Kentucky Court of Appeals Addresses the Distinction between an Independent Contractor and an Employee

Kentucky Court of Appeals Addresses the Distinction between an Independent Contractor and an Employee

      In a December, 2016 decision, the Kentucky Court of Appeals again waded into the question of whether a particular person, based upon the manner in which they perform services, is properly characterized as an independent contractor or as an employee. On the facts here presented, the court found that an individual engaged in the delivery of newspapers was, as a matter of law, an independent contractor and not an employee. Armstrong v Martin Cadillac, Inc., No. 2015-CA-001892-MR (Ky. App. December 22, 2016).

      This dispute arose out of an automobile accident and related claims by the estate of Jonathan Elmore, one of the deceased in the accident, who was at the time of the accident was delivering the Daily News paper. One question was whether Elmore, delivering the papers, was an employee of the publisher, News Publishing, LLC, in which case liability under respondeat superior could attach, or rather was he an independent contractor?

      After reviewing the manner in which particular individuals are contracted with to deliver papers, including the fact that the carriers purchase the paper at a bulk rate and in effect resell to generate a profit, the court applied the 10 factor test set forth in the Restatement (Second) of Agency § 220. The Court of Appeals affirmed the lower court's determination that the relationship between News Publishing and Elmore was that of an independent contractor. On that basis, the newspaper publisher was not responsible for the consequences of the accident.