Independent Contractor Liable for Damages in a Crash

Was a Presumed Independent Contractor Liable for Damages in an Auto Accident Case?

A car accident victim and an intervenor in a negligence action appealed from a trial court’s order granting summary judgment to a transportation broker (“the broker”). The question was whether  the driver and his company who allegedly caused the victim’s injuries in an auto accident were acting as broker’s employees or independent contractors.

Background

The Georgia Department of Community Health (“DCH”) administers Georgia’s Medicaid program, and a company contracted with DCH to serve as a broker for transportation of non-emergency patients. Under its contract with DCH, the broker was “responsible for the management, supervision and monitoring of all transportation provided.” As part of the negotiations to secure the contract, the broker told DCH that it would provide “careful management” of its transportation providers and that it would use “a comprehensive suite of programs to monitor, train and mentor” such providers. In contrast, the broker was different from other transportation brokers “who hire providers, give them cursory instructions, and leave them to their own devices.”

The broker entered into a contract with a transportation company (“the provider”) to serve as its transportation provider. The contract stated that the provider was an independent contractor and was responsible for the payment, taxes, and insurance of its own employees. The contract also said that the broker would refer ride requests from Medicaid members to the provider. It was required to keep an office location open Monday through Friday until 6:00 p.m. that had a phone and fax for communications with the broker. Also, the provider was required to accept ride requests and to pick-up and drop-off riders at times (based on their medical appointments). They were also required to use trip logs and invoice sheet forms provided by the broker.

In addition, the broker specified what type of vehicles the provider needed to use for a trip based on the needs of the rider. Although the provider used its own vehicles, it was required to have its vehicles inspected and approved by the broker before being put into service, and its vehicles were subject to the broker’s ongoing inspection and approval. Although the provider hired its own drivers and decided which ones to assign to trips, the drivers needed to be approved by the broker before they could start in these positions. Moreover, the broker could stop using the services of the provider or any of its drivers at any time for any reason. Plus, the broker required drivers to undergo a stringent training program that included things like safe driving techniques and securing wheelchairs. Finally, the broker’s contract with the provider contained detailed requirements for driver conduct, including:

  • Specifications as to the drivers’ uniform;
  • Where they parked;
  • How they made their presence known to riders; and
  • How they loaded, secured, and unloaded riders, including individuals in wheelchairs.

The broker got a trip request from the accident victim for a ride to a doctor’s appointment on July 20, 2018. The provider’s driver picked up the victim, who was in a wheelchair, from her home and loaded her in the vehicle. According to the victim, the driver failed to properly secure her wheelchair; as a result, she was thrown to the floor and was injured when he slammed the brakes during the trip.

The victim filed a negligence action against the provider, the broker, and the driver. She alleged that the driver failed to exercise ordinary care during her ride and in securing her wheelchair, that the provider negligently hired, trained, supervised, and retained the driver, and that the broker was vicariously liable for the negligence of the provider and the driver because it had the right to control the time and manner of executing their work.

The trial court entered default judgment against the provider as to liability. The provider’s motor vehicle liability insurer became insolvent and was placed into liquidation. All Georgia claims of the that insurer were transferred to the Georgia Insurers’ Insolvency Pool (“the pool”), which intervened in the case. The pool argued that because the provider was the agent of the broker and because the broker was thus liable for any negligence by the provider, the broker’s solvent insurance carrier should be designated as the primary carrier in this case; as such, the victim needed to exhaust all coverage under that carrier’s policy before the pool would have to provide secondary coverage.

The broker filed a motion for summary judgment as to the claims of the accident victim and the pool, arguing that because the provider was only an independent contractor and not the broker’s employee, it wasn’t liable for any negligence of the provider. And as such, the victim’ claims weren’t within the coverage of the broker’s solvent insurance carrier. The trial court granted the broker’s motion, concluding that there was no issue of material fact as to whether the broker sufficiently retained the right to direct or control the time and manner of executing the work performed by the provider or the driver to be deemed their employer. The pool and the accident victim appealed.

Court of Appeals Reverses

On appeal, the pool argued that the trial court erred in finding that there was no issue whether the broker had the right to control the time, manner, and method of the work performed by the provider. Judge Jeff Davis explained that Georgia law provides that while an employer may be held vicariously liable for the torts of an employee, that liability doesn’t extend to torts committed by an independent contractor. However, there are exceptions to this general rule, and O.C.G.A. § 51-2-5(5) provides:

An employer is liable for the negligence of a contractor … [i]f the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference.

