THE STANDARD FIRE INSURANCE COMPANY, Appellant

v.

EMPIRE FIRE AND MARINE INSURANCE COMPANY, Appellee.

 

Aug. 31, 2007.

 

Before DIXON, HOWARD and THOMPSON, Judges.

 

OPINION

HOWARD, Judge.

The Standard Fire Insurance Company (hereinafter Standard) appeals from a summary judgment of the Jefferson Circuit Court, in which Standard was ordered to indemnify Empire Fire and Marine Insurance Company (hereinafter Empire) in the amount of $19,870.44, plus attorney fees and costs incurred in the settlement of third-party personal injury claims arising from an automobile accident. Finding no error, we affirm.

 

The basic facts in this case are not in dispute. Standard issued an insurance policy to William and Amy Kaelin (hereinafter the Kaelins) on a 1999 Honda Accord, which the Kaelins had leased from Wells Fargo. Empire issued a garage policy to Imperial Recovery Company (hereinafter Imperial), which provided coverage for any “non-owned autos used in your garage business,” which business included the repossession of automobiles.

 

Subsequently, the Kaelins defaulted on their lease payments to Wells Fargo. After the default, Wells Fargo employed Imperial to repossess the Honda from the Kaelins’ residence. Imperial sent an agent, George Richardson (hereinafter Richardson), with express instructions to retrieve the Honda. The Kaelins accommodated Richardson by handing over the keys. Although he had brought a flatbed truck to transport the Honda, having been given the keys, Richardson drove it from the Kaelin residence. Unfortunately, on his way back to the Imperial lot, he was involved in a two-vehicle collision which all parties concede was due to his negligence. Both insurance policies, that issued by Standard to the Kaelins and that issued by Empire to Imperial, remained in full force and effect on the date of the accident.

 

As a result of this accident, Empire settled personal injury claims with three third parties, who were passengers in the other automobile involved in the accident. Empire then filed a complaint against Standard seeking reimbursement, alleging that Standard had the primary liability coverage applicable to Richardson at the time of the accident and should have paid the settlement claims under its policy. Both parties filed motions for summary judgment. The Jefferson Circuit Court entered a summary judgment in favor of Empire on December 20, 2005, simultaneously overruling Standard’s motion. The circuit court found that the provisions of the insurance policies made Standard the primary insurer, and therefore that Empire was entitled to indemnity from Standard. This appeal followed.

 

In evaluating this case, we must address three separate issues. First, did Standard’s policy provide coverage to Richardson*379 for this accident? Second, did Empire’s policy provide such coverage? Third, if both policies apply, which policy is primary? In deciding such issues, we will look to the language of the policies. State Farm Mutual Automobile Ins. Co. v. Register, 583 S.W.2d 705 (Ky.App.1979).

 

Standard’s insurance policy specifically listed the 1999 Honda involved in this accident as the insured vehicle. Standard’s argument that its coverage does not apply in this situation is based on an exclusion in the policy which states:

We do not provide Liability Coverages for any person: …

Using a vehicle without a reasonable belief that that person is entitled to do so.

 

The problem with this argument is that Richardson clearly had “a reasonable belief” that he was entitled to drive the Honda. In fact, he had express or clearly implied permission from both Imperial and the Kaelins. Imperial had given him clear instructions to repossess the automobile, and there is no evidence that he varied from his instructions by driving the vehicle instead of transporting it on the truck. Once he arrived at the Kaelin residence, they gave him the keys.

 

While we can find no Kentucky cases directly on point, most jurisdictions that have construed such “reasonable belief” clauses have held that while reasonable belief and permission are not the same thing, actual or apparent permission is a crucial factor in determining whether a reasonable belief exists. Ohio Casualty Ins. Co. v. Safeco Ins. Co., 768 S.W.2d 602, 603 (Mo.App.1989). In this case, the Kaelins gave Richardson permission to drive the car by handing him the keys. This was more than sufficient to create in his mind a reasonable belief that he was entitled to do so.

 

Standard has argued that the Kaelins no longer had authority to give permission for Richardson to drive the vehicle, as they had defaulted on their lease with Wells Fargo, and it was being repossessed from them. We disagree and believe they had at least apparent authority, so as to create in his mind a reasonable belief that he was entitled to operate the vehicle. Regardless, if the Kaelins did not have such authority, it would surely have resided with Imperial, as the agent for Wells Fargo, and Imperial expressly requested Richardson to repossess the Honda.

