Casey v. Sevy

stating result, the escrow. As a the court

properly concluded that the O’Dells were the

prevailing party and therefore were entitled attorney paragraph fees under XXII of Agreement.

CONCLUSION

We conclude that proper- the district court

ly ruled that the notice of default was defi-

cient in that comply it did not with the

Agreement’s requirement the notice

“specify[] defaults,” the default or and in-

cluded a sum not in default as well as a sum attorney greater fees provided than that Agreement. Therefore, the dis-

trict court did not err in dismissing the Dan- complaint

iels’s reinstating the escrow.

Accordingly, we hold that the O’Dells were

the prevailing party attorney and entitled to Agreement.

fees under the

and the order awarding attorney fees are

affirmed.

Pursuant to paragraph Agree- XXII of the

ment, costs and attorney reasonable fees on

appeal are awarded to respondents,

O’Dells. PERRY, JJ.,

LANSING and concur.

921 P.2d 190

Michael Duane CASEY and Debi Casey,

D. wife, husband and

Plaintiffs-Respondents, SEVY, Defendant, Warren

Ralph Sevy, Defendant-Appellant.

No. 21477. Appeals

Court of of Idaho.

June 1996.

Rehearing July Denied 1996.

Petition for Aug. Review Denied 1996. (1965), Clampitt 417 P.2d 407 setting why they without forth believe these cases Corp., (1985), A.M.R. applicable. they P.2d 34 inapposite. We conclude

WALTERS, Judge. Chief Sevy and his juryA found both Patrick father, Sevy, Ralph damages liable Casey brought by action Michael Debi truck following a collision between Patrick’s Sevy motorcycle. Ralph and Michael’s judgment notwithstanding the ver- moved for alternative, dict, or, new trial. in the Ralph’s mo- the district court denied When re- tions, Ralph brought appeal. order, court and direct district verse in favor judgment to vacate the entered enter Sevy.

I. AND PROCEDURAL FACTUAL

BACKGROUND pickup truck collided Patrick Seva’s Casey’s motorcycle while Michael public on his Sevy traveling on a road (the way on house work as remodeler house”) father, Ralph belonging to “Hill wife, Debi Sevy. Casey and his Michael Casey, brought against an action say Patrick and that there can be but one conclusion as to injuries sustained as a result of the the verdict that reasonable minds could have accident and for loss of consortium. The Young, reached. complaint alleged was liable on considering a motion for new theory respondeat superior. the Follow- grounds trial on the of insufficient evidence trial, ing jury entered, a special verdict was 59(a)(6), under I.R.C.P. the trial court finding that negligent, Patrick was required two-part analysis. to undertake a awarding damages Casey to Michael in the Bullock, 738, 745, Sullivan v. 124 Idaho 864 $278,733, amount of Casey and to Debi in the 184, 191 (Ct.App.1993). First, the court $50,000. amount of jury The also found that is to consider whether the verdict was the time of the Patrick was against weight the of the evidence and if the Ralph’s employee acting and was within the justice by vacating ends of would be served scope employment. Ralph of his moved for the verdict. Id. The court must then con

