Sis Gillet was run over by Sis Nunes, so she sued the WTS

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, 2004

CASE NO. 3D02-817 LOWER TRIBUNAL NO. 99-29822

HILDA and JOHN GILLET,
Appellants,

vs.

WATCHTOWER BIBLE & TRACT SOCIETY OF PENNSYLVANIA, INC., WATCHTOWER BIBLE & TRACT SOCIETY OF NEW YORK, INC., WATCHTOWER BIBLE & TRACT SOCIETY OF FLORIDA, INC., THE WEST NORTH MIAMI CONGREGATION OF JEHOVAH'S WITNESSES, INC., FRANCOIS JN DENIS and MARIA NUNES, Appellees.

Opinion filed December 8, 2004.

An Appeal from the Circuit Court for Miami-Dade County, Jon I. Gordon, Judge.

Shutts & Bowen, Francis A. Zacherl, III, and Colleen A. Hoey, for appellants.

Adorno & Yoss, Jack R. Reiter, Gregory A. Victor, and Natalie J. Carlos, for appellees Watchtower Bible & Tract Society of Pennsylvania, Watchtower Bible & Tract Society of New York, Inc., Watchtower Bible & Tract Society of Florida, Inc., and The West North Miami Congregation of Jehovah's Witnesses, Inc.

Mario F. Moreno (New York), for appellee Watchtower Bible & Tract Society of New York, Inc.

Before GODERICH, GREEN, and WELLS, JJ.

GODERICH, J.
The plaintiffs, Hilda and John Gillet [the Gillets], appeal from an adverse final summary judgment. We affirm.

On November 23, 1996, Maria Nunes arrived at the Gillets' home for a field service meeting of the members of The West North Miami Congregation of Jehovah's Witnesses, Inc. [Miami Congregation]. At this organizational meeting, the members prepared themselves for that day's field service, their "door-to-door canvassing and pamphleteering." Watchtower Bible & Tract Society of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 160 (2002).  After the meeting ended, the members got in their cars to travel to areas where they would conduct field service that day. Nunes was parked in the Gillets' driveway and began to back out. Meanwhile, Hilda Gillet began crossing the street to get into another member's car when Nunes backed up into her and knocked her down.  Hilda Gillet was then hit by a passing car operated by Francois JN Denis. Hilda Gillet was injured and required multiple surgeries and hospitalizations.

The Gillets filed a nine-count Second Amended Complaint against Watchtower Bible & Tract Society of Pennsylvania, Inc. [Watchtower Pennsylvania], Watchtower Bible & Tract Society of New York, Inc. [Watchtower New York], the Miami Congregation, Nunes, and Denis alleging negligence, vicarious liability, and loss of consortium.

Watchtower Pennsylvania, Watchtower New York, and the Miami Congregation collectively referred to as the Watchtower defendants] filed motions for summary judgment alleging that they were not vicariously liable as a matter of law for Nunes' alleged negligence. The Watchtower defendants argued that Nunes was neither their employee nor their agent at the time of the accident, and that any inquiry into whether Nunes was their agent when she participated in field service ministry would entangle the court in the interpretation of religious teachings, doctrines, and internal religious policies and procedures of the Jehovah's Witnesses and Nunes' personal religious beliefs in violation of the First Amendment.

The trial court entered final summary judgment in favor of the Watchtower defendants. The Gillets' appeal follows.

The Gillets contend that the trial court erred by granting final summary judgment in favor of the Watchtower defendants because Nunes is an agent of Watchtower New York under the Volunteer Protection Act, ' 768.1355(1), Fla. Stat. (1995),

(The Florida Volunteer Protection Act provides, in pertinent part, as follows: Any person who volunteers to perform any service for any nonprofit organization . . . without compensation . . . shall be considered an agent of such nonprofit organization when acting within the and scope of any official duties performed under such volunteer services . . . .)

alternatively, because she is an agent under common law agency principles. (Although the existence of an employer/employee relationship depends upon the facts of each case, Florida courts have adopted the following criteria:

(1) the extent of the control by the employer over the details of the work;

(2) whether the person employed is engaged in a distinct occupation or business;

(3) the kind of occupation involved, and whether the work is done under the direction of the employer or by a specialist without supervision;

(4) the skill required in the particular occupation;

(5) whether the employer supplies the instrumentalities, tools, and the place of work;

(6) the length of time the person is employed;

(7) whether or not the work is a part of the regular business of the employer. -- Carroll v. Kencher, 491 So. 2d 1311, 1312 (Fla. 4th DCA 1986).)

