{ "id": 11094411, "name": "DERRICK MILLER, JR., by his Guardian ad Litem, Allen Bailey; CHARMA MILLER; and DERRICK MILLER, SR., Plaintiffs v. PIEDMONT STEAM COMPANY, INC., d/b/a Stanley Steemer; STANLEY STEEMER INTERNATIONAL, INC.; and JOHN STEVEN SPERO, Defendants", "name_abbreviation": "Miller ex rel. Bailey v. Piedmont Steam Co.", "decision_date": "2000-04-18", "docket_number": "No. COA99-440", "first_page": "520", "last_page": "526", "citations": [ { "type": "official", "cite": "137 N.C. App. 520" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "360 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "320 N.C. 631", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4723558, 4724691, 4730039, 4730552, 4729849 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/nc/320/0631-05", "/nc/320/0631-03", "/nc/320/0631-04", "/nc/320/0631-01", "/nc/320/0631-02" ] }, { "cite": "357 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 4, "year": 1987, "pin_cites": [ { "page": "397" }, { "page": "398" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 274", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127987 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0274-01" ] }, { "cite": "252 S.E.2d 792", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "795" }, { "page": "798" } ], "opinion_index": 0 }, { "cite": "296 N.C. 683", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570021 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "686" }, { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0683-01" ] }, { "cite": "276 S.E.2d 283", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "271 S.E.2d 399", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "49 N.C. App. 311", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521088 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/49/0311-01" ] }, { "cite": "309 S.E.2d 253", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "309 N.C. 815", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762404 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc/309/0815-01" ] }, { "cite": "303 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "63 N.C. App. 151", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524430 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/nc-app/63/0151-01" ] } ], "analysis": { "cardinality": 675, "char_count": 15489, "ocr_confidence": 0.77, "pagerank": { "raw": 2.493969441332436e-07, "percentile": 0.8088315187487765 }, "sha256": "288ef75b1f87f48d352807b0cd1ffdce047234d73681f0473bb8517339eac226", "simhash": "1:5be548c20a3a04b2", "word_count": 2403 }, "last_updated": "2023-07-14T18:42:18.277293+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges MARTIN and HORTON concur." ], "parties": [ "DERRICK MILLER, JR., by his Guardian ad Litem, Allen Bailey; CHARMA MILLER; and DERRICK MILLER, SR., Plaintiffs v. PIEDMONT STEAM COMPANY, INC., d/b/a Stanley Steemer; STANLEY STEEMER INTERNATIONAL, INC.; and JOHN STEVEN SPERO, Defendants" ], "opinions": [ { "text": "TIMMONS-GOODSON, Judge.\nD.J. Miller (\u201cD.J.\u201d), a six year-old pedestrian, suffered severe brain injury when struck by a van as he attempted to cross Archdale Drive in Charlotte, North Carolina. The van was owned by Piedmont Steam Company, Inc., d/b/a Stanley Steemer (\u201cPiedmont\u201d), and was driven by John Steven Spero (\u201cSpero\u201d), an employee of Piedmont.\nPiedmont became a franchisee of Stanley Steemer International, Inc. (\u201cSteemer\u201d) in 1977. The twenty-one page Franchise Agreement (\u201cthe Agreement\u201d) between Piedmont and Steemer \u201c[set] forth the contract terms and conditions for [Piedmont\u2019s] ownership and right to operate a [Steemer] carpet and upholstery cleaning business.\u201d Under the terms of the Agreement, Piedmont was required to purchase one carpet cleaner from Steemer, use Steemer approved replacement parts and cleaning products, and obtain Steemer approval of the appearance of the trucks used in the business and of all advertising. Additionally, the Agreement required Piedmont to keep its books and records according to Steemer guidelines, and make monthly sales reports to Steemer on Steemer supplied forms. The Agreement allowed record and tax return inspection by Steemer, and Steemer inspection of machines and equipment. Furthermore, Piedmont was obligated to carry a specified level of liability insurance coverage with a carrier approved by Steemer under the Agreement. If Piedmont failed to carry adequate insurance, Steemer reserved the right to obtain such insurance.\nArticle XIV of the Agreement stated:\nFranchisee [Piedmont] acknowledges that he is an independent contractor and as such may not act as an agent, employee or representative of [Steemer], or attempt to bind or obligate [Steemer] in any manner. [Steemer] similarly agrees that it may not bind or act for Franchisee.