TAMMY DIANNE SANTORII, individually, as surviving wife of MARK ANTHONY SANTORII as statutory plaintiff for herself and on behalf of all surviving statutory beneficiaries of MARK ANTHONY SANTORII, deceased, Plaintiff/Appellant,
MARTINEZRUSSO, LLC dba RE/MAX PROFESSIONALS, Defendant/Appellee.
from the Superior Court in Maricopa County No. CV2013-051647
The Honorable John R. Hannah, Judge
Micheaels Slack & Shughart, PC, Phoenix By K. Thomas
Slack, Tracy A. Gromer Counsel for Plaintiff/Appellant
Skelton & Hochuli, PLC, Phoenix By William D. Holm,
Jonathan Paul Barnes, Jr., Jessica J. Kokal Counsel for
Presiding Judge Kent E. Cattani delivered the opinion of the
Court, in which Judge Samuel A. Thumma and Judge Randall M.
This is a wrongful death case in which we address whether
Arizona's real estate statutes and regulations
establish-as a matter of law-that the relationship between
real estate brokers and their salespersons is one of employer
and employee. We conclude that although the statutes and
regulations impose on a broker the responsibility to closely
supervise a real estate transaction and the documentation of
that transaction, they do not establish the requisite control
over other aspects of a salesperson's activities (such as
driving to and from sales appointments), and thus do not
dictate an employer-employee relationship as a matter of law.
We thus affirm the superior court's order granting
summary judgment to MartinezRusso, LLC dba RE/Max
Professionals ("MartinezRusso") on the basis that
the agent involved in a car accident, Sergio Horcos, was not
an employee and thus, MartinezRusso was not vicariously
liable for his alleged negligence.
AND PROCEDURAL BACKGROUND
Horcos was returning from a real estate sales appointment
when the car he was driving crossed the center line and
struck Tammy Santorii's husband's tractor-trailer.
Both men died in the collision.
Santorii brought a wrongful death lawsuit against
MartinezRusso, alleging that MartinezRusso was vicariously
liable for Horcos's negligence. Following the close of
discovery, MartinezRusso filed a motion for summary judgment,
arguing it could not be liable for Horcos's actions
because he was an independent contractor, not an employee.
Santorii filed a cross-motion for partial summary judgment,
seeking a declaration that MartinezRusso was vicariously
liable as a matter of law.
The superior court granted MartinezRusso's motion and
denied Santorii's motion. After the court certified its
ruling under Arizona Rule of Civil Procedure 54(b), Santorii
Santorii argues that the superior court improperly granted
summary judgment to MartinezRusso. She asserts - as she did
in her cross-motion for summary judgment-that real estate
brokers should be held liable as a matter of law for their
salespersons' negligence. She further asserts that
summary judgment in favor of MartinezRusso was improper
because there were questions of fact regarding whether Horcos
was an employee or an independent contractor, even though
Horcos's contract specified that he was an independent
contractor paid solely by commission.
We review the grant of summary judgment de novo, considering
the facts in the light most favorable to the non-moving
party. US Airways, Inc. v. Qwest Corp., 238 Ariz.
413, 420, ¶ 25 (App. 2015). Summary judgment is
appropriate only if there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter
of law. See Ariz. R. Civ. P. 56(a); Orme Sch. v.
Reeves, 166 Ariz. 301, 309 (1990).
Employment Relationship as a Matter of Law.
Arizona's Real Estate ...