"With all respect, Mr. Lutfallah, the position that the driver is an independent contractor is wrong."
Oh shucks. I guess I'm wrong again. I suppose that all these years the courts have been getting it wrong too.
Or could it be that whenver there is a ruling that something tilts the driver to employment status that the fleets change their practices so that they remain as lessors? Hmmm. I wonder.
Mass conspiracy or practices have changed. What seems more plausible?
Fact is you guys are ten years too late with this.
A lot of the points made are not even in practice among the fleets any more.
What generally happens is that if something makes a fleet to be considered an employer, they simply stop doing it. City officials get mad because the fleets aren't doing enough to control the drivers and the service to passengers drops. Fleets tell the city they can't control the drivers because they're just leasing the cars to them and it would create a liability for them to control how a driver works.
The city then decides to pass laws to force compliance of the owners and the drivers. Rather than changes coming from cab companies/fleets, they come from the city. And now the cab companies do things to direct drivers, as they would have in the past, but they're not doing it because they want to act as employers, they're doing it because it's the law. That changes things. And there are lots of examples to back this up.
Take continuing education for example. Who requires that? Is it Yellow Cab or is it the City of Chicago? It's the city.
So if you read the case, you see where Jeff Feldman testified that they teach their drivers for three hours before they'll lease them a cab. I bet they don't anymore.
That's why the Teamsters when they were here wanted the city itself to be considered the employer - not the fleets.
I hope this helps bring you guys up to speed.
George Lutfallah
Chicago Dispatcher
Many good points, sir. But the law isn't any the more immutable than are the fleet policies. With every shift and tack taken by major fleets to try to avoid liability, the courts find a hook to hang a hat on to assure victims a chance for compensation. And that's the case whether the fleet is covered by one of the substandard insurance companies or is self-insured.
Turning to some of your points specifically:
"Oh shucks. I guess I'm wrong again. I suppose that all these years the courts have been getting it wrong too."
--- Huh? What's wrong with holding that major fleets are arguably vicariously responsible for the results of acts of the drivers of their insured cabs if they have control of their activities or the acts arise out of operations that benefit the owners? Should the hapless tort victim go without a right to a remedy from the fleet owner who derives profit when the driver causes an injury that flows from the use of the fleet owner's vehicle?
"Or could it be that whenver there is a ruling that something tilts the driver to employment status that the fleets change their practices so that they remain as lessors?"
--- The Davila case didn't "...tilt the driver to employment status..." All it said was that it was a question for the fact finder to determine as to whether the driver was an employee, not for a judge as a matter of law.
The fleet owners can change whatever they like, and it is not going necessarily to change the status of drivers so as to overcome a decision like Davila.
"A lot of the points made are not even in practice among the fleets any more. What generally happens is that if something makes a fleet to be considered an employer, they simply stop doing it. City officials get mad because the fleets aren't doing enough to control the drivers and the service to passengers drops. Fleets tell the city they can't control the drivers because they're just leasing the cars to them and it would create a liability for them to control how a driver works."
--- To an extent, you are right about this. But the law changes too - to accommodate changes in business practices that may be designed to undermine court holdings. Although the law moves slowly, it is not static.
"The city then decides to pass laws to force compliance of the owners and the drivers. Rather than changes coming from cab companies/fleets, they come from the city. And now the cab companies do things to direct drivers, as they would have in the past, but they're not doing it because they want to act as employers, they're doing it because it's the law. That changes things. And there are lots of examples to back this up."
--- 100% right. And your example is right on target too. Just the same, the law tends to change to overcome efforts of even the sharpest of fleet owners to avoid liaibility.
"So if you read the case, you see where Jeff Feldman testified that they teach their drivers for three hours before they'll lease them a cab. I bet they don't anymore."
--- Whether they do or they don't, fleets are not able to win cases by summary judgment in fact settings like that posed by the Davila matter. It becomes a fact question for a Jury to decide.
"That's why the Teamsters when they were here wanted the city itself to be considered the employer - not the fleets."
--- Probably right - but the concept is ridiculous. The City has the governmental responsibility to regulate the local transportation industry and does so under its police power. Sometimes it does so in ways that inspire well deserved criticism: i.e. the critiques of the new draft rules made by AUPD. In no way can the City of Chicago reasonably be considered the "employer" of the Public Passenger Vehicle Chauffeurs it regulates and licenses.
Turning to some of your points specifically:
George Lutfallah wrote: "Oh shucks. I guess I'm wrong again. I suppose that all these years the courts have been getting it wrong too."
Donald Nathan wrote: --- Huh? What's wrong with holding that major fleets are arguably vicariously responsible for the results of acts of the drivers of their insured cabs if they have control of their activities or the acts arise out of operations that benefit the owners?
George Lutfallah writes: Nothing is wrong with the courts holding that. What *is* wrong is you telling me that "the position that the driver is an independent contractor is wrong." Do you have the power to decide that? If so, why are you wasting time talking about it? Why don't you go unionize drivers? I made the same challenge to Mr. Tang.
You guys act like I decided that cabdrivers are independent contractors and that I'm wrong about it and are appealing to me to change my mind. I sorry to inform you but I don't make those decisions.
George Lutfallah
Chicago Dispatcher
--- --- --- --- --- --- --- --- ---
Replying to:
Many good points, sir. But the law isn't any the more immutable than are the fleet policies. With every shift and tack taken by major fleets to try to avoid liability, the courts find a hook to hang a hat on to assure victims a chance for compensation. And that's the case whether the fleet is covered by one of the substandard insurance companies or is self-insured.
Turning to some of your points specifically:
"Oh shucks. I guess I'm wrong again. I suppose that all these years the courts have been getting it wrong too."
