James v. Hernandez, Premier Construction-Residential, LLC, et al

FIRST D ISTRICT COURT OF APPEAL
S TATE OF FLORIDA
_____________________________
No. 1D2025-0015
_____________________________
J EFFREY JAMES,
Appellant,
v.
ABRAHAM HERNANDEZ , JR .,
individually, PREMIER
C ONSTRUCTION -R ESIDENTIAL ,
LLC, d/b/a PREMIER FINE
H OMES, a Florida Limited
Liability Company, and
PREMIER W ATERPROOFING &
PAINTING, a Florida Limited
Liability Company,
Appellees.
_____________________________
On appeal from the Circuit Court for Leon County.
Angela C. Dempsey, Judge.
May 20, 2026
R OWE , J.
Jeffrey 	James 	appeals 	from 	a 	final 	summary 	judgment
entered for Premier Construction-Residential, LLC (Premier) in
James’ negligence action against the company. James was injured

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while riding his bicycle near the intersection of Fletcher Oaks Road
and Pedrick Road in Tallahassee. James collided with a vehicle
driven by Abraham Hernandez Jr. and sustained serious injuries
from the collision.
Hernandez owned Premier Waterproofing & Painting (PWP),
a painting subcontractor for Premier. At the time of the accident,
Hernandez was traveling between Premier job sites. James sued
Hernandez, PWP, and Premier. James asserted that Hernandez
was Premier’s agent and Premier was thus vicariously liable for
Hernandez’s actions. Premier disagreed, asserting that Hernandez
was an independent contractor and not its agent. Premier moved
for summary judgment. The trial court granted the motion and
entered final summary judgment for Premier. We affirm.
I.
This 	court 	reviews 	de 	novo 	an 	order 	granting 	summary
judgment. Smith v. Westdale Asset Mgmt., Ltd., 353 So. 3d 108,
110 	(Fla. 	1st 	DCA 	2022). 	To 	obtain 	summary 	judgment, 	the
movant must show “that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.” Fla. R. Civ. P. 1.510(a). “The test for the existence of a
genuine factual dispute is whether ‘the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.’”
Anderson v. Sch. Bd. of Escambia Cnty., 416 So. 3d 427, 431 (Fla.
1st DCA 2025) (quoting In re Amends. to Fla. Rule of Civ. Proc.
1.510, 317 So. 3d 72, 75 (Fla. 2021)),
Even so, to establish the existence of a genuine issue of
material fact, it is no longer “plausible to maintain that ‘the
existence of any competent evidence creating an issue of fact,
however credible or incredible, substantial or trivial, stops the
inquiry and precludes summary judgment, so long as the “slightest
doubt” is raised.’” In re Amends. to Fla. Rule of Civ. Proc. 1.510,
317 So. 3d 72, 76 (Fla. 2021) (quoting Bruce J. Berman & Peter D.
Webster, Berman’s Fla. Civ. Proc. § 1.510:5 (2020 ed.)). In other
words, when the evidence from the nonmoving party “is merely
colorable or is not significantly probative, summary judgment may
be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50
(1986) (internal citations omitted); Casey v. Mistral Condo. Ass’n,
380 So. 3d 1278, 1286 (Fla. 1st DCA 2024).

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II.
James argues that the trial court erred in entering summary
judgment 	for 	Premier 	because 	there 	were 	genuine 	issues 	of
material fact as to whether Hernandez was Premier’s agent (and
thus 	whether 	Premier 	was 	vicariously 	liable 	for 	Hernandez’s
actions). James argues that the subcontractor agreement between
Premier 	and 	Hernandez 	did 	not 	unambiguously 	show 	that
Hernandez was an independent contractor, and the parties’ actual
practice and relationship showed instead that Hernandez was
Premier’s 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. 1st DCA 2008); Fla. Std. Jury Instr. (Civ.) 401.14(b)(1).
Whether 	an 	agency 	relationship 	exists 	should 	normally 	be
submitted to the jury and not resolved on a motion for summary
judgment. Saudi Arabian Airlines Corp. v. Dunn, 438 So. 2d 116,
119 (Fla. 1st DCA 1983). But here, as we will explain, James did
not submit significantly probative evidence that Hernandez acted
as Premier’s agent rather than as its subcontractor.
To determine whether an agency relationship existed between
Hernandez and Premier, we consider* Premier’s right to control
* James urges this court to determine whether an agency
relationship existed here by applying the factors expressed in the
Restatement (Second) of Agency. We decline to do so. Although our
Supreme Court has cited the Restatement (Second) of Agency at
least seven times, it does not appear to have done so since 2003.
See, e.g., Villazon v. Prudential Health Care Plan, Inc., 843 So. 2d
842, 853 n.10, 854 n.11 (Fla. 2003); Stoll v. Noel, 694 So. 2d 701,
703 (Fla. 1997). As the late Justice Scalia admonished, modern
editions of the Restatements “are of questionable value, and must
be used with caution” because “the Restatements’ authors have
abandoned the mission of describing the law, and have chosen
instead to set forth their aspirations for what the law ought to be.”
See Kansas v. Nebraska, 574 U.S. 445, 475 (2015) (Scalia, J.,
concurring in part and dissenting in part) (explaining that “[t]he
object of the original Restatements was ‘to present an orderly

