                                                                                      06/22/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                           AT NASHVILLE
                             December 7, 2017 Session

   JIMMY EARL McCLURE v. CHRISTOPHER SHAWN COLE, ET AL.

                 Appeal from the Circuit Court for Warren County
                  No. 15-CV-409      Larry B. Stanley, Jr., Judge
                     ___________________________________

                          No. M2017-00187-COA-R3-CV
                      ___________________________________

Personal injury action arising out of accident between a pickup truck and a dump truck
hauling materials for a company that paved roadways. The pickup truck driver sued the
driver of the dump truck and the paving company to recover for injuries he sustained in
the accident. The trial court granted the paving company’s motion for summary
judgment, holding that the driver of the dump truck was an independent contractor and
that the paving company was not liable for the dump truck driver’s negligence. The
injured driver appeals. Upon a thorough review of the record, we affirm the grant of
summary judgment.

  Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

RICHARD H. DINKINS, J., delivered the opinion of the court, in which ANDY D. BENNETT
and W. NEAL MCBRAYER, JJ., joined.

B. Timothy Pirtle, McMinnville, Tennessee, for the appellant, Jimmy Earl McClure.

John Thomas Feeney, Nashville, Tennessee, for the appellee, Highways Inc.

                                      OPINION

I. FACTUAL AND PROCEDURAL HISTORY

       On October 24, 2014, Jimmy Earl McClure (“Mr. McClure”) was driving his
pickup truck when it was involved in a collision with a dump truck driven by Christopher
Shawn Cole (“Mr. Cole”). The accident occurred in Warren County at the intersection of
State Route Highway 287 and U.S. Highway 70S, which was under construction. Mr.
McClure was thrown from his vehicle and suffered serious injuries.
       On October 20, 2015, Mr. McClure filed suit to recover for his injuries, naming
Mr. Cole and Highways, Inc., (“Highways”) as defendants. The complaint alleged that
Mr. Cole was acting in the course and scope of his employment with Highways at the
time of the accident and sought damages based on causes of action for common law
negligence, statutory negligence, and respondeat superior or agency. Highways
answered, denying the allegations of the complaint and pleading the defense of
comparative fault.

       In due course, Highways moved for summary judgment, relying on nineteen
statements of undisputed facts which it contended demonstrated that Mr. Cole was an
independent contractor, not its employee, thereby relieving it of any liability to Mr.
McClure. Each fact was supported by the affidavit of Mr. Cole. In response, Mr.
McClure disputed nine of the statements of fact, relying on the affidavit of Mr. Cole, the
deposition testimony of Mr. Cole, and copies of payment records between “Chris Cole
Trucking” and Highways, Inc.

       Following a hearing, the court granted the motion, holding that “there are no
material facts in dispute which would allow the Plaintiff to recover any damages from
Highways Inc.” By agreement of the parties, the court directed that the order be deemed
final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. Mr. McClure
appeals, stating the issue for our review as follows: “Whether the trial court erred in
granting summary judgment dismissing defendant-appellee, HIGHWAYS, INC., f[rom]
the lawsuit.”

II. ANALYSIS

      Our Supreme Court has instructed:

             Summary judgment is appropriate when “the pleadings, depositions,
      answers to interrogatories, and admissions on file, together with the
      affidavits, if any, show that there is no genuine issue as to any material fact
      and that the moving party is entitled to a judgment as a matter of law.”
      Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on a motion for
      summary judgment de novo, without a presumption of correctness. Bain v.
      Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist
      Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing
      so, we make a fresh determination of whether the requirements of Rule 56
      of the Tennessee Rules of Civil Procedure have been satisfied. Estate of
      Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev.
      Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).