judgment notwithstanding (jnov), the verdict sider whether a different result would follow alternatively, trial, or for a new both of which in a retrial. Id. The trial court is not the district court denied. merely engage authorized to weighing Ralph appeals, arguing that Patrick was an process, obligated it is to do so. Id. at 745- independent Ralph’s contractor and not em- 46, 864 appeal, P.2d at 191-92. Our role on ployee agent. or He also asserts that if even however, evidence, “re-weigh” is not to the Patrick had been Ralph’s employee, the acci- but determining is limited to whether there dent did not occur while Patrick was was a manifest abuse of discretion the scope within employment. of his Finally, 746, trial court. Id. at 864 P.2d at 192. Ralph contends that the district court erred showing Absent a of manifest abuse of dis refusing give requested instruction to cretion, we will not disturb the lower court’s jury rule, which stated general that as a appeal. decision on Id an accident does not arise out of and in the Because we conclude that course of the district court where the accident denying Ralph’s erred in jnov, motion employee occurred while the we traveling do not reach ruling or from the court’s on work. the motion for a new trial. II. ANALYSIS Employee Independent B. vs. Contractor. A. Standards of Review. Ralph’s jnov motion for or a new argues first that there was not trial was alleged based on the insufficiency of support jury’s substantial evidence to evidence, and the failure of the district determination that Patrick was em court proposed to offer the jury ployee. instruction. employee Whether a claimant is an reviewing a trial ruling court’s on a independent mo or an contractor is a factual jnov, tion for appellate applies court determination. Apart Mortimer v. Riviera same ments, standard as 839, does the trial court 844, 383, which 122 Idaho 840 P.2d 388 initially, (1992). ruled on it and reviews the decision The current test in the state of fully any special without deference Idaho for determining person whether is an Firth, views of the trial court. Curtis v. employee independent 123 or contractor is the 598, 605, (1993). 749, 850 P.2d “right Sines, 756 to control test.” Sines v. 110 review the 776, 777, (1986). record and draw all 1214, inferences in Idaho 718 P.2d favor of non-moving party to determine if integral question is whether the relation there is substantial support evidence to ship gives, or employer the contract or Young verdict. assumes, State Farm right time, Mut. Auto. to control the man Co., 122, 126, 53, Ins. 127 Idaho 898 P.2d 57 ner and executing method of the work of the (1995); Hoglan see also v. First distinguished Sec. Bank right as from the Idaho, N.A., 682, 684, 120 Idaho merely 819 P.2d require certain definite results (1991). 100, 102 apply conformity standard we to the contract. Olvera v. Del’s make this determination 163, 165, is whether we can Body, Auto 118 Idaho 795 P.2d Bergeson, (1990); regular fa- Ledesma basis. Patrick testified that his (1978). nearly every “may ther called [him] have Moreover, deposition day.” in a read Four factors used to determine jury during testimony, following Patrick’s (1) right whether a to control exists: direct was elicited: (2) control; right method Q: Any you your work for time did (3) payment; furnishing major items property, out at whether it’s (4) right equipment; to terminate anything, farm old house who employment relationship at will and with you by way your decided what would do Thornton, Burdick v. liability. out for him? work 869, 871, When phone test, up He’d me A: call on applying right to control the trier of say something that pres of the he’d else needed done fact must balance each elements I on house I weight before could work and ent determine their relative and that____ importance, go of and do since none the elements would Horsley, Roman v. controlling. itself is 120 Q: you You said communicated with (1991). 137-38, 136, 36, P.2d 37-38 Idaho 814 your daily you keep father on a Did basis. right Applying the factors of the control you doing and posted him as to what were test, sup hold that substantial evidence we you regarding do- communicate what were ported jury’s determination that Patrick daily ing on a basis? employee. Ralph’s was phone call A: Yes. He’d me on analyze We first whether there was direct every morning and I have discuss what In right of the to control. evidence explain what needs to be done done and proceedings below, Sevys represented go from there. doing that had own con- Patrick his business added). In (Emphasis explaining the state- struction work and that he had several con- during deposition, made his Patrick ments projects, Hill struction of which the house trial, “That’s I testified to testified what They presented was one. evidence be- is the I to tell him. If truth. have 1993, February May tween 1993 big up something I a mess of he didn’t made days hours and Patrick worked on Hill all, go replace have it. want at then I’d However, house the record varied. reveals keep posted.” I him have time, during period this of Patrick testimony Ralph also stresses Patrick’s days “roughly” per week and worked five that he did not consider himself his father’s forty per projects for horns week on various rather, employee, independent an con- but father, May Hill In including his house. tractor, Ralph’s testimony that did accident, 1993, of Patrick month employee. not consider Patrick his Howev- father, exclusively his with the worked er, although testimony this carries some labor exception thirty-five of hours of ex- independent weight, a determination of con- pended people. two other This evidence employee is made an tractor or status Ralph’s assertion that Patrick undermines presented, examination of the actual evidence engaged in independent was an contractor parties’ characterization of their business, his own construction number We conclude that there status. projects people, of for various construction right Ralph’s to con- was direct evidence Instead, including his the evidence father. trol in this case. supports finding that Patrick was his fa- variety jobs, to do a employee, ther’s hired factor, second We next examine the including construction on the Hill house. payment. “The ‘method of the method argues payment’ generally test refers whether that Patrick was own also security and social taxes withheld and when the income boss and could “determine how wages.” Livingston Ire person’s remodelling be from a repair house would Bank, 66, 738, 910 P.2d land argument ignores Pat 128 Idaho done.” (1995). Withholding customary in an 741 testimony he received instructions rick’s Id.; Peter- employer-employee relationship. house regarding the Hill on from his Irrigation, parties. Livingston, Pump ship v. Farmore son & between (1991). 