Rehearing, Rehearing En Banc and Certification Denied February 9, 1994.
Appellants, Ralph and Ricky Parker, sought damages for the injuries they sustained while attempting to provide aid to victims injured in an automobile accident. The complaints filed in those consolidated actions alleged that Jeffrey Todd Hoppock (Hoppock), while within the course and scope of his employment delivering pizza for J & B Enterprises, Inc., d/b/a Domino's Pizza (J &
Domino's moved for summary judgment based upon its position that at the time of the accident Hoppock was an employee of J & B Enterprises, not Domino's, and that neither J & B Enterprises nor Hoppock were employees of Domino's nor acting within the scope of any employment or agency relationship with Domino's. This position was supported by an affidavit of Domino's National Director of Franchise Services. The trial court granted summary judgment.
The issue on appeal is whether there were genuine, material issues of fact precluding summary judgment: more specifically, the issue is the nature of the relationship between the franchisee and the franchisor.
The trial court determined that, as a matter of law, J & B Enterprises was an independent contractor, as provided in paragraph forty-five of the franchise agreement between the parties. Consequently Domino's could not be held vicariously liable for the negligence of J & B Enterprises, its agents and employees. The trial court's conclusion was based upon an examination of the franchise agreement, an operating manual, an affidavit, testimony, and memoranda submitted by the parties.
It is clear that the nature and extent of the relationship of parties said to occupy the status of principal and agent presents a question of fact, Holiday Inns, Inc. v. Shelburne, 576 So.2d 322 (Fla. 4th DCA 1991), cause dismissed, 589 So.2d 291 (Fla. 1991), and is not controlled by descriptive labels employed by the parties themselves. See Nazworth v. Swire Florida, Inc., 486 So.2d 637 (Fla. 1st DCA 1986). See also Singer v. Star, 510 So.2d 637 (Fla. 4th DCA 1987).
Whether one party is a mere agent rather than an independent contractor as to the other party is to be determined by measuring the right to control and not by considering only the actual control exercised by the latter over the former. Nazworth, 486 So.2d at 638. If the employer's right to control the activities of an employee extends to the manner in which a task is to be performed, then the employee is not an independent contractor.
In Cawthon v. Phillips Petroleum Co., 124 So.2d 517 (Fla. 2d DCA 1960), the court explained:
This court previously considered the question of whether a particular franchisee was an independent contractor in the case of Ortega v. General Motors Corp., 392 So.2d 40 (Fla. 4th DCA 1980). In that case we analyzed the underlying documentation to determine the degree of control retained by General Motors over its dealer, South Bay, and concluded that the latter was an independent contractor. Appellee in the present case suggests that there were fifteen factors in Ortega which have parallels in the present case and that comparison of those factors requires an affirmance. We disagree.
The relationship between Domino's and J & B Enterprises is established by a franchise agreement and an operating manual. We have summarized the requirements that best seem to illustrate the extent of control Domino's retains over the performance of its franchisees.
The "preambles" section of the franchise agreement states in relevant part:
The franchise agreement itself contains, inter alia, the following:
The second item of documentary evidence demonstrating Domino's control over its franchisees is its operations manual. As "Domino's Concept and Objectives," the manual states:
The manual which Domino's provides to its franchisees is a veritable bible for overseeing a Domino's operation. It contains prescriptions for every conceivable facet of the business: from the elements of preparing the perfect pizza to maintaining accurate books; from advertising and promotional ideas to routing and delivery guidelines; from order-taking instructions to oven-tending rules; from organization to sanitation. The manual even offers a wide array of techniques for "boxing and cutting" the pizza, as well as tips on running the franchise to achieve an optimum profit. The manual literally leaves nothing to chance. The complexity behind every element of the operation gives new meaning to the familiar slogan that delivery is to be, "Fast, Hot and Free."
The foregoing leads us to the self-evident conclusion that it was error to determine as a matter of law that Domino's does not retain the right to control the means to be used by its franchisee to accomplish the required tasks. At the very least a genuine and material question of fact is raised by the documentation.
We reverse and remand for such other and further proceedings as may be appropriate.
REVERSED AND REMANDED.
GUNTHER and WARNER, JJ., concur.