Purvis v. Porter Cabs, Inc.

• Decision Date: 27 August 2002
• Docket Number: Record No. 3241-01-1.
• Citation: 38 Va. App. 760,568 S.E.2d 424
• Parties: Deloris PURVIS and Priscilla Purvis, Statutory Beneficiaries of Johnny Stanley (Deceased), v. PORTER CABS, INC. and Continental Casualty Company.
• Court: Virginia Court of Appeals

568 S.E.2d 424

38 Va. App. 760

Deloris PURVIS and Priscilla Purvis, Statutory Beneficiaries of Johnny Stanley (Deceased), v. PORTER CABS, INC. and Continental Casualty Company.

Record No. 3241-01-1.

Court of Appeals of Virginia, Chesapeake.

August 27, 2002.

Robert J. Macbeth, Jr. (Rutter, Walsh, Mills & Rutter, L.L.P., on briefs), Norfolk, for appellants.

Warren H. Britt (Warren H. Britt, P.C., on brief), for appellee Continental Casualty Company.

(Allen Lotz; Huff, Poole & Mahoney, P.C., on brief), Chesterfield, for appellee Porter Cabs, Inc. Appellee Porter Cabs, Inc. submitting on brief.

Present: FITZPATRICK, C.J., and ANNUNZIATA, J., and OVERTON, Senior Judge.

FITZPATRICK, Chief Judge.

Deloris Purvis (claimant), contends the Workers' Compensation Commission (commission) erred in finding that Johnny Stanley (Stanley), her boyfriend of twenty-five years and the father of her child, was not an employee of Porter Cabs, Inc. (Porter) under Code § 65.2-101. For the reasons that follow, we reverse and remand for an award of compensation consistent with this opinion.

I. FACTS

We view the evidence in the light most favorable to the employer, who prevailed below. See Westmoreland Coal v. Russell, 31 Va.App. 16, 20, 520 S.E.2d 839, 841 (1999)

. The commission's factual findings are conclusive and binding on this Court when those findings are based on credible evidence. See James v. Capitol Steel Constr. Co., 8 Va.App. 512, 515, 382 S.E.2d 487, 488 (1989); Code § 65.2-706. "`What constitutes an employee is a question of law; but, whether the facts bring a person within the law's designation, is usually a question of fact.'" Intermodal Servs., Inc. v. Smith, 234 Va. 596, 600, 364 S.E.2d 221, 224 (1988) (quoting Baker v. Nussman, 152 Va. 293, 298, 147 S.E. 246, 247 (1929)). "Conclusions of the rclomission upon questions of law, or mixed questions of law and fact, are not binding on appeal." Sinclair v. Shelter Constr. Corp., 23 Va.App. 154, 156-57, 474 S.E.2d 856, 857-58 (1996) (internal citations omitted). A person seeking benefits under the Act bears the burden of proving he or she is an "employee." Behrensen v. Whitaker, 10 Va.App. 364, 366, 392 S.E.2d 508,509 (1990).

The evidence established that Johnny Stanley was beaten, shot and killed during a robbery while driving a taxicab for Porter on April 25, 1999. His killers admitted calling a taxicab for the sole purpose of robbing the driver. After robbing Stanley of $39, they shot and killed him when he refused to get in the trunk of his cab.

At the time of the murder, Stanley was operating a taxicab owned by Neil Fairley (Fairley). Fairley and Stanley divided evenly the cost of the gas used and the fares received when Stanley drove Fairley's cab. Fairley's cab was dispatched through Porter. Fairley paid Porter a weekly fee that was calculated by totaling all Porter's expenses for the week and dividing it proportionately on a per cab basis among all the cab owners. The fee was posted as a "rent card" on Friday of each week, and the owners could not place their cabs in service again until the amount due on the "rent card" was paid to Porter. This fee allowed Fairley's cab to carry the name Porter Cabs, Inc., use Porter's cab stand, be dispatched through Porter dispatchers and to use Porter advertising. All cabs were painted with the Porter name and the rate schedule provided by Porter. There were no written agreements between Porter and Fairley or Fairley and Stanley, and Porter did not pay any wages to Stanley or Fairley.

Drivers who worked in a cab affiliated with Porter were required to fill out an application for Porter and interview with Porter before beginning to drive the cabs. If accepted by Porter, the driver had to obtain a "rate card" (a type of permit) from the permit section of the police department. Porter has monthly meetings as necessary with all the drivers. Porter also provides a list of rules the drivers must follow while driving a cab affiliated with or owned by Porter. These rules address, inter alia, length of breaks, cab maintenance, and the drivers' relationship with the dispatcher. If drivers violate the rules, Porter can "put them in the hole," which allows the dispatcher to suspend the driver temporarily or fire him or her. Drivers are not allowed to drive for other companies while driving for Porter.