969, 972, In Simplot Dep’t supra; J.R. Co. v. State addition, paying salary hourly wage 762, 765, an or a Employment, relationship. an employer-employee 1200, 1203 indicates Steve Logging, Kiele v. Henderson light review of Given our the evidence Mortimer, (1995); right the four factors of the to control test Burdick, supra, set forth in we conclude asserts, do not con- jury’s supported substantial test, did not income withhold Patrick was verdict that any taxes or make social secu- deductions for the time the accident occurred. rity paid from monies to Patrick. This independent evidence indicates an contractor Employment. Scope of C. relationship. parties On the other hand both the time At agree that Patrick did not submit bids for road, traveling public on a was work, hourly any paid wage of his but was house, parents’ home to the Hill which by Ralph. These factors indicate that Pat- away. one-half mile located worker’s Ralph’s employee. rick was cases, compensation ap Idaho courts have factor, respect to With the third the record plied “coming rule,” going and which the Ralph provided demonstrates that tools and provides employee in ordinarily that is not equipment Hill Patrick’s use on the employment of going the to or course when Although Ralph house. that Patrick testified coming work. from See Andrews v. Les Bois mostly,” his own “used tools testified he also Inc., 65, 67, Masonry, 127 Idaho P.2d 896 Ralph that if Patrick needed and some tools 973, (1995); 975 Eriksen v. Nez Perce Coun them, had Patrick would use them. Patrick 1, 4, ty, 736, (1951); 72 Idaho 235 P.2d 737 also testified that some tools of the 357, Harvey, Hansen v. Estate of equipment belonged used on the Hill house 358, 450, 451 (Ct.App.1990). 806 P.2d While Additionally, Ralph to his father. both appellate yet applied courts have not Ralph Patrick stated that owned some of the involving third-party negli this rule in cases major equipment pro- used on Hill house actions, gence neighboring jurisdictions have. ject. Jelco, Inc., 490, e.g., Faul v. 122 595 Ariz. emphasizes Ralph that Patrick determined 1035, (Ct.App.1979); P.2d 1037 v. Connell However, what materials would be used. 436, Conditioning, Carl’s Air 97 634 Nev. produced evidence at trial indicates (1981); 673, 674 Skinner v. Braum’s Ice materials, Ralph paid all of the Store, 922, (Okl.1995); Cream 890 P.2d out-of-pocket Patrick was reimbursed for his Pickerel, 542, Runyan Or.App. 740 P.2d expenses. Patrick when testified that he (1987); Whitehead v. An Variable purchased supplies, charged he often his fa- (Utah Ins., nuity Life Thus, account for ther’s them. while the 1989); Edwards, Dickinson 105 Wash.2d Caseys’s entirely evidence was not in the see no respect factor, favor with to this there was apply coming going reason not to support position to evidence that Patrick in our compensation rule set forth worker’s Ralph’s employee. was involving negli third-party cases to cases factor, Finally, regarding the fourth gence brought against employers actions right employment to terminate the relation- theory superior. respondeat based on a of will, assert, ship Caseys at and the rec- exceptions there are com- to the supports, ord could fire Patrick rule, ing going which include: right quit. and that Patrick had to dispute not employee does these facts. Howev- where the on the incidents is er, weigh premises factor does favor employer’s vicinity this in in the party, Supreme employment; go- either as our has indi- of his Court actual situs where agreements returning previously ing transportation cated such are of or in some determining facility by little in relation- employer; assistance furnished where traversing only ingress by coming rule. Both of means of or ered egress, employer predicated assump- furnished theories on the whether these instructions, party and used with the tion at some other that Patrick received knowledge employer; stopped receiving and consent of the purpose least for the instructions, doing particular job parents’ where some his father at his from therefore, employer though place question, even where the is house. The whether cause support accident occurred and the thereof there substantial traveler; any assumption. [and] would be common traveling to or from where an is Caseys morning The assert on the employer’s place upon of business Sevy, keeping in “Patrick with specific employer’s at his some mission practice, daily his cheeked request. Sevy for instructions at his home.” Howev- Eriksen, (1) er, 72 Idaho at 235 P.2d at 738. implies this statement parents’ his went home for instructions parties disagree as to whether The (2) morning, every stopped that Patrick scope of his Patrick was within the morning parents’ at his house on the the time the accident. accident order receive instructions purpose dispute This centers around the nothing There in the Ralph. record parents’ stop at his which Patrick made support suggestion. portion either Hill going to the house. residence before transcript which the cite for their went to his issue is whether Patrick testimony that