Nelson v. Yellow Cab Co., 3249.

CourtCourt of Appeals of South Carolina
Writing for the CourtANDERSON.
Citation343 S.C. 102,538 S.E.2d 276
PartiesDennis NELSON, Deceased Employee, By and Through His Estate, Appellant, v. YELLOW CAB COMPANY, Employer, and Travelers Property Casualty Company, Carrier, Respondents.
Docket NumberNo. 3249.,3249.
Decision Date09 October 2000

343 S.C. 102
538 S.E.2d 276

Dennis NELSON, Deceased Employee, By and Through His Estate, Appellant,
YELLOW CAB COMPANY, Employer, and Travelers Property Casualty Company, Carrier, Respondents

No. 3249.

Court of Appeals of South Carolina.

Heard September 12, 2000.

Decided October 9, 2000.

Rehearing Denied November 25, 2000.

343 S.C. 105
Carl H. Jacobson, of Uricchio, Howe & Krell, of Charleston, for Appellant

Johnnie W. Baxley, III, of Pratt-Thomas, Pearce, Epting & Walker, of Charleston, for Respondents.


The Estate of Dennis Nelson filed a Workers' Compensation claim maintaining Nelson, a taxi driver for Yellow Cab Company, was an employee at the time of his death. The Workers' Compensation Commission, reversing the Single Commissioner, agreed. The Circuit Court, in reversing the Commission, found Nelson was an independent contractor. We reverse and remand.

343 S.C. 106

Yellow Cab hired Nelson in 1995 as a part-time taxi driver. During his tenure at Yellow Cab, Nelson gradually increased the number of shifts he worked. In addition, Nelson was employed as a postal worker.

On January 6, 1998, Yellow Cab dispatched Nelson to pick up a passenger in North Charleston for transport to the West Ashley area. Nelson was murdered, apparently by the passenger. The sole question to be determined on appeal is whether Nelson was an employee or an independent contractor of Yellow Cab at the time of his death.

Yellow Cab requires taxi drivers to file an application for employment. The application form reads:

This is to certify that although I drive a taxicab owned and/or operated by Yellow Cab Company ... I am in no way employed by the company: that I recieve [sic] no salary or other compensation from the company, and that my only financial relationship with the company is to pay rent on the cab I drive, to pay for the gasoline used by me on my shift, and to return the cab with all keys and equipment in good condition at the end of my shift. In consideration of the expense in my training and indoctrination, I agree and understand that I must drive a company car owned by Yellow Cab Co. and not a terminal fee contractor for at least six months after my indoctrination period.

All drivers must sign the application before working for Yellow Cab.

In conflict with the relationship expressed in the application form, Yellow Cab exercises control over the driver's behavior while in the taxi, and the manner in which the drivers perform their jobs. Yellow Cab's "Drivers Information and Training Package" includes numerous rules and regulations governing the drivers. For instance, although there is no uniform for the drivers, Yellow Cab imposes a dress code, prohibiting unbuttoned and/or sleeveless shirts, and requiring a neat, orderly appearance. Failure to observe the dress code is a ground for termination of employment.

Further, in accordance with fares set by the City of Charleston, Yellow Cab mandates a set fare, and drivers must

343 S.C. 107
transport four people for the price of one fare. The drivers are bound to use a Yellow Cab meter as opposed to an Ever Ready Dispatch, or charging flat rates. Yellow Cab is the only cab company in the area that uses meters to establish taxi fares. Yellow Cab acknowledged that a driver's failure to use a Yellow Cab meter constitutes a ground for termination. The drivers are subject to the Yellow Cab rule prohibiting drivers from transporting non-paying passengers ("dead-heading"). Yellow Cab admitted dead-heading by a driver was cause for termination

There are numerous other grounds for termination of a taxi driver by Yellow Cab including: possessing a weapon of any kind in the taxi; drinking or using drugs while operating the taxi; failing to deliver packages; and filing a false application. Yellow Cab conceded it could fire a driver for any reason.

The drivers generally retain their fares. However, Yellow Cab makes payments to the drivers under special fare situations in which a driver picks up a certain fare or package, a blue card is issued by the company calling for the pickup, and the driver turns the card into Yellow Cab for payment. These customers are charge account customers billed directly by Yellow Cab. Yellow Cab neither withholds taxes from the drivers' fares nor issues W-2 or 1099 forms to the drivers. On his tax return, Nelson reported his taxi fares as income from a sole proprietorship.

The drivers lease their taxis from Yellow Cab, paying for either twelve or twenty-four hour shifts. Nelson leased his taxi for twenty-four hour shifts at $79 per day. The taxis are painted yellow and identified as Yellow Cab vehicles. Yellow Cab furnishes the radio and use of the dispatch service. The drivers pay for their own gas. The company pays for insurance, a portion of which is collected from the drivers, and repairs on the vehicles.