--- Huh? What's wrong with holding that major fleets are arguably vicariously responsible for the results of acts of the drivers of their insured cabs if they have control of their activities or the acts arise out of operations that benefit the owners? Should the hapless tort victim go without a right to a remedy from the fleet owner who derives profit when the driver causes an injury that flows from the use of the fleet owner's vehicle?
"Or could it be that whenver there is a ruling that something tilts the driver to employment status that the fleets change their practices so that they remain as lessors?"
--- The Davila case didn't "...tilt the driver to employment status..." All it said was that it was a question for the fact finder to determine as to whether the driver was an employee, not for a judge as a matter of law.
The fleet owners can change whatever they like, and it is not going necessarily to change the status of drivers so as to overcome a decision like Davila.
"A lot of the points made are not even in practice among the fleets any more. What generally happens is that if something makes a fleet to be considered an employer, they simply stop doing it. City officials get mad because the fleets aren't doing enough to control the drivers and the service to passengers drops. Fleets tell the city they can't control the drivers because they're just leasing the cars to them and it would create a liability for them to control how a driver works."
--- To an extent, you are right about this. But the law changes too - to accommodate changes in business practices that may be designed to undermine court holdings. Although the law moves slowly, it is not static.
"The city then decides to pass laws to force compliance of the owners and the drivers. Rather than changes coming from cab companies/fleets, they come from the city. And now the cab companies do things to direct drivers, as they would have in the past, but they're not doing it because they want to act as employers, they're doing it because it's the law. That changes things. And there are lots of examples to back this up."
--- 100% right. And your example is right on target too. Just the same, the law tends to change to overcome efforts of even the sharpest of fleet owners to avoid liaibility.
"So if you read the case, you see where Jeff Feldman testified that they teach their drivers for three hours before they'll lease them a cab. I bet they don't anymore."
--- Whether they do or they don't, fleets are not able to win cases by summary judgment in fact settings like that posed by the Davila matter. It becomes a fact question for a Jury to decide.
"That's why the Teamsters when they were here wanted the city itself to be considered the employer - not the fleets."
--- Probably right - but the concept is ridiculous. The City has the governmental responsibility to regulate the local transportation industry and does so under its police power. Sometimes it does so in ways that inspire well deserved criticism: i.e. the critiques of the new draft rules made by AUPD. In no way can the City of Chicago reasonably be considered the "employer" of the Public Passenger Vehicle Chauffeurs it regulates and licenses.
I'm not appealing to you to change your mind about anything. I just comment about the law from the viewpoint of a lawyer who practices in the areas being discussed.
That new West Cab case does intrigue me. I had been so caught up in going through the draft of proposed new rules and regulations that I hadn't had the chance to go through the case carefully. My hope is to do so and to offer an analysis of the case shortly after the New Year holiday.
Donald Nathan wrote: Should the hapless tort victim go without a right to a remedy from the fleet owner who derives profit when the driver causes an injury that flows from the use of the fleet owner's vehicle?
George Lutfallah writes: That's one way of looking at it. Another way of looking at it would be to say should the owner be liable for an accident caused by a driver the cab was leased to?
If somebody wants to challenge that the fleet is responsible, that's up for the courts to decide. Again, I wasn't conferred with that authority.
But a word of caution: If you open it up for the fleets to be liable for accidents caused by lease drivers, you'll see lease rates skyrocket because the liability wouldn't be limited to the lease driver. Where is the fleet owner going to get the money to cover that liability? From the lease driver. So who would that benefit? It wouldn't benefit drivers. It wouldn't benefit owners. Who would it benefit Donald? I can think of only two types of people: Accident victims and...their...um...lawyers looking for the deep pockets..
George Lutfallah
Chicago Dispatcher
If a cab driver in a vehicle owned by one of the affiliates of Checker Taxi Association rams your car in the rear and you suffer an injury of some sort, would you expect to have liability limited only to the negligent cab driver? Rest assured that the affiliate is 100% vicariously liable for the negligence of the driver, and it would be a violation of the standard of care for a lawyer representing the injured party not to name the cab owner. IN ADDITION, it would be malpractice for that lawyer not to name Checker Taxi Association which has its logo emblazoned on the door in a multi-colored decal.
Likewise every other fleet in the Chicago Metropolitan area gets named.
Liability insurance premiums are outrageous for cabs already. They would drop to near nothing if only the driver were the one to be held liable because most of the drivers are completely judgment proof apart from the statutory insurance the City requires. God knows, at least 1/3 of them haven't filed a tax return in years. And another 1/3 declare so little that their tax exposure is near zero. What's there to garnish?
So if a tort victim suffers a catastrophic injury, what kind of choice does he have other than to name the fleet and the affiliate as parties defendant? Who wants to be at the mercy of the State of Illinois Department of Human Services for public aid? Do you think the $350,000 of coverage is some princely amount when somebody is maimed and has six figures of medical bills - or killed and leaves children without a parent?
There's a reason why the courts find the cab owner vicariously liable for the negligence of the driver. Do you really wonder why?
Your argument is a bit like the hospital that says it's not responsible for the doctor who accidently cripples or kills the patient in surgery.
Blame the lawyer? I don't think so, sir.
Don,
You're avoiding the point I made.
You want to go after the fleets in the name of the accident victims, right?
You don't think some accident victims are getting enough money, right?
If you get accident victims more money, their attorneys make more money, right?
Fleets primarily get their money from taxi drivers, right?
If fleets have to pay more, they have to get that money from somewhere, right?
Who is really going to pay for this?