 

We disagree finding that any inquiry into Nunes' status as an alleged agent of the Watchtower defendants would necessarily entangle the court in the interpretation of religious teaching, doctrine, and internal religious policies and procedures of the Jehovah's Witnesses and Nunes' personal religious beliefs in violation of the First Amendment. In Malicki v. Doe, 814 So. 2d 347, 365 (Fla. 2002), a clergy sexual abuse case, the Florida Supreme Court addressed this issue of "whether, in the name of the First Amendment, religious institutions can be shielded from otherwise cognizable tort claims caused by their agents and employees." Malicki, 814 So. 2d at 353. In furtherance of this query, the Florida Supreme Court presented an overview of the First Amendment.

The First Amendment to the United States Constitution provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." U.S. Const. amend. I. The First Amendment . . . contains two clauses regarding religion--the Free Exercise Clause and the Establishment Clause. This constitutional guarantee is made applicable to the states through the Fourteenth Amendment.

                                                                               * * *
[T]he Free Exercise Clause "embraces two concepts--freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society."

                                                                               * * *
Government regulation includes both statutory law and court action through civil lawsuits.

                                                                                * * *
[B]efore the constitutional right to free exercise of religion is implicated, the threshold inquiry is whether the conduct sought to be regulated was "rooted in religious belief." Further, in order to launch a free exercise challenge, it is necessary "to show the coercive effect of the enactment as it operates against [the individual] in the practice of his religion."

                                                                                 * * *

The second aspect of the First Amendment religion clause, the Establishment Clause, . . . involves the separation of church and state and prevents the government from passing laws that "aid one religion, aid all religions, or prefer one religion over the other."


                                                                                    * * *

[T]he [Supreme] Court provided a three-part test to determine whether a neutral law violates the Establishment Clause: (1) the law must have a secular legislative purpose; (2) the primary or principal effect of the law must neither advance nor inhibit religion; and (3) the law must not foster an excessive government entanglement with religion.


                                                                                       * * *

[T]he Supreme Court has also held that the First Amendment prevents courts from resolving internal church disputes that would require adjudication of questions of religious doctrine.


                                                                                         * * *

A court thus must determine whether the dispute "is an ecclesiastical one about 'discipline, faith, internal organization, or ecclesiastical rule, custom or law,' or whether it is a case in which [it] should hold religious organizations liable in civil courts for 'purely secular disputes between third parties and a particular defendant, albeit a religiously affiliated organization.'"

Malicki, 814 So. 2d at 353-57 (citations omitted). In discussing the split of authority, in clergy sexual abuse cases,on the issue of whether the First Amendment protects a religious institution from liability when a church employee engages in tortious conduct against a third party, the Florida Supreme Court noted that some "courts conclude that there is no impermissible interpretation of religious doctrine because the courts are applying a neutral principle of generally applicable tort law." Malicki, 814 So. 2d at 358. Further, the Florida Supreme Court stated, "This is especially so where the religious institution does not allege that the conduct was undertaken in furtherance of a sincerely held religious belief." Malicki, 814 So. 2d at 358.

In contrast, in this case, the Watchtower defendants properly argue that, regardless of whether the inquiry into Nunes' status is founded on the Florida Volunteer Protection Act or common law agency principles, Nunes' underlying act of field service "was undertaken in furtherance of [her] sincerely held religious belief." In her deposition testimony, Nunes explained that her participation in field service was solely to preach for Jehovah God in accordance with the personal beliefs of her faith. Her deposition testimony was as follows:

Q. Okay. Who do you do the ministry for?
A. Jehovah God.


Q. Okay. You don't do it for any earthly person?

A. No

Q. -- any man, correct?
A. No, no.

Q. Okay. And do you do it for any corporation or any business?
A. No.

Q. Okay. It's strictly between you -
A. -- and God.

Q. -- and Jehovah God?
A. Yes, yes.

Similarly, the United States Supreme Court has recognized that the Jehovah's Witnesses "claim to follow the example of Paul, teaching 'publickly, and from house to house.' Acts 20:20. They take literally the mandate of the Scriptures, 'Go ye into all the world, and preach the Gospel to every creature.' Mark 16:15. In doing so they believe that they are obeying a commandment of God." -- Watchtower Bible & Tract Society of N.Y., Inc. v. Village of Stratton, 536 U.S. 150, 161 (2002) (quoting Murdock v. Commonwealth of Pa., 319 U.S. 105, 108 (1943)).