 

We therefore hold that Richardson had a “reasonable belief” that he was entitled to drive the 1999 Honda and that Standard’s insurance policy did apply and provided liability coverage to Richardson at the time of this accident.

 

Empire admits that its policy provided coverage for this accident. Such coverage is the reason Empire paid the settlement claims in the first place. Therefore, both the Standard and the Empire policies apply in this case. The next issue is which policy is primary and therefore ultimately responsible for the claims brought by the injured parties.

 

Standard has based a good deal of its argument on public policy, explaining why, in its view, it would be more fair and better policy to impose the burden of coverage on Empire, as Imperial’s insurer, than on Standard, as the Kaelins’ carrier. But Kentucky law is well established that, “[w]hen the contest is between two insurers, the liability for a loss should be determined by the terms and provisions of the respective policies …”Chicago Ins. Co. v. Travelers Ins. Co., 967 S.W.2d 35, 37 (Ky.App.1997) (quoting State Farm Mutual Automobile Ins. Co. v. Register, supra., at 706-707.) “Furthermore, where the terms of an insurance policy are clear and unambiguous, the policy should be enforced as *380 written.” Chicago Ins. Co., supra, at 37. Thus, this Court will look to the strict language of the insurance policies in determining which coverage is primary, rather than to public policy.

 

As noted above, Standard’s policy specifically listed the Honda as an insured vehicle. It also contained an “other insurance” clause. That clause provided,

If there is other applicable liability insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total applicable limits. However, any insurance we provide for a vehicle you do not own shall be excess over any other collectible insurance.

 

Empire’s insurance policy also contained an “other insurance” clause, which provided,

For any covered “auto” you own, this Coverage Form provides primary insurance. For any covered “auto” you don’t own, the insurance provided by this Coverage Form is excess over any other collectible insurance.

 

Thus, both policies state that their coverage is excess for any non-owned vehicle. Standard has accordingly argued that the Kaelins should not be considered the owners of the 1999 Honda. They acknowledge that KRS 186.010(7)(b) makes a lessee of a vehicle the “owner” for insurance purposes, if “[the] vehicle is the subject of an agreement for … lease, with the … lessee entitled to possession of the vehicle, upon performance of the contract terms, for a period of three hundred sixty-five (365) days or more …” However, they argue that the Kaelins’ entitlement to possession ended immediately upon their default, and that they were therefore no longer the owners. Standard cites no authority for so narrow a reading of KRS 186.010(7)(b), and we see no reason to adopt such an interpretation. According to the lease agreement, the Kaelins could have cured the default and the lease would have remained in effect.

 

We agree that once the Honda was repossessed, the Kaelins had a right to cancel their insurance and to consider themselves no longer responsible for the safe operation of the vehicle, which was no longer in their possession or control. In fact, they did cancel the insurance, apparently without any knowledge of this accident, a few days later. However, the coverage was clearly issued by Standard on an “owned” vehicle, this vehicle. That coverage had not yet been canceled by the Kaelins when this accident occurred. Neither had the lease formally been canceled. So long as both the lease agreement and the Kaelin’s insurance policy, issued on this specific 1999 Honda, remained in effect, we hold that such insurance policy provided coverage, for this Honda, as an owned rather than a non-owned vehicle.

 

We also note that Standard has not alleged that it canceled the policy or refunded any portion of the Kaelins’ premium to them, representing the period of time between either their default under the terms of the lease or the repossession of the vehicle and the date that the Kaelins canceled the policy.

 

As to owned vehicles, Standard’s “other insurance” clause is a “pro rata” clause. Kentucky law is well settled that when a policy containing a pro rata “other insurance” clause conflicts with a policy having an excess “other insurance” clause, the policy with the pro rata provision should be applied first and the policy with the excess clause would become effective only when the first policy is exhausted. Hartford Ins. Co. v. Kentucky Farm Bureau Ins. Co., 766 S.W.2d 75 (Ky.App.1989).

