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In Jeffries v. Kopp, No. 01-0854, 2004 WL 1071187, at *3 (Iowa Ct. App. May 14, 2004), where the plaintiff resisted summary judgment claiming the affiant did not have personal knowledge, we concluded: "[the company's] policies, procedures, and actions are matters that logically and presumably were within the knowledge of [the affiant] as its president."
Summary of this case from Cadles of W.Va., LLC v. Midwest Biologics, LLCOpinion
No. 3-602 / 01-0854
May 14, 2004.
Appeal from the Iowa District Court for Wapello County, Richard J. Vogel, Judge.
The plaintiffs in one of two consolidated cases appeal from the district court's grant of summary judgment dismissing their claims against defendant Norris Asphalt Paving Co. AFFIRMED.
Frank Wieslander of Frank G. Wieslander, P.C., Altoona, for appellants.
James Huber of Huber, Book, Cortese, Happe Brown, Des Moines, for appellee Norris.
Michael Moreland, Ottumwa, for appellee State Farm Insurance.
Thomas M. Walter, Ottumwa, for appellee Davis.
Jon Vasey, Des Moines, for appellee Allstate Insurance.
Chester Woodburn, Des Moines, for appellee Reiner.
Considered by Sackett, C.J., and Miller and Hecht, JJ.
Fanchon Jeffries and her sons Paul, Gerald and Thomas Jeffries individually, and Paul and Gerald Jeffries as conservators of Fanchon Jeffries (the plaintiffs), appeal from the district court's grant of summary judgment dismissing their claims against Norris Asphalt Paving Co., a/k/a Norris Asphalt Paving a/k/a Norris Paving (Norris). We affirm.
Background Facts and Proceedings.
On or about August 25, 1998, a car owned by Fanchon Jeffries collided with a truck owned by Larry Reinier. The Jeffries's vehicle was being driven by Boyd Wright. Fanchon Jeffries was a passenger. The Reinier truck was being operated by Orval Kopp. Wright, Kopp and Jeffries were taken to the hospital. Wright later died. The plaintiffs filed suit against Kopp, Reinier, Wright's estate, and two insurance companies. They subsequently added Norris as a defendant. The plaintiffs claimed Norris was liable for any negligence of Kopp as, at the time of the accident, Kopp and Reinier were employees, agents or representatives of Norris. Norris moved for summary judgment, alleging it had no ownership of, contractual connection with, or control or supervision over the Reinier truck.
At most places in the pleadings, briefs, and other documents the parties refer to the defendant Larry Reinier as "Larry Reiner." We note, however, that at other places he is referred to as "Larry Reinier," and that he signed and verified answers to interrogatories as "Larry Reinier." We therefore refer to him as "Reinier."
The summary judgment record revealed the following undisputed facts. Norris was in the business of manufacturing and selling asphalt. Reinier was the operator and superintendent of the Norris plant. Norris owned a certain number of trucks, which were used to haul material to and from the Norris plant and construction sites on which Norris was a contractor. When additional trucks were required to perform these tasks for Norris, Reinier would hire trucks that were independently owned and operated. One such truck was owned by Reinier, and driven by Kopp. Reinier's selection of his own truck to haul material for Norris was done with Norris's knowledge and consent. To a certain extent, independent trucks hired by Norris were under the control and supervision of Reinier, in his position as plant superintendent.
However, Norris did not use its own trucks, or personally contract with independent truck owners, to haul material to a non-Norris job site. In those cases, while Norris would sell asphalt to the unrelated contractor, the contractor was responsible for providing and/or paying for the truck used to transport the material. If the contractor did not have a truck available, Reinier would attempt to locate an independent truck owner to transport the material, as "an accommodation" to the contractor. The contractor set the rate to be paid to the independent truck owner, and paid the truck owner directly. It was then the truck owner's responsibility to compensate the truck driver. The truck owner had the ability to accept the job at the offered rate, or decline. The contractor also had the right to reject a suggested truck owner. Once the truck left the Norris plant, the independent truck owner became responsible for the load of asphalt until it was "delivered and dumped. . . . If something happened between [the plant and the job site], that owner of that truck had to buy that load."