For these reasons, any inquiry into Nunes' participation in field service would necessarily lead to an inquiry into her personal religious beliefs in violation of the First Amendment. Further, as the Gillets' own pleadings indicate, any inquiry into her status as an agent of the Watchtower defendants would also require an inquiry into the "internal organization, or ecclesiastical rule, custom or law."

Accordingly, we affirm the entry of final summary judgment.

 

WELLS, J. (concurring)
I concur in the majority's decision to affirm the summary judgment entered against plaintiffs, John and Hilda Gillet, but do not believe that consideration of the question of agency is barred by the First Amendment's excessive entanglement doctrine.

In Carnesi v. Ferry Pass United Methodist Church, 826 So. 2d 954 (Fla. 2002) (Carnesi II), the Florida Supreme Court quashed a district court decision affirming summary judgment in favor of a number of church defendants. The churches, and a church volunteer, had been sued by a secretary/bookkeeper who claimed to have been sexually harassed by the chairman of the volunteer parish committee (the PPRC) which had hired her. In Carnesi v. Ferry Pass United Methodist Church, 770 So. 2d 1286, 1287 (Fla. 1st DCA 2000) (Carnesi I), the First District concluded: a determination of Carnesi's claims . . . will require a secular court to review and interpret church law, policies, and practices to determine whether an agency relationship existed between Harrison [the PPRC chairman], the PPRC, and the church defendants, and whether the church defendants can be held liable for Harrison's actions . . . [and] this examination would violate the First Amendment's excessive entanglement doctrine. -- Carnesi, 770 So. 2d at 1287.

In quashing Carnesi I, the Supreme Court necessarily rejected the First District's conclusion that a determination of the existence of an agency relationship could not be made without violating the First Amendment's excessive entanglement doctrine. In light of Carnesi II, I see no First Amendment impediment to our consideration of the alleged agency relationship between Nunes and the church defendants.

I agree, however, that summary judgment was properly granted in the church defendants favor. The essential elements of an actual agency relationship are (1) acknowledgement by the principal that the agent will act for him, (2) the agent's acceptance of the undertaking, and (3) control by the principal over the actions of the agent.(No apparent agency is claimed or exists. See Mobil Oil Corp. v. Bransford, 648 So. 2d 119, 121 (Fla. 1995) (an apparent agency exists only if each of three elements are present: (a) a representation by the purported principal; (b) a reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation).
---Goldschmidt v. Holman, 571 So.2d 422, 424 n.5 (Fla. 1990).

Ordinarily the existence of an agency relationship is a question of fact to be resolved by the factfinder. Eberhardy v. General Motors Corp., 404 F.Supp. 826, 830 (M.D. Fla.1975). When, however, a party bearing the burden of proof on an issue, fails to produce any supportive evidence, or when (as here) all of the evidence presented by both parties is so univocal that reasonable persons could reach but one conclusion, a question that is ordinarily one of fact becomes a question of law, to be determined by the court. Id. Such is the case here.

The Gillets claim that there is ample testimony that Jehovah's Witnesses like Nunes are agents (or volunteers) of the church defendants when they engage in field service (door-to-door canvassing and proselytizing). They point to formal field service, which features distribution of Watchtower publications, as the centerpiece of the church defendants' activities and argue that because service is so thoroughly directed, regulated and overseen by the church defendants, that Nunes had to be acting as the church defendants' agent when she performed field service. Not so, for as Nunes testified, when she performed field service, she did so not as any entity's agent, volunteer or employee. Rather she did so at God's command and as part of a well-established, long recognized-religious practice:

For over 50 years, the Court has invalidated restrictions on door-to-door canvassing and pamphleteering. It is more than historical accident that most of the cases involved First Amendment challenges brought by Jehovah's Witnesses, because door-to-door canvassing is mandated by their religion.