 

*381 We therefore hold that, pursuant to the terms of the two insurance policies, Standard’s policy provides the primary liability insurance for this accident and Empire’s policy provides only excess coverage. Therefore, Empire is entitled to reimbursement from Standard for the sums it paid on behalf of its insured to the injured parties.

 

“The doctrine of subrogation includes every instance in which one person not acting voluntarily, has paid a debt for which another was primarily liable and which in equity and good conscience should have been discharged by the latter.” Kentucky Hosp. Ass’n. Trust v. Chicago Ins. Co., 978 S.W.2d 754, 755 (Ky.App.1998). More specifically on point with this case, the court in Dodson v. Key, 508 S.W.2d 586 (Ky.1974), held that an insurance company which pays to settle claims that were asserted against one of its insureds may bring an action to recover the amounts paid from another insurer that should, in fact, have made those payments. “It is well settled that one who pays the debt of another is not a volunteer if in so doing he is acting to protect some interest of his own.” Dodson, 508 S.W.2d at 589.

 

Empire acted in good faith in settlement of the personal injury claims with a reasonable belief of possible liability on its part. In fact, Standard had the primary liability coverage and the primary responsibility to defend and settle those claims. Therefore, Empire is entitled to reimbursement from Standard for the amount of its settlement of those claims, as well as its costs and fees incurred.

 

The summary judgment of the Jefferson Circuit Court is affirmed.

 

ALL CONCUR.

 

LIBERTY MUTUAL INSURANCE COMPANY.

v.

D & G TRUCKING, INC.

2041086.

 

Nov. 17, 2006.

Certiorari Denied April 13, 2007Alabama Supreme Court 1060361.

 

PITTMAN, Judge.

Liberty Mutual Insurance Company appeals from a summary judgment in which the Fayette Circuit Court determined that D & G Trucking, Inc., did not owe additional premiums to Liberty Mutual for workers’ compensation insurance coverage.   We reverse and remand.

 

D & G Trucking filed a complaint for a declaratory judgment in the trial court, alleging in pertinent part that it had been insured under a policy of insurance issued by Liberty Mutual that afforded coverage for claims brought against D & G Trucking under workers’ compensation laws between April 1, 2003, and April 1, 2004.   That policy, D & G Trucking alleged, provided for retrospective premium adjustments based upon Liberty Mutual’s determination of, among other things, “remuneration paid or payable during the policy period for … all [of D & G Trucking’s] officers and employees” and “all other persons engaged in work that could make [Liberty Mutual] liable under Part One (Workers’ Compensation Insurance) of th[e] policy.”   According to D & G Trucking’s complaint, Liberty Mutual had issued an endorsement to the policy so as to increase the premium by $64,080 on the stated basis that D & G Trucking had incorrectly categorized a number of its truck drivers as “independent contractors” rather than as employees;  that amount was reduced by Liberty Mutual, after further auditing, to $59,718.   D & G Trucking requested, among other things, that it be declared not to owe Liberty Mutual that additional premium.   Liberty Mutual filed an answer agreeing that a *267 justiciable controversy had been presented and substantially admitting the factual averments of the complaint but denying D & G Trucking’s entitlement to a judgment in its favor;  Liberty Mutual requested the trial court to determine the correct amount owed by D & G Trucking and to enter a monetary judgment in Liberty Mutual’s favor for that amount.

 

After discovery had taken place, Liberty Mutual filed a motion for a summary judgment that was supported by three deposition transcripts  and a brief.   Relying principally on Ex parte Curry, 607 So.2d 230 (Ala.1992), Liberty Mutual contended that it was entitled to a judgment as a matter of law in its favor because, it asserted, certain drivers who had operated trucks for D & G Trucking as employees before 2003 had been improperly reclassified as independent contractors.   D & G Trucking filed a response to Liberty Mutual’s motion in which it contended that “genuine issues of material fact are present in this action in regard to [Liberty Mutual’s] contentions related to the independent contractor status of the drivers D & G [Trucking] contracts with”;  D & G Trucking also sought a summary judgment in its favor, contending that its drivers were statutorily excluded from the definition of “employee” under Ala.Code 1975, §  25-5-1(4), a portion of the Alabama Workers’ Compensation Act (“the Act”), Ala.Code 1975, §  25-5-1 et seq.  After a hearing, the trial court denied Liberty Mutual’s summary-judgment motion and entered a summary judgment in D & G Trucking’s favor, determining not only that §  25-5-1(4) applied but also that D & G Trucking (rather than Liberty Mutual) was entitled to a judgment as a matter of law based on the status of the drivers.   Liberty Mutual appealed to the Alabama Supreme Court, which transferred the appeal to this court pursuant to §  12-2-7(6), Ala.Code 1975.

