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1. Employer and Employee--summary judgment--negligence--no employer-employee
relationship
In a negligence case arising out of a fatal automobile accident, the trial court did not err
in granting summary judgment in favor of corporate defendant Nursefinders, who recruits pools
of nurses to supply supplemental staff to area medical facilities, because there was no genuine
issue of material fact as to whether defendant-nurse Tony Fele, who was involved in the
accident, was Nursefinders' employee. Nursefinders' role was similar to that of a broker or
other middleman, and Nursefinders exercised insufficient control over Fele to create an
employee-employer relationship.
2. Joint Venture--summary judgment--imputed negligence--no joint venture
In a negligence case arising out of a fatal automobile accident, the trial court did not err
by granting summary judgment against plaintiffs on their claim of imputed negligence by joint
venture because plaintiffs have not forecast evidence that defendant-nurse Tony Fele, who was
involved in the accident, had an equal, legal right to control the conduct of corporate defendant
Nursefinders “with respect to prosecution of the common purpose.”
Appeal by plaintiffs from order and judgment entered 3
September 1998 by Judge James E. Lanning in Catawba County
Superior Court. Heard in the Court of Appeals 10 June 1999.
Sigmon, Sigmon & Isenhower, by W. Gene Sigmon and Amy
Rebecca Sigmon, and Sigmon, Clark, Mackie, Hutton & Hanvey,
P.A., by E. Fielding Clark, II, for plaintiff-appellants.
Golding, Meekins, Holden, Cosper & Stiles, L.L.P., by Harvey
L. Cosper, Jr. and John A. Stoker, for defendant-appellee
Nursefinders of Indianapolis, Inc.
EDMUNDS, Judge.
Plaintiffs appeal the trial court's grant of summary
judgment in favor of defendant Nursefinders, contending that the
trial court's grant of defendant's summary judgment motion was
erroneous. We affirm.
Corporate defendant Nursefinders recruits pools of nurses in
various geographical regions to supply supplemental staff to area
medical facilities. A hospital needing additional nursing staff
could call Nursefinders and request that a nurse be sent to the
hospital for a specific shift. Nursefinders would contact a
member of its pool and offer the work, which the nurse was free
to accept or reject. If the nurse accepted, Nursefinders paid
the nurse a portion of the payment it received from the hospital.
Defendant Fele (Fele) was a member of Nursefinders' nursing pool.
While driving from Charlotte to a hospital in Hickory, where he
had agreed to provide nursing services, Fele was involved in a
fatal automobile accident with Vincent Wade Rhoney. The accident
occurred as Fele attempted to pull into a service station to call
the hospital for final directions. Fele was driving an
automobile owned by his wife, defendant Furtick.
Plaintiffs, co-administrators of the estate of their son,
initiated this action for property damage and wrongful death. Intheir amended complaint, plaintiffs alleged that the negligence
of Fele was to be imputed to Nursefinders by virtue of joint
venture and by an employee-employer relationship, and that
Nursefinders was negligent in its supervision of Fele.
Nursefinders moved for summary judgment, and on 31 August 1998,
the trial court granted Nursefinders' motion, effectively finding
that Fele was an independent contractor. Plaintiffs appeal,
contending that summary judgment as to one of several defendants
affected their substantial right to have issues pertaining to the
death of the victim determined in a single proceeding. The trial
court certified the case for immediate appeal pursuant to Rule
54(b) of the North Carolina Rules of Civil Procedure. We agree
that granting Nursefinders' motion affects plaintiffs'
substantial right and that this appeal is properly before this
Court. See N.C. Gen. Stat. § 1-277(a) (1996).
[1]/A HREF>We first address the relationship between defendants
Fele and Nursefinders. Plaintiffs contend the trial court erred
in granting summary judgment for Nursefinders because there was a
genuine issue of material fact as to whether Fele was
Nursefinders' employee. Nursefinders responds that Fele was an
independent contractor, and that even if Fele were an employee,
any negligence on his part occurred outside the scope of his
employment and may not be imputed to Nursefinders. “Whether oneis an independent contractor or an employee is a mixed question
of law and fact. The factual issue is: What were the terms of
the parties' agreement? Whether that agreement establishes a
master-servant or employer-independent contractor relationship is
ordinarily a question of law.” Yelverton v. Lamm, 94 N.C. App.
536, 538, 380 S.E.2d 621, 623 (1989) (citing Beach v. McLean, 219
N.C. 521, 525, 14 S.E.2d 515, 518 (1941)). Therefore, as an
initial matter we must determine whether there were issues of
material fact as to the terms of the parties' agreement.