The deputy commissioner found the accident arose out of and in the course of Stanley's work as a cab driver. He determined Stanley to be an employee of Porter because Porter "exercised the right to control the means and methods of the work[, and] . . . some control over who was hired to drive and, significantly, could fire a driver . . . ."

The commission reversed the deputy commissioner's decision and stated:

There is no dispute that Mr. Fairley, . worked as [an] independent [contractor] for Porter Cabs. Each owner, including Mr. Fairley, had a business license and paid Porter Cabs a monthly fee that allowed it to conduct business under the Porter Cabs name, and helped pay the costs associated with running the taxi stand. The owners received no money from Porter Cabs. The owners received their money by collecting a percentage of the fares generated by their own drivers.

The issue before us is whether Mr. Stanley was an employee of Porter Cabs. We find no contract of hire between Porter Cabs and Mr. Stanley. The evidence establishes that when Mr. Stanley collected a fare, he and Mr. Fairley would divide the fare. Porter Cabs had nothing to do with the business relationship between Mr. Stanley and Mr. Fairley. Mr. Fairley paid Porter Cabs a stand fee and other fees relating to the overhead. Thus, we find no contract of hire between Mr. Stanley and Porter Cabs.

Moreover, we find that there was insufficient control by Porter Cabs over Mr. Stanley to make Mr. Stanley an employee of Porter Cabs. There is no evidence that Porter Cabs hired, paid, or controlled Mr. Stanley. The evidence shows that while Porter Cabs specified the overall result, the company did not specify the means and methods by which Mr. Stanley drove the taxicab. The dispatchers gave the drivers instructions of the ultimate destination, and the driver decided what route to take.

Mr. Stanley had a great deal of freedom with regards to employment hours. Mr. Stanley could place the cab on the stand whenever he wanted, could drive the cab on the days and hours he desired, and could refuse fares he did not want. Porter Cabs could not compel Mr. Stanley to work. The fact that the cab displayed the Porter Cabs logo and information does not transform the driver into an employee of the cab company. Nor does the fact that Porter Cabs could put a driver "in the hole" or forbid that driver from driving for Porter Cabs. As the employer points out, Porter Cabs was simply a broker of business, a service for which it was paid a fee.

Claimant appealed that decision.¹ We hold that the commission's findings are not supported by credible evidence.

II

Claimant's sole contention on appeal is that the commission erred in finding Stanley was not an employee of Porter pursuant to Code § 65.2-101.² She argues that the evidence established that Stanley was an employee of Porter because Porter had the right to control the means and methods of the work. We agree.

The "[d]etermination of the relationship [of employee and employer] involves a mixed question of law and fact which is reviewable on appeal." County of Spotsylvania v. Walker, 25 Va.App. 224, 230, 487 S.E.2d 274, 276 (1997) (citations omitted).

One who seeks benefits under the Workers' Compensation Act must show that he is an employee within the definition of Code § [65.2-101]. He bears the burden of proving his entitlement. The elements of an employment relationship are: (1) selection and engagement of the employee, (2) payment of wages, (3) power of dismissal, and (4) power of control of the employee's action. The most important of these is the element of control.

Behrensen, 10 Va.App. at 366, 392 S.E.2d at 509 (internal citations omitted).

But ... the first, second and third of these elements are not essential to the relationship. ... The "power of control" is the most significant element bearing on the question . . In many of the cases the power of substitution or dischargeaythe payment of wages, and the circumstances bearing upon the relation, are dwelt upon. They, however, are not the ultimate facts, but only those more or less useful in determining whose is the work and where is the power of control.

Stover v. Ratliff, 221 Va. 509, 511-12, 272 S.E.2d 40, 42 (1980) (internal citations omitted). "Thus, [o]ne is an employee of another if the person for whom he or she works has the power to direct the means and methods by which the work is done." Mount Vernon Builders, Inc. v. Rotty, 28 Va.App. 511, 514, 507 S.E.2d 95, 97 (1998) (citing Craddock Moving & Storage Co. v. Settles, 16 Va.App. 1, 4, 427 S.E.2d 428, 430 (1993), aff'd, 247 Va. 165, 440 S.E.2d 613 (1994)). "The right of control is the determining factor in ascertaining [whether one is an employee or not]." Smith, 234 Va. at 601, 364 S.E.2d at 224.

[T]he right of control over results does not distinguish an employee from an independent contractor; by definition of the relationship, a principal exercises certain control over results whether those results are accomplished by employee or independent contractor. The relevant and determinative distinction lies in the right to control the means and methods chosen to accomplish the result.

Walker, 25 Va.App. at 230, 487 S.E.2d at 277 (emphasis added).

Porter had the power to hire drivers for its own cabs as well as cabs affiliated with Porter but owned by others. Each driver had to interview with Porter. If the driver passed the interview, Porter notified the permit section of the police department that a rate card could be issued to that driver under the aegis of Porter. At hearing, Ms. Teresa Martin, a supervisor for...