 

 

A certified copy of the pertinent insurance policy is indicated to have been an exhibit to Liberty Mutual’s motion;  however, that exhibit does not appear in the record.

 

Our review of the trial court’s summary judgment is based upon the following settled principles of law:

“An appellate court reviews a summary judgment by the same standard the trial court uses in determining whether to grant a summary-judgment motion.  Pryor v. Brown & Root USA, Inc., 674 So.2d 45, 47 (Ala.1995);  Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988).   A summary judgment is appropriate if there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law.  Rule 56(c)(3), Ala. R. Civ. P. The movant has the burden of making a prima facie showing that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law.   Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989).   If the moving party makes that prima facie showing, then the burden shifts to the nonmoving party, who then has the burden of presenting substantial evidence creating a genuine issue of material fact.  Id. In determining whether the evidence creates a genuine issue of material fact, this court must review the record in the light most favorable to the nonmovant and must resolve all reasonable doubts against the movant.  Wayne J. Griffin Elec., Inc. v. Dunn Constr. Co., 622 So.2d 314 (Ala.1993).   Evidence is ‘substantial’ if it is of ‘such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’  West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).”

 

Millican v. McKinney, 886 So.2d 841, 843 (Ala.Civ.App.2003).

 

The dispositive issue, as framed by the parties, is whether there is a genuine issue of material fact concerning whether D & G Trucking’s drivers, which were treated as employees until 2003, were thereafter transformed into “independent contractors” so as to reduce the number of employees on D & G Trucking’s payroll and, consequently, to reduce its premium liability to Liberty Mutual.   Stated another way, and in interrogative form, did the trial court properly foreclose inquiry by the trier of fact into the true relationship between D & G Trucking’s drivers and D & G Trucking based upon the evidence appearing in the record?   Based upon our review of the pertinent evidence, we must answer that question in the negative.

 

In White v. Henshaw, 363 So.2d 986 (Ala.Civ.App.1978), this court affirmed a judgment, entered after an ore tenus proceeding, determining a truck driver for a cotton-hauling brokerage to be an independent contractor.   In doing so, we noted the settled test of who is an “employee” for purposes of the Act:  “ ‘For one to be an employee, the other party must retain the right to direct the manner in which the business shall be done, as well as the result to be accomplished or, in other words, not only what shall be done, but how it shall be done.’ ”  363 So.2d at 988 (quoting Weeks v. C.L. Dickert Lumber Co., 270 Ala. 713, 714, 121 So.2d 894, 895 (1960)).   We further noted that “[t]he principal factors showing right to control are (1) direct evidence of right or exercise of control, (2) method of payment, (3) furnishing of equipment, and (4) the right to fire,” although we added the caveat that “if the right of control of details goes no further than is necessary to ensure a satisfactory end result, it does not establish employment.”  White, 363 So.2d at 988.

 

The enunciation in White of factors demonstrating a right of control was expressly followed by the Alabama Supreme Court in Ex parte Curry, supra, the primary case upon which Liberty Mutual relies in this appeal.   In Ex parte Curry, the Alabama Supreme Court reversed a judgment of this court affirming a trial court’s judgment in favor of Interstate Express, Inc.  (“Interstate”), a trucking company that had engaged the services of a particular driver (Otis Curry) pursuant to a lease agreement and that had been sued by the driver for an award of workers’ compensation benefits under the Act. In doing so, the Supreme Court applied the White factors as follows:

“(1) Direct evidence demonstrates a right of control, or the exercise of control, by Interstate;  this evidence consists of the terms of the lease agreement executed between the parties on April 3, 1987, and the testimony given in the case.   Curry testified that Interstate controlled what loads he picked up and where he picked them up, as well as the place of delivery of the cargo.   The president of Interstate, John Mann, Jr., stated at trial, ‘[O]nce the lessor accepts the load we tell him where to pick it up, where to deliver it and how to handle that load, as the customer tells us.’   On the day of the accident, Curry was transporting dog food from Chicago, Illinois, to Jacksonville, Florida.   Curry testified that the cargo was not properly secured, and that he was nervous about hauling it.   Curry contacted Interstate and expressed his concern.   He was instructed by Interstate to be careful, but to go ahead and take the load to its proper destination.  (2) As to the method by which Curry, the injured individual, received payment for his services, the lease agreement provided that Interstate would book a contract to haul cargo and then assign the hauling of the *269 cargo to Curry.   Following completion of the task, Interstate would be paid and then Interstate would pay Curry 78% of the proceeds, less any expenses advanced by Interstate.   Interstate would retain 22% of the proceeds.   Thus, Interstate controlled payment under the lease agreement.  (3) As to whether the equipment was furnished by the alleged employer, Interstate, the record indicates that, besides the truck, Interstate provided equipment, fuel/mileage taxes and permits, oversize permits, and Public Service Commission-type permits.   In addition, Interstate provided liability, cargo, and ‘bobtail’ insurance.  (4) As to whether Curry had the right to terminate, the lease agreement provided that the lease agreement ‘shall terminate upon 30 [days’] written notice.’ ”

 

607 So.2d at 233.   After setting forth that analysis, the Supreme Court held that “no reasonable view of the evidence support[ed] the trial court’s judgment, and that Curry was, in fact, an employee of Interstate.”  Id.

 

Viewed in a light most favorable to Liberty Mutual, the record reveals that in January 2003 or earlier Gerald Rice and David Crawford, the principals of D & G Trucking, discussed with an attorney, an accountant, and an insurance broker the prospect of altering D & G Trucking’s relationship with its employee drivers as a means of reducing its workers’ compensation insurance costs, which had recently risen to $60,000 per year.   According to Rice, after D & G Trucking’s attorney had drafted a number of document forms, D & G Trucking informed its drivers that beginning April 1, 2003, D & G Trucking would “go strictly to independent drivers” and that the drivers could “abide by that or seek other employment.”   The draft agreement that D & G Trucking’s drivers were to sign if they wished to continue in D & G Trucking’s service contained a number of pertinent provisions, including a term allowing either party to terminate the agreement upon the giving of written notice within a specified time period and a term requiring D & G Trucking to provide a truck and a trailer and authorizing D & G Trucking to supply other ancillary items.   D & G Trucking did not, however, alter its “employment application” forms to be completed by new drivers except by scratching out the word “employment” and replacing it with “contract driver.”

 

Rice testified that only limited changes were made in compensation to drivers at the time D & G Trucking began referring to the drivers as independent contractors, i.e., each driver received 23% of the gross payments made by D & G Trucking’s customers  for a particular haul (plus payments for washing and greasing D & G Trucking’s trucks) instead of the 20% to 22% per haul that had been paid while the drivers were deemed employees by D & G Trucking;  he added that bonuses are also paid for accident-free driving and for diligence in reporting for duties.   Rice admitted that there was “not a big difference” before and after April 2003 in how drivers were dispatched to pick up and deliver loads for D & G Trucking’s customers:  after D & G Trucking receives a telephone call from a customer desiring a delivery of goods by truck, D & G Trucking personnel decide which driver to dispatch to send on the hauling run and notify that driver by telephone or two-way radio.   Once that driver has accepted a load, he or she is not permitted by D & G Trucking to run a personal errand that might involve significant travel beyond the pickup and delivery.

 

 

These gross payments, Gray testified, were generally based upon the tonnage of the particular load (which could be as much as 27 tons).

 

Rice further testified that since April 1, 2003, D & G Trucking had paid for all of the necessary permits and licenses for the trucks operated by its drivers, made all required repairs to those trucks, and paid for all fuel consumed by the trucks.   Rice also testified that although D & G Trucking’s drivers generally have the right to refuse directions to haul a particular load, he himself would discharge a driver who regularly refused to haul without what he considered to be a “good reason.”

