Document for Ronald Vohs Plaintiff vs. Josimars Cleaning Services Corp, et al Defendant

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                                Filing # 81354006 E-Filed 11/28/2018 04:56:16 PM

IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, FLORIDA

RONALD VOHS,
Plaintiff, CASE NO.: CACE-17-007673
DIVISION: 05
vs.
JOSIMAR’S CLEANING SERVICES CORP,
USA BR GENERAL SERVICES CORP.,
INDUSTRIAL CABLE COMMUNICATIONS
SERVICES INC., AND COMCAST
CORPORATION,

Defendants.
/

DEFENDANTS INDUSTRIAL CABLE COMMUNICATIONS SERVICES INC., AND
COMCAST CORPORATION’S MOTION FOR SUMMARY JUDGMEN’
AND SUPPORTING MEMORANDUM OF LAW

COME NOW, Defendants, INDUSTRIAL CABLE COMMUNICATIONS SERVICES
INC., and COMCAST CORPORATION (hereinafter referred to as “Defendants”), by and
through their undersigned counsel, and pursuant to Florida Rule of Civil Procedure 1.510, hereby
move this Court for Summary Judgment in their favor as there is no genuine issue of material fact
regarding Co-Defendant JOSIMAR’S CLEANING SERVICES CORP’s status as an Independent
Contractor and Defendants are entitled to judgment as a matter of law. In support thereof,
Defendants state:

1, Plaintiffs Complaint in this matter was filed on April 21, 2017. Paragraph 10 of
the Complaint alleges that on or about January 8, 2016, Plaintiff, Ronald Vohs, was walking

through a grassy area within his mobile home community when he tripped and fell over an exposed.

cable wire running from a cable box to one of the mobile homes.

*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 11/28/2018 4:56:15 PM.****2. Plaintiff asserts independent Negligence causes of action against each named
Defendant. As to these Defendants, Plaintiff alleges that “Defendant created a foreseeable zone of
risk of harm by failing to properly and adequately install, repair, maintain, warn, and/or inspect
the cable at the subject premises, and by failing to adequately hire, retain, supervise and/or train
its contractors, agents and/or employees.” (Complaint § 24 and 29.)

3. By way of factual background, Mr. Josimar Oliveira testified at his June 13, 2018
deposition that he formed the Co-Defendant, Josimar’s Cleaning Services Corp. (See Oliveira
depo., p. 10, lines 10-13; and Sunbiz.org printout for Josimar’s Cleaning Services Corp attached
hereto as Exhibit “A.”)

4, On or about September 26, 2015, Josimar Oliveira, on behalf of Defendant
Josimar’s Cleaning Services Corp, entered into a “USA BR GENERAL SERVICES
CORPORATION SUB-CONTRACTOR AGREEMENT.” (See Oliveira depo., p. 12, lines 9-22;
p. 24, lines 13-16; p. 31, lines 20-25; and USA BR GENERAL SERVICES CORPORATION
SUB-CONTRACTOR AGREEMENT attached hereto as Exhibit “B.”)

5. Mr. Marciel Silva testified at his February 23, 2018 deposition that he signed the
USA BR GENERAL SERVICES CORPORATION SUB-CONTRACTOR AGREEMENT on
behalf of Co-Defendant, USA BR General Services Corp, as the corporation’s President/Owner.
(See Marciel Silva depo., p. 17, lines 16-18; p. 21, line 9 to p. 22, line 6.)

6. Section 4 of the USA BR GENERAL SERVICES CORPORATION SUB-

CONTRACTOR AGREEMENT states as follows:SECTION 4. SL RCT
der C

 
   

oa

j BResha © a ani
CORPACEPES UB-CONTRACTOR shall not state or imply, directly or indirectly, that SUB-
CONTRACTOR is empowered to blind USA BR. without the company’s prior written consent
Nothing herein shall create, expressly or by imphcation, a partnership. joint venture or other
association beineey) the ote Sit fs 2

a. EMPLOYEES ‘OF SUM CONTRACTOR The parties agree that USA BR shali

not be responsible in any manner for the employees of SUB-CONTRACTOR, including but not
limited to wages. compensation insurance or employee taxes.

 

7. Section 9 of the USA BR GENERAL SERVICES CORPORATION SUB-

CONTRACTOR AGREEMENT states as follows:

against tall ailegeticns | claims, actions, suits, demands, damages, liabilities. obligations losses

settlements, judgments, costs and aoe (including without limitation pane ye Ls sand

COStS) WOlEnISEEDUtoh Mskate

 

8. Josimar Oliveira testified at his deposition that Co-Defendant Josimar’s Cleaning
Services Corp was/is an Independent Contractor of Co-Defendant USA BR General Services
Corp. (See Oliveira depo., p. 133, line 23 to p. 134, line 15.)

9. Marciel Silva testified at his deposition that he and his wife, Adriana, are the sole
employees of Co-Defendant, USA BR General Services Corp. (See Marciel Silva depo., p. 8, lines
7-15.)

10. Marciel Silva further testified at his deposition that Co-Defendant, USA BR
General Services Corp, has worked as a Contractor for Defendant Industrial Cable
Communications Services, Inc. for three to four years. (See Marciel Silva depo., p. 14, line 6 to
p. 15, line 10.) Co-Defendant USA BR General Services Corp hires Independent Contractors to

do the “bury drop” (i.e. bury cable) work. (See Marciel Silva depo., p. 15, line 23 to p. 16, line 3.)11. Mr. Elizeu Silva! was deposed on February 23, 2018. He testified that he has been
a Field Supervisor for Defendant Industrial Cable Communications Services, Inc. (hereinafter
“ICCS”) since 2007. (See Elizeu Silva depo., p. 11, lines 7-14; p. 12, lines 16-21; p. 15, lines 11-
13.) Elizeu Silva further testified that Defendant ICCS is a Subcontractor for Defendant Comcast
Corporation (hereinafter “Comcast”). (See Elizeu Silva depo., p. 10, line 21, to p. 11, line 3.)

12. Marciel Silva testified that on or about January 4, 2016, he received a Work Order
via email from Elizeu Silva. One of the jobs listed on the Work Order was to perform a “bury
drop” at 11663 Southwest 11" Place, Davie, FL. Marciel Silva assigned Josimar Oliveira to
perform this job. (See Marciel Silva depo., p. 49, line 11 to p. 50, line 18.)