Although Fele and Nursefinders did not have a written
contract expressly setting out the nature of their relationship,
the evidence is uncontested that Fele was a member of
Nursefinders' labor pool; that Nursefinders would contact Fele
about a potential assignment; that Fele had the option of
accepting or refusing the potential assignment; that if he
accepted an assignment, Fele would ordinarily pick up a packet
concerning the work at Nursefinders' office; and that the packet
included a map, directions to the hospital, and the name and
telephone number of a contact person at the hospital. There was
also evidence that Nursefinders typically matched a nurse in its
pool with the type of service requested, set the rate schedule
for the provided nurse, billed the medical facility for the
nurse's work at an hourly rate, paid the nurse while retaining aportion of those billed funds, and withheld various state and
federal taxes from those payments to the nurse. If the medical
facility was more than fifty miles from Charlotte, Nursefinders
charged the hospital a higher rate and paid the nurse more.
Nursefinders required the nurse to provide his or her own
transportation to the medical facility.
These facts (and others discussed below) are uncontested;
consequently there are no issues of material fact as to the
parties' agreement. Therefore, we must next determine as a
matter of law whether this agreement created an employer-employee
relationship or set up an independent contractor. Generally,
“[a]n independent contractor is 'one who exercises an independent
employment and contracts to do certain work according to his own
judgment and method, without being subject to his employer except
as to the result of his work.'” Cook v. Morrison, 105 N.C. App.
509, 513, 413 S.E.2d 922, 924 (1992) (quoting Youngblood v. North
State Ford Truck Sales, 321 N.C. 380, 384, 364 S.E.2d 433, 437,
reh'g denied, 322 N.C. 116, 367 S.E.2d 923 (1988)). We must
consider “'whether the party for whom the work is being done has
the right to control the worker with respect to the manner or
method of doing the work, as distinguished from the right merely
to require certain definite results conforming to the contract.'”
Grouse v. DRB Baseball Management, 121 N.C. App. 376, 381, 465S.E.2d 568, 571 (1996) (quoting Scott v. Lumber Co., 232 N.C.
162, 165, 59 S.E.2d 425, 426-27 (1950)).
Our Supreme Court has enunciated a more specific analysis,
which this Court applied in Gordon v. Garner, where we stated:
In Hayes v. Elon College, our Supreme
Court concluded that the central issue in
determining whether one is an independent
contractor or an employee is whether the
hiring party “retained the right of control
or superintendence over the contractor or
employee as to details.” The [C]ourt then
went on to explain that there are generally
eight factors to be considered, none of which
[is by itself] determinative, when deciding
the degree of control exercised in a given
situation. These factors include whether:
The person employed (a) is engaged
in an independent business, calling
or occupation; (b) is to have the
independent use of his special
skill, knowledge, or training in
the execution of the work; (c) is
doing a specified piece of work at
a fixed price or for a lump sum or
upon a quantitative basis; (d) is
not subject to discharge because he
adopts one method of doing the work
rather than another; (e) is not in
the regular employ of the other
contracting party; (f) is free to
use such assistants as he may think
proper; (g) has full control over
such assistants; and (h) selects
his own time.
127 N.C. App. 649, 658-59, 493 S.E.2d 58, 63 (1997) (footnotes
omitted) (quoting Hayes v. Elon College, 224 N.C. 11, 16, 29
S.E.2d 137, 140 (1944)), disc. review denied, 347 N.C. 670, 500S.E.2d 86 (1998).
Gordon involved review of an order granting summary
judgment, as does the instant case. In Gordon, a trucking
company maintained a pool of independent truck owner-operators
who could be contracted to deliver sand if the company's trucks
were busy. One of these pool truckers was involved in an
accident. We concluded from an examination of the record on
appeal that summary judgment was appropriate because the pool
driver (Garner) was an independent contractor rather than an
employee. In applying the Hayes test to the facts in Gordon,
this Court focused on several facts: (1) that Garner was engaged
in an independent business, (2) that Garner had independent use
of his special skills and training in the execution of his work,
(3) that the purported employer trucking company “exercised no
direct control over the particular daily activities of Garner,”
(4) that no representative of the purported employer ever
instructed Garner on the particulars of the operation of his
affairs other than directions to his destination at the
customer's business, (5) that Garner was free to decide when and
how long he wanted to work and when he would take breaks, and (6)
that Garner had the right to seek other employment. Id. at 659-
60, 493 S.E.2d at 63-64.
Another instructive case is Youngblood, 321 N.C. 380, 364S.E.2d 433, in which our Supreme Court held that, for Worker's
Compensation Act purposes, a plaintiff who was injured while
demonstrating use of specialized tools to defendant's employees
was also an employee. There, the Court applied four factors,
which were supported by the preponderance of the evidence adduced
at trial. “Payment of a fixed contract price or lump sum
ordinarily indicates that the worker is an independent
contractor, while payment by a unit of time, such as an hour,
day, or week, is strong evidence that he is an employee.” Id. at
384, 364 S.E.2d at 438 (citations omitted). The Court also
considered the purported employee's freedom to secure assistance
(either equipment or labor) in performing required tasks and
noted that “[a] lack of this freedom indicates employment.” Id.
at 385, 364 S.E.2d at 438. Next, the Court addressed scheduling.