It's a fact that the drivers will ultimately pay the price for the rewards you gain for accident victims and for their attorneys.
I thought you were supposed to be on the side of taxi drivers?
Don, can you say that what you're advocating won't be a financial gain for you or your fellow attorneys? Can you say it won't be at the expense of taxi drivers?
The original argument about cabdrivers being independent contractors was supposed to be for the purpose of organizing drivers. What a surprise that it's really about taking more money from cabdrivers to give to lawyers.
George Lutfallah
Chicago Dispatcher
George:
I'm not too concerned about what other lawyers make in cases against fleet owners. Moreover, I am not other lawyers. I do NOT accept cases against cab drivers. At this point in my career, I don't even accept cases against fleet owners. I prefer to represent cab drivers, not sue them. I'm even happy to represent fleet owners as long as it's not against cab drivers.
Granted I'm concerned to see to it that accident victims are fully and fairly compensated. The overwhelming majority of those victims are not my clients. The few I do represent I fight for as hard as I can, and the income I make from my efforts on their behalf is not something for which I think I need to apologize to you, my brothers and sisters behind the wheels of cabs or anyone else.
The fact that fleets get money from taxi drivers does not mean that taxi drivers pay any added amount of insurance premiums. It just means that fleet owners have expenses of operation so as to comply with the statutory requirements of the Department of Consumer Services that include insurance premiums. So who pays for the insurance? I suppose ultimately it's the passengers who pay fares that pay the nuts that enrich the fleet owners.
My income does not come from cases for others against cab drivers, but rather from cab drivers who are injured by others who are not able to represent themselves effectively.
The original argument about cabdrivers is that they are employees for the purpose of winning Workers Compensation benefits when hurt in crashes and independent contractors when it is to their legal advantage.
So there.
Donald Nathan
Former C/L #11473
Don,
You want lease drivers to be considered employees for the purpose of going after the cab owners for accidents caused by lease drivers.
Who would that benefit?
Under your plan, the costs to owners go up.
Under your plan, the costs to drivers go up.
Under your plan, the costs to passengers go up.
Under your plan, the only people who take home more money are lawyers and their clients.
Twist it anyway you like in your best legal jargon, but the above statements are facts and discerning readers can smell you from a mile away.
George Lutfallah
Chicago Dispatcher
Don:
Here's what you're saying without the flowery rhetoric:
You want taxicab passengers to pay taxicab drivers more so that taxicab drivers can pay taxicab owners more so that taxicab owners can pay you and your clients more.
Does that just about sum it up?
George Lutfallah
Nonsense. Read the above posting.
Look, George, the most common first name in the world is "Mohammed". There are dozens of ways to spell it, but there are 400,000,000 people with a variant of that first name.
The most common last name in the world? It's "Wong" There are dozens of ways to spell it, but close to a billion people have that for a surname.
How many people in this world do you know who are named Mohammed Wong?
Just because two things may be true doesn't mean they are connected.
I do want taxicab passengers to face a meter increase so the drivers can make a better buck.
I do NOT want drfivers to pay owners more.
I do want owners to pay premiums for Workers Compensation insurance. I want them to have uninsured and underinsured motorist protection for their drivers.
If I represent a taxicab owner, it is only going to be with regard to property damage. It is NOT going to be on behalf of one of my clients. You ignored my previous posting: I am disinclined to take cases against either owners OR operators of cabs. I would rather work for them than against them.
So your "sum...up" is not accurate.
In fact it is completely off base.
Donald Nathan
Anyway you slice it and dice it, it all comes out the same way.
We can look at it even a different way:
You want owners to pay more for accidents their lease drivers have.
The owners will need more money to pay for these additional expenses.
They will lobby the city to get their lease cap raised to pay for it. And they will easily be able to demonstrate the need for additional money because you're advocating that they pay more.
So the lease cap will go up, and leases will skyrocket if Donald Nathan gets his way.
You avoided this point when you said that the passengers will pay for it. How convenient that you left that out. Because you know that once owners get their lease cap increase, thanks to you, drivers will have to lobby the city to get a fare increase, just to prevent from drowning.
Why did you ignore that point Don?
My sum up is dead on.
George Lutfallah
Chicago Dispatcher
A guy who is really just a servant of the fleet owners has all the reason in the world to paint me as the drivers' enemy. But the fact is that the drivers and the fleet owners have THE SAME interests when it comes to a fare increase.
If there's a general fare increase and the cab riding public pays a bit more for custom transportation at a wave, the drivers WILL make more money. It may not be a princely amount, but it should be a living wage in the early 21st Century.
If drivers can make a little more, and if they have the right to be compensated REGARDLESS OF FAULT in the event of an injury accident (that's what Workers Compensation does, sir), it IS true that insurance premiums are likely to go up. That's an underwriting reality. Insurance companies HAVE to make money or they close their doors.
Somebody has to pay the insurance premiums. Obviously enough, that's going to be the fleet owners - unless, of course, they are self-insured. In that event, they pay a little less because there are no insurance comnpany stockholders around to have to satisfy with a profit.
So if the fleets need to make more money to pay the premiums or to self-pay the claims for medical bills, temporary total disability benefits and permanant disability benefits, you ask the obvious question: WHERE ARE THEY GOING TO GET THE MONEY?
Again, obvious answer: THEY HAVE TO GET IT IN INCREASED LEASE FEES. But if the drivers get a 25% increase in the meter, they are going to be in a better position with increased revenue so as to be able to live with increased lease costs. EVERYONE COMES OUT A WINNER, BUT MOST SO THE DRIVERS.
