GRSMB Attorney’s Michael Rust and Pam Webb were featured in the DRI Newsletter. The article is below.
January 26, 2011
DRI members Michael Rust and Pam Webb of Gray, Rust, St. Amand, Moffett & Brieske in Atlanta, successfully secured a summary judgment ruling, which was upheld by the Georgia Court of Appeals for their client, Pilot Air Freight Corp. (Pilot) in a wrongful death lawsuit. Pilot is engaged in the air freight business and has established a nationwide system of franchisees. A pizza oven being delivered to a Papa John’s restaurant in Woodstock, Georgia, fell on the deceased while being unloaded from a truck, causing his death.
Pilot’s franchisee had a contract to deliver ovens in Georgia and had hired an independent contractor for the job. The plaintiff, the widow of the deceased, contended that Pilot was liable for the actions of Pilot’s franchisee and the independent contractor under Federal Motor Carrier Safety Regulations and Georgia law regarding franchisor/franchisee relationships. The trial court ruled that Federal Motor Carrier Safety Regulations were inapplicable because the regulations exclude incidents occurring during the unloading of cargo. The judge and appellate court also ruled that Pilot was not vicariously liable for the actions of its franchisee or the independent contractor hired to make the delivery because Pilot had not exercised sufficient control over its franchisee to create an agency relationship.
The plaintiff argued that the fact that Pilot’s name and logo were displayed and used in the franchisee’s office and on employee uniforms created the perception with customers that they were dealing with Pilot. The trial court, however, found that this was insufficient evidence that Pilot was holding the franchisee or the independent contractor out as its agent(s). Even if the independent contractor was wearing a Pilot uniform while delivering ovens, “use of the franchisor’s name is inherent in any franchise agreement and is insufficient to raise a question of fact with respect to liability where the evidence demonstrates that the franchisor and franchisee are distinct and independent entities and that no agency exists.” There was also no evidence that the deceased relied on any agency relationship and would have refused to work if he was aware that Pilot was not the carrier designated to deliver the ovens.
