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
--- --- --- --- --- --- --- --- ---
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
--- --- --- --- --- --- --- --- ---
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
--- --- --- --- --- --- --- --- ---
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
--- --- --- --- --- --- --- --- ---
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
