; Tenn. Code An n. § 50-6-10 2(a)(9) (1991 & Supp. 1996). The rig ht to control, though not d ispositive, is emphasized in the analysis. Carver v. Sparta Elec. System , 690 S.W.2d 218, 220 (Tenn. 1985). However, the right to control must exist in relation to the conduct and manner of the work perfor med, and not just the e

nd product: The primary test for de termini ng cla

imant’s status as employee or independent

contra ctor i s the “right to control.” Generally , when the general contractor

has a rig ht to super

vise or in spect the

work to se e that the

end result conform s to plans and specifications but has no right of control over detai ls of performance

and metho ds used to a chieve t h is result, the general or principal contractor

and the wor

kerdo not have an employe r-employee

relationship. That worker is an independent contractor. Li ndsey v. Smith & Johnson, Inc. , 601 S.W.2d 923,925 (Tenn. 1980) (citations omitted). Labe l s placed upon w orkers in con tract s are no t bin ding:

The provision

in the contr

act that p urports to establish that Wright and Lopez is an independent contractor is likewise not dispositive of the case. When the facts are essentially undisputed, as in this case, the question of whether one is an employ ee or an independent contractor is one of law for the cou rts. The parties cannot by contract take thisresponsi bility from the c ourt. Stratton , 695 S.W.2d at 953 (citations omitted). In this c ase, the f

acts indic ate t

hat WF A had the right to control the conduct of Wolney ’s work, under Tennessee Code Annotated § 50-6-102(a)(9). Wolney notes that the Agreement gave hi m the ri gh t to turn down the assignment to WFA. However, once Wolney accepted the assignm ent, he was bound to complete it . Wolney’s work instructions were prepared by

WFA, thou gh they were initiall y conveyed to him by a WFG employee. Although the cont ract oste nsibly required written approval of changes in the work assignment, the instructions received by WFG were subject to change in WFA’s discretion. Normally , Fowler or another WFA employee w ould tell the WFG guards which run they were on and give them the details of their a ssignment when they reported to work. I

n this cas e, a WFA e

mploy ee prep ared Wolney ’s work sc hedule a nd assig ned him5

to a specific WFA vehicle. Wolney testified that

Jones, a me ssenge

r guar d and a WF

A employ ee, told h im where to sit in the armored vehicle and how and when to push the buttons. Wolney

also testi fied tha

t Jones told him to wait inside the vehicle while Jones and Emmons performed their duties. Jones, on the other hand, testified that he did not give Wolney a ny instructions on the

day of the a

ccident. Neverth

eless, it is undispute d that it wa s the messe nger g uard’s r esponsibi lity

to instruct Wo lney

as to his du

ties. Any dispute of fact as to whether Jones actually g ave Wolney instructions on the day of the accident is immaterial because the test is wh ether th e right to contro l existed , not whether or not it was exercised. See Carver , 690 S.W.2d at 220. Th us, the fac ts indicat e that WFA

had the r ight to control the conduct of Wolney’ s work. Other factor s listed in Tennesse e Code An notated § 56-6-108 militate in favor of a finding that Wolney was an e

mpl oyee of WFA. Although WFA did not furnish t ools to Wolne

y, it furnishedthe armo

red truc k in which he was riding at the time of the accident. In a ddition, Wolney

was not free

to hire oth

ers to help him with his duties. Moreover, WFA had complete control over Wolney’s work schedule at WFA, incl

uding the time that he was to report to work, the time that he would leave work, and the number of hours that he worked. WFA also had the right to terminate Wolney at any time. Th e right

of termin ation “is incompat ible with the f

ull c ontro l of the work which is usually e xercised by an indepe

ndent contractor.” Frost

v. Blue Ridge Timber Corp. , 158 Tenn. 18, 22, 11 S. W.2d 860, 86 2 (1928); see also Masiers v. Arrow Transfer & Storage Co. , 639 S.W.2d 654, 6 56 (Tenn. 1982); Curtis, 466 S.W.2d at 222. The right of terminat ion is not c ontrolling

when the re are no other f actors to indicate

an employer-e

mployee rel atio nship. Wright v. Knox Vinyl & Alum. Co. , 779 S.W.2d 371, 374 (Tenn. 1989). Ho wever, in th is ca se, numerous factors indicate that Wolney was a statutory employee of WFA

. Wolney argues that the Agree

ment between WFG and WFA designates Wolney as an employee of WFG, not WFA. However, this language is not dispositive. Stratton , 695 S.W.2d at 953. Wolney notes further that he was wearing his WFG uniform on the day of the accident, and that WFG paid his salary a

nd made tax and social security deductions. These factors are considered butare not

controlling. Galloway v. Memphis Drum Serv. , 822 S.W.2d 584, 587 ( Tenn. 199 1); see also Wooten Transports, Inc. v. Hunter , 535 S. W.2d 8 58, 860 (T enn. 1976 ) (finding that a6

company’sfailure to withhold deductions for social security , i ncome ta xes, and wo

rkers’ compensation was not controlling). Therefore, analyzing the

facts in light of the factors set forth in Tennessee Annotated Code § 50-6-102(a)(9), WFA had the right to contr ol the conduct of Wolney’s work an d the rig ht to terminat e him. Wolney was not

free to hire hel pers. WFA furnished the equipment to Wolney, the vehi cle, and scheduled his working hours. These factors c learly we igh in favor of finding that Wolney was a statutory employ

ee of WFA. Weighed

agains t these a

re the f act that Wo lney

was paid by WFG, that Wolney could have turne d down the assignment, and that the agree ment designates workers such as Wolney

as employees of

WFG. As noted above, the Workers’ Compensation Act is remedial in nature and is to be construed in favor of a finding that a worker is a statutory employ

ee. Curtis , 466 S.W.2d a t 222; Barker , 199 Tenn. at 413, 287 S.W.2d at 46; see also Tenn. Code Ann. § 50-6-116. In light of this construction, the undisputed facts in this case indicate that Wolney qualifies as a statutory

employee of WFA

and that the trial court did not err in granting summary judgment in favor of WFA. Ac co rd in gl y, the decision of the trial court is affirmed. Costs on appeal are taxed to Ap pe ll an t, fo r w hi ch ex ec ut io n m ay i ss ue if ne ce ss ar y.

HOLLY KIRBY LILLARD, J.
CONCUR:

ALAN E. HIGHERS, J.

DAVID R. FARMER, J.