On the day of the collision at the heart of this matter, Kopp was driving Reinier's truck pursuant to an agreement between Reinier and Reed Construction (Reed), an unrelated contractor which was purchasing asphalt from Norris. Kopp had delivered Norris asphalt to Reed at a non-Norris construction site. At the time of the accident Kopp was returning to the Norris plant, as instructed by Reinier, so that he would be available for transport if Reed called Norris and requested another load of asphalt. Reinier was not compensated by Reed for this particular job, as it was "a trade off of favors back and forth."
The district court determined Kopp was not an employee of Norris, granted Norris's summary judgment motion, and dismissed it from the case. Following the court's denial of their Iowa Rule of Civil Procedure 1.904(2) motion to reconsider, the plaintiffs appealed. On appeal they contend the district court erred in allowing an unsupported affidavit into the summary judgment record, and that there is a disputed material fact as to whether Kopp was a "borrowed servant," or Kopp and/or Reinier in his capacity as owner of the truck were employees or agents of Norris, such that Norris would be liable for Kopp's actions. Scope and Standards of Review.
The Jeffries action was consolidated with one brought against Kopp, Reinier and Norris on behalf Wright's estate. Although the summary judgment ruling dismissed Norris as a defendant as to the claims of all the plaintiffs, only the Jeffries plaintiffs appeal.
The plaintiffs also contend the district court committed reversible error when it failed to specifically set forth in its ruling the portions of the summary judgment record it relied on in concluding there were no undisputed facts that required this matter to be submitted to a jury. They assert this failure violated Iowa Rule of Civil Procedure 1.451. However, rule 1.451 provides the district court must rule separately on each part of a multi-part motion. The summary judgment motion in this case required the court to rule on only one issue: whether there was a factual or legal basis to hold Norris responsible for any damages incurred by the plaintiffs, due to the nature of its relationship with Kopp and Reinier. Accordingly, we question whether rule 1.451 has any application to the plaintiffs' complaint. See Wood v. Wood, 338 N.W.2d 123, 124 (Iowa 1983). Even if the rule should be applied as urged by the plaintiffs, we conclude the district court's ruling, which contained a procedural history, a terse recitation of the facts, legal authority, and a reference to the contents of the summary judgment filings, sufficiently complied with the rule. See Action Real Estate Corp. v. Bulechek, 309 N.W.2d 502, 504 (Iowa 1981) (indicating minimal compliance is sufficient).
We review the district court's grant of summary judgment for the correction of errors at law. Iowa R. App. P. 6.4; General Car Truck Leasing Sys., Inc. v. Lane Waterman, 557 N.W.2d 274, 276 (Iowa 1996). The court reviews the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. City of West Branch v. Miller, 546 N.W.2d 598, 600 (Iowa 1996). All facts are viewed in the light most favorable to the party opposing the motion. Bearshield v. John Morrell Co., 570 N.W.2d 915, 917 (Iowa 1997).
When no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. Iowa R. Civ. P. 1.981(3); City of West Branch, 546 N.W.2d at 600. A disputed fact is one that might affect the outcome of the case, in that a reasonable jury could return a verdict for the nonmoving party. Hall v. Barrett, 412 N.W.2d 648, 650 (Iowa Ct.App. 1987). Although no fact issue exists if the dispute is over legal consequences flowing from undisputed facts, City of West Branch, 546 N.W.2d at 600, summary judgment is improper where reasonable minds could differ on resolution of the matter before the court. Dickerson v. Mertz, 547 N.W.2d 208, 212 (Iowa 1996).
Discussion.
