In Mangual v. Berezinsky, the New Jersey Superior Court, Appellate Division, held that whether a limousine driver was acting as an agent for the party that hired him was an issue of fact for the jury. The plaintiffs were injured when they were struck by a vehicle operated by Berezinksy. At the time of the accident, Berezinsky was hired by Essex Surgical Center to assist in the transportation of its patients. At all times, Berezinsky, was a member of a limousine cooperative. He owned the vehicle involved in the accident. It was registered in his name. He also owned a taxi medallion. He had no contract or set schedule and would drive for Essex when asked. He maintained and repaired his own vehicle and charted the routes of travel. He was paid per hour, not by the trip. The trial court relied on Miklos v. Liberty Coach Co., 48 N.J. Super. 491 (App. Div. 1958) and held that under these facts, no rational factfinder could determine that Berezinsky was not acting as Essex’s agent at the time of the accident.

The Appellate Division disagreed and noted that New Jersey adopted section 220 of the Restatement (Second) of Agency as the test for determining whether one acting for another is a servant or agent, or an independent contractor. Section 220 provides the following relevant factors:(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of facts, among others, are considered:(a) the extent of control which, by the agreement, the master may exercise over the details of the work;(b) whether or not the one employed is engaged in a distinct occupation or business;(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;(d) the skill required in the particular occupation;(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;(f) the length of time for which the person is employed;.(g) the method of payment, whether by the time or by the job;(h) whether or not the work is a part of the regular business of the employer;(i) whether or not the parties believe they are creating the relation of master and servant; and(j) whether the principal is or is not in business.

Restatement (Second) of Agency §220 (1958). The court noted that these factors are set forth in New Jersey’s Model Civil Jury Charges 5.101(A) Revised 8/2011), and in the case relied upon by the motion judge. In applying these factors, the Appellate Division noted that it had no quarrel with the motion judge’s application of Miklos, but instead, the conclusion that Essex exercised expansive control over Berezinsky at the time of the accident; that Berezinsky was not engaged in an occupation distinct from the surgical center; that Essex contributed to Berezinsky’s operational costs by paying for gas; that livery service is part of Essex’s regular surgical center business; and that Essex held him out as an agent. In departing from the conclusions of the trial judge, the court stated that although the facts may be largely, but not completely undisputed, the inferences that may be drawn from these facts vary greatly. Accordingly, a rational jury could go either way, and thus, the question of whether Berezinsky was acting as an agent was for the jury’s determination.

What It Means to You

When analyzing the issue of agency, the factors contained in the Restatement (Second) of Agency §220 (1958) must be fleshed out. If there is a dispute as to the factors, it is not likely that the court will grant summary judgment. A clear and concise record with supporting documents provides the best chance of establishing the existence or lack of agency as a matter of law. Courts will not hesitate to send disputed issues to the jury for determination.