Even more importantly - the fleet owners and the drivers have the SAME interest in increasing meter rates. Drivers make more. They make claims when hurt and lose less money when accidents happen, and accidents DO happen. Fleet owners make more. Everybody, except perhaps the wealthy patrons of the taxicabs in Chicago, comes out ahead.
The fleet owners and the drivers are natural allies.
Stop painting lawyers as villains. Lawyers just help the drivers who can't speak well for themselves. They make it possible for lots of tongue-tied people to be winners. Sure they charge for that service. But they tend to do it on contingency fees. That means that if they lose, they don't get paid.
Lawyers are the allies of both the drivers AND the fleet owners. They are the ones with the skills to achieve the goals of both of these natural allies.
Fleet owners aren't necessarily the enemies of the drivers. Almost all of them started out as drivers anyway. Lots of the owners have just one or two medallions. Even a guy with 15 medallions and another 10 under his management isn't the enemy of a driver. He wants them to succeed so he can collect nuts. Only a fool of an owner would want drivers not to hold noses above water.
In fact, even the absentee fleet owners from the other side of the globe want drivers to make a buck - so THEY can make a bigger buck. And I say, MORE POWER TO THEM. That's fine - as long as cab drivers in Chicago can get from one day to the next with the kind of rights and benefits others in the transportation industry get without the twitch of a finger.
Understood, my friend?
Donald Nathan
Donald,
Thanks for admitting that you are advocating lease cap increases. I would like to remind everyone, just for the record, that I never have. I was, however attacked for my ordinance proposal regarding lease caps, which, did not advocate a lease cap increase though some people said it did.
Donald Nathan wrote, "Again, obvious answer: THEY HAVE TO GET IT IN INCREASED LEASE FEES. But if the drivers get a 25% increase in the meter, they are going to be in a better position with increased revenue so as to be able to live with increased lease costs. EVERYONE COMES OUT A WINNER, BUT MOST SO THE DRIVERS."
Donald I proposed that if there is ever a lease cap increase, that there must be at least twice as much of an increase in meter rates, assuring that lease drivers will always come out ahead.
You said I was in the pockets of fleet owners.
What do you have to say for yourself now? What do you, Prateek, Mike McConnell, Yi Tang, Wolf Weiss and Diane Santucci have to say now?
To this day there has never been an apology by Prateek for the character assasination he did on Melissa Callahan, George Kasp and me (three cabdrivers) when he (not a cabdriver) tried to say that we were aligned with the fleet owners and that we wanted to increase leases, which none of us have ever advocated. He allegedly said he was going to apologize but he never did.
And why were we attacked for being in the pockets of fleet owners? Because of the ordinance proposal I wrote that said that IF there is ever a lease cap increase, there first has to be a meter increase and drivers must be assured of getting the lion's share of that increase. George Kasp and I wanted to permanently guarantee that meter increases wouldn't be wiped out by lease rate increases.
Maybe if you do-gooders would have gotten behind our proposal and not been so consumed with your own agendas, we might have gotten somewhere. Instead the city is trying to ram down our throats more fines and fees.
Why shouldn't the city stick it to us when they see our own "advocates" testifying against us?
George Lutfallah
Chicago Dispatcher
It's easy for you to point a finger and say that a lawyer who wants the drivers to have a fare increase is somehow a bad guy. Lots of people hate lawyers - just cause.
Some people buy into that poo.
Lawyers are used to being bad mouthed by laymen - until the laymen need those lawyers. It's okay. We're used to it. Me too.
Just understand, sir, that the need for a fare increase turns on the need of cab drivers for a decent standard of living. It has nothing to do with lawyers making money.
Those same drivers who deserve a decent standard of living also deserve Workers Compensation benefits when they are in accidents and get hurt. Fault ought not to be an issue. That right to benefits should turn only on whether the injury arose out of and was suffered in the course of the employment relationship while under the control of fleet owners.
When I had an office at Belmont, Western and Clybourn back in the '90's, I used to see a lot of drivers come in the door. The majority of them had "at fault crashes. Those who were at fault - lots were -suffered staggering cost they could never afford.
With those benefits, medical attention is free - whatever is needed, no matter what the cost. Temporary total disability benefits are paid - as long as the driver is one of those who declares income every April 15. Permanent disability benefits - where warranted, of course, can be won to compensate a driver for the loss of ability to work as efficiently as he or she did before being hurt.
Who is to pay for that, George? Should the drivers be made to pay for the coverage that provides those benefits? I say NO. I think the public should pay it. But the public doesn't pay the insurance premiums; rather, it's the fleet owners who do. And where is the money going to come from for the fleet owners to pay those added insurance premiums? I'd say it's from the public. You say whatever you want.
A lease cap increase is probably a bad way to put it. Maybe the public can stomach a surcharge of some sort to finance the cost of insurance that makes it possible for drivers to get Workers Compensation benefits - and uninsured motorist benefits - and underinsured motorist benefits. I'm not sure how it can best be done, but those are rights drivers need. And as I see it, they come easiest from a general meter increase.
If this benefits lawyers, it's only because drivers might hire them knowing they are not in a position to do that work effectively. Don't **** lawyers for doing work to protect drivers - unless you have some burning need to **** lawyers generally like most people do until they need them.
Donald Nathan
Don,
You're using the same argument crooked cops use to justify police brutality.
"Sure some of us might abuse our powers but who are you going to call when your house is broken in to at 3 am? You sure seem to like cops then, dontcha?"
Don't get me wrong - I see the necessity of lawyers just as I see the necessity of police officers. Most cops and lawyers are good, respectable people.
But crooked cops rationalize their behavior much in the same way scheming lawyers do.
George Lutfallah
Chicago Dispatcher
Prateek?
