Deloris Purvis, et al v Porter Cabs, Inc, et al

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Fitzpatrick, Judge Annunziata and
Senior Judge Overton
Argued at Chesapeake, Virginia
DELORIS PURVIS AND PRISCILLA PURVIS,
STATUTORY BENEFICIARIES OF
JOHNNY STANLEY (DECEASED) 	OPINION BY
CHIEF JUDGE JOHANNA L. FITZPATRICK
v. 	Record No. 3241-01-1 	AUGUST 27, 2002
PORTER CABS, INC. AND
CONTINENTAL CASUALTY COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Robert J. Macbeth, Jr. (Rutter, Walsh,
Mills & Rutter, L.L.P., on briefs), 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), for appellee Porter Cabs, Inc.
Appellee Porter Cabs, Inc. submitting on
brief.
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 [c]omission
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
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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.
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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
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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.
1 Appellant stated she was not appealing whether Stanley was
a statutory employee of Porter and, therefore, that issue is not
before us.
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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.
2 Code § 65.2-101 defines an employee as:
Every person, including aliens and minors,
in the service of another under any contract
of hire or apprenticeship, written or
implied, whether lawfully or unlawfully
employed, except (i) one whose employment is
not in the usual course of the trade,
business, occupation or profession of the
employer or (ii) as otherwise provided in
subdivision 2 of this definition.
Subdivision 2(d) provides an employee is not: 	"Any taxicab or
executive sedan driver, provided the Commission is furnished
evidence that such individual is excluded from taxation by the
Federal Unemployment Tax Act." 	We note that this provision was
not addressed and is not before us.
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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 discharge, the
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).
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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 Porter, testified as follows:
[Ms. Martin:] 	You come in and you apply to
be a taxicab driver. 	They give you a little
app [sic] to fill out. 	Once you fill that
out, if they feel like they want to have you
after talking to you, what they do is tell
you the things you need to get. 	You need to
go to DMV and get a copy of your driving
record. 	You have to go over town [sic] to
see Ms. Sue Wells. 	She handles special
permits for the police department, and then
she'll give you a rate card, and then you
become a taxicab driver.
[Attorney:] 	When you go to get that rate
card, do you have to take any paperwork from
Porter's?
[Ms. Martin:] 	Yes, you do. 	You have to
take a statement saying that they are going
to hire you to work as an employee.
Porter could place a driver on temporary or permanent
suspension if the driver failed to comply with Porter's rules.
[Attorney:] 	What else can, in your
experience, drivers do, or not allowed to do
[sic] that would put them in the hole?
[Ms. Martin:] 	Stay out of the cab too long,
don't communicate with the dispatcher and
let them know what they're doing and
whereabouts they're at [sic]. 	A dispatcher
must know where a driver is at all times, or
then if they've been gone for so long and
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have not contacted the dispatcher, then she
has to notify the police. 	Then that could
cause them to get put in the hole. 	Things
like abusive language, getting in arguments
with customers, stuff like that.
[Attorney:] 	How about if they get in
arguments with the dispatcher?
[Ms. Martin:] 	Yes.
[Attorney:] 	Are there any other - - is
there a standard rule book? 	You said
paperwork was given out at these meetings.
Is there a standard rule book?
[Ms. Martin:] 	Yes, we do have rules, a
standard book.
[Attorney:] 	Is that given out to all
drivers?
[Ms. Martin:] 	Yes.
[Attorney:] 	And they're expected to follow
those rules?
[Ms. Martin:] 	Yes.
[Attorney:] 	And what happens if they don't
follow those rules?
[Ms. Martin:] 	They would be placed in the
hole.
[Attorney:] 	And what is that just so that
we're clear on what that means?
[Ms. Martin:] 	That means the dispatcher
tells you that you can no longer work for
us, and you have to park the cab and go
home.
[Attorney:] 	And you're placed on
suspension?
[Ms. Martin:] 	Yes.
[Attorney:] 	Can that suspension be
permanent?
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[Ms. Martin:] 	Yes, it can.
[Attorney:] 	And who decides whether a
suspension is permanent? 	In other words,
who can fire a cabdriver?
