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PERRY v. SOIL REMEDIATION5/13/1996
Shawn Perry suffered injury when, according to his suit, a vehicle in another lane struck an accumulation of sand and oil on the road, lost control, and hit his motorcycle. Claiming that oily waste spilled from a transport truck en route to a landfill caused the accident, Perry sued the owner-driver of the truck he claims caused the spill, and Soil Remediation, the company he claims shipped the waste. Soil Remediation moved for summary judgment, claiming it had no vicarious liability for the acts of its truck driver, an independent
contractor. The trial court agreed. We reverse because questions of fact remain as to whether Soil Remediation had a nondelegable duty to ensure proper transport of its waste products, bringing this case within an exception to the independent contractor rule.
Summary judgment is proper only if the pleadings, together with the affidavits, if any, show that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA ยง 9-11-56 (c). The standard for granting summary judgment is found in Lau's Corp. v. Haskins, 261 Ga. 491 (405 S.E.2d 474) (1991).
1. The trial court properly found the truck driver, Mitchell, to be an independent contractor. "The true test of whether a person employed is a servant or an independent contractor is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of execution of the work, as contra-distinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer in the time, manner, and method in the performance of the work. . . . ." (punctuation omitted). Yow v. Fed. Paper Board Co., 216 Ga. App. 652, 654-55 (2) (455 S.E.2d 372) (1995). The key is to determine whether the contractor is truly independent or whether he is simply the employer's alter ego. Loudermilk Enterprises v. Hurtig, 214 Ga. App. 746, 747 (449 S.E.2d 141) (1994) (physical precedent only).
The affidavit of Soil Remediation's president alleged Mitchell to be an independent contractor and not an employee. "A denial of the existence of an agency relationship may constitute an uncontradicted fact which will sustain a motion for summary judgment." (punctuation omitted). McDaniel v. Peterborough Cablevision, 206 Ga. App. 437, 439 (425 S.E.2d 424) (1992); Hampton v. McCord, 141 Ga. App. 97, 99 (1) (232 S.E.2d 582) (1977). Whenever it needed to make a shipment, Soil Remediation contacted Mitchell or other independent truckers. It paid Mitchell by the job, on the basis of mileage and time spent at the various delivery sites. Mitchell owned or leased his own equipment to haul the waste and carried his own workers' compensation and liability insurance. The truck he drove bore his name on its door. Soil Remediation did not control the routes Mitchell took to or from shipment sites, and Mitchell was free to work for others. Under these circumstances, the trial court did not err in finding Mitchell to be an independent contractor as a matter of law. Slater v. Canal Wood Corp. of Augusta, 178 Ga. App. 877 (1) (345 S.E.2d 71) (1986); Coastal Timberlands, Inc. v. Brown, 141 Ga. App. 800, 801 (234 S.E.2d 373) (1977). "[Mitchell] clearly functioned independently of [Soil Remediation] under the circumstances of this case. . . ." Bowman v. C. L. McCord Land &c., 174 Ga. App. 914, 915
(1) (331 S.E.2d 882) (1985).
Perry points out that, on one occasion when Mitchell's liability insurance expired, Soil Remediation paid for a renewal policy out of money it owed him and wo
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