Aren't you the Anti Lease Cap increase guy? I am not being facetious.
Don't you see what your pal Donald Nathan is advocating?
He wants owners to pay more for accidents their lease drivers have. Do
you think that if Donald Nathan gets his way that the lease cap will not
go up?
Donald Nathan says he wants the passengers to pay for it. Do you see
what that means? That's code for the leases going up. They'll have to go
up to pay lawyers and their clients. Drivers will have to get that money
from somewhere so rates will have to go up - not to benefit the drivers,
mind you - but to give to the owners so they can give to lawyers and
their clients.
And for the rest of you, here's what's coming next....brace yourselves
for the wonderful expression that'll be used if Donald Nathan gets his
way.....are you ready? It's "pass-through."
No, no.....drivers won't have to pay for it....it'll be a
pass-through...
They will tell you that your passengers are passing money through you to
go to the fleet owners so they can pay for this additional expense. So
they'll tell you that you're not actually paying for it. Just like you
don't pay for airport stamps or workers comp. Sure.
When you buy your stamps at O'Hare they call it a pass-through. You're
not really buying the stamp they say. No, your passenger is really
buying the stamp because you can add that on to the meter. Yeah right.
Every driver knows it is just taken right out of your tip.
And don't forget about the pass-through that is workers compensation.
You don't pay workers compensation. No, no....your first ten passengers
of each shift do. Give me a break.
Does anybody have anything to say about this?
George Lutfallah
Chicago Dispatcher
George Lutfallah wrote: "Or could it be that whenver there is a ruling that something tilts the driver to employment status that the fleets change their practices so that they remain as lessors?"
Donald Nathan wrote: --- The Davila case didn't "...tilt the driver to employment status..." All it said was that it was a question for the fact finder to determine as to whether the driver was an employee, not for a judge as a matter of law.
George Lutfallah writes: That's correct. I didn't say that the Davila case tilted anything. Please read what I wrote again.
George Lutfallah
Chicago Dispatcher
Donald Nathan wrote: The fleet owners can change whatever they like, and it is not going necessarily to change the status of drivers so as to overcome a decision like Davila.
George Lutfallah writes: If you mean that there won't be a summary judgment by the lower courts, you may be right. But as a matter of fact, the policies of the fleets will impact the consideration of the courts in determining whether they are employers or lessors.
George Lutfallah
Chicago Dispatcher
Thanks for conceding I may be right.
You may be right too about policies of the fleets impacting the consideration of the courts in respect to the issue of whether they are employers or service providers akin to lessors.
On balance, I think the courts are going to regard drivers as employees for the purpose of Workers Compensation in the great majority of situations. The policy of providing benefits to injured workers is way too strong in a state like Illinois to hold cab drivers to be exempt from Workers Compensation.
Whether that portends that the fleet owners are going to be held to be employers is much more hazy. I'm not sure the issue has ever come up in the courts. I'm not sure in what context that kind of issue might even arise.
Donald Nathan
George Lutfallah wrote: "A lot of the points made are not even in practice among the fleets any more. What generally happens is that if something makes a fleet to be considered an employer, they simply stop doing it. City officials get mad because the fleets aren't doing enough to control the drivers and the service to passengers drops. Fleets tell the city they can't control the drivers because they're just leasing the cars to them and it would create a liability for them to control how a driver works."
Donald Nathan wrote: --- To an extent, you are right about this. But the law changes too - to accommodate changes in business practices that may be designed to undermine court holdings. Although the law moves slowly, it is not static.
George Lutfallah writes: You're presuming that the court holdings are being undermined because fleets change their practices and the city changes it's laws. This is where the real challenge lies and I agree with you wholeheartedly when you say the law moves slow.
George Lutfallah
Chicago Dispatcher
George Lutfallah wrote: "The city then decides to pass laws to force compliance of the owners and the drivers. Rather than changes coming from cab companies/fleets, they come from the city. And now the cab companies do things to direct drivers, as they would have in the past, but they're not doing it because they want to act as employers, they're doing it because it's the law. That changes things. And there are lots of examples to back this up."
Donald Nathan wrote: --- 100% right. And your example is right on target too. Just the same, the law tends to change to overcome efforts of even the sharpest of fleet owners to avoid liaibility.
George Lutfallah writes: How do you see this happening?
George Lutfallah
Chicago Dispatcher
Reread Davila. It's an example of how the law changes to make sure people like him do not end up as public charges when drivers like Williams maim them.
George Lutfallah wrote: "So if you read the case, you see where Jeff Feldman testified that they teach their drivers for three hours before they'll lease them a cab. I bet they don't anymore."
Donald Nathan wrote: --- Whether they do or they don't, fleets are not able to win cases by summary judgment in fact settings like that posed by the Davila matter. It becomes a fact question for a Jury to decide.
George Lutfallah writes: That's right. But that also doesn't mean that drivers are not independent contractors either.
George Lutfallah
Chicago Dispatcher
Says you.
When you wear a long black robe and have people call you Mr. Justice Lutfallah, then I'll agree with you and say "Yes sir, your Honor."
George Lutfallah wrote: "That's why the Teamsters when they were here wanted the city itself to be considered the employer - not the fleets."
Donald Nathan wrote: --- Probably right - but the concept is ridiculous. The City has the governmental responsibility to regulate the local transportation industry and does so under its police power. Sometimes it does so in ways that inspire well deserved criticism: i.e. the critiques of the new draft rules made by AUPD.
George Lutfallah writes: Well it wasn't my concept but I wouldn't go so far as to call it ridiculous.
