BIJK Enterprises, Inc., Application of, 86-685

• Decision Date: 17 June 1988
• Docket Number: No. 86-685,86-685
• Citation: 424 N.W.2d 356,228 Neb. 804
• Parties: In re Application of BIJK ENTERPRISES, INC. BIJK ENTERPRISES, INC., Appellee, v. YELLOW CAB CO. et al., Appellants.
• Court: Nebraska Supreme Court

Page 356

424 N.W.2d 356

228 Neb. 804

In re Application of BIJK ENTERPRISES, INC. BIJK ENTERPRISES, INC., Appellee, v. YELLOW CAB CO. et al., Appellants.

No. 86-685.

Supreme Court of Nebraska.

June 17, 1988.

Syllabus by the Court

1. Public Service Commission: Appeal and Error. In an appeal from an order of the Nebraska Public Service Commission, the Supreme Court examines the record to determine whether the commission acted within the scope of its authority and whether the evidence shows that the order in question was unreasonable or arbitrary.

2. Public Service Commission: Appeal and Error. If there is evidence to sustain the findings and action of the Public Service Commission, the Supreme Court cannot intervene.

3. Public Service Commission: Motor Carriers: Proof. The burden is upon an applicant for authority to operate as a contract carrier intrastate to show that the proposed service is specialized and is designed to meet the distinct needs of the contracting shippers; that applicant is fit, willing, and able to perform the service; and that the proposed service will be consistent with the public interest.

4. Public Service Commission. The striking of the balance between the competing interests of legitimate competition and the protection of the public interest are matters of legislative and administrative determination peculiarly resting in the judgment of the Public Service Commission.

Marshall D. Becker and Jeffrey W. Meyers, Omaha, for appellants.

Robert M. Zuber of Zuber & Ginsburg, Omaha, for appellee.

BOSLAUGH, WHITE, CAPORALE, and GRANT, JJ., and NORTON, District Judge.

BOSLAUGH, Justice.

The protestants, Yellow Cab Co., Checker Cab Co., Happy Cab Co., doing business as Happy Cab, Airport Transportation Co., and Safeway Cabs, Inc., have appealed from the order of the Nebraska Public Service Commission granting the applicant, BIJK Enterprises, Inc., of Omaha, Nebraska, authority to transport passengers and their baggage and articles from retail stores for delivery between points within a 50-mile radius of Omaha over irregular routes under continuing contracts with Borsheim Jewelry, Reagan Buick, Quality Lincoln-Mercury, and the Marriott Hotel.

The record shows that the applicant, BIJK, is a corporation composed of Jerry B evins, William I senberger, Richard J ennings, and Dennis K nowlton, whose initials of their last names form the name BIJK. All four are taxicab drivers in Omaha, Nebraska, who lease their cabs from one of the protestants, Happy Cab.

In August 1984, Isenberger became involved in the transportation of customers of Reagan Buick needing transportation to or from Reagan Buick while their automobiles were being serviced. According to Ellis Hoffine, the service director for Reagan Buick and adviser to Quality Lincoln-Mercury, the service provided by Happy Cab taxi service was not cost-effective, and complaints had been made by customers utilizing the service. Among the complaints were the facts that cab drivers took unnecessarily long routes, customers had to wait for extended periods of time, and there was a poor coordination of service.

After talking with Isenberger about his dissatisfaction with the taxi service, Hoffine asked Isenberger to assume responsibility for the courtesy car service, to which Isenberger agreed. Isenberger proceeded to seek out additional drivers, all of whom now comprise BIJK Enterprises, and to establish and fund a communication/dispatch system in which his wife functioned as dispatcher. Isenberger then arranged a work schedule whereby three vehicles would leave from Reagan Buick with customers for transport at 7:20 a.m., all vehicles heading in different directions, one west, one northeast, and one southeast. Instead of transporting one customer at a time, Isenberger arranged the service so that passengers traveling to the same general vicinity could be delivered together, thus decreasing the cost to the car dealership and minimizing the length of time a customer would have to wait for transportation. After delivering the customers, the cabs returned to Reagan Buick. After about 10:30 a.m., only one driver remained at Reagan Buick for dispatch, and an additional driver served as backup. Identical service was also to be provided for Quality Lincoln-Mercury.