As we noted in Murdock v. Pennsylvania, 319 U.S. 105, 108, 63 S.Ct. 870 (1943), the Jehovah's Witnesses claim to follow the example of Paul, teaching "publickly, and from house to house." Acts 20:20. They take literally the mandate of the Scriptures, "Go ye into all the world, and preach the gospel to every creature." Mark 16:15. In doing so they are obeying a commandment of God. . . .

* * * *

. . . [I]n Murdock v. Pennsylvania, the Court noted that hand distribution of religious tracts is an age-old form of missionary evangelism as old as the history of printing presses. It has been a potent force in various religious movements down through the years . . . . This form of religious activity occupies the same high estate under the First Amendment as do worship in the churches and preaching from the pulpits. It has the same claim to protection as the more orthodox and conventional exercises of religion. . . . Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 158 n.7, 160-162, 122 S.Ct. 2080 (2002) (emphasis added)(footnotes omitted)(noting that Jehovah's Witnesses derive their authority to proselytize via door-to-door pamphleteering from the Book of Matthew wherein Jesus instituted a house-to-house search for people to whom to preach the good news).

In sum, no agency or volunteer relationship was established. The constraints imposed by the church entities on use of the religious publications that they create, copyright, publish and distribute, at most, impress upon and demand from each Jehovah's Witness obedience to religious dogma, discipline and authority. See Folwell v. Bernard, 477 So. 2d 1060,
1061 (Fla. 2d DCA 1985). This does not, however, constitute the quantum of control over individual congregants to make these entities liable on an agency theory for any negligence of individual congregants while driving their cars to the place where they will engage in religious activities. On the record before us, no agency or other basis for imposing liability on the church entities has been demonstrated. See Brillhart v. Scheier, 243 Kan. 591, 597, 758 P.2d 219, 224 (1988)(where motorists injured by car driven by parish pastor on his way to discuss parish problem brought action against pastor and diocese, Kansas Supreme Court affirmed summary judgment entered in diocese's favor, concluding negligence could not be imputed under doctrine of respondeat superior where pastor engaged in activity within his own discretion and control); see also Nye v. Kemp, 97 Ohio App.3d 130, 646 N.E.2d 262 (Ohio Ct. App. 1994)(affirming a directed verdict in a church's favor in an action brought against several church groups for damages sustained when church elder's vehicle collided with police cruiser, on a finding of a total lack of the control necessary to establish agency).

Accordingly, I would affirm.


GREEN, J. (dissenting).

As I see it, the issue in this case is whether the appellees, "Watchtower Defendants," may be vicariously liable under a respondeat superior theory for the personal injuries sustained by the appellants/plaintiffs due to the alleged negligent acts of a Jehovah's Witness (i.e., Nunes) while en route to, among other things, distribute the Watchtower Defendants' literature in an assigned territory and accept donations on their behalf. In other words, the question presented is whether it can be said that the Watchtower Defendants had the right to control Nunes' literature distribution activities such that it can be concluded that she was acting as a volunteer agent of the Watchtower defendants either pursuant to the Volunteer Protection Act (768.1355(1), Fla. Stat. (1995).) or at common law when her alleged careless driving caused injuries to the appellants/plaintiffs. With all due respect to my esteemed colleagues in the majority, I believe that this issue is one properly for the jury.

Contrary to the opinion of one of my colleagues, I believe that a determination of the issue presented in this case would not "necessarily entangle the jury and/or the court in the interpretation of religious teaching, doctrine, and internal religious policies and procedures of the Jehovah's Witnesses and Nunes' personal religious beliefs in violation of the First Amendment." See Maj. op. at 4.

I.
The First Amendment as applied to the States pursuant to the Fourteenth Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . .." U.S. CONST. AMEND. I. In Malicki v. Doe, 814 So. 2d 347 (Fla. 2002), the Florida Supreme Court provided a thorough overview of the First Amendment's protection when it addressed the issue of whether religious institutions may be shielded from otherwise cognizable tort claims caused by their agents and employees.