\nUnder the Agreement, if Piedmont failed to comply with substantial provisions, Steemer had the option to terminate the Agreement or to terminate Piedmont\u2019s exclusivity.\nIn addition to the Agreement, the Franchise Operations Manual (\u201cthe Manual\u201d), which was referred to in the Agreement, set forth \u201cPrescribed Standards for Franchise Operations.\u201d The Manual contained detailed standards regarding hours of operation, uniforms, equipment and supplies, prescribing even the length and color of hair of Piedmont employees.\nD.J., through his guardian ad litem and his parents (collectively \u201cplaintiffs\u201d), brought a motor vehicular negligence action against Spero, Piedmont, and Steemer (collectively, \u201cdefendants\u201d) to recover damages for the personal injuries D.J. sustained. The complaint alleged that Spero was negligent in his operation of the van and that Spero\u2019s negligence was imputed to Piedmont and Steemer based on principles of respondeat superior and agency.\nDefendants answered, denying the material allegations contained in the complaint. Following discovery, Steemer filed a motion for summary judgment. Plaintiffs filed a partial summary judgment motion on the issue of Steemer\u2019s vicarious liability for the alleged negligence of Steemer and Spero. During oral argument on the summary judgment motions, plaintiffs withdrew their motion for partial summary judgment on the grounds the affidavits offered by Steemer created genuine issues of material fact.\nAt the hearing on its motion for summary judgment, Ste.emer attempted to establish that it did not exercise the necessary degree of control over Piedmont so as to establish an actual agency relationship. In support of the motion, Steemer submitted a host of documents including the affidavits and depositions of Philip R. Ryser, Executive Vice-President, Secretary and General Counsel of Steemer, and Steven W. Rohletter, President of Piedmont, to show that Steemer did not control the management, operation, or day-to-day business activity of Piedmont. While Steemer conceded that it issued many directives regarding Piedmont\u2019s business operation which amounted to a measure of control, Steemer argued that this control did not reach the bar set by the North Carolina courts. Steemer also argued that the plain language of the Agreement clearly defined its relationship with Piedmont as one of non-agency.\nIn opposition to Steemer\u2019s summary judgment motion, plaintiffs submitted that genuine issues of material fact were presented by the Agreement, the manuals, the mandatory prescribed standards, and the deposition testimony of Ryser and Rohletter. Plaintiffs argued that on the issue of the degree of Steemer\u2019s control over Piedmont\u2019s operations, the Ryser and Rohletter affidavits were in direct conflict with the deposition testimony offered by the two officers.\nIn their identical affidavits, Ryser and Rohletter stated that Steemer \u201chad no control over, or authority to direct, the upkeep, maintenance, use or operation of the 1994 ford van.\u201d In his deposition, Rohletter conceded that Steemer had a right of control over the trucks used in its business. Ryser and Rohletter stated in their affidavits that \u201c[Piedmont] alone maintains complete control over all personnel decisions involving its employees[.]\u201d In his deposition, Rohletter agreed that Steemer had a right of control over the uniforms and general appearance of Piedmont employees. Ryser and Rohletter asserted in their affidavits that \u201c[Steemer] has no control over the management, operation or the day-to-day activities of [Piedmont].\u201d In his deposition, Ryser testified:\nQ: . . . Has it been your experience that [Piedmont] follows the directives or the requirements set forth in the franchise agreement between [Piedmont] and [Steemer]?\nA: To my knowledge, yes.\nQ: ... [H]as it been your experience that [Piedmont] does what it is asked to do or required to do by [Steemer]?\nA: To the best of my knowledge, yes.\nThe trial court entered an order granting Steemer\u2019s motion for summary judgment. Plaintiffs appeal.\nPlaintiffs\u2019 sole argument on appeal is that the trial court erred in granting Steemer\u2019s motion for summary judgment where material questions of fact existed as to whether there was an actual agency relationship between Steemer and Piedmont. We cannot agree.