                      IN THE COURT OF APPEALS OF TENNESSEE
                          WESTERN SECTION AT JACKSON
                                                                       FILED
                                                                         Dec. 31, 1996

BRIAN WOLNEY and WIFE,               )                                 Cecil Crowson, Jr.
                                                                        Appellate Court Clerk
MELISSA WOLNEY                       )
                                     )
       Plaintiffs/Appellants,        )      Shelby Circuit No. 56764
                                     )
vs.                                  )
                                     )      Appeal No. 02A01-9508-CV-00169
LISA M. EMMONS and WELLS             )
FARGO ARMORED SERVICE                )
CORPORATION,                         )
                                     )
       Defendants/ Appellees.        )




               APPEAL FROM THE CIRCUIT COURT OF SHELBY COUNTY
                            AT MEMPHIS TENNESSEE



                    THE HONORABLE GEORGE H. BROWN, JR., JUDGE



For the Plaintiffs/Appellants:       For the Defendants/Appellees:

Stanley J. Kline                     Marc O. Dedman
Memphis, Tennessee                   Memphis, Tennessee




                                     AFFIRMED




                                     HOLLY KIRBY LILLARD, J.



CONCUR:


ALAN E. HIGHERS, J.


DAVID R. FARMER, J.
                                            OPINION

       This is a suit for damages brought by Plaintiff Brian Wolney (“Wolney”), with his wife

Melissa Wolney, against Defendants Wells Fargo Armored Service Corporation (“WFA”) and Lisa

M. Emmons (“Emmons”). Wolney sued for personal injuries he sustained in an accident while

riding as a passenger in a vehicle driven by Emmons, but owned by WFA. The trial court granted

summary judgment in favor of WFA, finding that Wolney’s tort claim against WFA was barred

because Wolney was WFA’s statutory employee. The Wolneys appeal the grant of summary

judgment. We affirm.

       The facts are essentially undisputed. Wolney worked as a guard for Wells Fargo Guard

Service (“WFG”). WFG had entered into a written Security Services Agreement (“Agreement”) with

WFA, under which WFG would occasionally furnish guards to WFA. The Agreement provided, in

pertinent part:

       3. EMPLOYEES: (a) Personnel supplied by Company [WFG] are its employees
       and not Client’s [WFA]. Company is solely responsible for social security,
       unemployment and similar taxes applicable to its employees . . .

                           (c) Client may reasonably remove any employee assigned
       provided such removal is not in violation of law . . .

       4. HIRING: Client agrees that it will not, directly or indirectly, hire or employ any
       Company employee assigned to Client while such employee is employed by
       Company or for one year thereafter. . .

       9. SCOPE OF SERVICES: This Agreement and written schedule of guard
       assignments, patrol inspections and post orders, which collectively set forth the
       Security Services to be performed, may be changed with the written approval of
       Company. Other amendments 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 Agreement shall control.

        Generally, under the Agreement, either Chris Fowler (“Fowler”), a vault supervisor at WFA,

or his supervisor, would call WFG and request guard services. Charlie Pegrum (“Pegrum”), the

operations manager at WFG, would then find an available guard, notify him of the assignment, and

convey any information about the assignment given by WFA. The guard could turn down the

assignment, but once it was accepted, he had to complete it. When the guard arrived to work, WFA

would give the guard orders as to what tasks to perform and how to perform them.

        In this instance, a WFA employee called Pegrum and requested an unarmed guard for duty

for two days, providing Pegrum with general information about the assignment. Pegrum then
notified Wolney of the assignment at WFA and gave him an overview of the type of work required.

Pegrum told Wolney that he would be riding in the passenger side of a truck and would stay inside

and push buttons to let people in and out of the truck. Pegrum told Wolney when WFA wanted him

to report to work. Wolney accepted the assignment. His first day working for WFA was uneventful.

       When Wolney reported to work at WFA the second day, he was told by a WFA employee

to ride in a WFA “bank truck” as an unarmed guard escort, along with two of WFA’s own guards.

