Thought Leadership

Key Points:
• A principal is vicariously liable for the negligence of an agent, but not that of an independent contractor.
• If an employer’s right to control extends to the manner in which a task is completed, then an employee is an agent rather than an independent contractor.
• Even though agency is generally a question for a jury to resolve, where the record is devoid of evidence to support a finding of agency, then summary judgment is appropriate.

In many cases involving the alleged negligence of an independent contractor we may think the liability analysis is simple: there is no vicarious liability for an independent contractor’s negligent actions. However, this analysis does not consider whether that “independent contractor” could be considered an agent. Under Florida law, “[A] principal is vicariously liable for the negligence of an agent, but not of an independent contractor.” Del Pilar v. DHL Glob. Customer Sols. (USA), Inc., 993 So. 2d 142, 145 (Fla. 1^st DCA 2008). The First District Court of Appeals’ recent ruling in the case of James v. Hernandez et al, 2026 Fla. App. LEXIS 3878 (Fla. 1^st DCA May 20, 2026) provides clear guidance on the determinative test used to evaluate whether a person/entity is an independent contractor or an agent.

In James, the plaintiff, Jeffrey James, was on a bicycle when he was struck by a vehicle operated by Abraham Hernandez, Jr. Hernandez owned Premier Waterproofing & Painting (“PWP”), which was a painting subcontractor for Premier Construction-Residential, LLC (“Premier”). Hernandez was traveling between Premier job sites at the time of the accident. Premier moved for summary judgment on the basis that Hernandez was an independent contractor. The plaintiff opposed the motion and asserted that Hernandez was Premier’s agent and, thus, Premier was vicariously liable for Hernandez’s negligence. At the trial court level, Premier’s motion for summary judgment was granted, but the plaintiff appealed, leading to this opinion from the 1^st DCA.

The 1^st DCA began their analysis by considering Premier’s right to control Hernandez, and not the actual control exercised over Hernandez. They cited to Del Pilar v. DHL Glob. Customer Sols. (USA), Inc., 993 So. 2d 142, 146 (Fla. 1st DCA 2008) for the proposition that, “If the employer’s right to control the activities of an employee extends to the manner in which a task is to be performed, then the employee is not an independent contractor, but rather is an agent … .”

For the purpose of analyzing Premier’s right to control, they looked at the written agreement between Premier and Hernandez. The agreement governing the relationship among Premier, Hernandez, and PWP expressly provided that Hernandez was an independent contractor. The 1^st DCA specifically highlighted provisions that were consistent with Hernandez being an independent contractor such as requirements that Hernandez have his own general liability, workers’ compensation, and auto liability insurance and that Hernandez be paid in one lump sum rather than a salary or hourly wage.

In addition to the agreement, the court also looked to the actual practice among the parties to determine if the relationship was one of principal or agent. The Court noted that Hernandez drove his own truck, purchased his own paint and equipment, hired and paid his own workers, and he controlled how he got to and from Premier jobsites.

Despite these facts, the plaintiff tried to argue that Hernandez was Premier’s agent because Hernandez worked almost exclusively for Premier. They also argued that Premier exercised control over Hernandez’s painting methods by indicating the order in which he should paint homes in the Fletcher Oaks subdivision and which paint colors to use. Counter to these assertions, the Court recognized that Hernandez and PWP contracted with and were compensated by other companies and individuals besides Premier. Likewise, Premier contracted with other painters to paint houses in the Fletcher Oaks subdivision as well.

As to the direction given to Hernandez by Premier, the court indicated that the instructions to Hernandez were essential to the work generally assigned by a build contractor to a specialty subcontractor. Considering that there were other subcontractors working within the Fletcher Oaks subdivision, Premier needed to provide instruction as to the sequence of homes to be painted and which paints to use on those homes. The court stated that these actions by Premier did not point to control over Hernandez’s methods of painting but rather control over outcomes of the job assigned.

Typically, the question of whether there is an agency relationship is a question for a jury to resolve, but, in this instance, the court ultimately ruled that the plaintiff failed to present any significantly probative evidence pointing to Premier’s control over Hernandez’s painting methods to show that there was an agency relationship. As such, the 1^st DCA affirmed the trial court’s ruling that Premier had no vicarious liability since Hernandez was an independent contractor.

This ruling serves as a reminder not only of the agency exception to the general independent contractor rule but also the standards for ruling on a motion for summary judgment. Even though the question of agency is generally considered a question of fact for a jury, the test on summary judgment is whether there is evidence such that a reasonable jury could return a verdict for the nonmoving party. As this case demonstrates, when there is not sufficient evidence on a question of fact, then summary judgment is appropriate.

Noah is an Associate in our Tampa, FL office. He can be reached at (813) 898-1817 or NEBlake@mdwcg.com.