1 United States Court of Appeals,

Fifth Circuit.

No. 94-60446

Summary Calendar.

Michael Ray McKEE, Plaintiff-Appellant,

v.

Leroy BRIMMER, et al., Defendants,

Reid Pulpwood, Inc., Defendant-Appellee.

Dec. 5, 1994.

Appeal f rom the United States District Court for the Northern

District of Mississippi.

Before SMITH, EMILIO M. GARZA and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Michael Ray McKee ("McKee") appeals from a summary judgment

granted in favor of Reid Pulpwood, Inc. ("Reid"), in which the

district court found that Reid's relationsh ip with the party

responsible for McKee's damages was that of independent contractor.

We affirm.

FACTS AND PROCEDURAL HISTORY

Jessie Doubleday, doing business as Doubleday Logging

("Doubleday") began negotiations with Magnolia Farms for a contract

to cut and haul timber. In March 1991 Doubleday approached Reid

and offered to sell Magnolia Farms timber to Reid. Magnolia Farms'

owners were willing to sell their timber, but wanted a contract

with someone with $1,000,000 of liability insurance coverage, which

Doubleday could not provide.

On April 8, 1991, Reid entered into a Hardwood Saw Timber Sale2

Agreement with Magnolia Farms. Reid then made a verbal agreement

with Doubleday for Doubleday to cut and haul the timber pursuant to

the Reid-Magnolia Farms contract. This was the first and only time

Reid contracted with Doubleday. Reid paid Doubleday on a

production basis for timber Doubleday cut and hauled to Reid's

purchasers. Reid made no loans or advances to Doubleday, and did

not deduct any taxes from the paymen ts. Doubleday used its own

equipment, trucks, fuel and employees to do the job and Reid made

no inspections of Doubleday's equipment or work. There is no

evidence in the record that Reid had the right to control or

actually controlled the time, manner or routes used in hauling the

timbe r to Reid's purchasers, the aspect of Doubleday's work from

which McKee's injury arose.

On May 22, 1991, around 5:00 a.m., Leroy Brimmer, a Doubleday

employee, was operating a tractor-trailer owned by Doubleday loaded

with logs cut from Magnolia Farms. As he entered Interstate

Highway 55 South in Panola County, Mississippi, he collid ed with

McKee's truck, causing McKee both perso nal injury and property

damage.

McKee sued Brimmer, Doubleday and Reid to collect damages.

Doubleday defaulted and Brimmer filed an answer pro se. Both

Doubleday and Brimmer are uninsured and judgment proof. After

discovery, McKee filed a motion for partial summary judgment on the

issue of Reid's liability for the wrongful acts of

Brimmer/D oubleday based on the doctrine of r espondeat superior.

Reid responde d and filed its own motion for summary judgment1 The employer/employee relationship is sometimes referred to

as the master/servant relationship. See Richardson v. APACMississippi, Inc., 631 So.2d 143, 148 (Miss.1994). For purposes

3 requesting a dismissal, claiming that Brimmer/Doubleday were

independent contractors, thus Reid was not liable for their acts.

The district court denied McKee's motion and granted summary

judgment for Reid, holding that D oubleday was an independent

contractor and Reid was not li able for Doubleday's wrongful

conduct.

STANDARD OF REVIEW AND CHOICE OF LAW

We review a district court's ruling on motion for summary

judgment de novo, applying the same standards as those that govern

the district court's determination. L odge Hall Music, Inc. v. Waco

Wrangler Club, Inc., 831 F.2d 77, 79 (5th Cir.1987). Summary

judgment must be granted if the court determines that there is no

genuine issue as to any material fact and that the moving party is

entitled to judgment as a matter of law. F E D .R.C IV .P. 56(c). To

ascertain whether genuine issues of material fact are present in

this Mississippi based diversity action, we look to the substantive

law of Mississippi. L avespere v. Niagara Machine & Tool Works,

Inc., 910 F.2d 167, 177-78 (5th Cir.), reh'g denied, 920 F.2d 259

(1990). We must view the evidence in the light most favorable to

McKee, the nonmoving party. B arhonovich v. American Nat. Ins. Co.,

947 F.2d 775 (5th Cir.1991).

DID THE CONTRACT MAKE REID LIABLE FOR DOUBLEDAY'S NEGLIGENCE?

Generally, an employer is liable for the negligent acts of

its employee 1 done in the course and scope of his employment underof clarity, this opinion will use the term "employer/employee

relationship."

4 the doctrine of respondeat superior, but an employer is not liable

for the negligence of an independent contractor. W .J. Runyon &

Son, Inc., 605 So.2d 38, 45 (Miss.1992).

For many years Mississippi engaged in an elaborate factoring

analysis to determine whether or not one was engaged in an

employer/employee or independent contractor relationship. In W .J.

Runyon & Son, Inc. v. Davis, 605 So.2d 38 (Miss.1992), the

Mississippi court moved to a singular "right to control" test.

However, in Richardson v. APAC-Mississippi, Inc

., 631 So.2d 143

(Miss.1994), the court overruled Runyon to the extent that it was

inconsist ent with R ichardson and moved back to a factoring

analysis. Through all the changes, the right to control and actual

control have always been primary factors. As the court observed,

"At last, and in any given case, it gets back to the original

proposition whether in fact the contractor was actually

independent." Richardson, 631 So.2d at 148. Where the facts are

undisputed, determining the type of relationship i s a legal

question. Id. at 152.

