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Bargfrede v. American Income Life Insurance Company6/30/2000
Ben and Sara Bargfrede ("the Bargfredes") appeal the grant of a motion for summary judgment in favor of American Income Life Insurance Company ("AIL") on their claim for the wrongful death of their son in an automobile accident on December 11, 1996. A vehicle driven by Peter Gudeman ("Mr. Gudeman") collided with their son's pickup truck. At the time, Mr. Gudeman was an insurance agent heading to an appointment with a potential customer. Mr. Gudeman had an agent's contract with AIL by which he agreed to sell only AIL insurance products. Larry Geneser ("Mr. Geneser") was the state general agent in Missouri for AIL. The Bargfredes filed a wrongful death action against Mr. Geneser and AIL. The petition alleged that Mr. Geneser and AIL "operated a joint venture." They claimed Mr. Gudeman was the "servant, employee and agent" of both Mr. Geneser and AIL, and was traveling to meet a prospective client on their behalf when he negligently caused the accident. Thus, they sought vicarious liability recovery from Mr. Geneser and AIL under the doctrine of respondeat superior.
AIL moved for summary judgment on the grounds that Mr. Gudeman was an independent contractor and, therefore, AIL was not vicariously liable under the doctrine of respondeat superior for his negligence. The trial court determined that whether or not Mr. Gudeman was an agent "is more properly a question of law, to be determined by the Court's review of a set of factors that distinguishes an 'employee' from an 'independent contractor.'" After considering the various factors, the trial court sustained AIL's motion for summary judgment holding:
t is uncontroverted that, although Gudeman was "expected" to have a motor vehicle, AIL did not provide any transportation for Gudeman. It is also uncontroverted that no social security funds or taxes were taken out of Gudeman's commission checks. AIL did not contribute to unemployment insurance or a workers' compensation fund for Gudeman. In addition, although Gudeman was required to pick up any prospective leads at an office, the Geneser affidavit describes the office at which Gudeman picked up the leads as Geneser's office, not an AIL office.
This Court finds that, based on the test outlined in Glynn,[ ] [Gudeman] was acting as an independent contractor in this case rather than as an agent of AIL, and that, therefore, separate Defendant AIL is entitled to judgment as a matter of law.
After their claim against Mr. Geneser was settled and the court approved the settlement, the Bargfredes brought this appeal. They allege the court erred in granting the summary judgment on behalf of AIL, because there was a material dispute of fact as to whether Mr. Gudeman was AIL's agent at the time of the accident.
Standard of Review
We review de novo a trial court's granting of summary judgment. Dunagan by and through Dunagan v. Shalom Geriatric Center, 967 S.W.2d 285, 287 (Mo. App. W.D. 1998). In doing so, we consider the record in the light most favorable to the Bargfredes and accord them all reasonable inferences that may be drawn from the record. Id. We consider summary judgment "'an extreme and drastic remedy'" and are cautious in affirming it, "because the procedure implicates the denial of due process by denying an opposing party day in court." Horner v. Spalitto, 1 S.W.3d 519, 522 (Mo. App. W.D. 1999) (quoting ITT Commercial Finance Corporation v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 377 (Mo. banc 1993)). Nonetheless, summary judgment is appropriate if there are no genuine issues of material fact, and the movant is entitled to judgment as a matter of law. Dunagan, 967 S.W.2d at 287.
To be entitled to summary jud
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