MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D),                               Jun 16 2016, 8:23 am
this Memorandum Decision shall not be
                                                                         CLERK
regarded as precedent or cited before any                            Indiana Supreme Court
                                                                        Court of Appeals
court except for the purpose of establishing                              and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEES
Marc S. Sedwick                                          Thomas R. Schultz
New Albany, Indiana                                      Justin C. Wiler
                                                         Schultz & Pogue, LLP
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Brian J. Bauermeister,                                   June 16, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         88A05-1601-CT-96
        v.                                               Appeal from the Washington
                                                         Superior Court
Sandra J. Churchman and The                              The Honorable Frank Newkirk,
Courier-Journal, Inc.,                                   Jr., Judge
Appellee-Defendant.                                      Trial Court Cause No.
                                                         88D01-1408-CT-462



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CT-96 | June 16, 2016           Page 1 of 15
                                     STATEMENT OF THE CASE

[1]   Appellant-Plaintiff, Brian J. Bauermeister (Bauermeister), appeals the trial

      court’s summary judgment in favor of Appellee-Defendant, The Courier-

      Journal, Inc. (The Courier), concluding that Sandra J. Churchman

      (Churchman) 1 was neither an agent nor an employee of The Courier at the time

      of the vehicle accident.


[2]   We affirm.


                                                       ISSUES

[3]   Bauermeister raises one issue, which we restate as the following two issues:


          (1) Whether the trial court properly determined that there was no genuine

               issue of material fact that Churchman was not acting as an agent for The

               Courier; and

          (2) Whether the trial court properly determined that there was no genuine

               issue of material fact that Churchman was not an employee of The

               Courier at the time of the accident.


                            FACTS AND PROCEDURAL HISTORY




      1
       Although a party before the trial court, Churchman did not file a motion for summary judgment and
      accordingly is not part of this appeal. However, we will include facts related to Churchman in so far as they
      are relevant to Bauermeister’s appeal.

      Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CT-96 | June 16, 2016                Page 2 of 15
[4]   On February 17, 2013, Churchman was traveling northbound on Becks Hill

      Road, in Washington County, Indiana, while Bauermeister was traveling

      southbound. As Bauermeister reached the crest of the hill, he noticed

      Churchman’s vehicle sitting in the northbound lane. He moved his vehicle a

      little to the right and went off the roadway. Bauermeister attempted to correct

      his vehicle, came back onto the roadway, but then lost control and went off the

      other side of the roadway. Bauermeister’s vehicle crashed through a fence and

      rolled over before coming to a stop.


[5]   At the time of the accident, Churchman was delivering the Sunday newspaper

      published by The Courier. Since October 1, 1992, Churchman has delivered

      the Sunday newspaper under a written agreement, which designates her to be

      an “independent contractor for all purposes.” (Appellee’s App. p. 7). Pursuant

      to the terms of the contract, Churchman receives payment dependent on the

      number of newspapers she delivers to The Courier’s customers. She is not

      included in The Courier’s benefit plan and does not receive any type of

      compensation package or retirement plan. The Courier does not withhold taxes

      and does not provide her with a W-2 form. Churchman uses her own vehicle

      for the delivery of the newspapers and must maintain all necessary licenses and

      insurance. Churchman picks up the newspapers from The Courier and

      assembles them in bags supplied by advertisers or other publishers. She has to

      deliver the newspapers in a dry and readable condition at the customers’

      addresses provided by The Courier. Although Churchman believed that all

      newspapers should be delivered by 7:00 a.m., the agreement with The Courier


      Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CT-96 | June 16, 2016   Page 3 of 15
      does not provide a set time for delivery nor does it specify a specific delivery

      route. In addition to her Sunday newspaper delivery, Churchman is employed

      fulltime by Hitachi Cable.


[6]   On August 7, 2014, Bauermeister filed his Complaint for Damages against

      Churchman and The Courier, asserting that Churchman negligently operated

      her vehicle and that The Courier is vicariously liable for Churchman’s negligent

      behavior because Churchman was its employee or agent. On September 3,

      2015, The Courier filed its motion for summary judgment contending that

      Churchman was an independent contractor, not its employee, and therefore

      could not be held vicariously liable for her actions. On November 20, 2015,

      Bauermeister filed his response in opposition to The Courier’s motion for

      summary judgment. Thereafter, on December 7, 2015, The Courier filed its

      reply. On December 18, 2015, after a hearing, the trial court issued its

      summary judgment in favor of The Courier, concluding that there is no genuine

      issue of material fact that Churchman is not an employee or agent of The

      Courier and, therefore, The Courier cannot be held vicariously liable.


[7]   Bauermeister now appeals. Additional facts will be provided as necessary.