13. Josimar Oliveira testified that he received a Work Order from Marciel Silva dated
January 4, 2016, to perform a “drop bury” job at 11663 Southwest 11" Place, Davie, FL. Mr.
Oliveira further testified that he put this address into his GPS which took him to the wrong address.
(See Oliveira depo., p. 66, line 21 to p. 69, line 16.)

14, The address that Josimar Oliveira actually went to was 11663 SW 11" Street,
Davie, FL. (See Oliveira depo., p. 76, line 4 to p. 77, linc 1; and Affidavit of Josimar Oliveira
attached hereto as Exhibit “C.”)

15. When Josimar Oliveira arrived at 11663 SW 11" Street, Davie, FL, he performed
a “prebury” job at that address. Mr. Oliveira thereafter texted Marciel Silva and let him know that
he had completed the job as listed on the Work Order. (See Oliveira depo., p. 84, line 22 to p. 86,

line 16.)

' Defendants wish to inform the Court that Marciel Silva and Elizeu Silva are not related.

416. At approximately 5:50 p.m. on January 8, 2016, Plaintiff, Ronald Vohs, allegedly
tripped and fell over cable that Josimar Oliveira was supposed to bury pursuant to the Work Order
for 11663 Southwest 11'" Place, Davie, FL. (See Vohs depo., p. 19, lines 7-12.)

17. Mr. Vohs testified at his November 7, 2017 deposition that he never walked in the
backyards of his neighbors prior to the fall. He had always walked on the sidewalk out front when
going to visit neighbors. (See Vohs depo., p. 18, lines 13-24.) At the time of the fall on January 8,
2016, Mr. Vohs testified that he was walking home to his house from his friend Brian Cutchins’
home. He further testified that to his knowledge, this was the first time he had ever walked home
through the grassy backyards from Mr. Cutchins’ house and did not use the sidewalk. (See Vohs
depo., p. 19, line 21 to p. 21, line 1.)

18. It is well-established law in Florida that an employer is vicariously liable for the
torts of his employee (acting within the scope of his employment) under the doctrine of respondeat
superior, but that an employer is not liable for torts caused by one considered the employer’s
Independent Contractor. Georgia-Pacific Corp. v. Charles, 479 So.2d 140, 142 (Fla. 5" DCA
1985); Lee v. American Family Life Assurance Company, 431 So.2d 249, 250 (Fla. lst DCA
1983); Roark v. Peters, 242 So.2d 199, 200 (Fla. 1st DCA 1970).

19. | To determine whether an individual is an employee or independent contractor,
Florida law requires courts to initially look to the parties’ agreement. McGillis v. Dept. of
Economic Opportunity, 210 So.3d 220, 224 (Fla. 3d DCA 2017); Keith v. News & Sun Sentinel
Co., 667 So.2d 167, 171 (Fla. 1995). If a provision disclaims an employer-employee relationship
in favor of independent contractor status, courts honor that provision “unless other provisions of
the agreement, or the parties’ actual practice, demonstrate that it is not a valid indicator of status.”

Id. If the parties’ actual practice contradicts their written agreement, the actual practice controls.Id.

20. The USA BR GENERAL SERVICES CORPORATION SUB-CONTRACTOR
AGREEMENT entered into between Defendant Josimar’s Cleaning Services Corp and Defendant
USA BR General Services Corp clearly specifies that Josimar’s Cleaning Services Corp/Josimar
Oliveira is an Jndependent Contractor and not an employee of Defendant USA BR General
Services Corp. The parties themselves have likewise testified consistently with this fact. Plaintiff
has likewise produced no competent evidence that Defendant Josimar’s Cleaning Services Corp
was an employee of either Defendants ICCS or Comeast. Accordingly, Defendants are entitled are
Summary Judgment in their favor.

21. To the extent that the Court does not concur that the express terms of the USA BR
GENERAL SERVICES CORPORATION SUB-CONTRACTOR AGREEMENT resolve this
Motion in favor of the Defendants, Florida courts have consistently applied the test developed in
Restatement (Second) of the Law of Agency in order to determine whether an individual is an
employee (the Restatement uses the term “servant”) as opposed to an independent contractor.

McGillis v. Dept. of Economic Opportunity, supra; Cantor v. Cochran, 184 So.2d 173 (Fla. 1966).

22. Restatement (Second) of Agency, § 220 (1958), provides:
Definition of Servant
(1) A servant is a person employed to perform services in the affairs of another and
who with respect to the physical conduct in the performance of the services is

subject to the other’s control or right to control.

(2) In determining whether one acting for another is a servant or an independent
contractor, the following matters of fact, 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.

23. Applying these factors, the court in T & T Communications, Ine. y. State Dept. of
Labor and Employment Security, 460 So.2d 996 (Fla. 2d DCA 1984) held that cable television
installers were Independent Contractors. A review of additional Florida case law discussed below
which interprets these factors again necessitates the Court to reach the same outcome. See, Kane
Furniture Corp. v. Miranda, 506 So.2d 1061 (Fla. 2d DCA 1987); Wiseman v. Miami Rug Co.,
524 So.2d 726 (Fla. 4" DCA 1988); and Georgia-Pacific Corp. v. Charles, 479 So.2d 140 (Fla.
5" DCA 1985).

Accordingly, Defendants, INDUSTRIAL CABLE COMMUNICATIONS SERVICES,
INC., and COMCAST CORPORATION. are entitled are Summary Judgment in their favor.

SUMMARY JUDGMENT STANDARD OF REVIEW

The party seeking summary judgment bears the initial burden of showing the nonexistence

of any genuine issues of material fact. Landers v. Milton, 370 So.2d 368, 370 (Fla. 1979). A

material issue of fact is “genuine” only if a reasonable jury, considering the evidence presenting,could find for the nonmoving party. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). Once the moving party shows that no genuine issue exists, the burden then shifts to the
party opposing summary judgment, who must present evidence that there is, in fact, a genuine
dispute as to a material fact. Landers, 370 So.2d at 370. A mere allegation in a pleading,
unsupported by any evidence, cannot create a “genuine issue as to any material fact” that would
preclude the entry of summary judgment. Graff'v. McNeil, 322 So.2d 40, 43 (Fla. 1 DCA 1975).

