                              THIRD DIVISION
                             ELLINGTON, P. J.,
                         ANDREWS and RICKMAN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                    August 16, 2017




In the Court of Appeals of Georgia
 A17A1722. GRANGE INDEMNITY INSURANCE COMPANY v.
     BEAVEX, INC.

      ANDREWS, Judge.

      This appeal is from the grant of summary judgment for BeavEx, Inc., a delivery

services broker, in an action seeking to impose vicarious liability for a motor vehicle

collision involving a driver BeavEx hired as an independent contractor. We affirm.

      On March 17, 2014, as Pathe Sarr was making a delivery to Wells Fargo Bank

pursuant to a BeavEx referral, he collided with the vehicle of Edward and Patricia

Morris. The Morrises sued Sarr and BeavEx to recover for injuries sustained in the

collision. On March 31, 2017, the trial court granted summary judgment for BeavEx

on the grounds Sarr was an independent contractor, not an employee. Grange
Indemnity Insurance Company then filed this appeal as the Morrises’ purported

uninsured/underinsured motorist carrier.

      Grange contends the trial court erred in finding Sarr was an independent

contractor to BeavEx, either on the grounds the evidence contained at least an issue

of fact as to the existence of an employer/employee relationship, or on the grounds

Sarr was BeavEx’s statutory employee under the Federal Motor Carrier Safety

Regulations.

      In determining whether the relationship of parties under a contract for
      performance of labor is that of employer and servant or that of employer
      and independent contractor, the chief test lies in whether the contract
      gives, or the employer assumes, the right to control the time, manner,
      and method of executing the work as distinguished from the right merely
      to require certain definite results in conformity to the contract. Where
      the contract of employment clearly denominates the other party as an
      independent contractor, that relationship is presumed to be true unless
      the evidence shows that the employer assumed such control.


(Citation omitted.) Larmon v. CCR Enterprises, 285 Ga. App. 594, 595 (647 SE2d

306) (2007). See also, McLaine v. McLeod, 291 Ga. App. 335, 339 (1) (661SE2d 695)

(2008).




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      In the instant case, on August 7, 2012, BeavEx contracted with Sarr to provide

delivery services as an independent contractor for customers located by BeavEx. That

contract specified that Sarr, as an independent owner/operator, “shall be responsible

for the manner and means of securing the end result of the provision of services under

this Contract and shall use its own independent judgment and discretion for the most

effective and safe manner in conducting pick-up and delivery services. Broker shall

exercise no direct control over Owner/Operator, nor the method or means used by

Owner/Operator in the performance of such services, including the selection of

routes.” Further, Sarr had to provide his own vehicle; he had to maintain vehicle and

cargo insurance; he had to pay for all his operating costs and expenses; he had to

satisfy any specific conditions set by the customers; he received a 1099 form and was

not treated as an employee for any tax purposes; he was not covered under BeavEx’s

workers’ compensation or unemployment insurance coverage; and he was not eligible

to participate in any BeavEx pension plan or insurance plans of any type. Due to

security concerns of the customers, Sarr was required to wear an identification badge

bearing BeavEx’s logo and indicating he was an authorized owner/operator for

BeavEx.



                                          3
      The contract between BeavEx and Sarr clearly described an independent

contractor relationship. But Grange argues the evidence shows that BeavEx

nevertheless asserted sufficient control over the time, manner, and method of Sarr’s

deliveries for his bank customers, that an issue of fact existed as to whether Sarr was

an employee or an independent contractor. Specifically, Grange contends the

following requirements demonstrated BeavEx’s control over Sarr: 1. requiring Sarr

to wear a company shirt and identification badge; 2. requiring Sarr to make the

deliveries within a specified time period; 3. requiring Sarr to provide an annual

driving record and to allow BeavEx to inspect his vehicle; 4. and requiring Sarr to

report any accidents to BeavEx so it could inform the actual customer.

      However, regarding the identification badge and company shirt, the contract

between BeavEx and Sarr explains the customers required them due to security

concerns. So that control was attributable to the third party customers, not BeavEx.

Regarding the times set for pickups and deliveries, Sarr testified in his deposition that

when BeavEx assigned a delivery order, it provided a manifest specifying the times

and branch locations, but Sarr did not know whether BeavEx or the customer banks

set the times. But the contract clearly states that the customers, and not BeavEx, set

the times for performance, and that the manifest was provided to owners/operators so

                                           4
that they could make an informed decision as to whether to accept or reject an

assignment.

      Inspecting Sarr’s vehicle, and the policy of having owners/operators call

BeavEx in case of a problem that delays a delivery, address a legitimate concern that

owners/operators are able to carry out brokered deliveries. Sarr’s compliance with

those requirements pertained to his ability to complete deliveries to customers who

contracted with BeavEx for delivery services, and did not demonstrate BeavEx’s

control over the time and manner of executing the assigned work. “It is . . . well

settled in practically all courts that the right of the employer to exercise a certain

control over the work, where the control reserved does not apply to the manner of

doing the details of the work, and does not thereby take the work out of the hands of

the contractor, but goes merely to a general supervision to insure that the ends

prescribed by the contract shall be substantially met, does not destroy the

independence of the relation.” Bentley v. Jones, 48 Ga. App. 587, 592 (173 SE 737)

(1934).

      Grange also contends that even if Sarr is not considered BeavEx’s employee

under traditional legal principles, he was BeavEx’s statutory employee under the

Federal Motor Carrier Safety Regulations (49 CFR §390 et seq.) However, those

                                          5
regulations do not apply here. Those regulations apply to “employers, employees, and

commercial motor vehicles that transport property or passengers in interstate

commerce.” 49 CFR §390.3 (a) (1). 49 CFR § 390.5 defines, in pertinent parts, an

employer as “any person engaged in a business affecting interstate commerce who

owns or leases a commercial motor vehicle in connection with that business, or

assigns employees to operate it . . .”; an employee as “any individual . . . who is

employed by an employer and who in the course of his or her employment directly

affects commercial motor vehicle safety. Such term includes a driver of a commercial

motor vehicle . . .”; and a commercial motor vehicle as a “motor vehicle used on a

highway in interstate commerce to transport passengers or property when the vehicle

(1) has a gross vehicle weight rating or gross combination weight rating, or gross

vehicle weight or gross combination weight, of 4,536 kg (10,001 pounds) or more...

or (2) is designed or used to transport more than 8 passengers . . . .”

      In the instant case, Sarr was driving his own Honda Civic at the time of the

collision, and nothing in the record shows that such a small passenger sedan met the

above definition of a commercial motor vehicle. Further, Sarr’s delivery routes were

to local banks in the metro Atlanta area, and there was no evidence showing those

deliveries affected interstate commerce. The evidence of record thus provided no

                                          6
basis for finding Sarr to be the statutory employee of BeavEx under the provisions of

the Federal Motor Carrier Safety Regulations.

      Judgment affirmed. Ellington, P. J., and Rickman, J., concur.




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