                                    DISCUSSION AND DECISION


                                            I. Standard of Review


[8]   Summary judgment is appropriate only when there are no genuine issues of

      material fact and the moving party is entitled to a judgment as a matter of law.


      Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CT-96 | June 16, 2016   Page 4 of 15
       Ind. Trial Rule 56(C). “A fact is material if its resolution would affect the

       outcome of the case, and an issue is genuine if a trier of fact is required to

       resolve the parties’ differing accounts of the truth . . . , or if the undisputed facts

       support conflicting reasonable inferences.” Williams v. Tharp, 914 N.E.2d 756,

       761 (Ind. 2009).


[9]    In reviewing a trial court’s ruling on summary judgment, this court stands in the

       shoes of the trial court, applying the same standards in deciding whether to

       affirm or reverse summary judgment. First Farmers Bank & Trust Co. v. Whorley,

       891 N.E.2d 604, 607 (Ind. Ct. App. 2008), trans. denied. Thus, on appeal, we

       must determine whether there is a genuine issue of material fact and whether

       the trial court has correctly applied the law. Id. at 607-08. In doing so, we

       consider all of the designated evidence in the light most favorable to the non-

       moving party. Id. at 608. The party appealing the grant of summary judgment

       has the burden of persuading this court that the trial court’s ruling was

       improper. Id. When the defendant is the moving party, the defendant must

       show that the undisputed facts negate at least one element of the plaintiff’s

       cause of action or that the defendant has a factually unchallenged affirmative

       defense that bars the plaintiff’s claim. Id. Accordingly, the grant of summary

       judgment must be reversed if the record discloses an incorrect application of the

       law to the facts. Id.


[10]   We observe that in the present case, the trial court did not enter findings of fact

       and conclusions of law in support of its judgment. Special findings are not

       required in summary judgment proceedings and are not binding on appeal.

       Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CT-96 | June 16, 2016   Page 5 of 15
       AutoXchange.com. Inc. v. Dreyer and Reinbold, Inc., 816 N.E.2d 40, 48 (Ind. Ct.

       App. 2004). However, such findings offer this court valuable insight into the

       trial court’s rationale and facilitate appellate review. Id.


                                                    II. Agency


[11]   Bauermeister contends that the trial court erred when it issued summary

       judgment in favor of The Courier, holding that The Courier could not be held

       vicariously liable because Churchman was not The Courier’s agent at the time

       of the accident. Specifically, Bauermeister initially asserts that The Courier did

       not move for summary judgment on the agency claim and therefore the trial

       court was not allowed to make the factual determination that Churchman was

       not the newspaper’s agent.


[12]   In its Complaint, Bauermeister asserted that The Courier was vicariously liable

       for Churchman’s negligence based on two theories, i.e., employment and

       agency. In its motion for summary judgment, The Courier only moved for

       summary judgment based on Churchman’s alleged employment status; its

       motion is silent with respect to the agency theory. However, after Bauermeister

       noted in his opposition to The Courier’s motion that he also alleged an agency

       theory, The Courier asserted in its reply to Bauermeister’s opposition that it

       could not be held vicariously liable under an agency theory. Nevertheless, The

       Courier now invites us to review the agency issue, claiming it was before the

       trial court despite its failure to move for summary judgment.




       Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CT-96 | June 16, 2016   Page 6 of 15
[13]   Generally, the trial court may only grant summary judgment for the non

       moving party “upon the issues raised by the motion.” Ind. Trial Rule 56(B); see

       also Simon Property Group, L.P. v. Michigan Sporting Goods Distributors, Inc., 837

       N.E.2d 1058, 1068 (Ind. Ct. App. 2005) (where moving party sought summary

       judgment only on the issue of remedies available for breach of lease, the trial

       court could not have properly granted summary judgment upon the issue of

       breach of lease because that issue was not raised in the motion for summary

       judgment, and the trial court properly denied summary judgment upon the non-

       raised issue), trans. denied. Here, the sole issue presented in The Courier’s

       motion was the vicarious liability claim based on employment. The other

       Count of Bauermeister’s Complaint was not implicated by The Courier’s

       motion. However, Bauermeister alluded to the agency Count of his Complaint

       in his opposition to The Courier’s motion and did not object, but rather

       participated, when the issue was raised during the hearing before the trial court.

       “A party who neglects to avail himself of a valid objection to a proceeding and

       stands by or participates therein until an adverse result is reached must bear the

       consequences.” Wisconics Engineering, Inc. v. Fisher, 466 N.E.2d 745, 753 (Ind.

       Ct. App. 1984), reh’g denied, trans. denied.


