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Limestone Products Distribution2/14/2002
On Petition for Review from the Court of Appeals for the Tenth District of Texas
Coy Mathis's car collided with Tom McNamara's motorcycle, causing McNamara fatal injuries. Here, the issue is whether, when the accident occurred, Mathis worked as Limestone Products Distribution, Inc.'s independent contractor, or, if Mathis was Limestone's employee, whether he was acting in the course and scope of his employment. McNamara's survivors sued Mathis and Limestone alleging that Mathis's negligence caused McNamara's death. Limestone moved for summary judgment, asserting that it is not liable for Mathis's negligence because he was an independent contractor when the accident occurred. Alternatively, Limestone argued that, if Mathis was an employee at the time the accident occurred, he was not acting in the course and scope of his employment. Without specifying the grounds, the trial court granted Limestone's motion. On rehearing, a divided court of appeals reversed the summary judgment and remanded the case to the trial court. __ S.W.3d __. It determined that a fact issue existed on: (1) whether Mathis was an independent contractor or Limestone's employee; and (2) if Mathis was a Limestone employee, whether Mathis was on a special mission and thus acting in the course and scope of his employment when the accident occurred. __ S.W.3d at __.
The court of appeals correctly stated the law that applies in this case. However, the court of appeals improperly applied that law to the summary-judgment evidence and incorrectly resolved the independent contractor issue. Thus, we reverse the court of appeals' judgment and render judgment that McNamara's survivors take nothing from Limestone.
Limestone delivers limestone and other materials to various customers. Mathis began working for Limestone as an employee, driving a Limestone delivery truck. Because he was an employee, Limestone prescribed the specific route Mathis had to drive whenever he made a delivery. Limestone paid for gasoline, repairs, and insurance on the truck that Limestone owned and Mathis drove to make deliveries. Limestone paid Mathis twenty-five percent of the income received from each load Mathis hauled. Limestone reported Mathis's income on a W-2 form and withheld social security and federal income tax payments from his paycheck. Additionally, Limestone covered Mathis on its workers' compensation insurance.
About three years before the accident occurred, Mathis bought a truck from Limestone and drove it as his own. After Mathis bought his truck, he was free to drive any route he wished when making a delivery as long as he timely delivered the load. Though he sometimes purchased gasoline from Limestone, Mathis - not Limestone - paid for his truck's gasoline, repairs, and insurance. Limestone compensated Mathis with eighty percent of the income from each load he delivered, rather than the twenty-five percent Limestone paid Mathis when he drove Limestone's truck as an employee. Limestone reported Mathis's income on a 1099 form rather than a W-2 form. Further, Mathis paid his own social security and federal income taxes and no longer received workers' compensation coverage from Limestone.
Some aspects of Mathis's work with Limestone were the same both before and after he bought his own truck. For instance, Mathis did not work regular hours. Instead, he called Limestone's office each morning to see if Limestone had any work for him that day. Mathis received no pay if there were no loads to haul. And he received no pay for vacation, sick leave, or holidays. Limestone instructed him where to pick up the load, where to deliver it, and what time it had to arrive. Moreover, for Limestone to bill its customers and f
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