tele- assertion is Patrick’s assign parents’ house to discuss his work instructions, phoned day his each i.e., simply as ment or a social deliv visit — stopped “pretty regular- father’s house er mother. If the visit was radishes ly,” stopped and that he at his father’s house nature, solely regard then rule social However, morning. equiva- not this is that ing ap transportation to and from work representation Caseys’s lent that Pat- to plies i.e., the accident did not arise out of — rick, daily practice, keeping “in with his employment in and the course of his because Sevy in Ralph for instructions checked traveling work. if the he was to at his home.” receiving of purpose visit was for the work- instructions, may fact, the accident have conflicting testimony related re- there is employ in of frequency Ralph occurred the course Patrick’s in- garding the with which remodelling ment. on the Hill structed Patrick stated, As Patrick testified that his house. Caseys in sup- The two theories advance every morning called him to discuss port of their assertion that the accident arose explain what ha[d] “what done and [Patrick] employment out of the course of Patrick’s for However, Ralph “ab- to be done.” need[ed] First, Ralph. they assert that the incident spoke a solutely” that he to his son on denied exceptions coming fell one of to the under give tes- daily to him instructions. He basis rule, going namely, that Patrick was and spoke Patrick to only that he to two tified traveling employer’s premises from for his week, by primarily telephone, three times by employer, as his specified task directed find had been that it was often to out what Second, Eriksen, Ralph. done, and rather than what would be done Caseys if Patrick received contend that budding nothing himself about that he knew Ralph his instructions from at work-related houses. home, stopping parents’ then “Patrick’s however, arriving assuming, Ralph at work ...” In Even morning was akin to basis, telephone daily words, job” spoke by Patrick on Patrick was “on the from other presented no that when was evidence he received the instructions there the moment stopped by his father’s house traveling to Patrick from father and was work his accident, Thus, morning of the he received instruc under at time of the accident. his All of the not be tions from father.1 evidence theory, the accident would cov- either Ralph and Patrick regularity of the contacts between parties' about the nature evidence 1. contrary. cordingly, unpersuaded testified the Ca- indicates the Patrick we are no his father seys’s why coming he received directions from as to theories day his house on the of the accident. father’s going inapplicable in case. rule was this Sevy, wife, Galeyne testified that Patrick’s on here, inquiries Our do not end however. accident, morning given she had if did not instructions Even Patrick receive Patrick radishes to deliver his mother. parents’ morning from his home wife, Ralph’s Betty Sevy, that on the testified accident, may of the he have nonetheless morning brought Patrick her scope employ- been his within put some radishes after paid ment had travel ex- Patrick’s refrigerator, following radishes in the penses compensated Patrick for travel colloquy occurred the two of them: between Hill time to and from the house. See Case of me, says, He Dad?” I asked ‘Where’s “I Barker, 108, 110-11, P.2d think he’s the bathroom else (1983) (payment expenses, 637-38 of travel “Oh, says, okay. He that’s bedroom.” I along indicating employ- with other evidence got go,” and he left. compensate er for intended to trav- proceeded The fact that Patrick on towards time, justify expanding el will the course of delivering the Hill house after the radishes to include having his mother without talked to his work). purpose father indicates that Patrick’s stopping parents’ at his was house not to The record does not establish such an in- day. receive instructions work that part. Ralph’s Caseys tention on While aware rule of law cited argue that was for all “reimbursed Caseys “an may scope act within be mileage, including required as driving employment although part done project,” on [H]ill house this is somewhat personal serve purposes the servant.” portion of a misstatement. The the tran- Fence-Craft, Van Vranken script which the cite for this assertion (1967). However, only paid demonstrates that Patrick case, apply rule of law does not in the instant mileage required supplies if he was to haul suggest because there is no go during workday pick up somewhere employ- the visit to home was Moreover, building supplies or tools. purposes. ment pay testified that he did not Patrick for his testimony uncontradicted of a transportation and from to work did not accepted by credible must witness be the day do so on accident. testimony trier of fact unless the is “inher testimony also refer Patrick’s to he ently improbable, so rendered facts “charged mileage.” him [his father] for and circumstances at hearing disclosed However, this statement referred to Patrick’s ... impeached by any of the modes known immediately preceding testimony that he was State, to the Farber v. law.” only transportation if he reimbursed had (Ct.App.1984), citing trip special get to make a addition- town to Finch, 620, 626-27, Dinneen v. Moreover, al materials. no there was evi- (1979). 581-82 also Pierstorff presented that Ralph dence to com- intended Gray’s Shop, 447-48, Auto pensate Patrick travel time to 171, 175 conclude that all the Hill house. testimony relevant indicates Pat foregoing, Based on stopped parents’ rick at his we conclude that home for a social visit, support there was and that he did not receive work-relat not substantial evidence jury’s acting ed instructions from verdict that Patrick was his father while there. testimony credible, unrefuted, within scope employment This unim peached improbable. inherently not Ac- the time of the accident. regard remodelling ap- coming applicable employees,