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Hernandez, 	and 	not 	Premier’s 	actual 	control 	exercised 	over
Hernandez. See Gradia v. Baptist Hosp., Inc., 345 So. 3d 385, 387
(Fla. 	1st 	DCA 	2022). 	“‘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 	whose 	negligence 	the
principal is vicariously liable.” Del Pilar, 993 So. 2d at 146 (quoting
Parker v. Domino’s Pizza, Inc., 629 So. 2d 1026, 1027 (Fla. 4th DCA
1993)).
We 	begin 	by 	analyzing 	the 	written 	agreement 	between
Premier 	and 	Hernandez, 	along 	with 	the 	actual 	relationship
between 	them—not 	just 	the 	labels 	they 	use 	to 	describe 	that
relationship. See Del Pilar, 993 So. 2d at 145–46. Premier is
licensed as a certified general contractor. Florida law provides that
a 	general 	contractor 	may 	generally 	contract 	for 	any 	activity
requiring licensure under the statute. See § 489.105(3)(a), Fla.
Stat. (2023). This includes the “construction, remodeling, repair,
or 	improvement 	of 	one-family, 	two-family, 	or 	three-family
residences.” § 489.105(3)(c), Fla. Stat. Premier is the residential
builder for the Fletcher Oaks subdivision in Tallahassee.
Hernandez is a contractor who specializes in painting houses.
See Justice v. Belford Trucking Co., Inc., 272 So. 2d 131, 134 (Fla.
1972) (concluding that claimant was an agent rather than an
independent contractor because he “had no specialized skill in a
distinct 	occupation, 	as 	for 	example, 	plastering 	or 	plumbing,
indicative 	of 	an 	independent 	contract”). 	Hernandez 	owns 	a
separately incorporated business, PWP.
statement of the general common law’”) (quoting Introduction to
Restatement 	of 	Conflict 	of 	Laws, 	at 	viii 	(1934))); 	see 	also
Christopher E. Appel, The American Law Institute’s Impending
Credibility Crisis: A Review of Modern Restatements of the Law, 36
U. Fla. J. L. & Pub. Pol’y 119, 129–32 (2025). Instead, we look to
decisions from the Florida Supreme Court, our own court, and
other persuasive authority.

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The agreement governing the relationship among Premier,
Hernandez, and PWP provides that Hernandez is an independent
contractor. Several provisions of the agreement similarly reflect an
independent contractor-general contractor relationship between
the parties. See McGillis v. Dep’t of Econ. Opportunity, 210 So. 3d
220, 224 (Fla. 3d DCA 2017) (stating that courts honor contract
provisions providing for an independent contractor relationship,
unless contradicted by other provisions or conduct). Premier did
not agree to pay Hernandez a salary or by the hour. Rather,
Hernandez was paid one lump sum for an agreed-on price per
completed 	home. 	Hernandez 	was 	required 	to 	obtain 	his 	own
general liability insurance, workers’ compensation insurance, and
auto liability insurance.
Along with the agreement between the parties, courts must
consider the parties’ actual practice and relationship to see if the
relationship 	is 	one 	of 	agent 	and 	principal 	or 	one 	between 	a
contractor 	and 	independent 	contractor. 	Id. 	“[A]n 	independent
contractor is a [person][business] who is engaged by another to
perform specific work according to [his][her][its] own methods and
whose methods of performing the work are not controlled by the
person engaging [him][her][it] and are not subject to that person’s
right of control.” Blue v. Weinert, 284 So. 3d 1176, 1178 (Fla. 1st
DCA 2019) (citing Fla. Std. Jury Instr. (Civ.) 401.14(b)(1)). No
reasonable jury could find that Hernandez was not an independent
contractor, 	as 	the 	record 	is 	devoid 	of 	evidence 	that 	Premier
controlled Hernandez’s methods of painting.
James contends that Hernandez was Premier’s agent because
Hernandez worked almost exclusively for Premier. But the record
shows 	that 	Hernandez 	and 	PWP 	contracted 	with 	and 	were
compensated by other companies and individuals. Cf. Del Pilar,
993 So. 2d at 146 (explaining that a company’s prohibition against
one of its workers from working with competitors suggests an
agency relationship). Moreover, Premier contracted with other
painters to paint houses in the Fletcher Oaks subdivision.
Hernandez owns PWP and hires and pays his own workers
through a payroll company. Premier compensated Hernandez by
the square foot, and Hernandez paid his own taxes. See Messer v.
Dep’t of Lab. & Emp. Sec., 500 So. 2d 1372, 1373 (Fla. 5th DCA