Before we can determine whether summary judgment was properly granted, we must address the plaintiffs' claim that the district court erred when it failed to strike an affidavit provided by Norris president Brady Meldrem. The plaintiffs contend the affidavit does not comply with Iowa Rule of Civil Procedure 1.981(5), as it was not based on Medrem's personal knowledge, and does not affirmatively show that Meldrem was competent to attest to its contents. In support of their claim the plaintiffs' rely on language contained in the fifth of thirteen paragraphs in the affidavit:
5. That, according to my understanding, Reed Construction was a paving contractor or sub-contractor on a paving project in the Centerville, Iowa, area, and, because it needed trucks to carry asphalt for that project, it hired the truck owned by Larry Reinier to assist it in carrying asphalt from the Norris Asphalt plant to the paving project.
(Emphasis added).
Interestingly, the plaintiffs do not contend that the contents of paragraph five are unsupported. In fact, in their brief the plaintiffs recite as undisputed facts the contents of paragraph five, citing to portions of a sworn statement given by Reinier. Rather, the plaintiffs use paragraph five's "according to my understanding" language to challenge as hearsay a number of statements made in succeeding, separately-numbered paragraphs. The challenged statements are ones that disavow any involvement by Norris in the arrangements between Reinier and Reed.
We conclude the plaintiffs' position is without merit. Based on the structure of the affidavit, nothing indicates the conditional language in paragraph five was intended to apply to more than the statements contained within paragraph five. Moreover, Norris's policies, procedures, and actions are matters that logically and presumably were within the knowledge of Meldrem as its president. Finally, the Meldrem affidavit asserts no material facts that do not appear elsewhere in the summary judgment record, primarily in Reinier's sworn statement. Under such circumstances error, if any, by the court in considering the affidavit, was harmless. We conclude the district court did not commit reversible error by including the affidavit among the items it considered in ruling on the motion for summary judgment. We therefore turn to the question of whether summary judgment was properly granted.
The plaintiffs contend the record contains a material factual dispute on the issue of whether Kopp, individually or through Reinier in his capacity as the owner of the truck, was at the time of the collision an employee, "borrowed servant," or agent of Norris. However, the summary judgment record does not contain any disputed material facts relevant to that issue. Beyond the allegations in the pleadings, the portions of the summary judgment record that speak to the nature of the relationships between Kopp, Reinier and Norris are provided by Reinier's sworn statement, Meldrem's affidavit, and an interrogatory answer from Reinier and Kopp. Although the plaintiffs attempt to cast these items as being contradictory of one another, they are in all pertinent respects consistent. The question before this court accordingly devolves to whether the undisputed facts in the record, reasonably interpreted, could support a conclusion that a relationship existed between Kopp, Reinier and Norris such that Norris would be liable for any negligence committed by Kopp. We determine they could not.
For example, the plaintiffs claim Reinier admitted that, as plant superintendent, he had a right to control the activities of the drivers who were hauling Norris asphalt on behalf of third-party contractors. However, it is clear that the statements relating to this right of control applied to drivers of independent trucks who had been hired to work directly for Norris.
The existence of an employment relationship is informed by a number of factors, including
(1) the right of selection, or to employ at will, (2) responsibility for payment of wages by the employer, (3) the right to discharge or terminate the relationship, (4) the right to control the work, and (5) identity of the employer as the authority in charge of the work or for whose benefit it is performed.
Caterpillar Tractor Co. v. Shook, 313 N.W.2d 503, 505 (Iowa 1981). When analyzing whether an individual is an employee, "the primary focus is on the extent of control by the employer over the details of the alleged employee's work." Iowa Mut. Ins. Co. v. McCarthy, 572 N.W.2d 537, 542 (Iowa 1997) (citations omitted).
However, when the question is whether an individual is a borrowed servant, "the primary focus is on the intent of the parties; if the five factors [of Caterpillar Tractor Co. v. Shook] are considered at all, it is merely as an aid in determining whether there is a contract of employment between the employee and the second employer." Id. Absent evidence to the contrary, the inference is that the employee remained in his original employment. Burr v. Apex Concrete Co., 242 N.W.2d 272, 276 (Iowa 1976). To establish borrowed servitude there must be evidence the employee was loaned from his general employer to the special employer, with the general employer surrendering full control of the employee, placing that employee under the special employer's direction and control. Bethards v. Shivvers, Inc., 355 N.W.2d 39, 45 (Iowa 1984).
