Appellant sustained injuries when his car collided with a delivery van painted in the widely recognized DHL

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Appellant sustained injuries when his car collided with a delivery van painted in the widely recognized DHL livery, driven by a driver clad in DHL uniform and laden with packages destined for DHL customers in Duval County [Florida] and beyond. Discovery in the negligence lawsuit stemming from the accident, revealed the van was owned not by DHL, but by Johnny Boyd, a driver for Silver Ink, Inc., a local company that was responsible at the time for picking up, sorting, and delivering all DHL packages in metropolitan Jacksonville. DHL, whose primary business focuses on shipping packages via air around the world, represented to both this court and the trial court that it has no capability to pick up or deliver local packages in Duval County and that, at the time of the accident, it relied exclusively on Silver Ink to provide such local services.

   Accordingly, appellee’s agreement with Silver Ink essentially delegated to Silver Ink the responsibility to service DHL customers in the Jacksonville area. The contract identified Silver Ink as an ‘‘independent contractor’’ and provided that ‘‘the manner and means by which Contractor performs the services shall be at Contractor’s sole discretion and control and are Contractor’s sole responsibility.’’The agreement also, however, recited an exhaustive and detailed list of procedures that Silver Ink employees were to follow in processing, picking up, and delivering packages, and contained an indemnity provision pursuant to which Silver Ink would indemnify DHL in the event Silver Ink lost or damaged packages bound for DHL’s customers. The agreement conferred upon either party the power to terminate in the event of the other party’s breach.

   Silver Ink employees were contractually required to ‘‘wear a DHL uniform and properly display the DHL Marks (sic) and uniform in a clean, professional, and businesslike manner’’; the contract specified the particular articles of clothing and accessories considered part of the DHL uniform, the purchase of which was funded by DHL. Silver Ink was required to submit to unannounced operational inspections and audits at DHL’s sole discretion and was required to maintain a fleet of delivery vans operated in DHL livery, designed and placed on the vehicles in strict accordance with specifications established by DHL. Deposition testimony filed with the trial court established that Silver Ink’s operational hub was co-located with DHL’s Duval County facility and that DHL employees monitored and reviewed Silver Ink operations on a daily basis.

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   [Danny Del Pilar sued DHL for his personal injuries arising from the auto accident. The trial court granted summary judgment for DHL after concluding that Silver Ink was an independent contractor for whose alleged negligence DHL is not vicariously liable. Danny Del Pilar appealed.]

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   Generally, a principal is not vicariously liable for the negligence of its independent contractor, but the principal is liable for the negligence of its agent. [Citation.] Whether one laboring on behalf of another is a mere agent or an independent contractor ‘‘is a question of fact … not controlled by descriptive labels employed by the parties themselves.’’ [Citations.]

   A particularly significant factor in the determination of status is ‘‘the degree of control exercised by the employer or owner over the agent. More particularly, it is the right of control, and not actual control, which determines the relationship between the parties.’’ [Citations.]

   In most cases, the terms of a contract between the parties is a pertinent index of the principal’s right of control and should factor heavily into the inquiry, ‘‘unless other provisions of the agreement, or the parties’ actual practice, demonstrate that it is not a valid indicator of status [or] … belie the creation of the status agreed to by the parties.’’ [Citation.] In that case, ‘‘the actual practice and relationship of the parties should control.’’ [Citation.]

   Elements of control that tend to suggest a relationship in which the principal is vicariously liable for the agent’s negligence include, but are not limited to, (1) the principal’s right to control the agent’s use of the principal’s trademarks, [citation]; (2) reservation to the principal of the unilateral right to prohibit the agent from working on behalf of competitors, [citations]; (3) a requirement that the agent’s employees must undergo training before they work on the principal’s behalf, [citation]; (4) a requirement that the agent perform services using only equipment selected pursuant to the principal’s specifications, [citation]; (5) a requirement that the agent, when working on behalf of the principal, use a vehicle with the principal’s logo, placed according to parameters established by the principal, [citation]; (6) a requirement that the agent adhere to customer-service procedures established by the principal, [citation]; and (7) a requirement that the agent submit to inspections conducted at the principal’s discretion, [citation].

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   Here, the contract between appellee and Silver Ink certainly recites in conclusory terms the status of independent contractor; it identifies Silver Ink as an independent contractor and provides that ‘‘the manner and means by which Contractor performs the services shall be at Contractor’s sole discretion and control and are Contractor’s sole responsibility.’’ This observation does not conclude the matter.

   When we look, as we must, more deeply than the agreement’s conclusory language, we find that, like provisions of the franchise agreement at issue in [citation], the balance of DHL’s contract with Silver Ink ‘‘leaves nothing to chance.’’ [Citation.] Somewhat inconsistently with the conclusory language purporting to confer broad discretion upon Silver Ink to fulfill its operational obligations, subsequent provisions list specific procedures and protocols that Silver Ink employees are to follow when picking up, sorting, and delivering DHL packages; everything from the process of scanning packages into DHL’s tracking system to procedures for redelivery after unsuccessful delivery attempts is set out in detail in the agreement. Shippers and recipients are ‘‘DHL customers,’’ and the agreement contains an indemnity provision requiring Silver Ink to indemnify DHL for damages stemming from packages lost or damaged due to Silver Ink’s negligence, suggesting that DHL intends, in the first instance, to answer directly to its customers. The contract requires Silver Ink employees to ‘‘wear a DHL uniform and properly display the DHL Marks and uniform in a clean, professional, and businesslike manner,’’ with further specification of the particular apparel considered part of the DHL uniform. Silver Ink must operate delivery vehicles painted in the DHL livery and must submit to unannounced operational inspections and audits at DHL’s sole discretion. Silver Ink must pick up and deliver packages at times requested by DHL’s customers pursuant to DHL’s advertised guarantees.

   * * * The trial court erred in concluding, as a matter of law, that Silver Ink was appellee’s independent contractor. The question of DHL’s control over Silver Ink operations should go to the jury. [Citations.]

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   Because the factual issue of Silver Ink’s status presents a jury question, the summary judgment for appellee is REVERSED.

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Smith and Roberson Business Law

ISBN: 978-0538473637

15th Edition

Authors: Richard A. Mann, Barry S. Roberts

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