{¶ 1} This is an appeal from a summary judgment issued by the Lucas County Court of Common Pleas to appellees Vinings Industries, Inc., n.k.a. Kemira Chemicals, Inc. (“Kemira”) and Great Lakes Recovery (“Great Lakes”) in a dispute over vicarious liability for the deaths and injuries resulting from a motor-vehicle accident. Because we conclude that the trial court did not impermissibly weigh the evidence, we affirm.
{¶ 2} Jamеs R. Lenzie, Donald L. Bookwalter, and Travis D. Bookwalter were killed and James Lester Lenzie and Richard L. Sorensen were severely injured in a motor-vehicle accident when their vehicle collided with a tanker truck driven by Calvin Prescott. At the time of the May 20, 2001 accident, Prescott was traveling south on 1-75 on his way to his home in Ridgeville, Indiana. Prescott was returning from delivering a load of sodium silicatе from Kemira’s plant in Fortville, Indiana to Great Lakes in Ecorse, Michigan. Prescott had been making payments to purchase the tanker truck at the time of the accident. It had an Interstate Commerce Commission placard with C & R Prescott Trucking displayed on it. Prescott did business as C & R Prescott Trucking, but C & R Prescott Trucking was not incorporated.
{¶ 3} Prescott was initially recruited in 1996 to regularly transport sodium silicate in his tanker truck from Kemira to Great Lakes thrоugh either a contact at Great Lakes, Marcelino Martinez, or a contact at Power Silicates, 1 Brooks Walden. Prescott had no written contract with either Kemira or Great Lakes for bis hauling duties or any written lease with either Kemira or Great Lakes relative to the tanker truck. However, Kemira and Great Lakes 2 had a series of renewable three-year purchаse and sales agreements for the sodium silicate. During the years that Prescott delivered to Great Lakes, he delivered approximately 90 percent of the sodium silicate that Great Lakes purchased from Kemira. The shipments of sodium silicate were tracked through the use of an annual blanket purchase order from Great Lakes and a bill of lading for each individual shipment printed by Kemira. Upon picking up a load at Kemira, Prescott signed this bill of lading on a line titled “agent.”
{¶ 5} On September 4, 2002, appellants filed an initial complaint that included a claim against Kemira, asserting vicarious liability for Prescott’s negligence as Prescott’s employer. On February 19, 2003, appellants filed an amended complaint that included a similar vicarious liability claim against Great Lakes. On July 1, 2004, the trial court granted both appellee Kemira’s and appellee Great Lakes’ motions for summary judgment. On December 15, 2004, appellants and Prescott, individually, аnd Prescott d.b.a. C & R Prescott Trucking, entered into a consent judgment entry for $10,000,000 in damages. Appellants assert the following assignments of error:
{¶ 6} “1. The trial court erred in granting summary judgment in favor of Great Lakes and Vinings by finding as a matter of law that Calvin Prescott was an independent contractor because reasonable minds could conclude that Prescott was an employee or agent оf Great Lakes or Vinings, or both.
{¶ 7} “2. The trial court erred in granting summary judgment in favor of Great Lakes and Vinings because it exceeded the scope of its authority under Ohio Civil Rule 56 by weighing the evidence and failing to construe the evidence most strongly in favor of Plaintiffs-Appellants.”
{¶ 8} Appellate review of a trial court’s grant of summary judgment is de novo.
Grafton v. Ohio Edison Co.
(1996),
{¶ 9} Prior to embarking on a common-law analysis оf Prescott’s employment status, we must address appellees’ argument relative to Prescott’s employment status under federal statutory law. This issue was raised in Kemira’s motion for summary judgment before the trial court, though the trial court’s summary judgment opinion apparently did not address it. Both appellees cite
Wyckoff Trucking, Inc. v. Marsh Bros. Trucking Serv., Inc.