[Ms. Martin:] 	An owner by basically [sic] -
- me, myself, and Larry Porter has the last
say so in it [sic].
(Emphasis added.)
The drivers had to accept all fares unless the driver felt
he or she was in danger. 	A driver could not pick up a fare
without Porter's permission.
[Attorney:] 	When the dispatchers dispatch
fare [sic], is the driver who receives that
dispatch required to go out and pick up that
fare?
[Ms. Martin:] 	Yes.
[Attorney:] 	Required by Porter Cab to do
that?
[Ms. Martin:] 	Yes.
* 	* 	* 	* 	* 	* 	*
[Attorney:] 	Does the dispatcher control
where the drivers go?
[Ms. Martin:] 	Oh, yes.
[Attorney:] 	Can the driver pick up anybody
they see on the street if they want to, or
do they have to go through the dispatcher?
[Ms. Martin:] 	The way that works is you
have to ask permission to [sic] the
dispatcher. 	Once you ask the dispatcher
permission, it's up to her to say yes or no.
If she says no, then you cannot pick it up.
* 	* 	* 	* 	* 	* 	*
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[Attorney:] 	Are [the drivers] allowed to
refuse a fare?
[Mr. Porter:] 	No. 	Yes. 	That's a two part
question, yes and no. 	If there's a reason
for safety issues, and they feel as though
there may be some personal safety issues,
yes, they can decline a fare. . . .
Mr. Porter testified he fired drivers for a variety of
reasons and gave the following specific example:
I pulled up to the stand one night in
another car so they wouldn't know my car at
approximately 10 p.m. 	A driver who was
driving for the owner by the name of Rick
Hughes, Cab 24, I had just pulled up in
front of the building. 	They didn't know
what kind of car I was in. 	I observed this
driver with the car receive a trip. 	It
looked like he was getting ready to pull
out, and he drove no further from here to
where Your Honor is and stopped right at the
edge of the street. 	I knew it was a
problem, and I'm watching this unusual
behavior. 	I approached him. 	He was so
sleepy and so tired that I told him that he
no longer can he drive up here because I
just felt, even how much money he needed, he
was endangering the company and himself and
other people, the citizens, so I fired him.
Clearly, Porter had the absolute authority to hire and fire
Stanley.
The commission's finding that Porter did not specify the
means and methods by which Stanley drove the taxicab because
dispatchers only told drivers their ultimate destination and did
not specify which route to take to reach the ultimate
destination is without merit. 	The fact that the drivers often
chose their specific routes shows nothing more than, due to the
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nature of the work and as a practical matter, Porter's control
did not extend to dictating each turn the driver was required to
make.3 When considered with the other indicia of control
exercised by Porter, this fact is of little significance.
The evidence showed all parties agreed that Porter
interviewed and determined which potential drivers received a
rate card that allowed the drivers to drive; Porter had specific
rules the drivers had to follow while driving for Porter; Porter
could suspend a driver temporarily or fire him or her; and
Porter controlled the drivers' business by directing what fares
were dispatched to each driver, preventing the drivers from
3 However, Mr. Porter, described a process in which the
dispatcher directs the specific route an individual driver could
take.
[Attorney:] 	Does the dispatcher tell the
owner of the vehicle or specify a specific
route that the owner is to take to go pick
up the fare?
[Mr. Porter:] 	Yes, at times. 	And I say
that varies. 	Most cab drivers such as
Mr. Fairley and Johnny Stanley are very
experienced drivers. 	I mean, it would
hardly be necessary to tell them which route
to take to get to a specific destination.
However, if the dispatcher had - - a lot of
times trips are what that call stat [sic].
And that's for I guess the most expedient
way to dispatch cabs. 	In a lot of different
area [sic], the trips are stacked so she may
give a specific route. 	If she has a client
who may want to be picked up at the Coliseum
Mall, she'll say, why don't you pick up the
interstate and pick up this fare on your way
back.
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picking up fares off the street without permission and not
allowing drivers to refuse fares unless there were safety
issues. 	These facts establish the requisite exercise over the
"selection and engagement" of the driver, the "power to dismiss"
the driver and, most importantly, the "power of control" over
the driver's actions.