      ***

                                            2
      [I]n Tennessee, as in the federal system, when the moving party does not
      bear the burden of proof at trial, the moving party may satisfy its burden of
      production either (1) by affirmatively negating an essential element of the
      nonmoving party’s claim or (2) by demonstrating that the nonmoving
      party’s evidence at the summary judgment stage is insufficient to establish
      the nonmoving party’s claim or defense. We reiterate that a moving party
      seeking summary judgment by attacking the nonmoving party’s evidence
      must do more than make a conclusory assertion that summary judgment is
      appropriate on this basis. Rather, Tennessee Rule 56.03 requires the
      moving party to support its motion with “a separate concise statement of
      material facts as to which the moving party contends there is no genuine
      issue for trial.” Tenn. R. Civ. P. 56.03. “Each fact is to be set forth in a
      separate, numbered paragraph and supported by a specific citation to the
      record.” Id. When such a motion is made, any party opposing summary
      judgment must file a response to each fact set forth by the movant in the
      manner provided in Tennessee Rule 56.03. “[W]hen a motion for summary
      judgment is made [and] . . . supported as provided in [Tennessee Rule 56],”
      to survive summary judgment, the nonmoving party “may not rest upon the
      mere allegations or denials of [its] pleading,” but must respond, and by
      affidavits or one of the other means provided in Tennessee Rule 56, “set
      forth specific facts” at the summary judgment stage “showing that there is a
      genuine issue for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party
      “must do more than simply show that there is some metaphysical doubt as
      to the material facts.” Matsushita Elec. Indus. Co.[, Ltd. v. Zenith Radio
      Corp.], 475 U.S. [574] at 586, 106 S. Ct. 1348 [(1986)]. The nonmoving
      party must demonstrate the existence of specific facts in the record which
      could lead a rational trier of fact to find in favor of the nonmoving party. If
      a summary judgment motion is filed before adequate time for discovery has
      been provided, the nonmoving party may seek a continuance to engage in
      additional discovery as provided in Tennessee Rule 56.07. However, after
      adequate time for discovery has been provided, summary judgment should
      be granted if the nonmoving party’s evidence at the summary judgment
      stage is insufficient to establish the existence of a genuine issue of material
      fact for trial. Tenn. R. Civ. P. 56.04, 56.06. The focus is on the evidence
      the nonmoving party comes forward with at the summary judgment stage,
      not on hypothetical evidence that theoretically could be adduced, despite
      the passage of discovery deadlines, at a future trial.

Rye v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015).

       With respect to the substantive law at issue in this case, Tennessee follows the
“near universal rule” that “an employer or general contractor is not ordinarily liable for
                                           3
the negligence of an independent contractor.” Wilson v. Thompson Const. Co., 86 S.W.3d
536, 541 (Tenn. Ct. App. 2001) (citing Potter v. Tucker, 688 S.W.2d 833 (Tenn. Ct. App.
1985); International Harvester Co. v. Sartain, 222 S.W.2d 854, 865 (Tenn. Ct. App.
1948)). Summary judgment was granted to Highways because the trial court held that
Mr. Cole was an independent contractor, and thus Highways could not be vicariously
liable for any negligence on his part.

       To determine whether Mr. Cole was an independent contractor, as opposed to an
employee, the following factors are to be considered: “(1) the right to control the
conduct; (2) the right of termination; (3) the method of payment; (4) the freedom to select
and hire helpers; (5) the furnishing of tools and equipment; (6) self scheduling of work
hours; (7) the freedom to offer services to other entities.” Wilson, 86 S.W.3d at 541
(citing Stratton v. United Inter–Mountain Telephone Co., 695 S.W.2d 947, 950 (Tenn.
1985)).

       This Court has held that determining whether a worker is an employee or an
independent contractor is a question of fact, and that “[e]ach case must depend on its own
facts and ordinarily no one feature of the relation is determinative, but all must be
considered together.” Knight v. Hawkins, 173 S.W.2d 163, 166 (Tenn. Ct. App. 1941).
However, over the years, “the importance of the right to control the conduct of the work
has been repeatedly emphasized.” Stratton, 695 S.W.2d at 950 (citing Carver v. Sparta
Electric System, 690 S.W.2d 218 (Tenn. 1985); Wooten Transports, Inc. v. Hunter, 535
S.W.2d 858 (Tenn.1976)). “The test is not whether the right to control was exercised but
merely whether the right to control existed.” Stratton, 695 S.W.2d at 950 (citing Wooten
Transports, Inc., 535 S.W.2d 858)).