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT

L PLAINTIFF HAS THE BURDEN OF ESTABLISHING THAT THERE IS A
TRIABLE ISSUE OF MATERIAL FACT AND THE EXISTENCE OF
EVERY ELEMENT ESSENTIAL TO HIS CLAIM.

As stated by the Florida Supreme Court, the function of summary judgment is to “avoid
the expense and delay of trials when all facts are admitted.” Nat’? Airlines, Inc. v. Florida Equip.
Co. of Miami, 71 So.2d 741, 744 (Fla. 1954). Pursuant to Florida Rule of Civil Procedure 1.510,
summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show that there is no
genuine issue of any material fact and that the moving party is entitled to judgment as a matter of
law.” Once the movant has successfully met its initial burden of establishing there are no material
facts at issue, the burden shifts to the opposing party to come forward with evidence and opposition
to the motion. Spradley v. Strick, 622 So.2d 610 (Fla. 1st DCA 1992). If the opponent fails to
satisfy its burden, then an order of summary judgment should be entered. See Spradley, 622 So.2d
at 610.

Plaintiff has failed to satisfy his burden by providing no material evidence that contradicts
the fact that: (1) Defendant Josimar’s Cleaning Services Corp was an Independent Contractor of

Defendant USA BR General Services Corp; and/or (2) Defendant Josimar’s Cleaning ServicesCorp or Defendant USA BR General Services Corp was an employee of either Defendants ICCS
or Comcast. Accordingly, Defendants are entitled are Summary Judgment in their favor.

IL. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT AS THERE

IS NO GENUINE ISSUE OF MATERIAL FACT DISPUTING THAT
DEFENDANT JOSIMAR’S CLEANING SERVICES CORP WAS AN
INDEPENDENT CONTRACTOR OF DEFENDANT USA BR GENERAL
SERVICES CORP AND NOT AN EMPLOYEE OF EITHER DEFENDANTS
ICCS OR COMCAST.

It is well-established law in Florida that an employer is vicariously liable for the torts of
his employee (acting within the scope of his employment) under the doctrine of respondeat
superior, but that an employer is not liable for torts caused by one considered the employer’s
Independent Contractor. Georgia-Pacific Corp. v. Charles, 479 So.2d 140, 142 (Fla. 5 DCA
1985); Lee v. American Family Life Assurance Company, 431 So.2d 249, 250 (Fla. Ist DCA
1983); Roark v. Peters, 242 So.2d 199, 200 (Fla. 1st DCA 1970).

To determine whether an individual is an employee or independent contractor, Florida law
requires courts to initially look to the parties’ agreement. McGillis v. Dept. of Economic
Opportunity, 210 So.3d 220, 224 (Fla. 3d DCA 2017); Keith v. News & Sun Sentinel Co., 667
So.2d 167, 171 (Fla. 1995). If a provision disclaims an employer-employee relationship in favor
of independent contractor status, courts honor that provision “unless other provisions of the
agreement, or the parties’ actual practice, demonstrate that it is not a valid indicator of status.” Id.
If the parties’ actual practice contradicts their written agreement, the actual practice controls. Id.

Mr. Josimar Oliveira testified at his June 13, 2018 deposition that he formed the Co-

Defendant Josimar’s Cleaning Services Corp and eventually began performing cable work under

this corporate entity.19 When you came to Florida did you start a

business by the name of Josimar's Cleaning

Services?

a. Ee

Q. When did you start that business?

 

I don't remember.

(Oliveira depo., p. 10, lines 10-13)

   

Q.

2 (BY MS. CHAN) And at

3 | did you start performing cable work under Josimar's
4

5

some point in time

     
 

 

  
 

Cleaning Services?

    
   

 

(Oliveira depo., p. 12, lines 2-5)

  

A.

   

The Sunbiz.org printout for Josimar’s Cleaning Services Corp indicates that the effective date of
the corporation was September 22, 2015, See Exhibit “A.”

On or about September 26, 2015, Josimar Oliveira, on behalf of Defendant Josimar’s
Cleaning Services Corp, entered into a “USA BR GENERAL SERVICES CORPORATION SUB-

CONTRACTOR AGREEMENT.”9 7 I have (Indicating) a
10 TE
11 | dorposation|analvosuman’s icieanmig Benviees

2 |

13 A. CGSSEEE

14 Q. I'm just going to hand this document to

  
 
   
 
 
 
    
   
     

| 15} you (Indicating).
16 A. (Indicating). Thank you.

17 Q. And if you can take a look at the first

18 | paragraph. Qoes thatretresal your eecoilection of!
29 | ge
20 | cUEaHREgIBeeAMEeoy

21 A. (Indicating).

 

(Oliveira depo., p. 12, lines 9-22.)

   

Q.

this contract was actually entered into on

 

So you have no reason to dispute that

September 26th, 2015? Is that correct?

a |

— — - -

(Oliveira depo., p. 24, lines 13-16.)
A copy of the USA BR GENERAL SERVICES CORPORATION SUB-CONTRACTOR
AGREEMENT is attached hereto as Exhibit “B.”

Mr. Marciel Silva testified at his February 23, 2018 deposition that he signed the USA BR
GENERAL SERVICES CORPORATION SUB-CONTRACTOR AGREEMENT on behalf of

Co-Defendant, USA BR General Services Corp, as the corporation’s President/Owner.16 Q. Okay. What do you do for USA BR, what's your}
17 responsibility?
18 A. Itmethempuecident, theme
(Marciel Silva depo., p. 17, lines 16-18.)
11 MS. CHAN: Mark this as Plaintiff's Exhibit 1.}
12 (Plaintiff's Exhibit Number 1 was marked for
13 identification.)
14 THE WITNESS: Yes.
15 BY MS. CHAN:
16 Q. Okay. You're familiar with this contract?
17 Yes.
18 Q. All right. And t
| 12 | PReGenersinservicessCorporaticnshassvithwosimar
20 | BSTIGISERVIeSsICerperation. correct:
21 A. Yee).
22 Q. Okay. Is this the only contract that exists
23 between USA BR and Josimar's Cleaning?
24 A. Yes.
25 Q. Okay. cARPSRIS SNES ESRSEEEHTS
_ - — _ ————

 

121 | COntmachEwaSmentered?
2 A. Let me check. 9/26/2015 0)
3 Q. 2015?
4 A. Uh-huh.
5 Q. "Yes"?
6 A. Yes.
- _ = _

 

(Marciel Silva depo., p21, line 11 to p. 22, line 6.)