The drivers select the number of hours they want to work during the twenty-four hour shift. Whenever a driver checks in as operating the vehicle as a taxi, he is required to have the radio on and respond to the dispatcher. Yellow Cab allows the drivers to earn "vacation," which is paid in the form of Yellow Cab giving a car to a driver without requiring lease fees. Once the drivers pay the lease fee, they are entitled to

343 S.C. 108
personal use of the taxi whenever they are not checked in as operating the vehicle

On the evening Nelson was murdered, Nelson was dispatched by a Yellow Cab dispatcher to pick up the fare.


Coverage under the Workers' Compensation Act depends on the existence of an employment relationship. McDowell v. Stilley Plywood Co., 210 S.C. 173, 41 S.E.2d 872 (1947). Whether an employer-employee relationship exists is an initial fact to be established prior to applying the Act. Dawkins v. Capitol Constr. Co., 250 S.C. 406, 158 S.E.2d 651 (1967); Gray v. Club Group, Ltd., 339 S.C. 173, 528 S.E.2d 435 (Ct.App.2000). In the absence of such a relationship, the Workers' Compensation Commission lacks jurisdiction to order or approve an award of benefits. Glass v. Dow Chem. Co., 325 S.C. 198, 482 S.E.2d 49 (1997).

The existence or absence of an employment relationship is thus a jurisdictional fact, which the court must determine based on a review of all the evidence in the record. Bridges v. Wyandotte Worsted Co., 243 S.C. 1, 132 S.E.2d 18 (1963). If the factual issue before the Full Commission involves a jurisdictional question, as here, this Court's review is governed by the preponderance of the evidence standard. Vines v. Champion Bldg. Products, 315 S.C. 13, 431 S.E.2d 585 (1993); Lake v. Reeder Constr. Co., 330 S.C. 242, 498 S.E.2d 650 (Ct.App.1998). See also Kirksey v. Assurance Tire Co., 314 S.C. 43, 443 S.E.2d 803 (1994)(this Court can find facts in accordance with the preponderance of evidence when determining jurisdictional question in Workers' Compensation case); Canady v. Charleston County Sch. Dist., 265 S.C. 21, 216 S.E.2d 755 (1975)(in determining whether Commission had jurisdiction of claim presented, appellate court is not bound by finding of fact by Commission; appellate court has both power and duty to review entire record and find therefrom jurisdictional facts, without regard to conclusion of Commission on such issue, and will decide jurisdictional question in accord with preponderance of evidence); Lake, 330 S.C. at 246, 498 S.E.2d at 653 ("Judicial review of a Workers' Compensation decision is governed by the substantial evidence rule of the

343 S.C. 109
Administrative Procedures Act. However, when the Commission's jurisdiction is at issue, the reviewing court is not bound by the Commission's findings of fact upon which jurisdiction is dependent." (citation omitted)); Sanders v. Litchfield Country Club, 297 S.C. 339, 377 S.E.2d 111 (Ct.App.1989)(where jurisdictional issue is raised, this Court must review record and make its own determination whether the preponderance of evidence supports Commission's factual findings bearing on that issue).

Because the issue in the case sub judice is jurisdictional, this Court has the power and duty to review the record and decide the jurisdictional facts in accordance with the preponderance of evidence. See Lake, supra.


Nelson's estate contends the preponderance of evidence establishes Nelson was a Yellow Cab employee at the time of his death. We agree.

Workers' Compensation laws are intended by the Legislature to relieve workers of the uncertainties of a trial for damages by providing sure, swift recovery for workplace injuries. Peay v. U.S. Silica Co., 313 S.C. 91, 437 S.E.2d 64 (1993); Cokeley v. Robert Lee, Inc., 197 S.C. 157, 14 S.E.2d 889 (1941). Although an award will not be made unless an employment relationship existed at the time of the injury, to give effect to this legislative intent, Workers' Compensation statutes are construed liberally in favor of coverage. See Mauldin v. Dyna-Color/Jack Rabbit, 308 S.C. 18, 416 S.E.2d 639 (1992); McDowell v. Stilley Plywood Co., 210 S.C. 173, 41 S.E.2d 872 (1947); Spivey v. D.G. Constr. Co., 321 S.C. 19, 467 S.E.2d 117 (Ct.App.1996); McLeod v. Piggly Wiggly Carolina Co., 280 S.C. 466, 313 S.E.2d 38 (Ct.App.1984). Furthermore, South Carolina's policy is to resolve jurisdictional doubts in favor of the inclusion of employees within Workers' Compensation coverage. O'Briant v. Daniel Constr. Co., 279 S.C. 254, 305 S.E.2d 241 (1983); Horton v. Baruch, 217 S.C. 48, 59 S.E.2d 545 (1950).

The case at bar presents a novel issue in South Carolina: Is a taxi driver, who leases a taxicab for a per diem

343 S.C. 110
payment under a written document entitled "Drivers Information and Training Package" and keeps his fares and tips as compensation, an employee covered by Workers' Compensation law, or an independent contractor to whom coverage is unavailable?

The fundamental test of the employment relationship is the right of the employer to...

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