        “Where the agent represents the will of the principal as to the result of the work
but not as to the means or manner of accomplishing the work, it is an independent
contractor.” Sodexho Mgmt., Inc. v. Johnson, 174 S.W.3d 174, 181 (Tenn. Ct. App. 2004)
(citing Odom v. Sanford & Treadway, 156 Tenn. 202, 299 S.W. 1045, 1046 (Tenn.
1927)). In Sodexho, this Court observed that “[y]ears ago our supreme court concluded
that, as a practical matter, every contract for work to be done reserves to the principal or
employer a certain degree of control because some degree of control is necessary to
assure that the work is performed according to expectations or specifications.” 174
S.W.3d at 178 (citing Odom v. Sanford & Treadway, 299 S.W. 1045, 1046 (Tenn. 1927)).
We continued:

              The employer may exercise a limited control over the work without
       rendering the employee a mere servant, for the relation of master and
       servant is not inferable from the reservation of powers which do not deprive
       the contractor of his right to do the work according to his own initiative so
       long as he does it in accordance with the contract. The control of the work
       reserved in the employer which makes the employee a mere servant is a
                                              4
      control, not only of the result of the work, but also the means and the
      manner of the performance thereof; where the employee represents the will
      of the employer as to the result of the work but not as to the means or
      manner of accomplishment, he is an independent contractor. Thus a person
      employed to perform certain work is not necessarily a mere servant because
      the contract provides that the work shall be subject to the approval or
      satisfaction of the employer. Such a provision is not an assumption by the
      employer of the right to control the employee as to the details or methods of
      doing the work, but is only that the employer may see that the contract is
      carried out according to the plans.

Sodexho, 174 S.W.3d at 178–79 (quoting Odom, 299 S.W. at 1046 and citing Wilson v.
Memphis Pub. Co., 231 S.W.2d 404 (Tenn. Ct. App. 1950); Grace v. Louisville & N.R.
Co., 89 S.W.2d 354 (Tenn. Ct. App. 1935)).

       With these standards in mind, we turn to the case at bar. In support of its motion,
Highways relied on the affidavit of Mr. Cole in which he asserted that he is “the sole
owner and operator of the 2003 Freightliner dump truck”; that “[a]t the time of the
accident, [he] was working as an independent contractor for Highways, Inc.”; that he is
responsible for the maintenance and repairs to his dump truck, that he procures and pays
for insurance required for the operation of his dump truck, that he has the “right to hire
his own helpers to assist him,” and that he has “the right to control the details of his
work.” In reliance on these statements, Highways filed a statement of nineteen
undisputed facts, pursuant to Tennessee Rule of Civil Procedure 56.03. These statements
demonstrated that Mr. Cole was an independent contractor and shifted the burden to Mr.
McClure to produce evidence to establish a genuine issue of material fact on the issue of
whether Mr. Cole was an independent contractor or an employee or agent of Highways.

       Of those nineteen statements of fact, Mr. McClure disputed nine; the ten
undisputed statements established that Mr. Cole: is the sole owner and operator of the
dump truck involved in the accident; has the discretion to accept or not accept specific
jobs; is free to accept work from other entities; is responsible for all maintenance and
repairs to his dump truck; pays for all expenses incurred while providing services to his
customers, including Highways; pays for all fuel used while providing services to his
customers; procures and pays for the insurance required for the operation of his dump
truck; and has the right to hire helpers to assist him.