Donald Nathan wrote: In no way can the City of Chicago reasonably be considered the "employer" of the Public Passenger Vehicle Chauffeurs it regulates and licenses.
George Lutfallah writes: Isn't that like saying in no way can a fleet owner reasonably be considered the "employer" of the Public Passenger Vehicle Chauffeurs it just leases cabs to and doesn't even regulate or license?
George Lutfallah
Chicago Dispatcher
No. That concept is for the courts to decide. The issue has never formally been brought before an Appellate Court in Illinois as far as I can recall. And I'm not sure why the issue would even come up.
The key parts of this opinion were not posted, unfortuantely.
"...Although Williams and Davila gave different versions of their meeting on October 31, 1996, both indicated that Williams was in the cab, transporting a passenger at the time. An act is within the scope of employment if it (a) is of the kind the person is employed to performed, (b) occurs substantially within the authorized time and space limits, and (c) is actuated, at least in part, by a purpose to serve the master...Pursuant to a lease with Yellow Cab, Williams was transporting an individual from one Chicago destination to another, when the public street became blocked, and a stranger opened the cab's door and intruded into the vehicle. There is a dispute as to precisely what occurred next. We indicated, above, that there are material questions of fact as to whether Williams was Yellow Cab's agent or employee. We also find that there are material questions of fact as to whether Williams' conduct deviated so greatly from his duties as a Yellow Cab driver, or was so extreme that he was no longer performing the business of a Yellow Cab driver...
Accordingly, we reverse the trial court's entry of summary judgment in Yellow Cab's favor on the issue of agency, and we remand this case for further proceedings not inconsistent with this opinion."
The bottom line is that the Appellate Court ruled that Williams was NOT an independent contractor as a matter of law. The question is one of fact and not for the court to resolve without presentation of evidence. In short, Davila was given the chance to present his case to the fact finder: most likely the Jury.
CAB DRIVERS ARE NOT INDEPENDENT CONTRACTORS IN MOST INSTANCES in the courts. And the fact that a cab may be owned by a corporation different from the name of the fleet whose decal appears on the door does not insulate the fleet from potential liability.
So with all respect to you, Mr. Lutfallah, as a former GM of Wolley or whatever, the lawyers who represent victims of cab driver negligence are not just looking for a recovery from the driver, but rather from the owner and from anyone potentially liable - they all get named, and they all stay in as parties defendant, largely now because of the Davila case.
Donald S. Nathan, Esq.
Former C/L #11473
I believe that a strange complexity of the Davila case was the allegation that at least some of Williams' conduct was maliciously deliberate. The 'victim' also seemed to behave oddly before he was struck.
-Mike Foulks
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Replying to:
No. 1-01-4366
HERMAN DAVILA,
Plaintiff-Appellant,
v.
YELLOW CAB COMPANY,
Defendant-Appellee.
http://www.state.il.us/court/opinions/appellatecourt/2002/1stdistrict/august/html/1014366.htm
In a first amended complaint, Davila alleged he was struck and injured by a taxicab owned by Yellow Cab and negligently operated by defendant Thomas Williams on October 31, 1996, in the vicinity of the intersection of LaSalle and Lake Streets in Chicago. Davila alleged that he was a State of Illinois police officer standing on Lake Street due to traffic congestion when he was struck by Williams' cab and dragged for several feet. Davila also alleged the incident caused him severe and permanent bodily injuries, pain and suffering, medical expenses, and loss of his usual occupation. Davila complained that Yellow Cab was responsible for his damages due to a principal/agent or master/servant relationship with Williams. In a separate count, which was dismissed and is not subject to this appeal, Davila alleged that Yellow Cab had negligently entrusted Williams with the taxicab.
Yellow Cab answered and moved for summary judgment, contending that its written contract with Williams established he was an independent contractor and that Williams' conviction for battery, an intentional crime, in connection with the incident at Lake and LaSalle Streets established Williams was not acting within the scope of any agency or employment relationship. Yellow Cab concluded it was therefore not responsible for Williams' actions.
The trial court granted Yellow Cab's motion for summary judgment, finding that, as a matter of law, Williams was not an agent or employee of Yellow Cab, because Yellow Cab was leasing licensed cabs and there was no indication that it had a right to control............
The standard used in determining whether an employer-employee relationship exists in a workers' compensation context is no different from the standard used in a vicarious liability context. Gunterberg v. B&M Transportation Co., 27 Ill. App. 3d 732, 737-38, 327 N.E.2d 528 (1975) (standard used to determine employee or independent contractor status is not affected by whether question arises in context of workers' compensation coverage or respondeat superior); Hamilton v. Family Record Plan, Inc., 71 Ill. App. 2d 39, 47-48, 217 N.E.2d 113 (1966) (determination of employee or independent contractor status is the same in workers' compensation and respondeat superior cases).
" 'No one factor may determine what [the] relationship is between parties in a given case. It may be necessary to consider a number of factors with evidentiary value, such as the right to control the manner in which the work is done, the method of payment, the right to discharge, the skill required in the work to be done, and who provides the tools, materials, or equipment. Of these factors the right to control the manner in which the work is done is the most important in determining the relationship.' " Yellow Cab II, 238 Ill. App. 3d at 652, quoting Morgan Cab Co. v. Industrial Comm'n, 60 Ill. 2d 92, 97-98, 324 N.E.2d 425 (1975).
Additionally, it is the right of control, not the fact of control, that is the principal factor in distinguishing a servant from a contractor. Gunterberg, 27 Ill. App. 3d at 738.