This analysis is consistent with the position taken by
several of our sister states. 	In Nelson v. Yellow Cab Company,
538 S.E.2d 276 (S.C. Ct. App. 2000), a factually similar case,
the driver was killed by a passenger and the Court of Appeals of
South Carolina found the cab driver to be an employee of the cab
company. 	Yellow Cab argued that it had a document signed by the
driver stating he was not an employee. 	The driver kept all his
fares and tips and paid for his own gas. 	However, the driver
was required to follow Yellow Cab's dress code, use Yellow Cab's
meter and fare schedule, could not accept fares not approved by
Yellow Cab and could be fired by Yellow Cab. 	The court stated:
The fundamental test of the employment
relationship is the right of the employer to
control the details of the employee's work.
It is not the actual control exercised, but
whether there exists the right and authority
to control and direct the particular work or
undertaking, as to the manner or means of
its accomplishment.
The test is based on the right to control,
not the exercise. 	Most often the
distinction is of importance when a skilled
or experienced worker appears to be doing
his or her job without supervision or
interference. 	By an exercise test, the
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employee would seem to be uncontrolled; yet,
it will often be found that the employer, in
any showdown, would have the ultimate right
to dictate the method of work if there were
any occasion to do so. 	The right to control
does not require the dictation of the
thinking and manner of performing the work.
It is enough if the employer has the right
to direct the person by whom the services
are to be performed, the time, place, degree
and amount of said services.
Id. at 280 (internal citations omitted). 	See also C&H Taxi
Company v. Richardson, 461 S.E.2d 442 (W.Va. 1995) (C&H owned
and maintained the cabs and controlled the right to terminate or
not renew the lease of the cab; therefore, the drivers were
employees and not independent contractors); Walls v. Allen Cab
Company, Inc., 903 S.W.2d 937 (Mo. Ct. App. 1995) (Walls set his
own hours, maintained and repaired his cab and collected fares,
but Allen Cab Company held the governmental permit that allowed
him to drive, required he follow their rules and charged him a
fee to retain his permit and, therefore, he was Allen Cab
Company's employee); Bowdoin v. Anchor Cab, 643 So. 2d 42 (Fla.
Dist. Ct. App. 1994) (Anchor Cab controlled the maximum fares
charged by the drivers and prohibited them from working for
other companies and, therefore, controlled how the drivers did
their work, thus, making them employees rather than independent
contractors); Yellow Cab Company v. Jones, 464 N.E.2d 1079 (Ill.
1984) (Yellow Cab required the drivers to be uniform; could
terminate or not renew any cab lease as well as prevent driver
from subleasing a cab; repaired cabs and radios; required
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drivers to buy gas from their garage and report mileage, thus,
drivers were employees); Shinuald v. Mound City Yellow Cab
Company, 666 S.E.2d 846 (Mo. Ct. App. 1984) (Yellow Cab required
certain dress, cabs to fueled at Yellow Cab pumps, set rates for
fares, and trained drivers, thus drivers were employees);
Ziegler v. Fillmore Car Service, Inc., 442 N.Y.S.2d 276 (N.Y.
App. Div. 1981) (driver was an employee and not an independent
contractor because the dispatcher controlled driver's work);
Golosh v. Cherokee Cab Company, 176 S.E.2d 925 (Ga. 1970)
(Cherokee Cab controlled the right to fire drivers, all calls to
pick up fares, and the hours worked, thus the drivers were
employees).4
Thus, we hold the evidence establishes that Stanley was an
employee of Porter because Porter had the right to control and
did control the method and means of the work Stanley performed.
Accordingly, we reverse and remand for an award of benefits
consistent with this opinion.
Reversed and remanded.
4 Porter also argues that the method of payment requires the
finding that Stanley was not an employee of Porter. 	Payment of
wages, alone, is not the determinative factor. 	See Behrensen,
10 Va. App. at 366, 392 S.E.2d at 509 (the most important of
these factors is the element of control). 	In the instant case,
while Stanley was paid by his fares and the money went from
Stanley to Fairley and Fairley to Porter, Stanley kept a portion
of his fares as payment for his services. 	It is the nature of
the taxicab business that the money does not travel from company
owner to driver but rather from driver to company owner.
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