# FILED
December 31, 1996 Cecil Crowson, Jr . App ellate C ou rt 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 for damag es br ought by Plaintiff B rian Wolney (“Wolney ”), with his wife Melissa Woln ey, against Defend ants W ells F argo Armored Service Corporation (“WFA” ) and L

isa M. Emmons (“ Emmons”) . Wolney sued for perso nal injuries h

e sustain ed in an a

ccident while riding as a passenger in a ve hicle driven by Emmons, but owned by WFA. The

trial court

granted partial summary

judgmen t in favor of WFA, f

inding th at Wolney ’s to rt claim against WFA was barred because Wolney w as WFA’s statutory employ ee. T h e Wolneys appeal the g rant of partial summary judgme

nt. We affirm. The fact s are essentially

undisputed. Wolney worked as a g uard for Wells Fargo Guar d Service (“WFG”). WFG had entered into a written Security Services Agreement (“Ag reement”) wit

h WFA, under wh

ich WFG wo

uldoccasionally f

urnish guards to WFA. The Ag reemen t provide d, in pertine nt part: 3. EMPLOYEES: (a) P erso nnel suppl ied b y C ompa

ny [WFG] are its employee s and not Client’ s [WFA]. Compa ny i s solely

responsi ble for s ocial se curi ty, unemployment and similar taxes applicable to its employ ees . . . (c) Cl ie nt ma y re as on ab ly remove any employ ee assigned provided such removal is not in violation of law . . . 4. HIRING: Client ag

rees tha t it willnot, directly or indirectly, hire or employ any Company employ ee assig ned to Clie

nt while su ch employee is employed by Company or for one

year the reafter. . . 9. SCOPE OF SERVICES: This Agr eement and writt

en schedule of guard as signm ents, patrol inspections and post orders, which collectively set forth the Security Services to be performed, may be cha nged with the written approval of Co mp an y. Other

amendme

nts to this Agreement must be in writing and signed by the authorized representatives of the parties thereto. If there is any conflict between the terms of any other

documents and this Agreement, this Agree ment shall con trol. Ge ne ra ll y, under the Agreement, either Chris F owler (“Fowler”), a

vault supervisor at WFA,
or his super visor, would call WF

G and re quest gu ard ser

vices. Ch arlie Pe grum (“ Pe grum ”), the operations manager at WFG, would then find an ava ilable guard, notify

him of the assignment, and convey any informat ion about t

he assignment give n by

WF A. The guard could turn down the assignm ent, but once it was accepted, 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.2

In this instance, a

WFA employ

ee call ed Pegr

um and re quested a

n unarme d guar

d for duty for two days, providing

Pegrum with general information about th e assignment. Pegrum then notified Wolney of the assignme ntat WFA and gave

him an overview of the ty pe of work required. Pegrum told Wolney that he would be riding in the passenger side of a truc k and would stay inside and push button s to let

people in and out of

the truck. Pegr

um told Wolne

y when WFA w anted him to report to work. Wolney ac cepted the assignment. His first day working for WFA w as uneve ntful. When Wolney reported to work a t WF A the second day , he was told by a WFA e mployee to ride in a

WFA “ban

k truck” as an una

rmed gu ard esc ort, alon g with two of WFA’s own gua

rds. Wolney sat i n the front passenger seat of the truc k, driven by def

endant Emmons. Charles Jon e s (“Jones”), the messenger guard w ho was effectively

in charge of the truck, sat in the bac k sea t. It
was the me sseng er guard’s responsibility to tell Wolney where to sit in the truck and wha t to do. Wolney’s duties were to assist the messenger gua rd and 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 wa s riding became involved in a serious motor vehicle collision, and Wolney was injured. Subseque ntl y, Wol ney

filed this suit to rec over damages f or the inju

ries he s ustained

as a result of the accident. Both Wolney and WFA moved f or partial summary judg

ment on the issue of whether Wolney was an employ

ee of WFA. Th

e trial c ourt foun d that, as a matter of law, Wolney
was a st atutory

employ ee unde r the Work

ers’ Comp ensation

Act, Tennessee Code Annotated § 50- 6

- 10 2(a)(9) (1991 & Supp. 1996), and that his tort action against WFA was there fore barr ed
. Co ns eq ue nt ly, the trial court granted partial s um ma ry j ud gm en t i n f av or of WF A. Th e W ol ne ys 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 movingparty is entitled to judgment a s a matter of law. Tenn. R. Civ. P. 56.03. The party moving for summary judgment 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 judgment, the court must take the strongest legitimate view of the e vidence in favor3

of the nonmoving party , allow all reasonable inferences in favor of that pa rty , and disc ard 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 nonmoving party must then de monstrate, by aff

idavits or discove ry materia ls, that there is a genuine, material fact dispute to warr ant a trial. In this regar

d, Rule 56.05 provides that the no nmovi ng par ty c annot simp ly r

ely upon his ple adings but must 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 judgment is only appropriate when the case can be decided
on the legal issues alone. Id. at 210. Bec ause o nly questions of law are involved, there 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 re view of a trial court’s order gr anting summary judgmen t is de novo on the record before this Court. See Carv ell v. B otto ms , 900 S.W.2d 23, 26 (Tenn. 1995). In this appeal, Wolney

argues that he was not

an employ

ee of WFA , and con sequentl y, h is tortclaim ag ainst WFA i s not barred by the Workers’ Compensation Act. Wolney contends that he was an independent contractor rather than an employee
. Under the Workers’ Compensation Act, workers’ compensation benefits are an 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 action against WFA would be dismisse d becau se worke rs’ comp ensation

