ATTORNEYS FOR APPELLANTS ATTORNEYS FOR APPELLEE
James R. Fisher J. Lee McNeely
A. Richard M. Blaiklock Paul A. Logan
Ice Miller Donadio & Ryan McNeely Stephenson Thopy
Indianapolis, IN & Harrold
James T. Roberts
SUPREME COURT OF INDIANA
JAY MOBERLY and ) JENNY MOBERLY, ) ) No. 07S01-0010-CV-605 Appellants (Plaintiffs Below ),) In the Supreme Court ) v. ) ) No. 07A01-9909-CV-216 WILLIAM DAY d/b/a DAY FARMS, ) In the Court of Appeals ) Appellee (Defendant Below ). )
November 15, 2001
Two of Days sons-in-law, Moberly and Hendershot, each live within a quarter mile
of the farm. Even before Days illness, they assisted him in the
farming operations upon request, for a half-day to two days at a time.
On these occasions Day would pay for the help in an amount
he considered fair, after the work was done.
On June 28, 1997, Day asked Moberly and Hendershot to dig up and
repair some drainage tile in one of his fields. Hendershot provided a
backhoe, as he had on previous occasions when he repaired drainage tile for
Hendershot climbed into the backhoe seat. Moberly also attempted to climb onto
the backhoe to ride to the field. As he did so, the
backhoes boom activated and swung around, seriously injuring Moberlys leg.
Moberly sued Day, alleging that both he and Hendershot were Days employees, that
Hendershots negligence caused his injury, and that Day was vicariously liable for Hendershots
See footnote Day denied that he was Hendershots employer and asserted several affirmative
defenses.See footnote He sought summary judgment on the basis that Hendershot was an
independent contractor and that employers are not liable for the torts of independent
contractors. The trial court granted Days summary judgment motion.
The Court of Appeals reversed and remanded, finding genuine issues of material fact
that made the determination of employee-contractor status inappropriate for summary judgment.
v. Day, 730 N.E.2d 768 (Ind. Ct. App. 2000). Judge Friedlander dissented,
applying a seven-factor analysis and concluding that Hendershot was an independent contractor as
a matter of law. Id. at 770-71. We granted transfer, and
now consider whether the undisputed facts support a determination of Hendershots status as
a matter of law.
On appeal from summary judgment, the reviewing court faces the same issues that
were before the trial court and analyzes them the same way, Ambassador Fin.
Servs., Inc. v. Ind. Natl Bank, 605 N.E.2d 746, 751 (Ind. 1992), although
the trial courts decision is clothed with a presumption of validity, Ind.
Dept of State Revenue v. Caylor-Nickel Clinic, P.C., 587 N.E.2d 1311, 1312-13 (Ind.
While the nonmovant bears the burden of demonstrating that the grant of summary
judgment was erroneous, we carefully assess the trial courts decision to be sure
that the nonmovant was not wrongly denied his or her day in court.
Mullin v. Mun. City of South Bend, 639 N.E.2d 278 (Ind. 1994).
Appellate review of a summary judgment ruling may take into account only
those materials designated to the trial court. Rosi v. Bus. Furniture Corp.,
615 N.E.2d 431, 434 (Ind. 1993) (citing T.R. 56(H)).
Employees v. Independent Contractors
whether or not the one employed is engaged in a distinct occupation or
the kind of occupation, with reference to whether, in the locality, the work
is usually done under the direction of the employer or by a specialist
the skill required in the particular occupation;
whether the employer or the workman supplies the instrumentalities, tools, and the place
of work for the person doing the work;
the length of time for which the person is employed;
the method of payment, whether by the time or by the job;
whether or not the work is a part of the regular business of
whether or not the parties believe they are creating the relation of master
and servant; and
whether the principal is or is not in business.
Restatement (Second) of Agency § 220(2) (1958). We consider all factors, and
no single factor is dispositive.
Mortgage Consultants, Inc., 655 N.E.2d at
Here, the record does not indicate any formal agreement about the extent of
control Day exercised over Hendershots work. It does, however, describe the working
arrangement. Moberly stated:
Q What instructions, if any, did [Day] give you to do those jobs where you helped [Hendershot], other than on the day you were injured?
A He would tell us what he wanted done and we would do it.
Q When he would tell you what he wanted done, was that fix the tile, or more detailed than that? What did he tell you?
A Whatever the job was.
(R. at 53.) Days description of the day of the accident is consistent:
Q What did you tell [Moberly] to do?
A I just told him to dig the holes up and fill in the tile, fix the tile.
Q You didnt specifically tell him each step?
A No, huh-uh.
Q And you didnt tell him to operate the equipment or to dig the hole or to do the back-filling?
Q How was that to be decided?
A That was just between them, you know. Whatever needed done. I mean If Joe needs him to do something, I just left that up to them.
