A corporation makes a money-saving decision to use a third party to do its work on your client’s home or business. Your client has no idea that the services it will receive are not from the corporation’s employee(s) but from an undisclosed third party. Of course, the third party is negligent and that negligence results in your client suffering a traumatic brain injury. Pretty scary, huh? It gets worse. In response to your notice of representation letter, the corporation’s lawyer sends a response asserting that the guy who negligently brain injured your client was never an employee of the corporation, but just an independent contractor, and of course, the guy has no liability insurance.
In drafting your complaint, you should thoroughly review Florida Standard Jury Instruction 402.9 and the case law related to it. Under FSJI 402.9 a defendant will be held vicariously liable for an active tortfeasor that it claims is an “independent contractor” if: 1) the tortfeasor is deemed an “actual” or “apparent” agent; or 2) if the defendant did not exercise due care in selecting or retaining the tortfeasor; or 3) if the defendant undertook to perform services for the victim. The tortfeasor is an actual agent if the defendant authorized him to act for the defendant, and is an apparent agent if by words or conduct, the defendant allowed the victim to believe the tortfeasor had authority to act for defendant and was doing so within the scope of his apparent authority.
As to negligent selection, hiring, and retention of an independent contractor, if you review Suarez v. Gonzalez, 820 So.2d 342, 344 (Fla. 4th DCA 2002), you will see an informative foundational analysis of Florida law on this issue. See also McCall v. Alabama Bruno’s Inc. 647 So.2d 175, 177 (Fla. 1st DCA 1994), and Restatement (Second) of Torts §409, §411 (1965). A few themes emerge.
First, “the amount of care which should be required is proportionate to the danger involved in failing to use it” Restatement (Second) of Torts § 411, cmt. c. Second, the “extent of the employer’s knowledge in the field of work to be done” is critical. For example, a national company that has expertise in cargo transport that sub-contracts with truckers for interstate freight services needs to make sure that any driver it contracts with to haul cargo across the country is truly competent to safely perform the job.
Finally, the court will look to the relationship between the parties to see if there is any legal authority imposing a higher duty on the employer, such as a non-delegable duty. In Suarez, the case centered upon whether a landlord’s daughter-in-law was negligent in selecting an independent contractor (whom she first met when she saw him driving down the street with some cabinets in his van) to hang a kitchen cabinet that later fell from the wall and struck and paralyzed the tenant. Id. at 344. The Court held that the landlord-tenant relationship imposes a nondelegable duty of care upon a landlord who undertakes to make repairs or improvements for the benefit of the tenant. Id. at 346.
As to actual agency, as outlined in Font v. Stanley Steemer International, Inc. 849 So.2d 1214, 1216 (Fla. 5th DCA 2003): “the essential elements of actual agency are: 1) acknowledgement by the principal that the agent will act for him or her; 2) the agent’s acceptance of the undertaking; and 3) control by the principal over the actions of the agent.” The Court in Font followed its general proposition of the rule with a corollary pronouncing that despite what the express provisions of an agreement between the parties states as to the status of the hired worker, “the nature of the parties’ relationship is not determined by the descriptive labels employed by the parties themselves”. Id. at 1216.
To prove a case involving apparent agency, the Fourth District Court of Appeal in Ginsberg v. Northwest Medical Center, 14 So.3d 1250, 1252 (Fla. 4th DCA 2009) laid out three factors: “(1) a representation by the purported principal, (2) a reliance on that representation by a third party, and (3) a change in position by the third party in reliance on the representation.” See also Sapp v. City of Tallahassee, 348 So. 2d 363, 367 (Fla. 1st DCA 1977) (agency may be inferred from prior dealings between the parties and may be proven by the facts and circumstances of each particular case, including the words and conduct of the parties).
When a victim has sued the principal company generally the courts decline to permit a summary judgment for the principal, agreeing almost uniformly that the issue of agency is one requiring an in depth analysis of the totality of the circumstances. So, the next time that you face a contract which the corporation’s lawyers flooded with the words “independent contractor” take a closer look at that document, take the necessary depositions of the people actually involved in the work, and obtain the discovery that proves your agency case — more likely than not, the facts are there and you will be able to prove agency.