      Mr. McClure disputed the following statements of fact:

      4. At the time of the accident, Cole was working as an independent
      contractor for Highways, Inc. (hereinafter “Highways”). (Affidavit of
      Christopher Shawn Cole, paragraph 4). (Parenthetical references to the
      deposition of Christopher Shawn Cole hereafter, [“Cole, page-line”].)
                                         5
        Disputed. This statement constitutes a legal conclusion, as opposed to a
        statement of fact. No written contract was entered between Cole and
        Highways [Cole, 26-18]; Cole testified that Highways told him whether to
        report for work [Cole, 83-10]; when to work with regard to his beginning
        times [Cole, 32-14]; when to work with regard to his ending times [Cole,
        101-2]; where to work in terms of where to pick up a load [Cole, 102-5];
        where to deliver a load [58-23]; what to haul on any given load [Cole, 102-
        5]; and reserved the right to terminate his services at any point in time
        [Cole, 101-14].

        5. Cole was contracted to deliver dump truck loads of material to the
        Highways construction site. (Affidavit of Christopher Shawn Cole,
        paragraph 5).

        Disputed. Cole testified that no written contract was entered with Highways
        [Cole, 26-18].

        ***

        7. Cole controls his own work hours. (Affidavit of Christopher Shawn Cole,
        paragraph 7).

        Disputed. Cole testified that Highways instructed him whether to report to
        work [Cole, 83-10]; what time to report to work [Cole. 32-14] and when to
        stop work [Cole, 101- 2].

        8. Cole does not work solely with Highways, Inc. (Affidavit of Christopher
        Shawn Cole, paragraph 8).

        Disputed. Cole testified that he hauled only for Highways in 2013 [Cole,
        101-2]24- 13]{1} and 2014 [26-1].

        ***

        10. Cole is compensated for his services based on the job and not by the
        hour. (Affidavit of Christopher Shawn Cole, paragraph 10).

        Disputed. Cole testified that Highways determined whether he was paid by
        the load or by the hour [Cole, 77-16]. Cole testified that he was unable to

1
  The citation to Mr. Cole’s deposition is reproduced verbatim, and from our review of the transcript of
the deposition, the reference to “101-2]” appears to be in error.
                                                   6
recall how Highways paid him on the day of the accident [Cole, 80-4].
Payment records produced by Highways prove that Cole was paid by the
hour for his work on the date of the accident. [Document production by
Highways, “Chris Cole Trucking” invoice 365 dated October 31, 2014 &
Highway’s check number 053303 evidencing payment attached as Exh. A]

11. Cole bears the risk of loss in operating his trucking business. (Affidavit
of Christopher Shawn Cole, paragraph 11).

Disputed. This is not a statement of fact, but rather, a legal conclusion to
the extent that “risk of loss” is a generic term which implicates several
factors, such as liability to third parties for accidents; damages for loss of
material by Cole caused by his own negligence; and other contingencies.

12. Highways did not furnish any tools or other items necessary for Cole to
complete his deliveries to their construction site. (Affidavit of Christopher
Shawn Cole, paragraph 12).

Disputed. Items necessary to deliver loads of material to the job site
included personnel who directed the point of delivery [Cole, 58-23] and the
directions regarding unloading the material which were provided
exclusively by Highways [Cole, 92-22].

***

18. Cole has the right to control the details of his work. (Affidavit of
Christopher Shawn Cole, paragraph 19).

Disputed. Cole testified that Highways told him whether to report for work
[Cole, 83-10]; when to work with regard to his beginning times [Cole, 32-
14]; when to work with regard to his ending times [Cole, 101-2]; where to
work in terms of where to pick up a load [Cole, 102-5]; where to deliver a
load [58-23]; what to haul on any given load [Cole, 102-5]; and reserved
the right to terminate his services at any point in time [Cole, 101-14].

19. Cole’s intention was to serve in the role of an independent contractor,
and not as an employee of his customers, including Highways. (Affidavit of
Christopher Shawn Cole, paragraph 20).

