from Madison Circuit Court (CV-15-902120)
Kyle Donaldson appeals from a summary judgment in favor of
Country Mutual Insurance Company ("Country
Mutual"). We affirm.
and Procedural History
underlying action stems from a November 2015 accident in
which Donaldson, while working in a construction zone on the
west side of Bailey Cove Road in Madison County, was struck
by a GMC Yukon sport-utility vehicle, owned and driven by
Gregory Ryan Johnston. As a result of the collision,
Donaldson suffered severe injuries to one of his legs that
ultimately required the amputation of the leg.
sued Johnston and Country Mutual, asserting claims of
negligence and wantonness against Johnston and asserting that
Country Mutual was vicariously liable for Johnston's
conduct under theories of agency and respondeat superior. At
the time of the underlying accident, Johnston was working as
an insurance agent under an "agent's agreement"
with Country Mutual and a number of other companies that are
collectively referred to in that agreement as "Country
Insurance and Financial Services." Pursuant to that
agreement, Johnston solicited applications for the insurance
products of Country Mutual and the other named companies,
bound coverage and delivered insurance policies as approved
by those companies, transmitted premiums received from
policyholders to those companies, and provided customer
service to policyholders. The agent's agreement expressly
identified Johnston as an independent contractor and stated
that "nothing in this Agreement shall be construed to
create the relationship of employer and employee"
between the parties.
Mutual filed a motion for a summary judgment, arguing that
Johnston was not its agent or employee but, instead, was an
independent contractor. Country Mutual further argued that,
even assuming Johnston was its employee, his actions in
relation to the accident were outside the line and scope of
his alleged employment. In opposition, Donaldson argued that
a genuine issue of material fact existed as to whether
Johnston was an employee of Country Mutual and whether he was
acting within the line and scope of that employment at the
time the accident occurred. The Madison Circuit Court
("the trial court") granted Country Mutual's
motion for a summary judgment. The case proceeded to trial on
the remaining claims against Johnston; the jury found in
favor of Donaldson on both the negligence and wantonness
claims and awarded him $5,560,000 in compensatory damages.
After the trial court entered a judgment on the jury's
verdict, Donaldson filed this appeal challenging the summary
judgment in favor of Country Mutual.
"This Court's review of a summary judgment is de
novo. Williams v. State Farm Mut. Auto. Ins. Co.,
886 So. 2d 72, 74 (Ala. 2003). We apply the same standard of
review as the trial court applied. Specifically, we must
determine whether the movant has made a prima facie showing
that no genuine issue of material fact exists and that the
movant is entitled to a judgment as a matter of law. Rule
56(c), Ala. R. Civ. P.; Blue Cross & Blue Shield of
Alabama v. Hodurski, 899 So. 2d 949, 952–53 (Ala.
2004). In making such a determination, we must review the
evidence in the light most favorable to the nonmovant.
Wilson v. Brown, 496 So. 2d 756, 758 (Ala. 1986).
Once the movant makes a prima facie showing that there is no
genuine issue of material fact, the burden then shifts to the
nonmovant to produce 'substantial evidence' as to the
existence of a genuine issue of material fact. Bass v.
SouthTrust Bank of Baldwin County, 538 So. 2d 794,
797–98 (Ala. 1989); Ala. Code 1975, §
12–21–12. '[S]ubstantial evidence is evidence
of such weight and quality that fair-minded persons in the
exercise of impartial judgment can reasonably infer the
existence of the fact sought to be proved.' West
v.Founders Life Assur. Co. of Fla., 547 So. 2d 870, 871
Dow v. Alabama Democratic Party, 897 So. 2d 1035,
1038-39 (Ala. 2004).
claims against Country Mutual are based on the theory of
respondeat superior. "To recover against a defendant on
the theory of respondeat superior, it is necessary
for the plaintiff to establish the status of master and
servant and to establish that the act was done within the
scope of the servant's employment." Jenkins v.
Gadsden Times Publ'g Corp., 521 So. 2d 957, 958
(Ala. 1988)(citing Solmica of the Gulf Coast, Inc. v.
Braggs, 285 Ala. 396, 232 So. 2d 638');">232 So. 2d 638 (1970)).
determine if a person is the servant or employee of another,
rather than an independent contractor, we look at
"whether the entity for whom the work is being performed
has reserved the right of control over the means by
which the work is done." Shaw v. C.B. & E.,
Inc., 630 So. 2d 401');">630 So. 2d 401, 403 (Ala. 1993)(citing Bay
Shore Props., Inc. v. Drew Corp., 565 So. 2d 32 (Ala.
1990)(emphasis added)). Thus, for an employer-employee
relationship to exist, the purported employer must retain the
right to direct the manner in which the individual's work
is to be performed, as well as the result the employer
desires the individual to accomplish. See Birmingham Post
Co. v. Sturgeon, 227 Ala. 162, 166, 149 So. 74, 77 (Ala.
1933). It is the reserved right of control, and not the
actual exercise of such control, that governs the
relationship. Shaw, 630 So. 2d at 403.
parties characterize their relationship is not necessarily
determinative of whether an individual is an independent
contractor or an employee. Owen v. Tennessee Valley
Printing Co., 168 So. 3d 1221, 1233 (Ala. Civ. App.
2014). "Because working relationships take a wide
variety of forms, each case must depend on its own facts, and
all features of the relationship are considered
together." Sessions Co. v. ...