Wolney sat in the front passenger seat of the truck, driven by defendant Emmons. Charles Jones

(“Jones”), the messenger guard who was effectively in charge of the truck, sat in the back seat. It

was the messenger guard’s responsibility to tell Wolney where to sit in the truck and what to do.

Wolney’s duties were to assist the messenger guard 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 was

riding became involved in a serious motor vehicle collision, and Wolney was injured.

       Subsequently, Wolney filed this suit to recover damages for the injuries he sustained as a

result of the accident. Wolney moved for partial summary judgment on this issue of whether he was

a statutory employee of WFA. WFA moved for summary judgment, claiming that there was no

genuine issue of material fact and that summary judgment was proper as a matter of law. The trial

court found that, as a matter of law, Wolney was a statutory employee under the Workers’

Compensation Act, Tennessee Code Annotated § 50-6-102(a)(9) (1991 & Supp. 1996), and that his

tort action against WFA was therefore barred. Consequently, the trial court granted summary

judgment in favor of WFA. The Wolneys appeal the decision of the trial court on this issue.

       Summary judgment is proper when the movant demonstrates that there are no genuine issues

of material fact and that the moving party is entitled to judgment as 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. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). On a motion

for summary judgment, the court must take the strongest legitimate view of the evidence in favor of

the nonmoving party, allow all reasonable inferences in favor of that party, and discard 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 genuine issue of material fact,
       the nonmoving party must then demonstrate, by affidavits or discovery materials, that
       there is a genuine, material fact dispute to warrant a trial. In this regard, Rule 56.05
       provides that the nonmoving party cannot simply rely upon his pleadings but must


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       set forth specific facts showing that there is a genuine issue of material fact for trial.
       “If he does not so respond, summary judgment . . . shall be entered 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. Because only questions of law are involved, there is no

presumption of correctness regarding a trial court’s grant of summary judgment. Johnson v. EMPE,

Inc., 837 S.W.2d 62, 68 (Tenn. App. 1992). Therefore, our review of a trial court’s order granting

summary judgment is de novo on the record before this Court. See Carvell v. Bottoms, 900 S.W.2d

23, 26 (Tenn. 1995).

       In this appeal, Wolney argues that he was not an employee of WFA, and consequently, his

tort claim against WFA is 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. 1996). Thus, if Wolney is deemed an an “employee” of WFA, his

common law action against WFA would be dismissed because workers’ compensation benefits

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 against a third party, not his employer. Tenn. Code Ann. § 50-6-

112 (1991 & Supp. 1996). Therefore, if Wolney was working as an independent contractor for

WFA, rather than an employee, his tort action against WFA would not be barred by the Workers’

Compensation Act. See Barber v. Ralston Purina, 825 S.W.2d 96, 99 (Tenn. App. 1991).

       The Workers’ Compensation Act is a remedial statute, to 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 given a construction

that favors a finding that a worker is an employee rather than an independent contractor. Curtis, 466

S.W.2d at 222; Barker v. Curtis, 287 S.W.2d 43, 46 (Tenn. 1956).




                                                   3
       To determine whether a worker is an employee or an independent contractor under the

Workers’ Compensation Act, the following factors are considered:

       (A)   The right to control the conduct of the work;
       (B)   The right of termination;
       (C)   The method of payment;
       (D)   The freedom to select and hire helpers;
       (E)   The furnishings of tools and equipment;
       (F)   Self scheduling of working hours; and
       (G)   The freedom to offer services to other entities;

Tenn. Code Ann. § 50-6-102(a)(9) (1991 & Supp. 1996). The right to control, though not

dispositive, is emphasized in the analysis. Carver v. Sparta Elec. System, 690 S.W.2d 218, 220

(Tenn. 1985).

       However, the right to control must exist in relation to the conduct and manner of the work

performed, and not just the end product:

              The primary test for determining claimant’s status as employee or
       independent contractor is the “right to control.” Generally, when the general
       contractor has a right to supervise or inspect the work to see that the end result
       conforms to plans and specifications but has no right of control over details of
       performance and methods used to achieve this result, the general or principal
       contractor and the worker do not have an employer-employee relationship. That
       worker is an independent contractor.

