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Florida First DCA rules that whether defendant driver in motor vehicle negligence case was an independent contractor rather than an employee of codefendant company was issue for jury not subject to summary judgment

November 22, 2019, in Blue v. Weinert et al, No. 1D18-4306, the Florida First DCA reversed a summary judgment entered by the trial court in favor of a defendant company in a motor vehicle negligence case. The defendant company claimed that its codefendant, the driver of a van which struck the plaintiff, was an independent contactor for the company rather than an employee and that the company consequently was not liable for the collision. The First DCA quoted the Florida Supreme Court’s decision in Moore v. Morris, 475 So. 2d 666, 668 (Fla. 1985): “[s]ummary judgments should be cautiously granted in negligence and malpractice suits. The law is well settled in Florida that a party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought. A summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” The First DCA noted that the legal conclusion that the defendant driver was an independent contractor was based on accepting some portions of the driver’s agreement with the company as favorable to that view while discounting other portions as merely “suggestions” or “best practices” rather than enforceable requirements of the parties’ understanding. The First DCA focused particularly on the uncertainty in the record as to whether the company had the right to control painting outcomes or not, quoting from Nazworth v. Swire Florida, Inc., 486 So. 2d 637, 638 (Fla. 1st DCA 1986): “it is the right of control, and not actual control, which determines the relationship between the parties.”)