Donaldson v. Country Mutual Insurance Company, [Ms. 1171045, June 14, 2019] __ So. 3d __ (Ala. 2019). The Court (Sellers, J.; Bolin, Wise, and Stewart, JJ., concur; Parker, C.J., concurs in the result) affirms a summary judgment entered by the Madison Circuit Court holding that Country Mutual Insurance Company was not vicariously liable for an automobile accident caused by Gregory Johnston, an insurance agent with Country Mutual.
The relevant agent agreement identified Johnston as an independent contractor and further stipulated that “‘nothing in this agreement shall be construed to create the relationship of employer and employee’ ....” Ms. *3. The Court held that the manner in which the parties characterized the relationship was not determinative on whether Johnston was an independent contractor or an employee. Ms. *6. Rather, the Court held that “for an employer-employee relationship to exist, the purported employer must retain the right to direct the manner in which the individual work is to be performed, as well as the result the employer desires the individual to accomplish.” Ms. *5-6.
In affirming the summary judgment for Country Mutual, the Court held that “the evidence submitted to the trial court failed to show that Country Mutual retained the right to control Johnston’s time or his day-to-day activities. Johnston determined his own work schedule and the hours of operation of his office. Johnston was not assigned a specific territory; he solicited potential customers at his own discretion and in whatever manner he deemed the most effective.” Ms. *8.
The Court also held that there was not substantial evidence showing that the accident occurred within the line and scope of Johnston’s alleged employment with Country Mutual. The Court applied settled law that “‘[a]n act is within an employee’s scope of employment if the act is done as part of the duties the employee was hired to perform or if the act confers the benefit on his employer.’” Ms. *10, quoting Holbert v. State Farm Mut. Auto. Ins. Co., 723 So. 2d 22, 23 (Ala. 1998). The Court concluded “there is not sufficient evidence presented from which it could reasonably be inferred that Johnston was traveling for a purpose related to his alleged employment. There was no evidence indicating that Johnston’s trip was connected to the work-related phone calls made before the accident.” Ms. *13.