American Ass'n of Cab Companies v. Parham
| Decision Date | 21 March 2008 |
| Docket Number | No. A07A1786.,No. A07A1785.,A07A1785.,A07A1786. |
| Citation | 661 S.E.2d 161 |
| Parties | AMERICAN ASSOCIATION OF CAB COMPANIES, INC. et al. v. PARHAM. Parham v. American Association of Cab Companies, Inc. et al. |
| Court | Georgia Court of Appeals |
Sidney L. Moore Jr., Atlanta, for appellant.
Charles A. Mathis Jr., for appellee.
Thomas Parham, Jr., was injured in 1992 when the taxicab in which he was a passenger collided with another vehicle. He filed a personal injury action against the driver, Harold Davis,1 American Cab Company ("ACC"), and The American Association of Cab Companies, Inc. ("AACCI"), among others. Under a management agreement, ACC operated the cabs and AACCI was responsible for financial arrangements, including self-insurance. Parham also asserted a claim against ACC and AACCI ("the cab companies") under the Georgia Racketeer Influenced and Corrupt Organizations Act ("Georgia RICO"), OCGA § 16-14-1 et seq. The claims were bifurcated at trial. The jury returned a verdict on the personal injury claim in the amount of $868,762.93, including $84,387.93 for medical bills and $784,375 for pain and suffering. The jury also found that the corporate veil between the cab companies should be pierced, a finding not at issue in this appeal. The jury returned a defense verdict on the RICO claim. In Case No. A07A1785, the cab companies appeal from the judgment entered on the personal injury verdict; in Case No. A07A1786, Parham cross-appeals from the judgment entered on the RICO defense verdict.2 We affirm in Case No. A07A1785, but reverse and remand for a new trial in Case No. A07A1786 because the trial court imposed an improperly high burden of proof on Parham's RICO claim and because that error was not harmless.
1. The cab companies contend that the trial court erred in denying their motions for directed verdict and for judgment notwithstanding the verdict (j.n.o.v.) because the evidence presented at trial demanded a finding that Davis was not an employee of the cab companies. We disagree.
3 On appellate review of the denial of either motion, we construe the evidence in the light most favorable to the verdict and resolve any doubts or ambiguities in favor of the verdict.4
Construed in favor of the verdict, the evidence shows that in 1991, Davis met Morteza Hafezalkotob and agreed to lease a taxicab for $250 per week. Davis testified that he and Hafezalkotob met with Konjit Terefe/Bekele, an officer of both ACC and AACCI. Terefe/Bekele instructed Davis to sign papers indicating that the cab was insured by the companies and that Davis would drive the taxicab on behalf of Hafezalkotob, who was leasing the cab to Davis. The vehicle already bore the ACC insignia and sign. Davis was required to show Terefe/Bekele his driver's license, taxicab permit, and driving history.5 Terefe/Bekele also told Davis to report any incidents to her. Hafezalkotob paid Davis's stand dues of $153 per month to ACC.
The cab companies objected to a charge on joint venture on the ground that it was not authorized by the evidence. The trial court overruled the objection. The cab companies later objected to the verdict form on the same ground. The jury found the cab companies liable under alternative theories of "principal/agency, respondeat superior, or joint venture."
"A charge unauthorized by the evidence, which injects into the case issues not made by the pleadings or evidence, is presumed to be harmful to the losing party, and such a charge is grounds for new trial unless it is apparent that the jury could not have been misled by it."6 We therefore consider whether the evidence supported the submission of the question whether Davis was an employee of the cab companies to the jury.
"As a general rule, the doctrine of respondeat superior applies only where the principal retains the right to control the time, manner, and method of employment of the agent."7 To prove that a taxicab driver was operating a vehicle in the course of the employer's business and within the scope of the driver's employment, the plaintiff must show both that the employer owned the vehicle and that the driver was the owner's employee.8
The evidence supports the jury's conclusion that the cab companies owned the vehicle driven by Davis. At the time Parham was injured, that vehicle was co-titled in the names of Hafezalkotob and AACCI and bore the ACC insignia. Evidence also showed that ACC checked Davis's driving record and license and paid for Davis's insurance, and the jury found that the corporate veil between ACC and AACCI should be pierced. Davis also testified that he could not have driven the cab without a permit listing him as an ACC driver.
The evidence also supports the jury's conclusion that ACC exerted some control over the time, manner and method of Davis's employment. Davis testified that "if [the ACC dispatcher] would call me, I would answer him," and was further examined as follows:
As the dissent correctly points out, a taxicab company cannot be held liable for a driver's tort where there is no evidence to support a conclusion that the company controlled the manner in which the driver operates the taxi.9 Here, however, Davis's testimony permits the conclusion that whenever ACC called Davis with a passenger, he picked that passenger up and that Davis was thus working as the companies' agent and under their control.10
2. The cab companies also argue that the trial court erred when it instructed the jury on joint venture because the evidence did not authorize such a charge. We disagree.
