FELIX HOWARD AND ANA MARIE HOWARD, APPELLANTS,
v.
RICHARD SHIRMER, JR., ETC., ET AL., APPELLEES
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Plaintiffs appealed a summary judgment dismissing the Miami Herald Publishing Company from a negligence action arising from an injury caused by a van driven by a Herald newsdealer. The court affirmed the summary judgment, holding that the newsdealer was an independent contractor rather than an employee of the Herald.
The court affirmed the summary judgment, holding that Shirmer was an independent contractor. The court also held that the trial court properly denied plaintiffs' motion for additional testimony because plaintiffs had ample opportunity to depose the relevant Herald employee before the summary judgment hearing and failed to pursue proper procedural options such as moving for a continuance.
[1] A party seeking to take additional testimony after a summary judgment hearing must demonstrate why such testimony was not discoverable or obtainable prior to the hearing,…
[2] A trial court may grant summary judgment when the undisputed evidence establishes that a party is an independent contractor, not an employee.
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Join FLexlaw to unlock all legal intelligence“Plaintiffs had ample opportunity to depose Mr. Kitson before the hearing on the Herald's motion for summary judgment.”
Establishes that plaintiffs failed to pursue proper discovery procedures and cannot complain of lack of opportunity to gather evidence before summary judgment.
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Join FLexlaw to unlock all legal intelligenceFelix Howard was injured when a truck he was working under was struck by a van driven by Richard Shirmer. Howard and his wife sued Shirmer and discove…
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PER CURIAM.
Plaintiffs appeal a summary final judgment as to The Miami Herald Publishing Company, one of several defendants in this negligence action.
Plaintiff Felix Howard was injured when the truck beneath which he was working was hit by a van driven by defendant Richard Shirmer. Howard and his wife sued Shirmer and through discovery learned he was a newsdealer for the Miami Herald. Thereupon, plaintiffs filed an amended complaint adding the Herald as an additional party defendant on the allegation that Shirmer was its employee. The Herald answered alleging that Shirmer was an independent contractor. Shirmer’s deposition also reflects that he considered himself to be self-employed. Subsequently, the Herald filed a motion for summary judgment and attached supporting affidavits together with the Independent Newsdealer’s Contract entered into with Shirmer. The trial court granted summary final judgment in favor of the Herald based upon the finding that on the date of the accident Shirmer was an independent contractor. Thereafter, the Howards filed a motion for rehearing and a motion for leave to take additional testimony of Mr. Kitson, the person at the Miami Herald who allegedly has the decision making powers concerning such matters as the termination of a newsdealer’s contract. The motion was denied. We affirm.
With regard to plaintiffs’ contention that the court erred in denying their motion for leave to take additional testimony, the plaintiffs had ample opportunity to depose Mr. Kitson before the hearing on the Herald’s motion for summary judgment. Further, if they believed that they did not have adequate time to take Mr. Kit-son’s deposition, then they should have moved for a continuance pursuant to RCP 1.510(f) to afford them the additional time needed. Plaintiffs have failed to pursue the proper procedural options open to them. Cf. McNutt v. Sherrill, Fla.App. 1962, 141 So. 2d 309; CIA. Ecuatoriana De Aviacion v. U. S. & Overseas Corp., Fla.App. 1962, 144 So. 2d 338,
We find no merit in plaintiffs’ argument that the court erred in its entry of summary judgment for the Miami Herald. See Miami Herald Publishing Company v. Kendall, Fla. 1956, 88 So. 2d 276 and Cf. Peairs v. Florida Publishing Company, Fla.App.1961, 132 So. 2d 561.
Affirmed.
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Leviton v. Philly Steak-Out, Inc., 533 So. 2d 905 (Fla. 3d DCA 1988)…plete same. Steiner v. Ciba-Geigny Corp., 364 So. 2d 47, 53 (Fla. 3d DCA 1978), cert, denied, 373 So. 2d 461 (Fla.1979); Fuller v. General Motors Corp., 353 So. 2d 1236, 1237 (Fla. 3d DCA), cert, denied, 361 So. 2d 832 (Fla.1978); Howard v. Shirmer, 334 So. 2d 103, 104 (Fla. 3d DCA 1976); Fla.R.Civ.P. 1.510(f). Second, we find no merit in the defendants’ points that their affirmative defenses and counterclaim were never disproved and that numerous issues of fact remained to be resolved. The affirmative defe…
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Harper v. Toler, 884 So. 2d 1124 (Fla. 2d DCA 2004)…561 So. 2d 1198, 1199 (Fla. 5th DCA 1990) (affirming directed verdict in favor of newspaper, which was based on determination that carrier was an independent contractor and stating that case was “factually analogous” to Kendall); Howard v. Shirmer, 334 So. 2d 103, 104 (Fla. 3d DCA 1976) (affirming summary judgment in favor of newspaper, which was based on conclusion that carrier under “Independent Newsdealer’s Contract” was an independent contractor). There is, however, no “conclusive” or “ironclad presumpt…
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Brodsky v. Knight-Ridder, Inc., 561 So. 2d 23 (Fla. 3d DCA 1990)…PER CURIAM. Affirmed. Miami Herald Pub. Co. v. Kendall, 88 So. 2d 276 (Fla.1956); see Walker v. Palm Beach Newspapers, Inc., 561 So. 2d 1198 (Fla. 5th DCA 1990); Howard v. Shirmer, 334 So. 2d 103 (Fla. 3d DCA 1976).…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- The Miami Herald Publ'g Co. v. Mrs. Mary Kendall, 88 So. 2d 276 (Fla. 1956)
- Peairs v. Fla. Publ'g Co., 132 So. 2d 561 (Fla. 1st DCA 1961)
- CIA. Ecuatoriana de Aviacion v. U. S. & Overseas Corp., 144 So. 2d 338 (Fla. 3d DCA 1962)
- John P. McNUTT Ad Litem of the Estate of Morris Margolis v. Sherrill, 141 So. 2d 309 (Fla. 3d DCA 1962)