 

Unsurprisingly, the foregoing evidence does not precisely match that assessed by this court in White or by the Supreme Court in Ex parte Curry.   However, there is substantial evidence tending to demonstrate an employment relationship in three of the four criteria enunciated in White and applied in Ex parte Curry.   First, there is evidence indicating that D & G Trucking placed some controls upon its drivers’ ability to deviate from its instructions as to performance of the contracted work.   Also, D & G Trucking controlled payments to the drivers at issue in this case in the same manner that Interstate controlled payments to Curry:  D & G Trucking assigned particular drivers to particular hauling tasks and, after completion of the task, D & G Trucking paid the driver a percentage of the gross proceeds D & G Trucking received from its customers.   There is also substantial evidence indicating that D & G Trucking, like Interstate in Ex parte Curry, provided trucks and operating permits to its drivers, provided liability insurance, and paid for other items (here, gasoline and maintenance costs) necessary to operate the trucks.   Finally, as in Ex parte Curry, the pertinent contract form provides that either party could terminate the contract upon written notice, and Rice’s testimony indicates that D & G Trucking retained a right to terminate the services of its drivers under certain circumstances.

 

Our conclusion is not altered by the final sentence of §  25-5-1(4), Ala.Code 1975, which states that under the Act, “in no event shall a common carrier by motor vehicle operating pursuant to a certificate of public convenience and necessity be deemed the ‘employer’ of a leased-operator or owner-operator of a motor vehicle or vehicles under contract to the common carrier ” (emphasis added).   In this case, D & G Trucking owns the trucks driven by the drivers at issue-the trucks are not “under contract to” D & G Trucking so as to implicate the statute.   Compare Alaplex Transp., Inc. v. Rossen, 836 So.2d 901, 906 (Ala.Civ.App.2002) (driver injured while operating a truck leased by a common carrier from an owner-operator could not recover benefits under the Act from the common carrier because the legislature “chose … to maintain the immunity afforded under the Act to common carriers in one particular situation, i.e., where common carriers have entered into contracts with owners of motor vehicles for the use of those vehicles ” (emphasis added) ).   That D & G Trucking refers to its contracts with its drivers as “lease contracts” does not transform those contracts into agreements under which D & G Trucking is leasing motor vehicles from other parties, which is the sole area in which the proviso relied upon by D & G Trucking has proper application.

 

Based upon the foregoing facts and authorities, we conclude that there is substantial evidence creating a genuine issue of material fact concerning whether D & G Trucking’s drivers remained “employees” after April 1, 2003, so as to render the trial court’s summary judgment in favor of D & G Trucking erroneous.   However, although the summary judgment in favor of D & G Trucking must be reversed, we decline Liberty Mutual’s request to mandate the entry of a summary judgment in *271 its favor on remand.  Notably, the contracts entered into between the drivers and D & G Trucking, although not dispositive in the face of other evidence concerning a reserved right of control, amount to substantial evidence indicating that the drivers at issue were independent contractors such that the trial court properly denied Liberty Mutual’s summary-judgment motion. Cf. Tomlinson v. G.E. Capital Dealer Distrib. Fin., Inc., 624 So.2d 565, 567 (Ala.1993) (provision in computer-lease contract disclaiming agency relationship between particular vendor and lessor amounted to “evidence of the lack of an agency relationship,” although provision was not conclusive proof as to that issue and would not “preclude [a] finding of agency if there is independent evidence of a retained right of control”).

 

 

We assume, without deciding, that Liberty Mutual may properly assert error as to the denial of its summary-judgment motion, as it has attempted to do.   See Lloyd Noland Found., Inc. v. City of Fairfield Healthcare Auth., 837 So.2d 253, 263 (Ala.2002) (holding that an “appeal from a pretrial final judgment disposing of all claims in the case (as distinguished from a Rule 54(b)[, Ala. R. Civ. P.,] summary judgment disposing of fewer than all claims) entitles [an appellant], for purposes of our review, to raise issues based upon the trial court’s … denial of [the appellant’s own] summary-judgment motions”);  but cf. Superskate, Inc. v. Nolen, 641 So.2d 231, 233 (Ala.1994) (indicating that the denial of a motion for a summary judgment is not reviewable after a judgment has been entered after a trial on the merits).