Specifically, the issue there was whether a civil cause of action for negligent hiring and supervision could be asserted by parishioners against the church and archdiocese based upon allegations that they were sexually assaulted by a priest. The court began its analysis by noting that the Free Exercise Clause, the first aspect of the First Amendment, "embraces two concepts -- freedom to believe and freedom to act." See Malicki, 814 So. 2d at 354 (quoting Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940)). "The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society." Malicki, 814 So. 2d at 354. Thus, the First Amendment has never been interpreted to mean that "when otherwise prohibitable conduct is accompanied by religious convictions, not only convictions but the conduct itself must be free from governmental regulation.". . . Government regulation includes both statutory law and court action through civil lawsuits. Id. (citations omitted). The court goes on to explain that before the right to free exercise of religion is implicated, the threshold inquiry is whether the conduct sought to be regulated was "rooted in religious belief." Id. Additionally, it is necessary "to show the coercive effect of the enactment as it operates against the individual in the practice of his religion." Id.

If it is demonstrated that the conduct at issue was rooted in religious beliefs, then the court must determine whether the law regulating that conduct is neutral both on its face and in its purpose . . . . "[I]f the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral, and it is invalid unless it is justified by a compelling interest and is narrowly tailored to advance that interest."

The State may, however, regulate conduct through neutral laws of general applicability . . . . Thus, "a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice." Id. (citations omitted).

Where, therefore, the church defendants in Malicki did not claim either that the tortuous acts of its priest were governed by sincerely held religious beliefs or practices, or that their failure to exercise control over the priest was because of sincerely held religious beliefs or practices, the court concluded that the Free Exercise Clause was not implicated. That is to say that the court found that the defendant's alleged negligence in hiring and supervision was not rooted in religious belief. Id. at 361. Even assuming arguendo an "incidental effect of burdening a particular religious practice," the court found that the parishioner's cause of action for negligent hiring and supervision was not barred because it was based on a neutral application of a principle of tort law. Id.

As for the Establishment Clause, the Malicki court stated that this second aspect of the First Amendment "involves the separation of church and state and prevents the government from passing laws that 'aid one religion, aid all religions, or prefer one religion over the other.'" Id. at 354-55. Citing to the United States Supreme Court decision of Lemon v.
Kurtzman
, 403 U.S. 602 (1971), the Malicki court noted that the three main evils against which the Establishment Clause was intended to afford protection were "sponsorship, financial support, and active involvement of the sovereign in religious activity." Malicki, 814 So. 2d at 355. Thus, the courts are precluded from resolving internal church disputes that required an adjudication of questions of religious doctrine. Id.

The court, however, did recognize a clear distinction between intra-church disputes and secular disputes between churches and third parties. Id. at 356. While the former are constitutionally protected, the latter are not.


A court thus must determine whether the dispute "is an ecclesiastical one about 'discipline, faith, internal organization, or ecclesiastical rule, custom or law', or whether it is a case in which [it] should hold religious organizations liable in civil courts for 'purely secular disputes between third parties and a particular defendant, albeit a religiously affiliated organization.'" Id. at 357.

The Malicki court concluded that since the dispute in that case was between church officials and two parishioners who alleged injury as a result of the negligence of church officials as opposed to an internal church matter, the Establishment Clause of the First Amendment could not be invoked to bar these causes of action. The court pointed out that the relevant inquiry in determining liability of the church defendants would focus on whether they reasonably should have foreseen the risk of harm to third parties. Id. at 364. What the court found was a neutral principle of tort law which did not involve "excessive" entanglement in internal church matters or in interpretation of religious doctrine or ecclesiastical law. Id.

Subsequent to Malicki, the Florida Supreme Court was confronted again with the issue of whether the First Amendment could be invoked as a bar to a tort action between a church and third parties. In Doe v. Evans, 814 So. 2d 370 (Fla. 2002), the question presented was whether the First Amendment barred claims for negligent hiring and supervision and breach of fiduciary duty against a religious institution based upon the alleged sexual misconduct by its clergyman with a parishioner during the course of an established marital counseling relationship.

Based upon its holding in Malicki, the court first concluded that the Free Exercise aspect of the First Amendment did not serve as a bar to this suit because the determination of whether a fiduciary relationship arose and whether a religious organization breached this duty did not require an adjudication of religious doctrine or beliefs. Doe, 814 So. 2d at 376.

Thus, allowing Doe's claim to be adjudicated in a secular court neither infringes upon nor restricts the religious practices of the Church Defendants and thus does not constitute a Free Exercise Clause violation. . . . Moreover, even assuming that assessing the Church Defendants' actions or inactions would have an incidental effect of burdening a particular religious practice, Doe's breach of fiduciary duty claim is governed by neutral tort law principles of general application.

