Agency vs. Independent Contractor

“ Agency and independent contractorship are not necessarily mutually exclusive legal categories as independent contractor and servant or employee are. . . . One who contracts to act on behalf of another and subject to the other’s control, except with respect to his physical conduct, is both an agent and an independent contractor.” [emphais added] ( City of Los Angeles v. Meyers Brothers Parking System (1975) 54 Cal.App.3d 135, 138 [126 Cal.Rptr. 545], internal citations omitted; accord Mottola v. R. L. Kautz & Co. (1988) 199 Cal.App.3d 98, 108 [244 Cal.Rptr. 737].)

CACI  3705. Existence of “Agency” Relationship Disputed:

[ Name of plaintiff ] claims that [ name of agent ] was [ name of defendant ]’s agent and that [ name of defendant ] is therefore responsible for [ name of agent ]’s conduct.

If [ name of plaintiff ] proves that [ name of defendant ] gave [ name of agent ] authority to act on [his/her/its] behalf, then [ name of agent ] was [ name of defendant ]’s agent. This authority may be shown by words or may be implied by the parties’ conduct. This authority cannot be shown by the words of [ name of agent ] alone.

CACI  3701. Tort Liability Asserted Against Principal – Essential Factual Elements

[ Name of plaintiff ] claims that [he/she] was harmed by [ name of agent ]’s [ insert tort theory, e.g., “negligence” ].

[ Name of plaintiff ] also claims that [ name of defendant ] is responsible for the harm because [ name of agent ] was acting as [his/her/its] [agent/employee/[ insert other relationship, e.g., “partner” ]] when the incident occurred.

If you find that [ name of agent ]’s [ insert tort theory ] harmed [ name of plaintiff ], then you must decide whether [ name of defendant ] is responsible for the harm. [ Name of defendant ] is responsible if [ name of plaintiff ] proves both of the following:

1. That [ name of agent ] was [ name of defendant ]’s [agent/ employee/[ insert other relationship ]]; and

2. That [ name of agent ] was acting within the scope of [his/ her] [agency/employment/[ insert other relationship ]] when [he/she] harmed [ name of plaintiff ].

The term “name of agent,” in brackets, is intended in the general sense, to denote the person or entity whose wrongful conduct is alleged to have created the principal’s liability.