Furthermore, the Court explained:

The test for determining whether an employer is exercising a degree of control over an independent contractor’s work such that the law will deem the independent contractor to be a servant of that employer — thus making the employer vicariously liable for any wrongful acts committed by the contractor — is whether the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished from the right to merely require certain definite results in conformity with the contract.

To impose liability on a defendant under O.C.G.A. § 51-2-4, the employer must have retained at least some degree of control over how the work was performed. It’s not enough that he merely has a general right to:

  • Order the work stopped or resumed;
  • Inspect its progress or to receive reports;
  • Make suggestions or recommendations which need not necessarily be followed; or
  • Prescribe alterations and deviations.

Judge Davis went on to explain that the real test to determine if an individual is acting as the servant of another is to  determine if, at the time when the injury, he or she was subject to the master’s orders and control and was liable to be discharged by him for not obeying those orders or misconduct. The judge went on to reason that “the power to discharge has a strong tendency to show that the relation of master and servant existed between them.” The right to control the manner and method means the right to tell the employee how he must perform the job in every detail, including the procedures he must follow.

“Whether the relationship is one of employer/employee or employer/independent contractor is generally a question of fact to be decided by a jury,” Judge Davis wrote, quoting a decision from 2021.

Was The Provider an Independent Contractor?

Judge Davius noted that the contract between the broker and the provider classified the provider as an independent contractor. So, to overcome this presumption, there must be some evidence showing that the broker controlled the time, manner, method, and means of the work. The judge concluded that there was enough evidence to create a jury question on this issue.

The broker was contractually bound with DCH to carefully manage and supervise the provider as its transportation provider, and it told DCH that it wouldn’t simply give the provider cursory instructions and leave it to its own devices. Also, there was evidence that the broker’s contract with the provider gave it the right to control the time, manner, and method of the performance of the provider’s work. Specifically, the broker controlled the hours of work, the provider’s office hours, the requirement to accept ride requests, and it specified pick-up and drop-off times. There was also evidence that the broker told the provider what procedures it must follow, given the detailed requirements for driver training and conduct specified in their contract.

Plus, there was evidence that the broker required drivers to undergo training on how to secure passengers in wheelchairs and established mandatory procedures for securing such passengers, which was particularly significant. Judge Davis explained that the reason for the general rule of non-liability in O.C.G.A. § 51-2-4 “is that since the employer has no right of control over the manner in which the work is to be done, it is to be regarded as the contractor’s own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk, and administering and distributing it.”

Given the evidence of the broker’s control over the issue that allegedly caused the victim’s injuries, it wasn’t apparent that the broker should be insulated from vicarious liability as a matter of law.

There was also some evidence that the broker told the provider specifically the type of vehicle to be used for a particular trip and that the vehicles were subject to the broker’s inspection and approval. Also, the broker’s requirement that it approve any drivers before they began making trips, and its ability to terminate the services of the provider or any of its drivers at any time for any reason, constitutes further evidence of control, Judge Davis opined.

Accordingly, the Court of Appeals concluded that the trial court erred in holding that the evidence showed as a matter of law that the provider was an independent contractor. Although there was certainly some evidence supporting this proposition, that evidence wasn’t undisputed. As a result, summary judgment on this issue was in error. The Court of Appeals reversed the trial court’s order granting summary judgment to the broker. Ga. Insurers Insolvency Pool v. Logisticare Solutions, 2025 Ga. App. LEXIS 25 (Ga. App. January 30, 2025).

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Determining liability in this type of case is not an easy task. The priority of primary and secondary insurance coverage and whether a party is an independent contractor or if their client is in fact their employer takes specialized knowledge and thorough investigation. Having an experienced and skilled accident lawyer Atlanta residents trust and who has years successfully handling motor vehicle accident cases does matter. Whoever you hire as your accident lawyer needs to know the law and how to apply the law.

We’re happy to answer your questions. We offer free consultations to all prospective clients. Contact an Atlanta personal injury attorney at Tobin Injury Law 24 hours a day, seven days a week by calling 404-JUSTICE (404-587-8423).