 

We reverse the trial court’s summary judgment and remand the cause for further proceedings consistent with this opinion.   As in our recent opinion in Sartin v. Madden, 955 So.2d 1024, 1030-31 (Ala.Civ.App.2006), “our opinion should not be misread to compel any particular conclusion regarding whether an independent-contractor relationship or an employer-employee relationship existed…. Rather, we merely direct the trier of fact to weigh the evidence and reach its own conclusion based upon all the evidence.”

 

REVERSED AND REMANDED.

 

THOMPSON and BRYAN, JJ., concur.

CRAWLEY, P.J., and MURDOCK, J., concur in part and dissent in part, with writings.CRAWLEY, Presiding Judge, concurring in part and dissenting in part.

I concur in the reversal of the summary judgment in favor of D & G Trucking.   However, I dissent from the main opinion’s decision to deny Liberty Mutual’s request to mandate the entry of a summary judgment in its favor on remand.

 

In Tomlinson v. G.E. Capital Dealer Distributor Finance, Inc., 624 So.2d 565 (Ala.1993), Tomlinson sued G.E. Capital, alleging claims of fraud and breach of warranty and asserting that G.E. Capital was liable under a respondeat-superior theory for the actions of its agent, CADO. G.E. Capital, contending that it had no agency relationship with CADO, moved for a summary judgment.   The trial court entered a summary judgment in favor of G.E. Capital, and Tomlinson appealed.   The issue on appeal was whether Tomlinson, the nonmovant, had, in opposition to G.E. Capital’s prima facie showing of the absence of an agency relationship, presented substantial evidence of the presence of an agency relationship.

 

The Alabama Supreme Court held that, because the relevant instrument (a lease between Tomlinson and CADO) declared the absence of an agency relationship between G.E. Capital and CADO and because Tomlinson, the nonmovant, had presented “no independent, substantial *272 evidence” establishing the presence of an agency relationship, 624 So.2d at 567, the trial court had correctly entered a summary judgment for G.E. Capital, the movant.   The court commented:

“Although [the lease] is evidence of the lack of an agency relationship between CADO and G.E. Capital, the language of this provision is not conclusive and will not preclude the finding of agency if there is independent evidence of a retained right of control.”

 

624 So.2d at 567.

 

In my judgment, Tomlinson stands for the proposition that the conclusory recitals of an instrument may constitute support for a movant’s summary-judgment motion.   I do not believe, however, that it supports the proposition for which it is cited in the main opinion-i.e., that the conclusory recitals in an agreement labeling truck drivers as “independent contractors” rather than “employees” amount to the substantial evidence required of a nonmovant.

 

In the present case, D & G Trucking submitted, in opposition to Liberty Mutual’s summary-judgment motion, only the conclusory recitals of its contract purporting to change the status of the truck drivers from employees to independent contractors.   D & G Trucking submitted “no independent, substantial evidence” that the actual working relationship between the drivers and D & G Trucking had changed.   Instead, the four right-of-control factors applied in Ex parte Curry, 607 So.2d 230 (Ala.1992), existed to the same extent after the drivers’ supposed change of status to independent contractors as they had existed before the change.

 

In Ex parte Curry, our supreme court held that “no reasonable view of the evidence support[ed] the trial court’s judgment, and that [the driver] was, in fact, an employee of [the trucking company] under the Workmen’s Compensation Act.”607 So.2d at 233 (emphasis added).   Substantial evidence is “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.”  West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989) (emphasis added).   Because I do not think that D & G Trucking presented substantial evidence indicating that its drivers were independent contractors, I believe this court can and should direct the trial court to enter a summary judgment in favor of Liberty Mutual.

MURDOCK, Judge, concurring in part and dissenting in part.

I concur in the reversal of the summary judgment in favor of D & G Trucking, Inc.

 

As to Liberty Mutual’s motion for a summary judgment, I do not fully agree with the analysis of Tomlinson v. G.E. Capital Dealer Distributor Finance, Inc., 624 So.2d 565 (Ala.1993), set out in Presiding Judge Crawley’s special writing.   I do, however, agree with Presiding Judge Crawley’s basic premise that the record does not contain substantial evidence, i.e., evidence that could reasonably be viewed as supporting the conclusion, that D & G’s drivers truly were independent contractors.   Therefore, like Presiding Judge Crawley, I too dissent from the main opinion’s decision to deny Liberty Mutual’s request to mandate the entry of a summary judgment in its favor on remand.