(1991),
{¶ 10} In
Wyckoff,
the court noted there were two differing points of view with regard to the determination of tort liability arising out of accidents involving leased vehicles of interstate motor carriers under I.C.C. regulations. Id. at 265,
{¶ 11} “1. In tort causes of action involving leased vehicles of interstate motor carriers, primary liability shall be determined with regard to Interstate Commerce Commission regulations rather than the common-law doctrines of
respon
{¶ 12} “2. In order for liability tо attach on an interstate carrier-lessee under Interstate Commerce Commission regulations, it must be established that, at the time the cause of action arose, (1) a lease of the vehicle was in effect and (2) the vehicle displayed the carrier-lessee’s placard listing its I.C.C. numbers. (Section 1057.12, Title 49, C.F.R., applied.)
{¶ 13} “3. Section 1057.12(c)(1), Title 49, C.F.R. creates an irrebuttable presumption of an employment relationship between the carrier-lessee and the driver of a vehicle that displays the I.C.C. identification numbers of the carrier-lessee.” (Emphasis added.) Id. at syllabus.
{¶ 14} Appellants cite a 1992 post-Wyckoff amendment to the I.C.C. regulations and assert that the amendment effectively abrogated Wyckoffs irrebuttable presumption of an employment relationship between a driver and a carrier-lessee whose I.C.C. plaсard is displayed on the vehicle. In 1992, the I.C.C. amended Section 1057.12(c), Title 49, C.F.R. to add the following:
{¶ 15} “(4) Nothing in the provisions required by paragraph (c)(1) of this section is intended to affect whether the lessor or driver provided by the lessor is an independent contractor or an employee of the authorized carrier lessee.” 3
(¶ 16} We agree that there may be a question regarding the status of
Wyckoffs
irrebuttable presumption after this amendment. See
Hughes v. Brogan
(Jan. 12, 1995), 10th Dist. Nos. 94APE05-731, 94APE08-1226,
{¶ 17} Under the common law, whether someone is an employeе or an independent contractor is ordinarily an issue of fact.
Bostic v. Connor
(1988),
{¶ 18} “The factors to be considered include, but are certainly not limited to, such indicia as who controls the details and quality of the work; who controls the hours worked; who selects the materials, tools and personnel used; who selects the routes travelled [sic]; the length of employment; the type of business; the method оf payment; and any pertinent agreements or contracts.” Id.,
{¶ 19} All indicia of an employment relationship in a given case must be assessed together as a whole.
Harmon v. Schnurmacher
(1992),
{¶ 20} Appellants concede that there are several facts that support an independent-contractor status of Prescott/Prescott d.b.a. C & R Prescott Trucking. Prescott received a 1099 tax form rather than а W-2 form each year; he paid for all the maintenance, insurance, and fuel for his truck; and he was not required to take any particular route between Kemira and Great Lakes. However, appellants contend that there were several factors that pointed to an employer-employee relationship between either Kemira or Great Lakes and Prescott that were for a trier of fact to weigh and consider rather than for the trial court to decide on summary judgment.
{¶ 21} First, appellants point to Prescott’s testimony that under the direction of Martinez, Prescott had responsibility for keeping the supply of sodium silicate at Great Lakes at an adequate level as evidence that Great Lakes controlled the manner or means of Prescott’s work. Prescott testified regarding his understanding of the repercussions if he failed in that responsibility:
{¶ 22} “A. That’s the reason why I had the job, because I took care of the man’s — so at the plant he told me when he hired me, if my plant ever shuts down for lack of material because of you not being here, you won’t be here no longer.
{¶ 24} “A. Yes, sir.
{¶ 25} “Q. So he said if somehow you don’t deliver the produсt and we have to shut down, you’re done?
{¶ 26} “A. That’s right, if somebody has to do it for you, you won’t be here.”