[14]   Turning to the merits of the agency claim, Bauermeister contends that because

       Churchman was acting within the scope of her agency at the time of the

       incident, The Courier is vicariously liable for her negligence. “Vicarious

       liability is ‘indirect legal responsibility.’” Sword v. NKC Hosps., Inc. 714 N.E.2d

       142, 147 (quoting BLACK’S LAW DICTIONARY 1404 (5th ed. 1979)). “It is a


       Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CT-96 | June 16, 2016   Page 7 of 15
       legal fiction by which a court can hold a party legally responsible for the

       negligence of another, not because the party did anything wrong but rather

       because of the party’s relationship to the wrongdoer.” Id. Courts employ

       various legal doctrines to hold people vicariously liable, including apparent or

       actual agency. See id.


[15]   Bauermeister relies on actual agency to establish The Courier’s liability as

       principal. To establish an actual agency relationship, three elements must be

       shown: (1) manifestation of consent by the principal, (2) acceptance of

       authority by the agent, and (3) control exerted by the principal over the agent.

       Demming v. Underwood, 943 N.E.2d 878, 884 (Ind. Ct. App. 2011), trans. denied.

       One who asserts that there was an agency relationship has the burden of

       proving its existence. Smith v. Brown, 778 N.E.2d 490, 195 (Ind. Ct. App.

       2002). These elements may be proven by circumstantial evidence, and there is

       no requirement that the agent’s authority to act be in writing. Demming, 943

       N.E.2d at 884. Whether an agency relationship exists is generally a question of

       fact, but if the evidence is undisputed, summary judgment may be appropriate.

       Id.


[16]   The designated evidence supports that The Courier, as the principal, expressly

       designated Churchman as an independent contractor in its contract. Moreover,

       in her deposition, Churchman testified that she was not required to wear a

       uniform, her car did not have any indications that she was delivering

       newspapers, and she considered herself to be an independent contractor for The

       Courier. Based on this evidence, we cannot conclude that The Courier

       Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CT-96 | June 16, 2016   Page 8 of 15
       manifested its consent to Churchman to act as its agent at the time of the

       accident. 2 Because there is no evidence establishing a genuine issue of material

       fact as to whether Churchman was The Courier’s agent, the trial court

       appropriately granted summary judgment to The Courier.


                                                  III. Employment


[17]   Next, Bauermeister contends that the trial court erred when it granted summary

       judgment to The Courier on its claim that Churchman was The Courier’s

       employee at the moment of the incident. Applying the ten-factor test

       enunciated in Moberly v. Day, 757 N.E.2d 1007 (Ind. 2001), Bauermeister claims

       that there are “numerous issues of genuine fact in dispute as to whether

       Churchman was an employee or independent contractor[.]” (Appellant’s Br. p.

       19).


[18]   Whether one acts as an employee or an independent contractor is generally a

       question of fact for the finder of fact. Id. at 1009. However, if the significant

       underlying facts are undisputed, the court may properly determine a worker’s

       classification as a matter of law. In Moberly, our supreme court proponed a ten-

       factor analysis to distinguish employees from independent workers:


               (a) the extent of control which, by the agreement, the master may
                   exercise over the details of the work;




       2
        Because Bauermeister did not satisfy the first element of actual agency, we do not need to review the
       designated evidence with respect to the other two elements.

       Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CT-96 | June 16, 2016               Page 9 of 15
        (b) whether or not the one employed is engaged in a distinct
            occupation of business;


        (c) 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 without supervision;


        (d) the skill required in the particular occupation;


        (e) whether the employer or the workman supplies the
            instrumentalities, tools, and the place of work for the person
            doing the work;


        (f) the length of time for which the person is employed;


        (g) the method of payment, whether by the time or by the job;


        (h) whether or not the work is a part of the regular business of the
            employer;


        (i) whether or not the parties believe they are creating the
            relation of master and servant; and


        (j) whether the principal is or is not in business.


Id. (quoting Restatement (Second) of Agency § 220(2) (1958)). Under this test,

all factors must be assessed, and no single factor is dispositive. Id. However,

this list of factors is not exhaustive. Mortgage Consultants, Inc. v. Mahaney, 655

N.E.2d 493, 496 (Ind. 1995). If enough of the indicia of an employer-employee

relationship exists, an employer-employee relationship may be found despite


Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CT-96 | June 16, 2016   Page 10 of 15
       the parties’ designation of independent contractor status. Id. We will review

       each factor in turn.


                                             A. Extent of Control


[19]   An employee is one “employed to perform services in the affairs of another and

       who with respect to the physical conduct in the performance of the services is

       subject to the other’s control or right to control.” Walker v. Martin, 887 N.E.2d

       125, 131 (Ind. Ct. App. 2008), reh’g denied, trans. denied. An independent

       contractor, however, generally controls the method and details of the task and

       answers to the principal only as to the results. Id.