The USA BR GENERAL SERVICES CORPORATION SUB-CONTRACTOR
AGREEMENT entered between Defendant Josimar’s Cleaning Services Corp and Defendant USA
BR General Services Corp clearly specifies that Josimar’s Cleaning Services Corp is an
Independent Contractor and not an employee of Defendant USA BR General Services Corp.
Section 4 of the USA BR GENERAL SERVICES CORPORATION SUB-CONTRACTOR

AGREEMENT states as follows:

 

CORPACOPMS UB-CONTRACTOR shall not state or imply, directly or indirectly, that SUB- S
CONTRACTOR is empowered to blind USA BR. without the company’s prior written consent
Nothing herein shall create, expressly or by implication, a partnership, joint venture or other

a8: an between the parties

a, EMPLOYEES OF SUM-CONTRACTOR. The parties agree that USA BR shall
not be responsibie in any manner for the employees of SUB-CONTRACTOR, including but not
limited to wages, compensation insurance or employee taxes.

 

Section 9 of the USA BR GENERAL SERVICES CORPORATION SUB-

CONTRACTOR AGREEMENT likewise states as follows:SECTION 9. thE.
an Hfeg TICEISile eV AG 3

against all allegations, claims, actions, suits, demands, dama
selttements, judgments, co:

COStS) VaGhREMIsEHOUteas esl

AOKOTSNANAG
ges, liabilities. obli
and expenses (including without limitation attor

   

gations, losses.
neys fess and

SONiTiF RSs

 

          

 

The parties themselves have likewise testified consistently with the USA BR GENERAL

SERVICES CORPORATION SUB-CONTRACTOR AGREEMENT. Josimar Oliveira testified
at his deposition that Co-Defendant Josimar’s Cleaning Services Corp was/is an Independent

Contractor of Co-Defendant USA BR General Services Corp.

 

  

     
 

 

23 Q.

earlier as Plaintiff's Exhibit 1, are those the

And, the contract that was marked with -

  

    
 

24

terms and conditions as you understand it under

  

 

1) which you do work for USA BR?
2 A. Yes.

 

 

(Oliveira depo., p. 133, line 23 to p. 134, line 10.)

14Marciel Silva testified at his deposition that he and his wife, Adriana, are the sole

employees of Co-Defendant, USA BR General Services Corp.

 

Tt
14 7 Does Adriana have any relationship to you?

  

15 e Yeah, my wife.

 

(Marciel Silva depo., p. 8, lines 7-15.)
Marciel Silva further testified at his deposition that Co-Defendant, USA BR General

Services Corp then hires Independent Contractors to do the “bury drop” work.

 

23 Q. Okay. When you say you do "bury drop," are
24 you the one actually physically doing it at these -- all

25 these prior companies, or are you having other

 

 

 

 

contractors do it?

A. Yeah. BORMMNGNGNS. —NMEVENCOHEPSCRS --

  

 

(Marciel Silva depo., p. 15, line 23 to p. 16, line 3.)
In conclusion, the evidence is undisputed that Co-Defendant Josimar’s Cleaning Services
Corp was an Independent Contractor and not an Employee of Co-Defendant USA BR General

Services Corp. Plaintiff has likewise produced no competent evidence that Co-Defendant

15Josimar’s Cleaning Services Corp was an employee of either Defendants ICCS or Comcast.

Accordingly, Defendants, INDUSTRIAL CABLE COMMUNICATIONS SERVICES, INC.,

and COMCAST CORPORATION, are entitled are Summary Judgment in their favor.

I.

EVEN WITH THE “RESTATEMENT TEST” BEING APPLIED,
DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT AS THERE
IS NO GENUINE ISSUE OF MATERIAL FACT DISPUTING THAT
DEFENDANT JOSIMAR’S CLEANING SERVICES CORP WAS AN
INDEPENDENT CONTRACTOR OF DEFENDANT USA BR GENERAL
SERVICES CORP AND NOT AN EMPLOYEE OF EITHER ICCS OR
COMCAST.

Should the Court choose to examine this matter further than the express language of

Sections 4 and 9 of the USA BR GENERAL SERVICES CORPORATION SUB-CONTRACTOR

AGREEMENT, Florida courts have consistently applied the test developed in Restatement

(Second) of the Law of Agency in order to determine whether an individual is an employee (the

Restatement uses the term “servant”) as opposed to an independent contractor. McGillis v. Dept.

of Economic Opportunity, 210 So.3d 220, 224 (Fla. 3d DCA 2017); Cantor v. Cochran, 184 So.2d

173 (Fla. 166).

Restatement (Second) of Agency, § 220 (1958), provides:

Definition of Servant
(1) A servant is a person employed to perform services in the affairs of another and
who with respect to the physical conduct in the performance of the services is

subject to the other’s control or right to control.

(2) In determining whether one acting for another is a servant or an independent
contractor, the following matters of fact, 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

16supervision;
(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

(Gj) whether the principal is or is not in business.
T & T Communications, Inc. v. State Dept. of Labor and Employment Security:

A case directly on point to the instant matter is T & T Communications, Inc. v. State Dept.
of Labor and Employment Security, 460 So.2d 996 (Fla. 2d DCA 1984). Therein, the district court
reversed the findings of the Division of Unemployment Compensation and held that cable
installers were independent contractors. The petitioner, T & T Communications, Inc. (“T & T”)
was doing business with a cable television company (“CTV company”). T & T’s only business
was to provide cable installers to the CTV company on a daily basis. The CTV company had some
installers as employees and the excess work was given to T & T. The work performed by an
installer is to go to a customer’s home and install a television cable. An installer can perform ten
to fifteen such installations in a day. /d. at 996-97.