{¶ 27} Appellants assert that this demonstrates that Great Lakes had the right to “fire” Prescott. However, this does not constitute control by Great Lakes of the manner or means of Prescott doing the hauling work. See
Pfau v. Cincinnati Enquirer
(Mar. 30,1987), 12th Dist. No. CA86-03-019,
{¶ 28} Appellants also point to the bill of lading as evidence that Prescott was Kemira’s “agent.” The bill of lading was printed at Kemira with Vinings name printed on it as “shipper.” When Prescott picked up a load from Kemira, he wrote the name “C & R Prescott Trucking” on a line titled “agent.” This line also included the designation “per” after which Prescott signed his name “C. Prescott.” When questioned about this, Prescott testified as follows:
{¶ 29} “Q. Wе saw on that bill of lading that you signed as agent for Vinings Industries, is that correct?
{¶ 30} “A. I’m not an agent, I’m a trucker.
{¶ 31} “Q. You did sign the document where it said ‘as agent,’ correct?
{¶ 32} “A. I signed it — I’m as C & R Trucking, Prescott Trucking, I signed that bill as I was the trucker.”
{¶ 33} From the foregoing, it is clear that Prescott did not intend to sign the bill of lading as agent for Kemira/Vinings. Appellees also cite the definition of “bill of lading” in arguing that Prescott’s signature offers no significance relative to Prescott’s employment relationship with Kemira. We agree. R.C. 1301.01(F) provides, “ ‘Bill of lading’ means a document evidencing the receipt of goods for shipment issued by a person engaged in the business of transporting or forwarding goods * * *.” (Emphasis added.) Reasonable minds could conclude only that Prescott signed the bill of lading as agent for Prescott Trucking.
{¶ 35} We find
Clouse v. Quick Air Freight, Inc.
(Dec. 22, 1994), 10th Dist. No. 94APE05-764,
{¶ 36} Finally, appellants assert that there are several material questions of fact raised by the record that precluded summary judgment for appellees. Specifically, who recruited or “hired” Prescott and who made the decisions relative to his rate of pay. Prescott testified that Martinez of Great Lakes initially called him concerning hauling sodium silicate. However, Martinez testified that he could not remember if he or Walden of Powers Silicates contacted Prescott about hauling the sodium silicate. Further, Prescott testifiеd that if he needed a pay raise to cover increasing expenses, he could not recall if he contacted someone at Kemira or Martinez at Great Lakes. Ken White, sales representative at Kemira, testified that Martinez “pretty much defined” the freight rate to Kemira and Martinez was “in control” of the freight rate.
{¶ 37} After a thorough review of the record, reasonable minds could conclude only that neither Prescott nor Prescott d.b.a. C & R Prescott Trucking was an employee or agent of either Great Lakes or Kemira, because neither Great Lakes nor Kemira retained the right to direct the manner in which the transporting work was completed by Prescott. Both were merely interested in the result — that Great Lakes had a constant supply of sodium silicate. Further, the trial court did not exceed the scope of its authority under Civ.R. 56 by weighing the evidence and failing to construe the evidence most strongly in favor of appellants.
{¶ 38} Based on the foregoing, we find appellants’ assignments of error not well taken. Accordingly, the judgment of the Lucas County Court of Common Pleas is affirmed.
Judgment affirmed.
Notes
. Power Silicates was an entity that formerly owned the Fortville, Indiana facilities that Vinings, now Kemira, owns аnd operates.
. The purchase and sale agreement in effect at the time of the accident ran from January 1, 2000 through December 31, 2002, and was in the name of Vining Industries, Inc., Kemira’s predecessor, and National Recovery Systems, Great Lakes Recovery’s parent company. Herein, the court makes all references to Vinings Industries and its successor Kemira as "Kemira” and all references to National Recovery Systems and its division Great Lakes Recovery as "Great Lakes.”
. In 1997, Section 1057.12, Title 49, C.F.R. was renumbered Section 376.12. See, also,
In Ex Parte No. MC-203 Petition to Amend Lease & Interchange of Vehicle Regulations
(1992),
. The Tenth District Court of Appeals stated as follows without any further related analysis: "We acknowledge that changes have occurred since the Supreme Court decided Wyckoff * * *. These changes would make appropriate a revisiting of the Wyckoff Trucking opinion by the Ohio Supreme Court. However, we are not at liberty to disregard the Supreme Court's opinion.”