..................
http://www.state.il.us/court/opinions/appellatecourt/2002/1stdistrict/august/html/1014366.htm
With all due respect, sir, there was nothing strange about the holding in the Davila case. The facts of the case may not be routine - in the law, we might call them sui generis - but the concept of vicarious liability on the part of the fleet owner, Yellow Cab, for the conduct of it's alleged agent, servant and employee, Williams, is relatively straightforward and easy to understand.
The issue is one that turns on the measure of control Yellow exercised over it's driver (a "lessee"), and the court said it was not for a judge to decide it, but rather for the Jury. Because reasonable minds could conclude that Williams was under the control of Yellow at the time he did his deeds, summary judgment in favor of Yellow Cab was inappropriate.
Reading the whole case only helps to some extent. The concept of agency relationships is one you can only understand by reading a wide range of cases, many of which are cited in the body of the Davila opinion. After doing so, you would never say the holding is strange or complex.
Donald Nathan
Mr. Nathan,
I never said that the 'Davila holding' was 'strange or complex'. The alleged conduct of BOTH Williams and Davila could be viewed as outside their normal scope of 'employments'. The allegations are indeed, strange complexities. This would never be a definitive case of determining 'vicarious liability' on anybody's part.
'Davila' does nothing to promote the idea that Yellow Cab 'employed' Williams. I also doubt that any jury would reach that conclusion, especially considering the unusual circumstances in the case.
-Mike Foulks
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Replying to:
With all due respect, sir, there was nothing strange about the holding in the Davila case. The facts of the case may not be routine - in the law, we might call them sui generis - but the concept of vicarious liability on the part of the fleet owner, Yellow Cab, for the conduct of it's alleged agent, servant and employee, Williams, is relatively straightforward and easy to understand.
The issue is one that turns on the measure of control Yellow exercised over it's driver (a "lessee"), and the court said it was not for a judge to decide it, but rather for the Jury. Because reasonable minds could conclude that Williams was under the control of Yellow at the time he did his deeds, summary judgment in favor of Yellow Cab was inappropriate.
Reading the whole case only helps to some extent. The concept of agency relationships is one you can only understand by reading a wide range of cases, many of which are cited in the body of the Davila opinion. After doing so, you would never say the holding is strange or complex.
Donald Nathan
Mr. Foulks:
Read the title of your posting to which I had responded. It simply says what it says. When you say black is black, I suppose you can say it's white later. Who cares? The bottom line is that the three Justices who considered the case in the 1st District Appellate Court decided that reasonable minds could differ about whether there was an agancy relationship (i.e. employer-employee) between Yellow Cab and Thomas Williams.
That YOU disagree with the Justices is all well and good. You, sir, have at least 10 years of street knoowledge. But you have no training in agency law and no scope of the principles that underlie the decision reached in the Davila matter whatever. So although your analysis has a basis and is respected by those who have that training, it is not persuasive or dispositive of the issue.
One way or another, the case is not so unusual. It is not an abberation.
It is suggested that you do some reading of the cases cited in Davila - and then to read the cases cited in those cases. When you are done doing that, try running down the cases that cite Davila and the progeny of those cases. When you have a command over all of those cases, you can speak with some authority and deserve to be respected. Licensure as a lawyer isn't needed to understand the law.
It is also suggested that you read the cases I cited in my other posting of last night about employer-employee relations as they pertain to Illinois Workers Compensation. When you have some fluency in the concept and parlance beyond your good common sense and street wisdom, your opinions are more likely to be in line with Illinois court decisions.
I've been dabbling in the area for a long time and continue to learn. I'm happy to take a couple of lessons from you too.
Don Nathan
Mr. Nathan,
I was aware of the Davila case long before it became an issue here on Cabarket.com. I have read other cases about 'workmens compensation' with regards to cabdrivers and without. I do not pretend to be a lawyer, nor an expert in this area. I know what I know.
I don't need to 'read the title of (my) posting'!!!!! I'm the one who posted it, SCHMUCK! It says that the Davila case was strange, which you *******ized into suggesting that I claimed the 'holding' or 'conclusion' or 'ruling' was strange. Black is black, and white is white, and you are guilty of either subtly misattributing something to me or you are just plain dumb. Which is it?
When and where and how did I 'disagree with the Justices'??? You again reveal either your carelessness or your intent on misattributing an opinion to me which I do not hold. Why do you continue to do this, Mr. Nathan?
So we must all complete 'Mr. Nathan's suggested reading list' in order to participate in a respectable discussion? I didn't have any need to cite anything in those other cases to justify the substance of my reply.
We get it Mr. Nathan...YOU'RE the LAWYER and WE'RE the CABDRIVERS (or mopes, or whatever derogatory term you let slip which shows your unbelievable superiority complex).
Please keep your backhanded compliments and show me 'where (my) opinions are (out of) line with Illinois court decisions'.
It is clear to me that you have a weak mind and that you make flawed arguments by using deceipt rather than adhering to the truth. Why do you delude, self-delude, and allow others to remain deluded?
You don't want any lesson I could 'teach' you, Mr. Nathan.
-Mike Foulks
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Replying to:
Mr. Foulks:
Read the title of your posting to which I had responded. It simply says what it says. When you say black is black, I suppose you can say it's white later. Who cares? The bottom line is that the three Justices who considered the case in the 1st District Appellate Court decided that reasonable minds could differ about whether there was an agancy relationship (i.e. employer-employee) between Yellow Cab and Thomas Williams.
That YOU disagree with the Justices is all well and good. You, sir, have at least 10 years of street knoowledge. But you have no training in agency law and no scope of the principles that underlie the decision reached in the Davila matter whatever. So although your analysis has a basis and is respected by those who have that training, it is not persuasive or dispositive of the issue.
One way or another, the case is not so unusual. It is not an abberation.
