Yellow Cab of Chatham County, Inc. v. Karwoski, No. A96A2091

• Court: Georgia Court of Appeals
• Writing for the Court: BLACKBURN; ANDREWS, C.J., BIRDSONG and POPE, P.JJ., and SMITH; BIRDSONG; Accordingly, I would reverse the judgment in Karwoski and not overrule Smith. I am authorized to state that Chief Judge ANDREWS
• Citation: 486 S.E.2d 39,226 Ga.App. 63
• Parties: , 97 FCDR 1289 YELLOW CAB OF CHATHAM COUNTY, INC. v. KARWOSKI.
• Decision Date: 06 March 1997
• Docket Number: No. A96A2091

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486 S.E.2d 39 226 Ga.App. 63, 97 FCDR 1289 YELLOW CAB OF CHATHAM COUNTY, INC.
v.
KARWOSKI. No. A96A2091. Court of Appeals of Georgia. March 6, 1997.
Reconsideration Denied April 4, 1997.
Certiorari Denied Sept. 12, 1997.

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[226 Ga.App. 69] Parkerson, Shelfer & Groff, David B. Groff, Decatur, for appellant.

Jones, Boykin & Associates, Noble L. Boykin, Jr., Savannah, for appellee.

[226 Ga.App. 63] BLACKBURN, Judge.

The sole issue before us in this workers' compensation case is whether Francis R. Karwoski was an independent contractor or an employee.

Karwoski was injured while driving a taxicab for Yellow Cab of Chatham County, Inc. (Yellow Cab). Relying upon this Court's decision in Worrell v. Yellow Cab Co., 146 Ga.App. 748, 247 S.E.2d 569 (1978), the cases cited therein, and certain provisions of the Savannah City Code, the administrative law judge found that Yellow Cab was estopped to deny that Karwoski was its employee. On this basis, it granted his summary judgment motion for workers' compensation benefits. The State Board of Workers' Compensation reversed, and the superior court reversed the State Board. Yellow Cab now contends that the ALJ and the superior court erroneously construed Worrell and the Savannah City Code to preclude the use of independent contractors as cab drivers.

In Worrell, we found that the language of the Code of Ordinances of the City of Atlanta prohibited licensed taxicab companies from using independent contractors to operate their vehicles. Therefore, Worrell was an employee and the Workers' Compensation Act applied. Id. at 749, 247 S.E.2d 569. Our opinion in Worrell was controlled by several earlier taxicab cases interpreting the same Ordinances of the City of Atlanta, including Atlanta Million Cooperative Cab Co. v. Wilson-Acomb, 108 Ga.App. 465(1), 133 S.E.2d 437 (1963); Diamond Cab Co. v. Adams, 91 Ga.App. 220, 85 S.E.2d 451 (1954); and one case involving the City of Albany Code which was similar to the City of Atlanta Code, that being Malone v. Gary, 98 Ga.App. 699, 106 S.E.2d 320 (1958). Both the Atlanta and Albany Codes required that any driver be either an owner or employee of the taxicab company.

In both Diamond Cab, supra, and Atlanta Million, supra, this court had to determine whether the subject cab drivers were employees or independent contractors. The controlling Atlanta City Code provided that "no taxicabs shall be operated by any person other than the owner, or his duly licensed employee." (Punctuation omitted; emphasis supplied.) Diamond Cab, supra at 221, 85 S.E.2d 451. This language clearly precludes the use of independent contractors, and we therefore held that the injured cab drivers were employees of the respective[226 Ga.App. 64] cab companies for purposes of workers' compensation. Id.; Atlanta Million, supra at 465, 133 S.E.2d 437.

The Atlanta City Code involved in Worrell had been amended. In Worrell, the code read, "[n]o vehicle provided for under the provisions of this article shall be operated by any person other than the owner or his duly authorized employee or agent." (Punctuation omitted.) Worrell, supra at 748-749, 247 S.E.2d 569. In Worrell, Yellow Cab contended that Worrell was an independent contractor. In Worrell, however, unlike the present case, Yellow Cab owned the taxi and leased same to Worrell. Since Yellow Cab owned the vehicle Worrell drove, it is clear that Worrell was not an independent contractor. Under these facts and the otherwise clear language of the ordinance, this Court held that Worrell was an employee, notwithstanding the amendment to the ordinance. Id at 750, 247 S.E.2d 569.

In Malone, supra, the applicable Albany code required that all vehicles be owned by the owner of the taxicab business. Id. at 700, 106 S.E.2d 320. Malone, the taxicab business owner, did not own the vehicle involved in the collision, and he contended that his third-party driver was an independent contractor. This Court rejected that argument and held that the owner of the business could not avoid the duties of operating the taxicab business by allowing third-party owners of automobiles to operate as independent contractors where the Albany ordinance required that all taxis be owned by the owner of the business. Both the Atlanta and Albany codes required that all vehicles be owned by the business owner, or driven by his or her employee. The statutory schemes involved in each of these codes dictate ownership

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of the vehicles or the status of the driver and thereby preclude an operator of a vehicle from having the status of an independent contractor.

Unlike the Atlanta and Albany codes, the Savannah code in this case contains no provisions dictating ownership of the taxicabs, and no language specifically requiring that drivers be either owners or employees. Rather, the Savannah Code dictates that separate licenses be obtained both for ownership of a taxicab business and to drive a taxicab. Under Section 6-1423 of the Savannah City Code, it is unlawful to operate a taxicab business without a license from the city. In addition, each taxicab driver must have a separate taxicab driver's permit. See Section 6-1429. Therefore, in order to operate lawfully, an independent contractor must have both a driver's permit and a taxicab business license. The superior court concluded that the language of the Savannah City Code precludes the use of independent contractors as drivers. The superior court held that Karwoski was an employee of Yellow Cab, not an independent contractor, and that the Workers' Compensation Act was applicable in this case.

The trial court found that although Karwoski had a cab driver's permit, he had no taxicab business license, and he therefore failed to [226 Ga.App. 65] meet the first requirement for being an independent contractor. Nor did he have any of the other requirements for a licensed taxicab business/independent contractor: a fixed place of business (Section 6-1424), both doors of his cab permanently marked with his own company's name in letters at least four inches high (Section 6-1446), a number on display in his cab assigned to him by the city (Section 6-1447), and his cab painted in his own cab company's distinctive color scheme (Section 6-1450).

Instead, Karwoski operated from Yellow Cab's taxi stand. His cab was painted Yellow Cab's assigned shade of yellow, it had Yellow Cab's name on its sides and top, and the number on display in his cab was assigned by the city to Yellow Cab. The trial court also found that Yellow Cab was cognizant of all of these facts during the time it associated with Karwoski.

Under these facts, Karwoski did not meet the requirements for being an...