Disputed. This is not a statement of fact, but rather, a legal conclusion. The
determination of the relationship between Cole and Highways is not limited
to either independent contractor or employer. Other alternatives are master-
servant or principal-agent. The facts are disputed with regard to the legal
                                      7
       status of the relationship depending on the findings by the trier of fact and
       application of applicable law. The most important factor is the right to
       control work which was Highway’s exclusive direction and the fact that
       Highway’s retained the right to terminate his engagement at any time per
       the citations to Cole's sworn testimony in answer to Number 18.

Mr. McClure did not assert any additional statements of fact.

       Mr. McClure devotes less than ten sentences in his brief to legal argument; he
“contends that the legal relationship between Cole and Highways is a substantially
disputed factual issue which precludes summary judgment and should be reversed and
resolved by the trier of fact” and that the trial court impermissibly weighed the evidence
to conclude that Highways was entitled to summary judgment, “instead of acknowledging
disputed material facts and inferences that might be drawn from the facts.”

        For the following reasons, we respectfully disagree. In Mr. McClure’s responses
to Statements 4, 7, 12, 18, and 19, he attempted to demonstrate that Highways exhibited
control over Mr. Cole’s trucking services, rendering him an employee rather than an
independent contractor. The fact that Highways personnel told Mr. Cole where to unload
the materials and whether the job site would be operational the following day does not
render Mr. Cole an employee, as that proof is evidence that Highways exercised “some
degree of control” that “that the employer may see that the contract is carried out
according to the plans,” Sodexho, 174 S.W.3d at 178, 179; it does not rise to the level of
control necessary to sustain a finding of an employer-employee relationship. Similarly,
the testimony which Mr. McClure cites in his response to Statements 4 and 18 to support
his position that Highways “reserved the right to terminate Mr. Cole’s services at any
point in time” is not disputed .2 The right to terminate the relationship is but one of the
factors to be considered in determining whether a party is an independent contractor. See
Wilson, 86 S.W.3d at 541.3 We conclude that the denials in Mr. McClure’s responses to
these Rule 56.03 statements of fact do not create genuine issues of material fact.


2
 Mr. McClure cited the trial court and this Court to the first line of the following question from Mr.
Cole’s deposition testimony; we have reproduced the entire question, along with Mr. Cole’s answer:

       Q To your knowledge did Highways, Inc., have the right to terminate your service as a
       hauler at any time it elected?
       A Of my acknowledgment?
       Q Yes.
       A Of my acknowledgment I think they could, yes.
3
  “The power of a party to a work contract to terminate the relationship at will is contrary to the full
control of work activities usually enjoyed by an independent contractor.” Masiers v. Arrow Transfer &
Storage Co., 639 S.W.2d 654, 656 (Tenn. 1982) (citing Curtis v. Hamilton Block Company, 466 S.W.2d
220 (Tenn. 1971)).
                                                   8
       In response 5, Mr. McClure attempted to show that Mr. Cole was an employee of
Highways based on the admitted fact that there was not a written contract between
Highways and Mr. Cole; this fact is not material. A written contract is unnecessary to
establish either an employee-employer relationship or an employer-independent
contractor relationship. See Knight, 173 S.W.2d at 165 (no written contract in existence,
but the negligent party was determined to be an employee); Wilson, 86 S.W.3d at 542-43
(no written contract, but the allegedly negligent party was determined to be an
independent contractor); Masiers v. Arrow Transfer & Storage Co., 639 S.W.2d 654, 657
(Tenn. 1982) (holding that the language of the contract in that case supported the
determination that the party at issue was an independent contractor; noting that other
cases exist where the language of the contract supports a finding of an employer-
employee relationship; and cautioning that “the characterization of a worker as an
employee or independent contractor depends on an ad hoc analysis of the facts.”).