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1987) (stating that crucial factors pointing toward an independent
contractor relationship were being paid on a per-job basis without
having taxes withheld).
Hernandez also drove his own truck. The truck was not owned
or leased by Premier. Premier did not compensate Hernandez for
driving or dictate how he was to get to and from Premier’s jobsites.
See Del Pilar, 993 So. 2d at 146 (stating that requiring a worker to
use equipment selected by the employer’s specifications suggests
an agency relationship). Hernandez purchased his own paint for
painting jobs and used his own painting equipment.
Even so, James contends that Premier exercised a high degree
of control over Hernandez’s painting methods because Premier
directed Hernandez regarding when and in which order he should
paint homes in the Fletcher Oaks subdivision, along with Premier
directing the paint colors that should be used on certain jobs. But
none of these actions by Premier points to control over Hernandez’s
methods of painting rather than control over outcomes. See Lenox
v. Sound Ent., Inc., 470 So. 2d 77, 78 (Fla. 2d DCA 1985). Premier’s
instructions to Hernandez were essential to the work generally
assigned by a building contractor to a specialty subcontractor. In
its work building residential structures in Fletcher Oaks, Premier
would need to coordinate with the myriad subcontractors involved
in the construction of a family residence, including plumbers,
electricians, 	brick-layers, 	tile 	contractors, 	flooring 	contractors,
painters, and roofers. To avoid scheduling conflicts and to meet
contract 	deadlines, 	Premier 	would 	need 	to 	instruct 	its
subcontractors where and when to perform their work to ensure
proper 	sequencing 	of 	construction 	tasks. 	And 	thus 	it 	is
unsurprising that a residential builder like Premier would specify
to its painting subcontractor when work needed to be performed at
a particular jobsite, the paint colors to use on certain jobs, and at
times the preferred supplier for certain purposes. Specifications of
paint colors are common in maintaining uniformity among houses
within 	a 	subdivision, 	abiding 	by 	association 	requirements, 	or
complying with contract requirements agreed on by Premier and
the home buyers. Hernandez was otherwise free to purchase the
paint that fit within his budget and had discretion to select the
paint brands he used on Premier’s jobs.

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James argues that there were times Premier tried to control
Hernandez’s painting methods. But those circumstances involved
specified 	repairs 	or 	requests 	from 	homeowners, 	when 	such
information 	would 	be 	necessary 	and 	part 	of 	the 	expected
contractor-subcontractor 	relationship. 	James 	also 	relies 	on
testimony that at one point, Premier trained Hernandez how to
paint 	soffits 	and 	fascia. 	But 	Premier’s 	allowing 	one 	of 	its
employees to provide professional training at Hernandez’s request
does 	not 	convert 	the 	building 	contractor-subcontractor
relationship to an agency relationship. Cf. Del Pilar, 993 So. 2d at
146 (explaining that requiring a worker to undergo training before
working suggests an agency relationship).
In sum, the record evidence established that the relationship
between Premier and Hernandez was what would be expected
between a residential building contractor and one of its specialty
subcontractors—with the builder specifying outcomes, scheduling,
and 	deadlines 	to 	the 	subcontractor. 	Because 	James 	failed 	to
present any significantly probative evidence pointing to Premier’s
control over Hernandez’s method of performing his painting work
at Premier’s jobsites, the trial court did not err when it granted
judgment for Premier.
A FFIRMED.
LEWIS and NORDBY, JJ., concur.
_____________________________
Not 	final 	until 	disposition 	of 	any 	timely 	and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Rebecca Bowen Creed of Creed & Gowdy, P.A., Jacksonville; and
Robert M. Scott, J. Clint Wallace and Todd C. Hunter Jr. of Scott
& Wallace LLP, Tallahassee, for Appellant.

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Virgil W. Wright, III and Chase A. Fifner of Cameron, Hodges,
Coleman, LaPointe & Wright, P.A., Ocala, for Appellee Abraham
Hernandez, Jr.
Juliette E. Diaz and Daniel E. Manausa of Manausa, Shaw &
Minacci, P.A., Tallahassee, for Appellee Premier Construction-
Residential, LLC, d/b/a Premier Fine Homes.
Douglas 	McAlarney 	of 	Douglas 	McAlarney, 	Attorney 	at 	Law,
PLLC, 	Tallahassee, 	for 	Appellee 	Premier 	Waterproofing 	&
Painting, LLC.