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Moberly v. Day6/22/2000
FOR PUBLICATION
OPINION - FOR PUBLICATION
William Day owns and operates a farm. Two of his daughters and their husbands, Jay Moberly and Joe Hendershot, live approximately a quarter mile away. For several years the sons-in-law have, upon his request, assisted Day in the farming operations. On these occasions Day determined what he considered to be a fair payment for the services provided and paid the men that amount, either in cash or by check.
In June, 1997, Day had been ill and Moberly and Hendershot came to the farm at Day's request to dig up and repair some drainage tile in one of the fields. Hendershot had previously done this kind of work and brought a backhoe. Hendershot was on the backhoe and Moberly attempted to climb on in order to ride to the field. As he did so, the boom was activated, swung around and seriously injured his leg. He subsequently commenced this action against Day to recover for his injuries alleging that he was an employee of Day at the time he was injured and Day was liable on the basis of respondeat superior.
Day answered in denial and asserted several affirmative defenses. After the three had been deposed he moved for summary judgment asserting that Moberly and Hendershot were independent contractors, and he was therefore not liable for any negligence of Hendershot. Additionally, he contended that if the two were employees recovery was barred by the fellow servant doctrine. The trial court granted summary judgment on the basis that Hendershot was an independent contractor.
We find that summary judgment was inappropriate. In Mortgage Consultants v. Mahaney, 655 N.E.2d 493 (Ind. 1995) our supreme court reviewed the law governing the distinction between employer-employee relationships and independent contractor status. The court recognized the longstanding general rule that the determination is a question of fact. 655 N.E.2d at 496. The court quoted with approval Restatement (Second) of Agency, § 220, which lists ten factors that may be considered, and then noted the list was not exhaustive. It also noted that all factors must be assessed; no one is dispositive. 655 N.E.2d at 495-496.
In the instant case the familial relationship of the parties adds an additional factor that may skew some of the considerations. For example, the extent to which Moberly and Hendershot were subject to Day's control or right to control might be masked or altered by their close family ties and their affection for each other. Similarly, the relationship might explain why Moberly and Hendershot were ready to work whenever called upon.
In sum we believe that the determination of employee-contractor status in this case presents a disputed question of fact that requires a full exposition of the facts and circumstances of the relationship and was not appropriate for determination on summary judgment.
Secondly, we cannot find as dispositive Day's alternative argument that if Moberly and Hendershot were both employees, then the action is barred by the fellow servant doctrine . While it certainly appears likely that Hendershot and Moberly have the same status vis-à-vis the work performed for Day, that conclusion has not been established by the designated materials. More significantly, however, even if both are employees, we believe the fellow servant doctrine no longer stands as a bar to the action.
Examination of the doctrine has largely eluded review because of the effect of the Workers' Compensation Act, I.C. 22-3-1-1 et seq. Even so, it has been severely criticized by our supreme court as long ago as 1907 [Bedford Quarries Co. v. Bough, 168 Ind. 671, 80 N.E. 529, 533 (1907)] and as recently a
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