Id. (citations omitted). The court also concluded that the breach of fiduciary duty claim would not run afoul of the Establishment Clause. "The imposition of liability based on a breach of fiduciary duty has a secular purpose and the primary effect of imposing liability under the circumstances of this case neither advances nor inhibits religion." Id. The court emphasized in Doe, that the resolution of the allegations did not depend on "extensive inquiry by civil courts into religious law and polity," or the interpretation and resolution of religious doctrine. Id.

The Florida Supreme Court thereafter found Doe and Malicki to be controlling authority for Carnesi v. Ferry Pass United Meth. Church, 826 So. 2d 954 (Fla. 2002), cert. denied Ferry Pass United Meth. Church v. Carnesi, 537 U.S. 1190 (2003), a case involving the church's liability for a volunteer's alleged tortious activities. In Carnesi, a female church employee sued the church defendants and a male church volunteer on the grounds that she was sexually harassed, assaulted, battered, and falsely imprisoned by the male church volunteer. The First District Court of Appeal affirmed a summary judgment entered in favor of the church defendant based upon its conclusion that a determination of the plaintiff's claims against a church volunteer would require a secular court to review and interpret church law, policies, and practices to determine whether an agency relationship existed between the church volunteer and the church defendants and whether the church defendants could be held liable for the volunteer's actions. Carnesi v. Ferry Pass United Meth. Church, 770 So. 2d 1286 (Fla. 1st DCA 2000). The Supreme Court quashed this decision in light of Doe and Malickiand remanded the case back to the trial court. See Carnesi, 826 So. 2d at 954-55.

II.
It is against this legal backdrop that we must now determine whether the instant lawsuit is barred by the First Amendment. (In all fairness to the trial court, it should be pointed out that summary judgment in this case was entered prior to the supreme court's pronouncements in Malicki, Doe, and Carnesi.) Consistent with the holdings of Malicki, Doe, and Carnesi, I do not believe that we can conclude that this suit would run afoul of either the Free Exercise or Establishment Clauses of the First Amendment.

First of all, we have to focus on what is really at issue in this case, the alleged negligent operation of a car by a Jehovah's Witness (Nunes) while en route to perform field service activities, and whether such alleged negligence may be properly imputed to the Watchtower Defendants. Nunes' religious motivations for operating the car are simply not at issue. The issues relevant in this case do not implicate the Free Exercise Clause because this suit involves a secular dispute not an adjudication of an internal church matter or religious belief. The Watchtower Defendants do not, and indeed cannot, claim that Nunes' alleged careless driving at the time of the accident, which the plaintiffs seek to impute to them, was governed by sincerely held religious beliefs or practices. As in Malicki, Doe, and Carnesi, this case involves the neutral application of principles of tort law.

Further, because this litigation has a secular purpose and the imposition of tort liability against the Watchtower Defendants would neither advance nor inhibit a religion, this action is also not barred by the Establishment Clause. The central inquiry into whether the Watchtower Defendants are vicariously liable for the plaintiff's injuries under a respondeat superior theory primarily involves the question of whether these defendants had the right to control the manner and/or means of Nunes' field service. In resolving this purely secular issue, there would be no "excessive" entanglement in internal church matters or in interpretation of religious doctrine or ecclesiastical law. See Malicki, 814 So. 2d at 364.

Thus, for all of the foregoing reasons, I do not believe that the summary judgment entered in favor of the Watchtower Defendants on the grounds that this litigation runs afoul of the First Amendment can be affirmed. Consequently, like Judge Wells, I must respectfully part company with our colleague in the majority who opines to the contrary. Unlike Judge Wells, however, I do not believe that the issue of the Watchtower Defendants' vicarious liability for Nunes' alleged negligence can be determined as a matter of law on the record before us.