The installers reported to the CTV warehouse each morning to receive that day’s
assignments. The work was given out on a first come basis. The installers were usually told the

day before how much work would be available the next day. If enough installers did not show up,T & T would call some to see if they could work. The CTV company promised customers what
day the cable was to be installed and the assignments were made on that basis. /d. at 997.

All materials to accomplish the work were furnished by the CT'V company as well as plans,
prints and specifications required to perform the work. Each installer had to wear a badge which
stated that he was a contractor with the CTV company and a similar sign was placed on the truck.
Each installer also had to wear a tee shirt, which he paid for, with T & T’s name on it. The installers
had to furnish their own trucks and all tools necessary to perform the work. The installers were
paid on a “piece-rate basis,” an amount set by T & T for an identifiable unit of work. There were
no other forms of payment of fringe benefits. /d.

The district court then went on to actually review the Restatement factors as approved by
Florida Supreme Court in Cantor v. Cochran, supra., noting that the most important factor is the
extent of control exercised by the employer. The court stated that although the installers agreed
with T & T to complete the cable installations according to the CTV company’s plans and
specifications, the installers themselves determined the method by which the accomplish the
installation. T & T’s only concern was with the final product or result. The court noted that this
was the traditional control that a contractor exerts over an independent contractor. /d. at 998, citing
Collins y. Federated Mutual Implement & Hardware Insurance Co., 247 So.2d 461 (Fla. 4" DCA),
cert. denied, 249 So.2d 689 (Fla. 1971).

The district court went on to assert that further indicia that the cable installers are
independent contractors are that fact that: (1) they are normally unsupervised; (2) they are skilled
tradesmen; (3) they provide their own tools and transportation; (4) they are not employed for any
length of time; (5) they are paid per installation; and (6) they receive no vacation or fringe benefits.

Id.

18Applying the 7 & T Communications case to the facts of the instant matter, it is quite clear
that co-Defendant Josimar’s Cleaning Services Corp was an Independent Contractor and not an
Employee of Co-Defendant USA BR General Services Corp or either Defendants ICCS and/or
Comcast. The following evidence supports this position:

1. Co-Defendant Josimar’s Cleaning Services Corp did not have a subcontractor agreement
with any other Defendant other than Co-Defendant, USA BR General Services Corp.

 

Q. {BY MS. CHAN) Had you had any

subcontractor agreements with any other business
other than USA BR?
A. Wea

Nn On mw w

 

 

(Oliveira depo., p. 14, lines 3-6.)

2. Josimar Oliveira was aware that Co-Defendant USA BR General Services Corp entered
into subcontractor agreements with other independent contractors.

 

BY MR.

CLARKE) Dé@ySOR=RISEUSAEBRE

SHt cont racvers a ey e

     
  

 

(Oliveira depo., p. 132, lines 16-20.)

3. Josimar Oliveira did not speak to Elizeu Silva at Defendant ICCS before entering into the
subcontractor agreement with Co-Defendant, USA BR General Services Corp.

Did you ever talk to Elizeu about
2 | getting work directly from ICCS before you entered
into the agreement with USA BR?
A. No, DEGIGMSKItalMWwithBldizeuyatlrccs'.
(Oliveira depo., p. 64, lines 1-4.) ; / He mate TEE
194. Josimar Oliveira had to buy his own tools to bury the cables.

21 Q. (BY MS. CHAN) What did you have to do in
22 | order to start working with USA BR under this

23 | subcontractor agreement?

24 A. Well, DARGGUCSUSUyESISSTS! you
25 | know. [GRQQNCSMSUSMEHSMSHSVSMS! you, whatever you

1] need to - (iSRRGSIEEGUEyVAEHSNSAIS: . Imnseales |
2 | GomUCMSHERDSpSEESEDUEHentOoTS.

 

 

  
  

 

 

 

(Oliveira depo., p. 25 line 21 to p. 26, line 2.)

5. Josimar Oliveira had to pay for his own vehicle.

Q. Do you have a commercial vehicle that
you use?
A. No, it's not commercial. It's a van that

I used only for this work.

Q. Dideyouspurchasesthatevan?

A. aaa INN

Q. SéNCSHESSt, FECSMUSAEBRIMNSHSayEgaea
YOUNEHSEAVER? ljguthetamndetity?

A. No. Tguboughtmshty and TinppenznrgeesGeem

(Oliveira depo., p. 95, lines 1-9.)

 

 

6. Josimar Oliveira wore a shirt with a Defendant Comcast subcontractor logo. His vehicle
had a decal that had a Defendant Comcast subcontractor logo on it. He had a Defendant
Comcast contractor ID badge. Mr. Oliveira had to purchase the shirt and vehicle logo from
Co-Defendant USA BR General Service Corp.

20PoP ote
DUM

—
rn
a

8

Q. Okay. Do your subcontractors that do the bury
drops, do they have Comcast shirts or hats or any kind

of uniform?

A. Yeah, gmap

Q. Okay. And the shirt, does it have a Comcast
logo?

a. Yes, SU

Q. Okay.

A. And they have a safety belt -- vest too.

Q. Okay. What about their vehicles, does it have

any Kind of Comcast) Legosjonybheyvenicies?)

a, yveSRSSERaces

Q. Okay. And they have I1.D. badges that say
Comcast contractor?

A. Yes.

 

 

 

 

(Marciel Silva depo., p. 43, lines 4-18.)

Q. Okay. The uniforms, where did the -- where

did the -- the technicians get those?

A. Yeah, the uniform, PgR ana 1-- Eo

  

(Marciel Silva depo., p. 44, lines 19-22.)

21the cars, is that something that you sell to them as

  

   

  

3 well?

4 A. No. They -- there is a Web site that they can :
5 | ask. Yeah, sometimes I -- I -- I give the sign to them.
6 Q. Okay.

r 5. TIRHREgERENERIESRE

 

(Marciel Silva depo., p. 45, lines 1-7.)

7. Defendant USA BR General Service Corp paid Defendant Josimar’s Cleaning Services
Corp by the job, not by the hour.

Q. And USA BR doesn't pay you by the hour?

Correct?

A. No WEDe™paysmmeapennjob=

Q. Do you submit an invoice to USA BR for
the jobs that you complete?

A. I send them.

 

(Oliveira depo., p. 103, lines 15-20.)