[20]   The designated evidence supports that Churchman was answerable to The

       Courier for results only, not with respect to the particulars of how she went

       about accomplishing the assigned task of delivering a newspaper. See Mortgage

       Consultants, Inc., 655 N.E.2d at 495. Specifically, beyond assigning a delivery

       area and the stipulation that the newspaper must be delivered in a dry, readable

       condition, The Courier did not control the means of Churchman’s delivery of

       the Sunday newspaper. Churchman testified that she used her own vehicle,

       without any distinguishing marks that it was used to make a newspaper

       delivery, and supplied her own insurance and vehicular maintenance. She

       assembled the newspapers and determined her own route within the delivery

       area. She did not wear a uniform and did not receive any benefits. This factor

       weighs in favor of Churchman being an independent contractor. See also Snell v.

       CJ Jenkins Enterprises, Inc., 881 N.E.2d 1088, 1092 (Ind. Ct. App. 2008) (Snell


       Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CT-96 | June 16, 2016   Page 11 of 15
       was considered an independent contractor where the principal “assigned him to

       a delivery area and provided deadlines for delivery [and] did not otherwise

       control the means by which Snell accomplished the task of delivering

       newspapers.”).


                                   B. Distinct Occupation or Business


[21]   The Courier is in the business of compiling the news and publishing a

       newspaper, whereas Churchman delivers the newspapers. While both

       occupations appear to be distinct enterprises, they cannot be completely

       separated, for without a publication there would be no delivery. Moreover, it

       was The Courier itself that contracted with Churchman to complete the

       distribution part of its business. Accordingly, we find this to be a neutral factor.


                                           C. Kind of Occupation


[22]   The designated evidence shows that Churchman remained free under her

       agreement with The Courier to provide services for others. In fact, at the time

       of the accident, Churchman worked fulltime for Hitachi Cable. As in Snell, we

       find this factor to be in favor of a finding of independent contractor status. See

       Snell, 881 N.E.2d at 1092.


                                               D. Skill Required


[23]   Churchman’s job was to deliver newspapers, “which does not require special

       skill and weighs slightly in favor of [her] status as an employee.” Id.


                       E. Supplier of Equipment, Tools, and Work Location
       Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CT-96 | June 16, 2016   Page 12 of 15
[24]   Churchman provided her own vehicle, insurance, and maintenance. She did

       not receive a mileage reimbursement, a cell phone, or a uniform. Although The

       Courier provided Churchman with a delivery area, she determined the specific

       route used within that area and the time to deliver the newspapers. We find

       that this factor weighs in favor of independent contractor status.


                                         F. Length of Employment


[25]   Churchman testified that she started working for The Courier on October 1,

       1992. While a long-term relationship can indicate employee status, the

       relationship must contemplate regular hours. Moberly, 757 N.E.2d at 1012.

       Churchman did not work regular hours with a set start and end time, nor was

       she required to keep track of her time. Therefore, even though Churchman has

       a lengthy employment relationship with The Courier, in the absence of regular

       work hours, this factor points toward an independent contractor status.


                                           G. Method of Payment


[26]   Because Churchman received payment based on a per newspaper basis,

       Bauermeister concedes that this factor favors classifying her as an independent

       contractor.


                                   H. Regular Business of The Courier


[27]   As noted by Snell, this factor mirrors the second factor discussed above. See

       Snell, 881 N.E.2d at 1093. As with factor B above, newspaper publication is not



       Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CT-96 | June 16, 2016   Page 13 of 15
       entirely distinct from newspaper distribution. Similarly to the second factor, we

       also determine this one to be neutral.


                                            I. Belief of the Parties


[28]   The parties’ belief as to Churchman’s status weighs in favor of an independent

       contractor relationship. The contract entered into between the parties explicitly

       classifies Churchman as an independent contractor. During her deposition,

       Churchman expressed the belief that she was an independent contractor and did

       not consider herself to be an employee.


                                                 J. In Business


[29]   The Courier was in the news-gathering business at the time of the accident, “so

       this factor weighs slightly in favor of [Churchman’s] status as an employee.”

       See id.


[30]   Given the above factors, which largely weigh in favor of Churchman’s status as

       an independent contractor, we conclude that Churchman was an independent

       contractor rather than The Courier’s employee and therefore affirm the trial

       court’s summary judgment in favor of The Courier.


                                               CONCLUSION

       Based on the foregoing, we conclude that the trial court properly determined

       that there was no genuine issue of material fact that Churchman was not acting




       Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CT-96 | June 16, 2016   Page 14 of 15
       as an agent or employee of The Courier; therefore, The Courier did not incur

       vicarious liability for Churchman’s alleged negligent behavior.


[31]   Affirmed.


[32]   Kirsch, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 88A05-1601-CT-96 | June 16, 2016   Page 15 of 15