       In response 8, Mr. McClure also attempted to preclude summary judgment by
demonstrating that Mr. Cole only worked for Highways. The proof on which he relies is
the testimony of Mr. Cole that he hauled only for Highways during the year of the
accident and the preceding year; that fact, however, is not dispositive of the question of
whether Mr. Cole was an employee of Highways. The factor to be considered is the
alleged employee’s “freedom to offer services to other entities,” Wilson, 86 S.W.3d at
541. The fact that Mr. Cole was free to accept work from other entities was not disputed,
and Mr. McClure has failed to demonstrate a genuine issue of fact in this regard.

        In response 10, Mr. McClure attempted to establish a genuine issue of fact based
on how Mr. Cole was paid. The proof he relied upon, invoices from “Chris Cole
Trucking” and a check from Highways in payment, shows that Mr. Cole was sometimes
paid by the hour and sometimes by the load; Mr. Cole’s deposition testimony, on which
Mr. McClure also relied, puts this evidence in perspective. In his deposition, Mr. Cole
testified that he was paid by the hour when he was performing “slow work,” such as
“intersections” and “nitpicky slow stuff”; otherwise he was paid by the ton of material
hauled. Moreover, as noted, the payment records establish that the payment was made to
“Chris Cole Trucking,” not to Chris Cole personally. There is no issue of material fact
created.

       Mr. McClure also attempted to establish a genuine issue of material fact with
respect to Statements 11 (risk of loss) and 19 (control) but did not include citation to
proof in the record as required by Rule 56.03 of the Tennessee Rules of Civil Procedure.
Accordingly, we deem his responses to be unsupported and will not consider them in our
analysis.

      For the reasons set forth above, we conclude that Mr. McClure has not established
a genuine issue of fact with respect to the right of termination, the method of payment, or
whether Highways demonstrated a degree of control sufficient to support a conclusion
                                              9
that Mr. Cole was its employee. The undisputed facts establish that Mr. Cole is the sole
owner and operator of the dump truck involved in the accident and is responsible for all
maintenance and repairs to his dump truck; that Highways did not furnish any tools or
items necessary for him to complete his delivery of paving materials; that he pays for all
expenses incurred while providing his hauling services to his customers, including paying
for fuel and the insurance required for operation of his dump truck; that he has the
discretion to accept or not accept specific jobs and is free to offer his services to and
accept work from other entities; and that he has the right to hire helpers to assist him; and
that Highways had a right to terminate his services. Considering all of these facts in light
of the factors set forth in Wilson, 86 S.W.3d at 541, the proof demonstrates that Mr. Cole
had the right to control the means and manner of accomplishing the work at hand; had the
freedom to select and hire helpers; furnished tools and equipment; and was free to offer
services to other entities. Accordingly, Mr. Cole is an independent contractor, and
Highways is not liable for any negligence on his part.

       Although Mr. McClure argues that there also exists a dispute “as to whether
Highways was a principal for which Cole acted as an agent,” he did not bear his burden
in the trial court of citing to evidence which would support such a conclusion, and on
appeal he does not cite to any facts in the record which would establish such a
relationship. This argument is without merit.4

III. CONCLUSION

       For the foregoing reasons, we affirm the judgment of the trial court.




                                       RICHARD H. DINKINS, JUDGE




4
  Our Supreme Court discussed the differences between an independent contractor and an agent and
stated:

       Generally the distinction between the relation of principal and agent and employer and
       independent contractor is based on the extent of the control exercised over the employee
       in the performance of his work, he being an independent contractor if the will of the
       employer is represented only by the result, but an agent where the employer’s will is
       represented by the means as well as the result.

United States v. Boyd, 363 S.W.2d 193, 197 (Tenn. 1962), aff’d, 378 U.S. 39, (1964) (citing Carbide &
Carbon Chemicals Corp. v. Carson, 239 S.W.2d 27, 31; 2 C.J.S., Agency, § 2, p. 1027)).

                                                  10
