A Michigan court recently ruled for Safeguard Properties, Inc. by granting its motion for summary judgment in the case of Buehler v. Safeguard et al.  Winning on summary judgment is neither easy nor common as it requires the judge to determine that the issue is so clear that there is "no genuine issue of material fact" as to the determination.  The decision in the Cass County Circuit Court, State of Michigan, reinforced the independent contractor defense theory that insulates a property preservation company from vicarious liability claims that are based on the allegedly wrongful acts of its inspection or preservation contractors.

Following is a summary of the particulars of the litigation and the verdict:

In 2003, Safeguard's contractor performed a property inspection in Michigan.  Upon entering the property to take a photograph, the subcontractor was confronted by the mortgagor’s father and two other men, who demanded identification and became aggressive.  The contractor attempted to leave the property but his exit was blocked by the men's vehicles.  The mortgagor’s father then tried to grab the contractor through the window of his vehicle.   The contractor pulled his truck out quickly with the Mortgagor’s father holding on the door.  He was dragged, fell and sustained injuries.  
 
The mortgagor's father sued the contractor for bodily injury and named Safeguard under a vicarious liability theory based upon an alleged master/servant relationship. This case is unique in that the damages claimed were for bodily injury.  

The defense theory that resulted in summary judgment was based on Safeguard’s argument that the contractor was an independent contractor, and not an employee or agent.  Safeguard’s defense was based on the facts developed in deposition of the contractor and the "control test" of Hanisko v Fitzpatrick, 232 Mich 593 (1925).

The Control Test to establish an independent contractor relationship is that circumstances must show: 
1.  The independent nature of the contractor’s business;
2.  Existence of a contract for the performance of a specified piece of work;
3.  Agreement to pay a fixed price for the work;
4.  Employment of any assistants is under the contractor’s control;
5.  Contractor furnishes the necessary materials (car, fuel, PC, phone, etc); and,
6.  Contractor has the right to control the work while it is in progress. (This requires that no physical supervision by SPI occur.)

In this case, the  trespass and vicarious liability claims  made against Safeguard were  dismissed by summary judgment because the judge determined that there was "no genuine issue of material fact ."