8. Josimar Oliveira could receive up to 15 jobs a day from Defendant USA BR General
Service Corp.

22Q. And earlier you told Ms. Chan that
Marciel wanted you to learn little by little. Do
you remember saying that?

A. Okay. Well, in the beginning what

Marciel did, he gave us like five to six jobs to

make sure that we are learning. And SHi6hteihuem

  
  

(Oliveira depo., p. 109, lines 13-20.)

9. The decision at what time to begin his work day was up to Josimar Oliveira.

Q. Understood about the payment and the

amount of work you do.

 

A. Wesm But then Marciel has this standard,
you know, this commitment with Comcast, and he
wants us to work eight hours or at 8:00 a.m. and my]

commitment is with Marciel.

 

(Oliveira depo., p. 113, lines 10-17.)

10. Co-Defendant USA BR General Service Corp did not provide health insurance, a 401-K
or a retirement plan to Josimar Oliveira.

2322 Q. Okay. Has Marciel ever provided your

23 | income -- Scratch that. |

 

 

2 Q. How about S@@QSRemrsrsenete pan
3 | through USA BR?

4 A. Now

 

 

 

(Oliveira depo., p. 105, line 22 to p. 106, line 4.)

11. Josimar Oliveira did not need to contact Defendant Comcast, the customer or anyone else
to obtain authorization to perform a “prebury” job versus a “drop bury” job.

 

A. Okay. If the service requires preburying
and then there's no preburying we can decide to do
the preburying, because with - the work we do with

the prebury is only done outside. We do not have to

go inside the client - the customer's home.

(BY MS. CHAN) SGRRISTRIGQ~answeaenesmyou

 

241 A. [NB because on the paper it says

2 | prebury. The client already called and asked for

3 | the service. So my job is to go there and do the

4 | prebury.

S Q. Right. But under my scenario the work
order is for drop bury or bury drop, and then you }

go to the location and there's no cable, no cable

A. SE CEeeddeidiemmmmm (0

6
7
8 | to drop.
9
0 | change the cable and do an excellent job for the

11] client.

 

 

 

(Oliveira depo., p. 51 line 19 to p. 52, line 11.)

12. Josimar Oliveira did not train with anybody at Defendant ICCS or Defendant Comcast.

 

17 Q. And, just so I'm clear, $@umbssssime@imwitth
18 | beets prior to entering into the subcontract |
19 | agreement with USA BR? Correct?

20 | A. Comnectl.

21 Q. And after you trained with Leandro m6U

22 yi é Lc ? Correct?

  

23

 

(Oliveira depo., p. 99, lines 17-23.)

13. Josimar Oliveira does not report to anybody at Defendant ICCS or Defendant Comcast.

2513 Q. Okay. Now, @RSWIEEISERNeKEycmINauG
14 | CHabMyou™aon tMPeporeleS Maem zeus TIVaNaE
15 | TeCSeNTeNEHAE Ghee

 
 
  
  
  
  
  
   
   
  
  

16 THE INTERPRETER: Silva?
17 MR. POPP: S-I-L-V-A.
18 A. NGQURRESCREMSSNMEPSHSI) and then he is

19 | in charge of reporting to someone else.
20 Q. (BY MR. POPP) Okay.

21 A. I have my limitations.

22 Q. Okay. YSUMGHEEEpSERESNANySOuy

23 | dimecthypateCondastemismiTaAReoErectes
24 A. Yous
25 Q. Okay.

 

 

(Oliveira depo., p. 96, lines 13-25.)

14. Josimar Oliveira had no knowledge if Defendant ICCS or Defendant Comcast ever
inspected his work.

 

A I know there's a general inspection. =
dormitmknowiie PerSipyaTCes|

Q. aARaMaySe NCH NSE EHaEMEENCeNease |
either?

    
   

aA. WN@Mm—NGSHENSy. © don't know. It's

something more technical. I don't get involved.

 

 

(Oliveira depo., p. 65, lines 14-21.)

2615. Marciel Silva stated that Co-Defendant USA BR General Service Corp is a Contractor, not
an Employee of Defendant ICCS.

      
 
   
 

All right. And

After, no, I stayed -- MBQaySaNSHereliyen.

Oh, you stayed there?

  
   
      

oe ee

Yeah.
Okay. So RARSUVSUMME oye en econ raceera |
Wimicontusctoum

 

(Marciel Silva depo., p. 14, lines 17-23.)

16.In January 2016, Co-Defendant USA BR General Service Corp had about ten
subcontractors.

 

Q. Okay. At the time OF this incident,
JSS so about two years ago --
A. Uh-huh.
Q. -- ROWinianylisubcontractonsadidsyoushavel,
approximately?

A. Maybertpen. I don't know.

(Marciel Silva depo., p. 18, lines 16-21.)

         

  

      
     
    
  

  

17. Co-Defendant USA BR General Service Corp did not train Josimar Oliveira.

Okay. So Josimar trained with Vinicius?
Yeah, probably.
Were you involved in that process of training?

(Marciel Silva depo., p. 22, lines 22-25.)

2718. Before Co-Defendant USA BR General Service Corp could hire a subcontractor,
Defendant ICCS would only perform a background check of the subcontractor, the cost of
which is charged back to the subcontractor.

 

Q. Do you know, before you hire subcontractors,

if Comcast has to approve of them?

A. (nininiandentebapicighadelaimaneme

Okay. You don't do the background?

Yeah, they do but they -- th@pmaemsqelleiey

  
  

(Marciel Silva depo., p. 33, lines 8-15.)

19. Defendant ICCS had no involvement in training Josimar Oliveira.

Q. Did I.c.C.S. have any involvement in training

Josimar?

A. Wem

 

(Marciel Silva depo., p. 47, lines 6-8.)

20. Co-Defendant USA BR General Service Corp did not report the results of inspections
regarding Josimar Oliveira’s work to Defendants ICCS or Comcast.

Q. And just so I understand, you would physically
go to a job site a day or two after Josimar was there to
check and see if they were done properly?

A. Yes.

Q. Okay.

 

 

(Marciel Silva depo., p. 28, lines 18-24.)

2821. Mr. Elizeu Silva has been employed as a field supervisor for Defendant ICCS since 2007.
As a field supervisor for Defendant ICCS, Elizeu Silva oversees Co-Defendant, USA BR
General Service Corp.