“[W]here the worker must conform to a particular schedule and
perform his job only during hours when the [purported employer's]
employees are available, the relationship is normally one of
employment.” Id. The fourth factor that the Court applied was
control of the employment. “The right to fire is one of the most
effective means of control. An independent contractor is subject
to discharge only for cause and not because he adopts one method
of work over another. An employee, on the other hand, may be
discharged without cause at any time.” Id. (citations omitted). In considering this final factor, the Court went on to note that
“[w]here a worker is to be paid by a unit of time, it may be
fairly inferred that he has no legal right to remain on the job
until it is completed. The employer may discharge him with no
obligation other than to pay wages for the units of time already
worked.” Id. (citation omitted).
Guided by the principles set out in Gordon, Hayes, and the
other cases cited above, we now turn to the case at bar. The
following factors support a finding that Fele was an independent
contractor: (1) as a registered nurse, Fele was engaged in an
independent profession; (2) Fele could and did provide nursing
services through other placement services; (3) Fele exercised his
duties and responsibilities as a nurse at the hospital, free from
supervision by Nursefinders; (4) Fele's work through Nursefinders
was sporadic rather than regular; (5) Fele was able to accept or
reject a job assignment offered by Nursefinders; and (6)
Nursefinders did not provide Fele with valuable equipment. See
Barber v. Going West Transportation, Inc., 134 N.C. App. 428, 517
S.E.2d 914, 1999 WL 559805 (Aug. 3, 1999) (No. COA98-494). On
the other hand, the following factors support a finding that Fele
was an employee of defendant Nursefinders: (1) Fele was paid an
hourly rate with overtime and incentive pay, rather than a lump
sum for a particular assignment; (2) Fele was not free to selecthis assistants; (3) Fele was not able unilaterally to choose his
own time to work under Nursefinders' auspices; (4) Nursefinders
received payment for Fele's services from the hospital and, after
deducting Nursefinders' share and paying state and federal taxes,
forwarded the remaining wages to Fele; (5) Nursefinders could
terminate its relationship with Fele; and (6) Nursefinders
provided Fele with a work packet and directions to the assigned
place of work. We do not purport to list every factor suggested
by the parties in their briefs and arguments; those listed above
appear to us most significant in determining this issue.
Moreover, a mere recitation of factors is insufficient. We must
also weigh these factors, bearing in mind the admonition of
Gordon and Hayes that the key factor is “control.”
These factors demonstrate that while Nursefinders exercised
control over extraneous aspects of Fele's work, such as the dates
and times when work was offered and collection of his salary,
Nursefinders exercised no control over Fele's nursing, the
function for which hospitals sought him. To the contrary, Fele
was a free agent who could and did maintain similar arrangements
with other suppliers of medical personnel, and who could and did
accept or reject work offered to him through Nursefinders, as
suited him. Conversely, Nursefinders could not compel Fele to
take any particular assignment. Once Fele accepted work proposedby Nursefinders, Fele was not under any control by Nursefinders
while working. Apparently the relationship could be terminated
at will by either party at any time. Thus, Nursefinders' role
was similar to that of a broker or other middleman. We therefore
agree with the trial court that, as a matter of law, Nursefinders
exercised insufficient control to create an employee-employer
relationship between Fele and Nursefinders. Accordingly, we
affirm the trial court's granting of Nursefinders' motion for
summary judgment. This assignment of error is overruled.
[2]Plaintiffs next contend that the trial court erred by
granting summary judgment on their claim of imputed negligence by
joint venture. “Joint venture” is synonymous with “joint
adventure.” See Pike v. Trust Co., 274 N.C. 1, 8, 161 S.E.2d
453, 460 (1968) (citations omitted). For a joint adventure to
exist, “[t]here must be (1) an agreement, express or implied, to
carry out a single business venture with joint sharing of
profits, and (2) an equal right of control of the means employed
to carry out the venture.” Edwards v. Bank, 39 N.C. App. 261,
275, 250 S.E.2d 651, 661 (1979). “The control required for
imputing negligence under a joint enterprise theory is not actual
physical control, but the legal right to control the conduct of
the other with respect to the prosecution of the common purpose.”
Slaughter v. Slaughter, 93 N.C. App. 717, 721, 379 S.E.2d 98, 101(citation omitted), disc. review allowed, 325 N.C. 273, 384
S.E.2d 519 (1989), review dismissed as improvidently allowed, 326
N.C. 479, 389 S.E.2d 803 (1990). Here, plaintiffs have forecast
no evidence that Fele had an equal, legal right to control the
conduct of Nursefinders “with respect to prosecution of the
common purpose.” Id. For that reason, summary judgment as to
the claim of joint venture was properly granted. This assignment
of error is overruled.
Affirmed.
Judges WALKER and MCGEE concur.
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