benefit s would be his exclusive remedy. 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 employ er. Tenn. Code Ann. § 50-6- 112 (1 991 & Supp. 1996). Therefore, if Wolney was working as an independent contra ctor f o r W FA, rather

than an e mploy ee, his to

rt action agains t WFA would

not be bar

red 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 remedial statute, 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 g iven a construction4

that favors a finding that a worker is an employee ra

ther than an independent contractor. Curtis , 466 S.W.2d at 22 2; Barker v. Curtis , 287 S.W.2d 43, 46 (Tenn. 1956). To determine whether a worker is a n employee or a

n independent contractor under the Workers’ Compensation Act, the following factors are c onsidered: (A) The right to control th

e conduc t 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 Ann. § 50-6-102(a)(9) (1991 & Supp. 199 6). The r ig ht to control, though not dispositive, is emphasized in the analysis. Carver v. Sparta Elec. System , 690 S.W.2d 218, 2 2 0 (Tenn. 1985). However, the right

to control must exist in relation to the conduct and manner of the work perfor med, and n ot just the e

nd produc t: The primary

test for d

etermini ng claimant’s sta tus as employee or independent

contractor

is th e “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 ov er details of performance

and metho ds used to a chieve t his result , the gener al or principal contractor

and the worker do not have an employe r-employee

relationship. That worker is an independent contractor. Linds ey v. Smith & Johnson, Inc. , 601 S.W.2d 9 23,925 (T enn. 1980 ) (citat ions omitte d). L abels placed upon w orkers in con tract s are no t bin ding:

The provision

in the con tract tha t purport s to establish that Wright and Lopez is an independent contractor is likewise not dispositive of the case. Whe

n the facts are essentially undisputed, as in this case, the que stion of whether one is anemployee or an indepe

ndent con tractor is o ne of l aw for the courts. The parties cannot by contract take thisresponsi bility from the c ourt. Stratton , 695 S.W.2d at 953 (citations omitted). In this case, the facts indicate that WFA had the right to con trol the c onduct of Wolney’s work, under Tennessee Code Annotated § 50-6-102(a)(9). Wolney notes that the Agr eement gave him the right to turn down the assignment to WFA. How ever, once Wolney acce pted the assignm ent, he was bound to complete it. Wolney’s work instr uctions were prepared by WFA, thou gh they

were ini tially convey ed to him by

a WFG emp loy ee. Altho ugh the contract ostensibl

y required written approval of changes in the work assignment, the instructions received by WFG were subject to cha nge in WFA’s discretion. Normally, F owler or another WFA employ ee would tell the5

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 him to a specific WFA vehicle. Wolney testified that Jones, a messenger guard and a WFA employ

ee, told h im where to sit in the armored vehicle and how and when to push the buttons. Wolney also testified that Jones to ld 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 any instructions on the day of the ac cident. N

everthe less, it is undisputed that it wa s the messe nger g uard’s r esponsibi lity

to instruc t Wolney

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 t

he test is whethe

r the rig ht to contr

ol existed , not whether or not it was exercised. See Carver , 690 S.W.2d at 220. Thu s, the fa cts indica te that WF

A had the right to control the conduct of Wolney’ s work. Other factors listed in Tennessee Code Annotated § 56-6-10 8 militate in favor of a finding that Wolney was an employ ee of WFA. Although WFA did not fur nis h tools to Wolney , it furnishedthe armored truck in which he was riding at the time of the accident. In addition, Wolney
was not free

to hire oth

ers to help him with h

is 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 worke d. WFA also had the righ t to termin ate Wolne y a t any time. The

right of terminat ion “is incompat ible with the full control of the wor k whi ch is usually exercised by an independent contractor.” Frost v. Blue Ridge Timber Corp. , 158 Tenn. 18, 22, 11 S.W.2d 860, 862 (1928); see also Masiers v. Arrow Transfer & Storage Co. , 639 S.W.2d 654, 656 (Tenn. 1982); Curtis, 466 S.W.2d at 222. The right

of termin ation is not controlling when the re are no other f actors to indicate
an employer-e

mployee rela

tionship. Wright v. Knox Viny l & Alum. Co. , 779 S.W.2d 371, 374 (Tenn. 1989). However, in this case, numerous fact ors indicate that Wolney was a statutory employee of WFA
. Wolney argue s that the Agreem ent between WFG and WFA desi gnate s Wolne y 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 considered6

butare not controlling. Galloway v . Memphis Drum Serv. , 822 S.W.2d 584, 587 (Tenn. 1991); see also Wooten Tra nsports, Inc . v. Hu nter , 535 S.W.2d 85 8, 860 (Te nn. 1976) (finding

that a compan y ’s failure

to withhold

deductio ns for soc ial secu rity , income t

axes, and w orkers’ compensation was not controlling). Therefore, analyzing the f acts in light of the factors set forth in TennesseeAnnotated Code § 50-6-102 (a)(9) , WFA had t he righ t to contro l the cond

uct of Woln ey ’s work a

nd th e right to terminat e him. Wolney

was not fr

ee to hire helpers. WFA furnished the equipment to Wolney , the
v ehicle, a nd scheduled his working hours. These factors c learly we igh in favor of finding that Wolney was a statutory

employee of WFA . Weighed against these are the f act that Wolney 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 employee. 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 undispute d facts in

this case indicate that Wolney

qualifies as a statutory e

mployee of WFA a

nd that the trial court did not err in granting par tial summary judgment in fa vor of WFA. Ac co rd in gl y, the deci sio n of the trial court is a

ffirmed . Costs on a

ppeal ar e 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.