Based on the undisputed facts, a reasonable jury could not conclude that Kopp was an employee or a borrowed servant of Norris. There was a clear distinction between the independent trucks that assisted Norris with its own hauling, and independent trucks that hauled Norris product for an unrelated contactor. The record indisputably demonstrates Kopp was operating under an agreement between Reinier, as an independent truck owner, and Reed, as an unrelated contractor. The undisputed facts demonstrate that, in such circumstances, whether the truck used is owned by Reinier or another independent truck owner, Norris's involvement through Reinier in his position as plant superintendent is purely as an intermediary.
Reinier stated that he arranged for truck drivers as "[j]ust an accommodation":
If I can help [the contractor], I help him. If I can't, why, then he has to find some other way to transport. . . .
. . . .
[It is] really not part of my duties [at Norris], but it's expected if you can help them out.
. . . .
. . . [A]nything you can do to help sell that product. . . .
. . . .
They [Norris] don't tell me to . . . help a contractor out. I do that on my own just to accommodate that — that contractor . . . [t]o sell the asphalt.
In addition to Meldrem's affidavit, which clearly indicated Norris's lack of involvement, Reinier's statement demonstrated that a hauling agreement between an unrelated contractor and an independent truck owner was solely between those two individuals or entities. They and they alone had the right to reach, or not reach, an agreement. Payment was solely between the contractor and the truck owner, and did not involve Norris. Thus, Reed, not Norris, had the ultimate right to approve the use of Reinier's truck to haul the asphalt to Reed's job site, and the responsibility to pay Reinier for the service.
The plaintiffs suggest that, since Reinier did not receive monetary compensation from Reed, it is possible that the "trade off of favors back and forth" was in fact a trade off between Reed and Norris. Such suggestion is nowhere supported in the record, and is little more than rank speculation on the part of the plaintiffs.
Reinier further clarified that, unlike "hired" independent truck owners who worked for Norris, he had no control, as plant superintendent, over an independent truck driver transporting Norris asphalt to an unrelated contractor who was purchasing asphalt from Norris. While Reinier would pass on the contractor's instructions, he had no authority to direct or instruct the driver, or to terminate the individual job. If a driver was late arriving at a contractor's job site, without justification, Reinier's recourse was limited to a decision to no longer propose that truck owner for future jobs or hire him for Norris. Thus, the summary judgment record demonstrates that the authority to terminate the agreement between Reinier and Reed, and to control the particulars of Kopp's work, lay with Reed as the contractor, and Reinier as the truck owner, and not with Norris. In addition, Reed received the benefit of work performed by Kopp on Reinier's behalf.
Finally, the facts presented in support of summary judgment strongly indicate that neither Norris nor Reinier intended Kopp to function as a Norris employee. No fact raising a contrary inference appears in the record. See Weinzetl v. Ruan Single Source Transp. Co., 587 N.W.2d 809, 810 (Iowa Ct.App. 1998) (noting that, although the moving party has the burden to establish the absence of disputed material facts, once a motion is properly supported the resisting party "must set forth specific facts showing that there is a genuine issue for trial").
The plaintiffs offer the alternate theory that, if Kopp was not an employee or borrowed servant of Norris, then he was, through Reinier, Norris's agent. For the plaintiffs to establish the existence of an agency relationship they must show that Norris manifested its consent that Reinier, in his role as an independent truck owner, act on Norris's behalf and subject to Norris's control, and that Reinier consented to so act. Kanzmeier v. McCoppin, 398 N.W.2d 826, 830 (Iowa 1987). Based on the undisputed facts, this showing cannot be made. Thus, no reasonable jury could find that Reinier, and through him Kopp, operated as Norris's agent.
Norris was entitled to summary judgment as a matter of law. Accordingly, we affirm the ruling of the district court.