 

   
  
       

7 Q. Okay. And so when -- sommummeritela=mypoUMaema f

8 | SSP SIPSEMeer. Correct?

9 A Uh-huh.

10 Q. Is that "yes"?

11 A. wes®

12 Q. Okay. How long have you been field

13 supervisor?

14 A. Simvem200a

(Elizeu Silva depo., p. 11, lines 7-14.)

 

_
11 Have you been field supervisor the entire time

12 that you worked for Industrial Cable?

 

13 A. yess

 

(Elizeu Silva depo., p. 15, lines 11-13.)

   
    
  

 

16 Okay. Who did you oversee?

17 Ma@#@¥eW and another contractor named Robert.

When you say "Marciel," it—utheitpsMes@de)

oP ©

    
 
   
   
 

18 Okay.
19
20 Sdrkima .

And who does Marciel Silva work for?

 

(Elizeu Silva depo., p. 15, lines 16-25.)

2922. Elizeu Silva had access to the Defendant Comcast’s “network.” He provided work orders
to Marciel Silva each night. Marciel Silva then reported back to Elizeu Silva each night.
Elizeu Silva then provided an end of the day update to Defendant Comcast.

 

  

21 Okay. What do you do as a field supervisor?

     
 

22 -- Comcast, how

  
 

23

  
 

can I say that, S98@Wep where I can have access to all
so Behera:

     
 

24 the work that they handle a daily basis,

agcessmbOwbi Gk UpsthesWwouk, In other words, I know what

   
 

 

1 they need to be done tomorrow, so MEGIim@enmbHTatiwonk

 

5 | saG@lSGEe what was done on each location, if any jobs
6 was cancelled, if anything happens in there. Any

7 circumstance that did not allow them to complete the

 

 

(Elizeu Silva depo., p. 16, line 21 to p. 17, line 9.)

23. Elizeu Silva has no contact with the independent contractors of Co-Defendant USA BR
General Service Corp.

Q. Have you ever had contact with Marciel's

technicians?

A. Rarely, if I see them, but MlQWemuimehavesng
nsSaaeOreaeaaewswam «Anything I need, I go directly to

Marciel.

  

(Elizeu Silva depo., p. 27, lines 12-16.)

30Based upon these facts, Co-Defendant Josimar’s Cleaning Services Corp was/is an Independent
Contractor and not an Employee of Co-Defendant USA BR General Services Corp or either
Defendants ICCS and/or Comcast.

Kane Furniture Corp. v. Miranda:

Another case factually similar to the instant matter is Kane Furniture Corp. v. Miranda,
506 So.2d 1061 (Fla. 2d DCA 1987). Kane was a furniture store that also sold carpeting. Kane
sold its carpet installation business to Perrone and thereafter provided carpet installation services
through Perrone and other independent carpet installers. Perrone would then hire other independent
carpet installers, such as Kraus, to complete jobs Perrone could not perform. One day after
completing two installation jobs that Perrone had assigned Kraus to perform, Kraus, while driving
his own truck, collided broadside with the plaintiff's vehicle. The plaintiffs wife died at a hospital
soon after the accident. /d. at 1063.

This appeal arose from a wrongful death action which plaintiff brought against Kane and
Perrone. Kane appealed from the trial court’s finding that Perrone was Kane’s employee and that
Kraus was Kane’s subemployee. The district court held that the trial court erred in ruling that
Perrone and Kraus were Kane’s employees as a matter of law and ordered the trial court to enter
summary judgment for Kane finding that Perrone and Kraus were independent contractors. Id.

The district court applied the test set out in Restatement (Second) of Agency, § 220 (1958)
to determine whether one is an employee or independent contractor and made the following
determinations supporting the decision that Perrone and Kraus were independent contractors:

e Although Kane’s salesmen diagrammed the installation layout plan, the carpet installers,
Perrone and Kraus, had unbridled discretion in the physical performance of their tasks.
Perrone did not report to anyone at Kane and had absolute discretion in contracting out
installation jobs. The only instructions Kane gave Perrone were that he and the other carpet

installers should be neatly attired and not intoxicated while on the job. Kane also instructed
Perrone on customer satisfaction. /d. at 1064-65.

31« Perrone and Kraus each had their own independent installation businesses. Perrone
performed his services through a company which he purchased from Kane in 1975. Kraus
performed his services through his own company, Mike’s Carpet Service. /d. at 1065.

e Perrone and Kraus performed work which emanated through Kane sales on an “as needed”
basis. Both performed without Kane’s supervision. [d.

« Perrone and Kraus supplied their own installation equipment: knives, kickers, seaming
irons, etc. They owned and insured their own trucks for work. Kane did not reimburse them
for mileage and other expenses, such as gasoline. Id.

« While Kane determined the amount Perrone was paid, Perrone was paid strictly on a per
yard basis. Kane made its checks out to Perrone’s company. Perrone, in turn, paid Kraus
and the other installers to whom he had assigned jobs. /d.

e Neither Perrone nor Kraus had employment agreements with Kane. Neither enjoyed the
usual amenities associated with an employment relationship: fringe benefits, health care

insurance, unemployment compensation, worker’s compensation and paid vacations or
holidays. Id. at 1066.

Wiseman v. Miami Rug Company:

Yet another case factually similar to the instant matter is Wiseman v. Miami Rug Co., 524
So.2d 726 (Fla. 4" DCA 1988). Therein, plaintiff filed a complaint against defendant, Miami Rug,
alleging that defendant’s agents or employees were delivering carpeting to the condominium
where plaintiff resided; that defendant’s truck was negligently parked in front of the walkway
commonly used by plaintiff for ingress and egress from the condominium; that the only available
access route to and from the building was through the common lawn area: and that the plaintiff fell
over a concealed or unmarked obstruction while attempting to cross this lawn area and sustained
injuries. /d. at 727.

Miami Rug filed a motion for summary judgment on the grounds that it did not own, lease
or otherwise maintain the vehicles used in transporting carpeting and that it did not employ the
person(s) who operated the truck which blocked the walkway to the condominium. In ruling on

Miami Rug’s motion, the trial court considered the carpet installation agreement between the

32defendant and its installer-contractor, Neal’s Carpet Service. The agreement stated, in pertinent
part, that Neal’s Carpet Service was an independent contractor. Id.