It is suggested that you do some reading of the cases cited in Davila - and then to read the cases cited in those cases. When you are done doing that, try running down the cases that cite Davila and the progeny of those cases. When you have a command over all of those cases, you can speak with some authority and deserve to be respected. Licensure as a lawyer isn't needed to understand the law.
It is also suggested that you read the cases I cited in my other posting of last night about employer-employee relations as they pertain to Illinois Workers Compensation. When you have some fluency in the concept and parlance beyond your good common sense and street wisdom, your opinions are more likely to be in line with Illinois court decisions.
I've been dabbling in the area for a long time and continue to learn. I'm happy to take a couple of lessons from you too.
Don Nathan
Mr. Foulks:
Rest assured, I have never been guilty of "...misattributing..." anything to you. At no point did I suggest you had "...[disagreed] with the Justices..." in Davila v. Yellow Cab in any material respect. That court opinion just stands for the principle that cabdrivers are typically employees and driver Williams was just closer to the edge of what it is to be defined as an employee in the fact setting of the case. To the extent you feel that Cabdrivers are independent contractors rather than employees, I suggest it works against the interest of the cabdrivers when faced with potential liabilities.
And you sure don't have to read squat to have opinions. I don't care if you ever read anything, Mr. Foulks. You can harbor your opinions without reading cases. The only reason to give you citations was to give you the opportunity to do so - as well as others who have interest enough to do so. Certainly you needn't have any rational basis for ANY opinion you express as far as I am concerned. I observe that there are times you seem to have no rational basis for your opinions whether you read or you don't.
in fact, you exhibit symptoms of serious pathology of some sort - it's way beyond my ken. I have no training in psychiatry beyond lay experience. Your venom goes way beyond personal animus; it rises to a level that I see as demented. I see no reason to respond to any further comments from you. From here on in, you are fighting with yourself, not me. You are not a mope. You're what I see as a lunatic - a bright one. So go flail at somebody else.
You can go teach yourself lessons, Mr. Foulks. There is a fringe in every society. You can go appeal to yours. We don't need you for that.
Don Nathan
Mr. Nathan,
You have consistently misattributed opinions to me which I do not hold, either based on your careless reading of my postings, your presumption that I must hold incorrect opinions due to the difficult subject matters at hand, your paranoid delusion you share with Mr. Weiss and Mr. Tang (and with others, I'm sure) that some kind of conspiracy exists between Mr. Lutfallah and myself (necessitating some undocumented commonness in our opinions) or a combination of the three!
You suggest that I harbor opinions without reading cases. I have read many cases in my lifetime, Mr. Nathan. I am quite familiar with the law libraries scattered around the world. One of my God-given talents is the ability to speed-read and retain a high level of information and understanding.
Please quit making statements like 'I observe that there are times you seem to have no rational basis for your opinions whether you read or you don't' without ACTUALLY SPECIFYING WHICH 'OPINION' YOU ARE TALKING ABOUT if you can't stomach my most appropriate insult as a reply.
You are no 'wise man'. You don't have any credibility to bank on here. I don't trust you and I don't believe that many others do either.
Your return to the mental health arena actually reflects a mental weakness on your part, Mr. Nathan. (Don't listen to Mike...he's 'crazy'! How many times does that work in a court of law?)
I appeal to more than the 'fringe', Mr. Nathan. Or must you use your tortured logic to describe the hundreds of associates who I personally know to stand by and respect me even when we might disagree on the details as fellow 'lunatics'? Or are they just 'mopes'?
Here's some friendly advice...stay out of our business. You're not a part of it any more. We have a serious need to organize ourselves. 'WE DON'T NEED YOU FOR THAT'.
It seems to me that you have some strange interest here. Before you diagnose me as being paranoid, could you do us all a favor and just explain EXACTLY WHAT IS YOUR INTEREST HERE, MR. NATHAN? Will we die before we get a straight answer?
Do us a better favor and stay in California. I haven't really got a pressing need to read anything you've done in the last 40 years.
I haven't judged you on your knowledge of or experience in the law. I have judged you on your actions and inactions. I'm not going anywhere, Mr. Nathan, so I hope your 'bye-bye' means that you are, finally, leaving.
-Mike Foulks
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Replying to:
Mr. Foulks:
Rest assured, I have never been guilty of "...misattributing..." anything to you. At no point did I suggest you had "...[disagreed] with the Justices..." in Davila v. Yellow Cab in any material respect. That court opinion just stands for the principle that cabdrivers are typically employees and driver Williams was just closer to the edge of what it is to be defined as an employee in the fact setting of the case. To the extent you feel that Cabdrivers are independent contractors rather than employees, I suggest it works against the interest of the cabdrivers when faced with potential liabilities.
And you sure don't have to read squat to have opinions. I don't care if you ever read anything, Mr. Foulks. You can harbor your opinions without reading cases. The only reason to give you citations was to give you the opportunity to do so - as well as others who have interest enough to do so. Certainly you needn't have any rational basis for ANY opinion you express as far as I am concerned. I observe that there are times you seem to have no rational basis for your opinions whether you read or you don't.
in fact, you exhibit symptoms of serious pathology of some sort - it's way beyond my ken. I have no training in psychiatry beyond lay experience. Your venom goes way beyond personal animus; it rises to a level that I see as demented. I see no reason to respond to any further comments from you. From here on in, you are fighting with yourself, not me. You are not a mope. You're what I see as a lunatic - a bright one. So go flail at somebody else.
You can go teach yourself lessons, Mr. Foulks. There is a fringe in every society. You can go appeal to yours. We don't need you for that.
Don Nathan