After implementation of this service by Isenberger, Hoffine testified that the service to customers had improved and that he was satisfied with the service. He also stated that if the applicants were denied authority to continue the courtesy car service, both car dealerships would return to their own courtesy car system, as opposed to resuming service by Happy Cab. While operating the courtesy car service for the car dealerships, Isenberger entered into an agreement with Borsheim Jewelry to provide package delivery service for Borsheim.

In addition to these services, Isenberger occasionally transports passengers for the Marriott Hotel to and from Eppley Airport in Omaha. At the time of BIJK's application, the Marriott had a contract with Airport Transportation Co. for the transportation of hotel guests. Gilbert Cohen, the office manager of the Omaha Marriott, who is responsible for the limousine and taxicab services utilized by Marriott, testified as to numerous reasons why Marriott was dissatisfied with the service provided by Airport Transportation, including the quality of service, the availability or lack thereof of drivers on an on-call basis, communication difficulties with the dispatch office, problems with van drivers being reckless as well as falling asleep at the wheel, written complaints from hotel guests, and mechanical problems with vans, including doors that did not close properly, rattling seats, improperly working seatbelts, and unsanitary vans.

Cohen was interested in obtaining friendly, courteous drivers who offered safe and convenient transportation, and although he had expressed his complaints regarding the van service to Ira Wayne Anderson, vice president of Happy Cab, Yellow Cab, Checker Cab, and Airport Transportation, the problems remained unsolved. Anderson had told Cohen that if he did not like the service provided, he should "drop it." Cohen had previously tried to contract for courtesy car services but found the cost prohibitive. The Marriott is not interested in a taxi service, but wants contract carrier service, finding it a necessity because of cost and distances involved.

Cohen was familiar with Isenberger because of taxi service he had provided to Marriott guests. Cohen contacted Isenberger and spoke with him about performing a prearranged limousine service for Marriott. As a result, a contract was proposed, agreeable to both parties, whereby BIJK would provide the services desired by Marriott.

Based on these tentative contracts, BIJK filed its application to obtain authority to act as a contract carrier to provide courtesy car service for the two car dealerships and a shuttle van service for the Marriott Hotel, as well as a package delivery service for Borsheim Jewelry. At the time of the application, BIJK had leased a 1986 Buick LeSabre 9-passenger station wagon and had made arrangements to lease a 15-passenger van and two additional station wagons. In addition to the equipment, BIJK had acquired $1 million of liability insurance and $10,000 of cargo insurance.

Protests were filed by the appellants, who hold authority to transport passengers and their baggage between various points, alleging that they currently provide all of the services requested to be performed by the applicant. Safeway Cabs joined in the protest as well as in this appeal, but offered no testimony.

The only witness appearing on behalf of the protestants was Anderson, vice president of the cab companies and Airport Transportation. The cab companies are currently authorized to transport passengers within the city of Omaha. Airport Transportation operates to and from the Omaha airport and delivers packages within Omaha. If the four stockholders of BIJK cease leasing cabs from Happy Cab, it would lose about $1,100 per week.

The commission granted the applicant's request in its entirety.

"In an appeal from an order of the Nebraska Public Service Commission, the Supreme Court examines the record to determine whether the commission acted within the scope of its authority and whether the evidence shows that the order in question was unreasonable or arbitrary." In re Application of Silvey Refrig. Carr. 226 Neb. 668, 676, 414 N.W.2d 248, 254 (1987); In re Application of Renzenberger, Inc., 225 Neb. 30, 402 N.W.2d 294 (1987); In re Application of Northwestern Bell Tel. Co., 223 Neb. 415, 390 N.W.2d 495 (1986).

If there is evidence to sustain the findings and action of the Public Service Commission, the Supreme Court cannot...