III.
The plaintiffs essentially contend that the Watchtower Defendants are vicariously liable for their injuries because Nunes was their volunteer agent pursuant to Florida's Volunteer Protection Act and/or common law. The Watchtower Defendants and Nunes, on the other hand, maintain that at the time of the accident, Nunes was not engaged in field service as their agent, but rather pursuant to her personal religious convictions. They, as well as the concurring opinion, point to Nunes' deposition testimony that she engaged in field service as part of the tenets of her faith. See Special Concurrence at pg. 3. Although Nunes' motivation for engaging in field service may have been rooted in her faith, it is not at all dispositive of the issue of whether an agency relationship was in fact created between her and the Watchtower Defendants. The parties' characterization of their relationship is not controlling of the agency issue. See RESTATEMENT (SECOND) OF AGENCY, ' 1 cmt. B (1958) ("[t]he relation which the law calls agency does not depend upon the intent of the parties to create it, nor their belief that they have done so . . . if the agreement results in the factual relation between [the parties] to which are attached the legal consequences of agency, an agency exists although the parties did not call it agency and did not intend the legal consequences of the relation to follow."); Nazworth v. Swire Florida, Inc., 486 So. 2d 637, 638 (Fla. 1st DCA 1986) ("[t]he agreement's use of a certain descriptive label for one of the contracting parties is not determinative of the actual legal relationship between the parties."); Singer v. Star, 510 So. 2d 637, 640 (Fla. 4th DCA 1987) ("A jury may infer the existence of an agency even when both the principal and the agent deny it.").

The standard for determining whether an agent is an independent contractor is the degree of control exercised by the employer or owner over the agent. . . . More particularly, it is the right of control and not actual control, which determines the relationship between the parties. See Nazworth, 486 So. 2d at 638 (citations omitted).

Thus, in viewing the record evidence and all reasonable inferences therefrom in a light most favorable to the plaintiffs/appellants, as we must,(Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256, 259 (Fla. 2002) ("When reviewing the entry of summary judgment, 'an appellate court must examine the record and any supporting affidavits in the light most favorable to the non-moving party.'").) there is indeed a jury question presented as to whether the Watchtower Defendants had the right to control the manner and/or means in which Nunes distributed their literature and accepted donations on their behalf during her field service activities. There is record evidence before us that at the time of the accident, Nunes was engaged in what is known as "Formal Field Service" according to a system developed and implemented by appellant Watchtower New York.

Prior to participating in her "Formal Field Service" activities, Nunes, like other Jehovah Witnesses, was required to attend a meeting conducted by an Elder who directed the Jehovah's Witnesses as to "what to say and how to say it" to members of the public. Indeed all Jehovah Witnesses must be approved by Watchtower New York. The Elders direct the individual Jehovah Witnesses as to where to go and often accompany them to the doors so that the Jehovah's Witnesses' performances may later be critiqued. While in the field, the Jehovah's Witnesses distribute literature that is prepared solely by the Watchtower Defendants.

While in the field, Jehovah's Witnesses, such as Nunes, are assigned to a Field Service Group and this group always goes out together to a preassigned territory. Proper attire and haircuts are mandated for field service and it is "common knowledge" that the Jehovah's Witnesses will have to use their cars to conduct field service. While performing this field service, the Jehovah's Witnesses are required to raise the issue of donations to members of the public when they distribute the Watchtower Defendants' literature and all donations are forwarded to Watchtower New York.

Additionally, all presentations used by the Jehovah's Witnesses when disseminating the literature to the public were developed by the Watchtower Defendants. All Jehovah's Witnesses are required to devote at least ten hours per month to Field Service. A Jehovah's Witnesses' failure to do so can result in lost privileges and status in the congregation.
Additionally, all Jehovah's Witnesses are required to record their field service hours on Watchtower New York's preprinted forms. The data on these forms are then forwarded to Watchtower New York on a monthly basis.

Given this record evidence, I simply cannot agree with my remaining colleague that the issue as to the Watchtower Defendants' right of control over Nunes' field service activities on the date of the accident can be conclusively determined as a matter of law on a motion for summary judgment. This case presents a question for the jury in much the same manner that the issue of fiduciary duty presented a question for the jury in Doe v. Evans. There, the Florida Supreme Court held in this regard: . . . as to the relationships between Doe and Evans and between Doe and the Church Defendants, it is a question for the jury to determine whether a fiduciary relationship arose; the nature of that relationship; and whether as a result of the Church Defendants' conduct, there was a breach of the Church Defendants' duty as fiduciaries to Doe.
Doe, 814 So. 2d at 375.

Thus, for all of the foregoing reasons, I respectfully dissent because I believe the summary judgment in this cause must be reversed and this cause remanded for a jury trial.