McKee argued in his motion for summary judgment that the

contract between Reid and Magnolia Farms imposed on Reid an

obligation and corresponding right to control Doubleday. The

district court rejected that argument, findin g that the relevant

inquiry was to determine what type of relationship existed between

Reid and Doubleday and not the relationship between R eid and2 See Richardson v. APAC-Mississippi, Inc., 631 So.2d 143

(Miss.1994); Webster v. Mississippi Publishers, 571 So.2d 946

(Miss.1990); Magee v. Transcontinental Gas Pipe Line Corp., 551

So.2d 182 (Miss.1989); Texas Co. v. Jackson, 174 Miss. 737, 165

So. 546 (1936).

5 Mag nolia Farms. McKee claims that the court below erred by not

assigning controlling weight to the contract, cit ing four

Mississippi cases that looked to a written contract in determining

parties' legal relationships. These cases all involve a contract

to which the alleged employer and the alleged employee were

parties 2

, and are not authority for the proposition that the court

should examine a contract between A and B to determine whether C is

the employee of B.

McKee's argument hinges on the theory that Reid's contractual

duties to Magnolia Farms gave Reid the power to control Doubleday.

Although Reid may hav e owed certain contractual obligations to

Magnolia Farms, this contract does not purport to, and cannot, give

Reid control over Doubleday, since Doubleday was not a party to the

contract. We, therefore, hold that the district court did not err

in finding that the contract was irrelevant to the inquiry here,

which was to determin e what type of relationship existed between

Reid and Doubleday.

WAS THERE A FACT ISSUE THAT PRECLUDED SUMMARY JUDGMENT?

In addition to the basic question of con trol versus

independence, Mississippi considers the following factors relevant

in determ ining if a relationship is that of employer/employee or

independent contractor:

W hether the principal master has the power to terminate the6

contract at will; whether he has the power to fix the price

in payment for the work, or vitally controls the manner and

time of payment; whether he furnishes the means and

appliances for the work; whether he has control of the

premises; whether he furnishes the materials upon which the

work is done and receives the output thereof, the contractor

dealing with no other person in respect to the output;

whether he has the right to prescribe and furnish the details

of the kind and character of work to be done; whether he has

the right to supervise and inspect the work during the course

of employment; whether he has the right to direct the details

of the manner in which the work is to be done; whether he has

the right to employ and discharge the subemployees and to fix

their compensation; and whether he is obliged to pay the

wages of said employees.

Richardson v. APAC-Mississippi, I nc., 631 So.2d 143, 148

(Miss.1994) (quoting Kisner v. Jackson, 159 Miss. 424, 132 So. 90

(1931)).

McKee contends that the evidence before the court created a

genuine issue of material fact on the issue of the proper

characteriz ation of Reid's relationship with Doubleday. McKee

relies on the following evidence:

* The written contract between Reid and Magnolia Farms.

For the reasons set out above, the contract is irrelevant to

the issue.

* Doubleday was covered on Reid's workers' compensation insurance.

McKee relies on Mr. Reid's statement during a deposition that

"Had Mr. Brimmer's case been reported as fa r as getting

injured, knowing my workman's comp company, they would have

covered him. They've never refused anybody. The way they

look at it, if they are doing a j ob on behalf—of course,

they're going to cover anyway."

Although Mr. Reid's statement may be some evidence that Reid's

worker's compensation insurance might have covered McKee's

injuries, there is no evidence that the policy covered only Reid's

"employees," as defined by Mississippi respondeat superior law, so7

as to create a fact issue concerning the employer/emp loyee

relationship between Reid and Doubleday.

* There was no definite length of time that Doubleday would render

services to Reid and Reid could terminate the arrangement at

will. Further, the Reid/Doubleday agreement was not in

writing.

Neither of t hese facts address the central issue of

independence. The record conclusively demonstrates that Reid had

no duty or ability to control Doubleday or Doubleday's employees.

Neither the indefinite length of their agreement nor the fact that

it was not a written agreement is a disputed issue of mat erial

fact. They are simply facts that appear in the record that do not

change the legal conclusion that Doubleday was Reid's independent

contractor.

McKEE'S PUBLIC POLICY ARGUMENT

The Mississippi Supreme Court in Richardson added an explicit

fact or which had previously been implicit to the balancing test

used in determining the nature of a relationship:

When, however, third parties are adversely affected, this

Court will carefully scrutinize the contract to see if public

policy should permit the transformation of an ordinarily

employer/employee relationship into that of an independent

contractor. A necessary condition precedent for the

application of this factor, however, is that the party

challenging the claimed relationship will be adversely

affected, and denied an adequate legal remedy.

Richardson, 631 So.2d at 150.

McKee argues that Reid was aware of the poor financial

condition of Doubleday at the time of their agreement and so should

be liable for allowing Doubleday to operate without adequate

insurance. Further he claims that he will be denied an adequate8

rem edy at law if he is barred from recovering from Reid because

Brimmer and Doubleday are judgment proof and uninsured.

The district court found that Doubleday was clearly performing

work as an independent contractor whe n the accident occurred and

Reid should not be held liable for damages to the plaintiff simply

because McKee had the misfortune to be involved in an accident with

an uninsured independent contractor performing work f or its

principal. We agree.

The public policy factor from Richardson becomes an issue

when the relationship between the alleged employer and the alleged

employee would "ordinarily" be characterized as that of an

employer/employee, but they have a contract which defines their

relationship as that of independent contractors. In that case, the

court will scrutinize the contract to see if the parties should be

allowed to transform an employer/employee relationship into that of

an independent contractor. R ichardson, 631 So.2d at 150. In

essence, an employer will not be allowed to escape liability by

drafting a contract which labels its employee an inde pendent

contractor, but retains employer-like control over him. Since the

evidence establishes that Doubleday was an independent contractor,

and there is no evidence of an attempt by Reid to control Doubleday

throu gh a written contract or otherwise, McKee's public policy

argument fails.

CONCLUSION

For the foregoing reasons, the district court's summary

judgment in favor of Reid is AFFIRMED.9