with the Hill house rule pears developed specifically during to have in Patrick connection was never asked why stopped parents' issue of whether Patrick was an or an trial at his house on the independent respect morning contractor. to the With of the accident. trial, Proposed Jury ing the verdict or a new D. Instruction. jury’s verdict and the district court’s Finally, Ralph the district asserts be affirmed. should give jury his refusing court erred coming go- proposed on the instruction proposed

ing rule. asserts that his as represents

instruction the law set forth

Eriksen, supra, progeny. and its Caseys argue proposed instruc- that the incomplete the law

tion was an statement of in that to include the delineated it failed 921 P.2d 197 general as exceptions to the rule set forth Idaho, Plaintiff-Respondent, STATE of Eriksen, They argue that the further jury as properly instructed the district court scope to the substance RIVAS, Defendant-Appellant. Ismael jury adapted form of giving issue No. 21753. No. IDJI 253. Appeals Court of of Idaho. light that substantial and of our decision support competent not exist to evidence did July 1, 1996. jury’s finding that the accident occurred acting scope of

while Patrick was within the not employment, we need address jury if had

merits of this issue. Even instruction, given requested

been reasonably

jury not have decided could acting em- scope within the

ployment the time the accident because sup- simply

the evidence was insufficient Therefore, such conclusion. had

port

Sevys’s given, been it proposed instruction the outcome of

would not have affected

case.

III. CONCLUSION competent

We hold substantial jury’s support verdict

evidence existed employee, but

that Patrick was scope

that Patrick was within the employment at time of the accident.

Therefore, court that the district we conclude Sevy’s denying Ralph motion

erred Ac-

judgment notwithstanding the verdict.

cordingly, judgment in favor of entered and we direct is vacated judgment

district court enter Sevy;

Sevy. the appellant, Costs to attorney

no fees are awarded. J.,

LANSING, concurs.

PERRY, J., dissents, having concluded denying not err in

that the court did district notwithstand-

either the motion

Case Details

Case Name: Casey v. Sevy

Court Name: Idaho Court of Appeals

Date Published: Jun 18, 1996

Citation: 921 P.2d 190

Docket Number: 21477

Court Abbreviation: Idaho Ct. App.