Lindsey v. Smith & Johnson, Inc., 601 S.W.2d 923,925 (Tenn. 1980) (citations omitted). Labels

placed upon workers in contracts are not binding:

               The provision in the contract that purports to establish that Wright and Lopez
       is an independent contractor is likewise not dispositive of the case. When the facts
       are essentially undisputed, as in this case, the question of whether one is an employee
       or an independent contractor is one of law for the courts. The parties cannot by
       contract take this responsibility from the court.

Stratton, 695 S.W.2d at 953 (citations omitted).

       In this case, the facts indicate that WFA had the right to control the conduct of Wolney’s

work, under Tennessee Code Annotated § 50-6-102(a)(9). Wolney notes that the Agreement gave

him the right to turn down the assignment to WFA. However, once Wolney accepted the

assignment, he was bound to complete it. Wolney’s work instructions were prepared by WFA,

though they were initially conveyed to him by a WFG employee. Although the contract ostensibly

required written approval of changes in the work assignment, the instructions received by WFG were

subject to change in WFA’s discretion. Normally, Fowler or another WFA employee would tell the

WFG guards which run they were on and give them the details of their assignment when they

reported to work. In this case, a WFA employee prepared Wolney’s work schedule and assigned him

                                                   4
to a specific WFA vehicle.

       Wolney testified that Jones, a messenger guard and a WFA employee, told him where to sit

in the armored vehicle and how and when to push the buttons. Wolney also testified that Jones told

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 accident. Nevertheless,

it is undisputed that it was the messenger guard’s responsibility to instruct Wolney as to his duties.

Any dispute of fact as to whether Jones actually gave Wolney instructions on the day of the accident

is immaterial because the test is whether the right to control existed, not whether or not it was

exercised. See Carver, 690 S.W.2d at 220. Thus, the facts indicate that WFA had the right to

control the conduct of Wolney’s work.

       Other factors listed in Tennessee Code Annotated § 56-6-108 militate in favor of a finding

that Wolney was an employee of WFA.           Although WFA did not furnish tools to Wolney, it

furnished the armored truck in which he was riding at the time of the accident. In addition, Wolney

was not free to hire others to help him with his duties. Moreover, WFA had complete control over

Wolney’s work schedule at WFA, including the time that he was to report to work, the time that he

would leave work, and the number of hours that he worked.

       WFA also had the right to terminate Wolney at any time. The right of termination “is

incompatible with the full control of the work which 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 termination is not controlling when there are no other factors to indicate

an employer-employee relationship. Wright v. Knox Vinyl & Alum. Co., 779 S.W.2d 371, 374

(Tenn. 1989). However, in this case, numerous factors indicate that Wolney was a statutory

employee of WFA.

       Wolney argues that the Agreement between WFG and WFA designates Wolney 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 and made tax and social security deductions. These factors are considered

but are not controlling. Galloway v. Memphis Drum Serv., 822 S.W.2d 584, 587 (Tenn. 1991); see

also Wooten Transports, Inc. v. Hunter, 535 S.W.2d 858, 860 (Tenn. 1976) (finding that a

                                                  5
company’s failure to withhold deductions for social security, income taxes, and workers’

compensation was not controlling).

       Therefore, analyzing the facts in light of the factors set forth in Tennessee Annotated Code

§ 50-6-102(a)(9), WFA had the right to control the conduct of Wolney’s work and the right to

terminate him. Wolney was not free to hire helpers. WFA furnished the equipment to Wolney, the

vehicle, and scheduled his working hours. These factors clearly weigh in favor of finding that

Wolney was a statutory employee of WFA. Weighed against these are the fact that Wolney was paid

by WFG, that Wolney could have turned down the assignment, and that the agreement 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 at 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 undisputed facts in this case indicate that Wolney qualifies as a statutory employee of WFA and

that the trial court did not err in granting summary judgment in favor of WFA.

       Accordingly, the decision of the trial court is affirmed. Costs on appeal are taxed to

Appellant, for which execution may issue if necessary.




                                      HOLLY KIRBY LILLARD, J.


CONCUR:



ALAN E. HIGHERS, J.




DAVID R. FARMER, J.




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