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Potter v. Hawaii Newspaper Agency2/19/1999
as a "newspaper dealer" in Toyozaki's assigned district. In order to become a dealer for the HNA, Potter and his parents had executed a "Statement of Intention," which recited that Potter would "operate own retail distribution and delivery business as an independent contractor." The HNA's relationships with its newspaper dealers were governed by the terms of the "Newspaper Dealers Agreement," which provided, inter alia, that:
" his Agreement . . . is made in reference to Dealer's Statement of Intention to enter into the retail distribution and delivery business as an independent contractor by purchasing newspapers from the Company at such wholesale prices as may be established by the Company from time to time in order to resell such newspapers through the Dealer's distribution or delivery service . . . . ". . . . "Company will furnish a statement of account every four weeks to Dealer payable in accordance with Company's billing terms and procedures, as well as a final statement of account upon termination of the Agreement. . ". . . Dealer shall assume full control over and responsibility for such newspapers and the operations of his or her distribution and delivery business, including the delivery of such newspapers to dealer's customers and the collection of payment from dealer's customers. "Company neither reserves, nor will it exercise, any control over the method or manner by which Dealer delivers, distributes or resells newspapers purchased by Dealer from Company. Dealer, as an independent contractor, has sole control over the method or manner by which his newspapers are delivered, distributed or sold, including, but not limited to, the equipment used, the means of transportation used, the time and place of delivery of the newspapers to his customers, the time and method of payment arranged with his customers, the method of arranging the newspaper for final delivery to the customer, and whether and on what terms to hire employees, agents or other subordinates. Moreover, Dealer recognizes his responsibility. "Accordingly, the Dealer agrees to accept full and exclusive responsibility for his own acts and those of his employees, agents, and subordinates and to indemnify and hold the Company harmless from and reimburse it for any liabilities, claims, demands, costs, and expenses incident to any claim, loss, damage, or injury of any kind to any person or property because of or due to any act or conduct of Dealer or any of Dealer's employees, agents, or other subordinates."
As "independent contractors," HNA's newspaper dealers did not receive any employee benefits. The dealers did not receive an hourly wage, but, rather, purchased newspapers at wholesale from the HNA, which they resold to their customers at a profit. The HNA did not take responsibility for withholding income tax or Social Security payments on the dealers' behalf.
Notwithstanding the HNA's averments that its dealers had "sole control" over the equipment that they used to deliver their newspapers, Toyozaki owned several mopeds that he made available to the dealers working within his district. When the dealers were loaned the mopeds to use when making their deliveries, they were also permitted to take them home and use them at other times as well. Toyozaki was aware that Potter and some of his other dealers were not old enough to operate the mopeds legally and that they possessed no licenses to drive them. As explained by another carrier:
Q: "Now, when you started using the moped, did you know that you needed a license to operate a moped?" A: "Yes." Q: "Did Shawn Toyozaki know that you guys needed a license to operate a moped?" A: "That Shawn Toyozaki know that I needed a --" Q: "A license." A: "Yes." Q: "A
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