\nSummary judgment is proper where there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (1999). In determining whether summary judgment is proper, the trial court must view the evidence in the light most favorable to the non-moving party, giving the non-moving party the benefit of all reasonable inferences. Coats v. Jones, 63 N.C. App. 151, 303 S.E.2d 655, aff\u2019d, 309 N.C. 815, 309 S.E.2d 253 (1983). The burden to establish the nonexistence of any triable issue of fact rests on the moving party. Oliver v. Roberts, 49 N.C. App. 311, 271 S.E.2d 399 (1980), cert. denied,-N.C.-, 276 S.E.2d 283 (1981).\nA franchisor is vicariously liable for the tortious acts of its franchisee when an agency relationship exists and the acts are committed within the scope of the agent\u2019s authority. Vaughn v. Dept. of Human Resources, 296 N.C. 683, 252 S.E.2d 792 (1979). Agency arises when parties manifest consent that one shall act on behalf of the other and subject to his control. Hayman v. Ramada Inn, Inc., 86 N.C. App. 274, 357 S.E.2d 394, disc. review denied, 320 N.C. 631, 360 S.E.2d 87 (1987).\n[A] principal\u2019s vicarious liability for the torts of his agent depends on the degree of control retained by the principal over the details of the work as it is being performed. The controlling principle is that vicarious liability arises from the right of supervision and control.\nVaughn, 296 N.C. at 686, 252 S.E.2d at 795.\nBoth parties rely on Hayman, and we agree that Hayman is controlling in the case at bar as it addresses the issue of whether a franchisor may be held liable for the torts of its franchisee on an actual agency theory. In Hayman, a patron of the Ramada Inn was assaulted while staying at the hotel and brought suit against Ramada Inn, Inc. This Court affirmed summary judgment in favor of Ramada Inn, Inc., holding that no actual agency relationship existed between Ramada Inn, Inc., the franchisor, and Turnpike Properties, the franchisee. Noting that the general purpose of the franchise agreement was \u201cthe maintenance of uniform service within, and public good will toward, the Ramada Inn System[,]\u201d this Court found no evidence that the franchisor exercised detailed control over day-to-day operations of the hotel. Hayman, 86 N.C. App. at 278, 357 S.E.2d at 397.\nThe franchise agreement in Hayman was a twenty-page document which required the franchisee to comply with certain standards in constructing, furnishing, and advertising the hotel. The franchisee was also required to maintain the premises in a \u201cclean, attractive, safe and orderly manner,\u201d id., and the franchisor retained the right to make inspections of the hotel to ensure compliance with the parties\u2019 agreement.\nHowever, the franchisor in Hayman retained no authority over the hiring, firing, supervision, or discipline of personnel. Moreover, the franchisor\u2019s remedy for any breach was limited to termination of the franchise agreement. The Hayman court noted that while the plaintiff alleged that Ramada Inn, Inc. was negligent in failing to provide adequate security for hotel patrons, the franchisor maintained no control over the security of the premises.\nIn the present case, the parties entered into a twenty-one page franchise agreement. Under the Agreement, Steemer, like the Hayman franchisor, was authorized to make periodic inspections of Piedmont and its records. Steemer prescribed standards regarding the attire and appearance of Piedmont\u2019s employees and the condition of its equipment. Although Steemer\u2019s standards were detailed, prescribing even the length and hair color of Piedmont employees, they served the same purpose as the Hayman provision requiring the franchisee to maintain the premises in a \u201cclean, attractive, safe and orderly manner.\u201d\nWhile Steemer required Piedmont to purchase one carpet cleaning machine from it and to use spare parts that met Steemer specifications for quality, we hold that these provisions did not rise to the level of daily control over Piedmont operations. As in Hayman, Steemer\u2019s involvement in the operations of Piedmont functioned largely to ensure uniform service and public good will toward the corporation, and did not, therefore, give rise to an agency relationship.\nLike the Hayman franchisor, Steemer retained no control over the hiring, firing, or supervision of Piedmont personnel. Steemer\u2019s remedies in the event of a breach of the Agreement were limited. Steemer could either terminate the Agreement or terminate Piedmont\u2019s exclusivity in the event that Piedmont failed to comply with \u201cany of the substantial provisions.\u201d The remedies available to Steemer did not allow it to interfere in the day-to-day operations of Piedmont with the minor exception that Steemer could obtain adequate insurance if Piedmont failed to do so. We note that no agency relationship arises when one party requires another to maintain liability insurance. Id. at 279-80, 357 S.E.2d at 398.