A. L. Williams & Associates, Inc. v. Sun Life Assurance Co. of Canada

153 Ga. App. 371 | Ga. Ct. App. | 1980

Shulman, Judge.

Plaintiffs filed suit against defendant George V. Caylor (not a party to this appeal), the purported agent of defendant-insurance company, and against defendant-insurer (as Caylor’s principal, under the theory of respondeat superior) for damages resulting from Caylor’s alleged libelous acts. Defendant-insurer moved for summary judgment, which was granted on the grounds that it could not be held liable for the acts of Caylor, an independent contractor. We reverse.

The question for determination on appeal is whether or not there were genuine issues of material fact with respect to whether Caylor was an agent-employee of appellee-insurer or an independent contractor. Appellant argues that since the evidence as to Caylor’s employment status was in dispute, summary judgment was improper. We agree.

Contrary to appellee’s assertions, the employment agreement between Caylor and appellee does not clearly establish a principal-independent contractor relationship between the parties. Compare American Family Life Assur. Co. v. Welch, 120 Ga. App. 334 (170 SE2d 703).

Although the contract does denominate Caylor an independent contractor and disclaims control over the time, place and manner of solicitation of applications for insurance, other provisions of the contract provide for control by appellee of the conduct of other aspects of appellee’s business by Caylor. Those provisions raise a question of fact as to whether Caylor’s status was that of agent or independent contractor. Therefore, it was reversible error for the trial court to hold that the relationship was, as a matter of law, that of principal-independent contractor. See Jordan v. Townsend, 128 Ga. App. 583 (197 SE2d 482). See also Kennesaw Life &c. Ins. Co. v. Hendricks, 108 Ga. App. 148, 150-151 (132 SE2d 152).

Argued November 6, 1979 Decided January 7, 1980 Rehearing denied February 11, 1980. Kevin S. King, Janet L. Haynes, Michael J. Cohen, Robert Trauner, Stanton J. Shapiro, for appellants. W. Terence Walsh, John C. Weitnauer, Palmer H. Ansley, John H. Stanford, Jr., Sidney O. Smith, for appellees.

Since we are reversing the trial court’s judgment for the reasons stated above, we need not address other grounds for reversal advanced by appellants.

Judgment reversed.

Been, C. J., and Carley, J., concur.