As the cab companies concede, the cab companies' control over Davis's operation of the taxi is an element common to all three of Parham's theories of the case, with "mutual control" being essential to any finding of a joint venture between Davis and the companies. "A joint venture arises where two or more parties combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control."11 As we have held in Division 1, evidence supported a finding that the cab companies exercised some control over the manner in which Davis performed his work. The same evidence also supports a finding that Davis himself exercised some control over the manner in which he performed that work.12 This contention lacks merit.
3. In the cross-appeal, Parham argues that the trial court erred when it instructed the jury that he was required to prove his Georgia RICO claims by clear and convincing evidence and that he deserves a new trial on these claims. We agree.
(a) At the time of Parham's trial, a line of cases originating in Simpson Consulting v. Barclays Bank PLC13 required a plaintiff to prove RICO predicate acts by clear and convincing evidence. The charge was therefore correct when given.14 Two months after the trial in this case, however, in Williams Gen. Corp. v. Stone,15 our Supreme Court overruled Simpson Consulting and held that the predicate acts necessary to support a civil RICO claim need only be established by a preponderance of the evidence.16 We therefore consider whether we should apply Williams and its RICO preponderance standard retroactively to this case.
In Flewellen v. Atlanta Cas. Co.,17 our Supreme Court laid out a three-part test as to whether an appellate decision establishing a new rule of law should be applied retroactively or nonretroactively in a civil case. Under the Flewellen test, we are bound to
(1) Consider whether the decision to be applied nonretroactively established a new principle of law, either by overruling past precedent on which litigants relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed[;]
(2) Balance . . . the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation would further or retard its operation[; and]
(3) Weigh the inequity imposed by retroactive application, for, if a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the injustice or hardship by a holding of nonretroactivity.18
The record shows that at the charge conference, Parham pointed out that Simpson Consulting appeared as physical precedent only and was not implicitly adopted by this Court for nearly four years.19 Parham also observed that Simpson Consulting had been critiqued by a Georgia federal court, which examined federal RICO case law and the history of Georgia RICO before finding a likelihood "that the Georgia Supreme Court would reject Simpson's reasoning."20 Indeed, shortly after the trial in this case, Williams Gen. Corp. appeared. In that decision, our Supreme Court pointed to the legion of federal cases holding that RICO plaintiffs need only prove their case by a preponderance of the evidence, highlighted the General Assembly's mandate "to liberally construe [Georgia RICO] to effectuate its remedial purposes," and held that the trial court had not erred when it instructed the jury considering a civil RICO claim under a preponderance standard.21 Under these circumstances — where Parham...
To continue reading
Request your trial
-
ATLANTA OCULOPLASTIC SURGERY v. Nestlehutt
...would affect evidence presented, objections thereto, trial arguments, and jury instructions); American Assn. of Cab Cos. v. Parham, 291 Ga.App. 33(3)(a), (b), 661 S.E.2d 161 (2008) (application of new standard of proof necessarily affected jury's assessment of liability). Further, appellant......
-
Vernon v. Assurance Forensic Accounting, LLC.
...act was the proximate cause of his injury. See OCGA § 16–14–6(c) ; American Assoc. of Cab Companies v. Parham, 291 Ga.App. 33, 39(3)(c), 661 S.E.2d 161 (2008) ; Mays, 262 Ga.App. at 422(3), 585 S.E.2d 735.Vernon alleged that Assurance engaged in a pattern of racketeering activity through th......
-
Maki v. Real Estate Expert Advisors Inc.
...that the court define "attempt" and did not object when the State withdrew its request).25 Cf. Am. Ass'n of Cab Cos., Inc. v. Parham , 291 Ga. App. 33, 38 (3) (b), 661 S.E.2d 161 (2008) ("When an instruction imposes an erroneously high burden of proof on a civil plaintiff, thereby shifting ......
-
Brantley v. Muscogee Cnty. Sch. Dist.
...whether a plaintiff's injury is "by reason of" a RICO predicate act. Am. Ass'n of Cab Cos., Inc. v. Parham, 291 Ga. App. 33, 39, 661 S.E.2d 161, 166-67 (2008) (citing Anza, 547 U.S. at 456-57). Plaintiffs' Georgia RICO claims are based on their allegation that Defendants Latham, French, and......
-
Labor and Employment Law - W. Melvin Haas, Iii, William M. Clifton, Iii, W. Jonathan Martin, Ii, and Glen R. Fagan
...Id. at 164-65, 643 S.E.2d at 543. 98. Id. at 165, 643 S.E.2d at 543. 99. Id. at 166, 643 S.E.2d at 544. 100. Id. 101. 291 Ga. App. 33, 661 S.E.2d 161 (2008). 102. See id. at 35, 661 S.E.2d at 164. 103. Id. at 33-36, 661 S.E.2d at 163-64. 104. See id. at 35-36, 661 S.E.2d at 164. 105. Id. 10......
-
2008 Annual Review of Case Law Developments Georgia Corporate and Business Organization Law
...of note came to our attention during 2008. Joint Ventures In American Association of Cab Companies, Inc. v. Parham, 291 Ga. App. 33, 661 S.E.2d 161 (2008), in a personal injury case involving an uninsured cab, the Court of Appeals of Georgia, en banc, held there to be sufficient evidence of......