(R. at 75 (emphasis added).)
The evidence offered indicates that Hendershot was answerable to Day for results only,
not the particulars of how he went about accomplishing assigned tasks.
Mortgage Consultants, Inc., 655 N.E.2d at 495. See also GKN Co., 744
N.E.2d at 406 (control is the most significant factor in evaluating single- versus
dual-employer questions; even where truck driver was given a ticket for each load
hauled, told where to take each load, and told when to arrive and
leave each day, the facts weighed heavily in favor of independent contractor status).
Therefore, this important factor tilts the scale toward an independent contractor conclusion.
B. Occupation or Business of One Employed. Hendershot worked as a truck
driver and heavy equipment operator for a materials company. (R. at 93.)
This is a distinct enough occupation to weigh at least slightly in
favor of independent contractor status.
C. Kind of Occupation. Unsupervised specialists commonly perform this type of heavy-equipment
repair, although employers do sometimes direct such work. This factor is therefore
not particularly meaningful in this case.
D. Skill Required. Moberly testified that he was present numerous times when
Hendershot operated a backhoe, and that he knew how to run a combine
and a bulldozer. However, when asked whether the levers on a bulldozer
were comparable to those on a backhoe, he described himself as unfamiliar with
backhoes. (R. at 154-55.) This testimony supports the inference that special
skill is required to operate a backhoe, even for someone experienced in operating
other heavy equipment, so this factor weighs toward an independent contractor finding.
E. Supplier of Equipment, Tools, and Work Location. Hendershot provided the backhoe that
was the most important piece of equipment required on the day Moberly was
injured. Hendershot had also supplied the backhoe on previous occasions over
a period of years. The materials designated to the trial court contain
no evidence indicating who supplied other tools or equipment on this or other
occasions. Comment k. to Restatement (Second) of Agency § 220(2) indicates, however,
that it is particularly significant if an employer provides tools or instrumentalities of
substantial value, and the same would presumably be true if the workman is
the provider. Therefore, this factor supports the trial courts conclusion that Hendershot
was an independent contractor.
As to work location, Day told his sons-in-law the location of the holes
that needed repair on the day of the accident. From that point
on it was the nature of their task that defined their work boundaries;
i.e., a drain repairman must go to the drain, whether he is an
employee or an independent contractor. Physical work location is therefore not particularly
helpful here given the nature of the work.
F. Length of Employment. Comment h. to Restatement (Second) of Agency §
220(2) indicates that a long-term relationship can indicate employee status, and here, Hendershot
worked for Day over a period of four to five years. However,
the Comment refers to employment over a considerable period of time with regular
hours. Id. (emphasis added). Comment a. to § 220(1) also describes
a servant (i.e. employee) as one who performs continuous service for another.
Hendershot worked from time to time, as Day needed him and as another
job allowed. On the day Moberly was injured, the two sons-in-law did
not start on the requested task until afternoon because Hendershot had other work
to do in the morning.
See footnote Although Hendershot responded whenever Day needed help,
his hours were not regular and his service was not continuous. This
factor also points toward independent contractor status.
G. Method of Payment. Day paid Hendershot by the job rather
than in the form of a salary or an hourly wage.
This payment was in whatever lump-sum amount Day considered fair. This
type of payment is more typical of an independent contractor than of an
employee. See Restatement (Second) of Agency § 220(2) cmt. h. (payment by
hour or month indicates employer-employee relationship).
H. Regular Business of the Employer. Day was a farmer. Although
farm operations involve periodic maintenance work, Days regular business was not drainage tile
repair. Day testified that farmers check their field drainage tile and repair
holes only maybe once a year. (R. at 95-96.) Again, this
factor weighs at least slightly in favor of independent contractor status.
I. Belief of the Parties. Day denied that he ever considered Hendershot
his employee. Moberly introduced no evidence contradicting this assertion. Comment m.
to subsection (2) of the Restatement (Second) of Agency says, It is not
determinative that the parties believe or disbelieve that the relation of master and
servant exists, except insofar as such belief indicates an assumption of control by
the one and submission to control by the other. (Emphasis added.)
The evidence in the record indicates that Day did not believe he had
assumed control over Hendershot, so this factor favors independent contractor status.
J. Whether the Principal Is in Business. Day was in business,
as a farmer, so this factor favors employee status for Hendershot.
Summary. The leading factor of control leans toward independent contractor status.
All other factors except the last (i.e. whether the principal is in business)
are either neutral or, in most cases, weigh at least slightly in favor
of independent contractor status.
Taken as a whole, then, the undisputed facts support the trial courts conclusion
that Hendershot was an independent contractor. Consequently, Day is not liable
for Moberlys injury, and the trial court did not err in granting Days
motion for summary judgment.