\nJust as the plaintiff in Hayman alleged that her injuries arose from a lack of adequate security, plaintiffs in the present case allege that D.J.\u2019s injuries arose from negligent operation of a motor vehicle. However, Steemer did not train or test the drivers employed by Piedmont, nor did it require that the drivers have a good driving record or meet any other standards. We conclude that Steemer did not maintain control over the operators of the Piedmont vehicles or the manner in which they operated vehicles owned by Piedmont and registered in its name.\nWe hold that plaintiffs failed to establish any material fact tending to prove the existence of an agency relationship between Steemer and Piedmont. While Steemer conceded and the depositions of Ryser and Rohletter establish that Steemer had a measure of control over Piedmont operations, this control was not sufficient to establish an agency relationship as a matter of law. We are aware of precedent stating that the power to hire and fire employees is only one factor to consider in determining whether an agency relationship exists. Vaughn, 296 N.C. at 691, 252 S.E.2d at 798. As such, we have examined the circumstances in their entirety for material facts which support a finding of control and therefore agency. Similarly, we note that the language of the contract is not necessarily controlling. Nonetheless, the fact that the parties formally agreed that Piedmont was an independent contractor and not an agent of Steemer is an indicia of the parties\u2019 intent that no agency relationship be formed.\nFor the reasons stated herein, we conclude that there are no genuine issues of material fact regarding Steemer\u2019s liability for the alleged negligence of Spero based on principles of agency. As such, the judgment of the trial court granting summary judgment for Steemer is affirmed.\nAffirm.\nJudges MARTIN and HORTON concur.", "type": "majority", "author": "TIMMONS-GOODSON, Judge." } ], "attorneys": [ "Twiggs, Abrams, Strickland, & Trehy, P.A., by Donald R. Strickland and Karen M. Rabenau, for plaintiffs-appellants.", "Cranfill, Sumner, & Hartzog, L.L.P., by Stephanie Hutchins Autry and Samuel H. Poole, Jr., for defendant-appellee." ], "corrections": "", "head_matter": "DERRICK MILLER, JR., by his Guardian ad Litem, Allen Bailey; CHARMA MILLER; and DERRICK MILLER, SR., Plaintiffs v. PIEDMONT STEAM COMPANY, INC., d/b/a Stanley Steemer; STANLEY STEEMER INTERNATIONAL, INC.; and JOHN STEVEN SPERO, Defendants\nNo. COA99-440\n(Filed 18 April 2000)\nAgency\u2014 automobile accident \u2014 personal injury action \u2014 franchise agreement \u2014 no evidence of control\nIn an action to recover damages for personal injuries sustained by a six-year-old pedestrian struck by a van owned by defendant-franchisee Piedmont Steam Company, Inc., the trial court did not err in granting summary judgment in favor of defendant-franchisor Stanley Steemer International, Inc., on the issue of the franchisor not being liable for the torts of its franchisee on an actual agency theory, because: (1) the franchise agreement only provided general standards regarding the attire and appearance of the franchisee\u2019s employees and the condition of its equipment, and a general duty to maintain the premises in a \u201cclean, attractive, safe and orderly manner\u201d; (2) the franchisor did not retain or exercise detailed control over the daily operations since its involvement in the franchisee\u2019s operations functioned largely to ensure uniform service and public good will toward the corporation; (3) the franchisor did not retain control over the hiring, firing, or supervision of the franchisee\u2019s personnel; (4) the franchisor\u2019s remedies in the event of a breach of the franchise agreement were limited; (5) the franchisor could obtain adequate insurance if the franchisee failed to do so, and no agency relationship arises when one party requires another to maintain liability insurance; (6) the franchisor did not maintain control over the operators of the franchisee\u2019s vehicles or the manner in which they operated vehicles owned by the franchisee and registered in its name; and (7) the fact that the parties formally agreed that the franchisee was an independent contractor and not an agent of the franchisor is an indicia of the parties\u2019 intent that no agency relationship be formed.\nAppeal by plaintiffs from judgment entered 14 January 1999 by Judge L. Oliver Noble in Superior Court, Mecklenburg County. Heard in the Court of Appeals 12 January 2000.\nTwiggs, Abrams, Strickland, & Trehy, P.A., by Donald R. Strickland and Karen M. Rabenau, for plaintiffs-appellants.\nCranfill, Sumner, & Hartzog, L.L.P., by Stephanie Hutchins Autry and Samuel H. Poole, Jr., for defendant-appellee." }, "file_name": "0520-01", "first_page_order": 552, "last_page_order": 558 }