The trial court granted Miami Rug’s motion for summary judgment, finding that “the
contract between Miami Rug and Neal’s Carpet Service ... demonstrated conclusively that the
relationship of Neal’s Carpet Service to the Miami Rug Company was that of an independent
contractor, and not that of an employee.” The court further found that Neal’s Carpet Service
performed the delivery and installation under its own direction, utilizing its own vehicle and tools,
and that Miami Rug exercised no control over the manner in which Neal’s Carpet Service
performed its installation work. /d. at 729.

On appeal, the district court noted that the appropriate test for determining whether one is
an employee or an independent contractor was that set forth in Cantor v. Cochran, 184 So.2d 173
(Fla.1966), adopting Restatement (Second) of Agency, § 220 (1958). An application of the
Restatement test to the facts set forth in the record herein supported the trial court’s conclusion
that Neal’s Carpet Service was an independent contractor and not an employee of Miami Rug. As
such, the district court affirmed the trial court’s entry of summary final judgment in defendant’s
favor.

Georgia-Pacific Corp. v. Charles:

The last cited case factually similar to the instant matter is Georgia-Pacific Corp. v.
Charles, 479 So.2d 140 (Fla. 5 DCA 1985). Plaintiff was severely injured and his wife was killed
in an automobile accident. Thereafter, plaintiff and the estate’s personal representative brought
suit against the driver of the other vehicle (Weber), the driver’s corporation (W.C.C., Inc.) and
Georgia-Pacific Corporation. One of the issues tried before the jury was whether the driver was an

employee of Georgia-Pacific or was an independent contractor. /d. at 141.

33At the close of the plaintiffs’ case, as well as at the close of all the evidence, Georgia-
Pacific moved for a directed verdict on the ground that plaintiffs had not established that Weber
was Georgia-Pacific’s employee as a matter of law and that plaintiffs had not established that
Georgia-Pacific had negligently contributed to the accident as a matter of law. Both motions were
denied. After deliberating, the jury returned a special verdict finding, inter alia, that Weber was
an employee of Georgia-Pacific and was acting in the scope of his employment at the time and
place of the accident and that there was negligence by Georgia-Pacific which was a legal cause of
damage to plaintiffs. Georgia-Pacific appeals from those judgments claiming that the trial court
erred in denying its motions for directed verdict. The district court agreed and reversed as to the
issue of Georgia-Pacific’s liability. Jd. at 141-42.

The district court noted that it is well-established that an employer is vicariously liable for
the torts of his employee (acting within the scope of his employment) under the doctrine of
respondeat superior, but that an employer is not liable for torts caused by one considered the
employer’s independent contractor. Further, Florida courts have consistently applied the test
developed in Restatement and Restatement (Second) of the Law of Agency in order to determine
whether an individual is an employee (the Restatement uses the term “servant”) as opposed to an
independent contractor. /d. at 142.

In applying Restatement (Second) of Agency, § 220 (1958) to the facts of the case, the
district court made the following findings:

« Weber testified at trial that he was free to accept or reject any hauling work offered to him
by Georgia-Pacific; that the route he took was always left up to him; that he didn’t have
any kind of radio connection with Georgia-Pacific to keep them advised of where he was;
and that his starting time and quitting time for work each day was left up to him. /d. at 142-

43

¢ Plaintiffs pointed to the fact that Weber was required to have a Georgia-Pacific decal on
his truck in order to haul its logs. However, representatives of Georgia-Pacific testified that

34the decals were merely a security measure to identify the vehicle on the road as belonging
to a Georgia-Pacific contractor and to distinguish such vehicles from other trucks which
delivered logs to Georgia-Pacific mills. The district court cited Hilldrup Transfer &
Storage v. State Dept. of Labor, etc., 447 So.2d 414, 417 (Fla. Sth DCA 1984) which held
that “the requirement that the operators wear uniforms and paint their tractors with
Hilldrup’s colors and name [was] merely designed to assure the carrier’s customers that
the operators [were] representatives of Hilldrup” and therefore these facts were not true
elements of control over the details of work. /d. at 143.

¢ The district court acknowledged it was true that Georgia-Pacific had certain specifications
with regard to the manner in which logs were loaded and unloaded and had the right to
search all trucks as they came into their mill. However, the court responded that the loading
and unloading specifications were merely safety measures designed to prevent injury to
loggers and haulers and did not demonstrate a right to control the details of the work. /d.

« The testimony indicated that log hauling was customarily performed by independent
contractors (logging contractors) and that hauling contractors were used to supplement
logging contractors when the trips required great distances. Id.

© It is undisputed that Weber supplied his own truck, trailer and equipment for hauling the
logs, was responsible for making all repairs to the equipment and paid for his own fuel and
maintenance. /d.

« The evidence clearly established that Weber was paid by the load and not by the hour. /d.
at 144,

e The written contract in this case clearly stated that “the Contractor [Weber] is an
independent contractor in the performance of each and every part of this Contract ... [and]
Georgia-Pacific has no control over the time, method or manner in which Contractor
performs under this Contract, but Georgia-Pacific has the right only to require definite
results by Contractor in conformity with the provisions of this Contract.” Id.

As the district court concluded that the jury’s finding that Weber was an employee rather than an
independent contractor was not supported by the evidence, the court remanded the issue to the trial
court with instructions to enter judgment for Georgia-Pacific. Id. at 144-45,

Accordingly, Defendants, INDUSTRIAL CABLE COMMUNICATIONS SERVICES,

INC., and COMCAST CORPORATION, are entitled are Summary Judgment in their favor.

35IV. CONCLUSION
In conclusion, Defendants ICCS and Comcast have established the following undisputed
facts:

lL. Defendant Josimar’s Cleaning Services Corp was an Independent Contractor of
Defendant USA BR General Services Corp;

2. Neither Defendant Josimar’s Cleaning Services Corp nor Defendant USA BR.
General Services Corp were an employee of either Defendant INDUSTRIAL
CABLE COMMUNICATIONS SERVICES, INC. or Defendant COMCAST
CORPORATION; and