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Perez v. Greater Houston Transportation Co.

Court of Appeals of Texas, First District

August 15, 2019


          On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2016-32437

          Panel consists of Justices Keyes, Goodman, and Hightower.


          Richard Hightower Justice.

         Appellants Diane and Ricky Perez sued appellee Greater Houston Transportation Company d/b/a and/or a/k/a Yellow Cab Company and/or Yellow Cab (GHTC) for personal injuries Diane suffered in a collision with a cab driver, asserting a cause of action for negligence under respondeat superior and joint-enterprise theories. The trial court granted no-evidence summary judgment in favor of GHTC and ordered that the Perezes take nothing by their claims against GHTC. In their sole issue on appeal, the Perezes assert that the trial court erred in granting summary judgment in favor of GHTC on their claim for negligence under a respondeat superior theory. Because we conclude that the Perezes presented evidence raising a fact question on the challenged elements of their claim, we reverse and remand.


         Delwende Nikiema was driving a taxicab to pick up a passenger when he collided with Diane Perez's vehicle. The Perezes allege that Nikiema caused the crash after he ran a stop sign while speeding and that Diane sustained injuries as a result of the accident. GHTC owned the taxicab, and it held the taxicab's permit issued by the City of Houston. Nikiema leased the taxicab from GHTC through an "Independent Contractor License and Vehicle Lease Purchase Option Agreement."

         The Perezes filed a personal injury suit against Nikiema and GHTC.[1] In their suit against GHTC, the Perezes alleged that the company was negligent due to inadequate training and policies for its drivers. They also alleged that GHTC was liable for Nikiema's negligence under theories of respondeat superior and joint enterprise, among others.

         GHTC filed a no-evidence and a traditional motion for summary judgment. In relevant part, it contended that the Perezes had no evidence to support their claim that GHTC was vicariously liable for Diane's injury under a theory of respondeat superior or joint-enterprise liability. GHTC asserted that Nikiema was not an employee of GHTC and that he was not acting within the course and scope of his "alleged" employment with GHTC at the time of the accident. GHTC's summary-judgment evidence included, among other documents, the independent contractor and vehicle lease agreement between Nikiema and GHTC and the affidavit of Ed Kargbo, the Director of Marketing and Driver Services for GHTC.[2]

         The agreement between GHTC and Nikiema stated that it was an "Independent Contractor License and Vehicle Purchase Option Agreement." It granted Nikiema a license to operate GHTC's taxicab, obligating Nikiema to pay a set weekly fee to lease the taxicab and the specialized taxicab equipment installed in it. The agreement also established an independent-contractor relationship between GHTC and Nikiema. The agreement stated that GHTC "does not have the right to control the details of how [Nikiema] will acquire and transport Passengers under this Agreement, and that [GHTC] gives no instructions as to how, when, where, or even if the Licensee utilizes the Goods and Services or operates the Taxicab." Nikiema received his revenue from passengers. GHTC provided Nikiema with specified amounts of indemnification liability coverage, and it recommended he obtain additional insurance coverage. Under the terms of the agreement, GHTC was not obligated to provide driver training, but the agreement did provide, "Before [GHTC] is willing to execute this Agreement, [Nikiema] is encouraged to complete the Business Orientation Program provided by [GHTC.]" Under the agreement, Nikiema also granted GHTC the right to sell advertising on and in the taxicab and the right to collect all revenue from such advertisements, and in exchange he received a weekly lease rebate.

         Kargbo's affidavit likewise stated that: Nikiema was an independent contractor; GHTC did not have the right to control the details of Nikiema's work or the right to control Nikiema in any manner; GHTC provided a computerized dispatch system, but Nikiema was not required to use it, and if he did use it, he was not required to accept the fare. Kargbo averred that the City of Houston passed ordinances that controlled Nikiema's performance of his duties as a taxicab operator, and GHTC did not control his work beyond what it was required to do under City ordinances.

         The Perezes responded to GHTC's motion for summary judgment and asserted that the agreement relied upon by GHTC was "a mere sham or subterfuge designed to conceal the true legal status of the parties" and that extrinsic evidence provided "more than a scintilla of evidence" that GHTC had an actual right to control Nikiema. In support of its argument, they offered the depositions of Nikiema and Kargbo.

         During his deposition, Nikiema testified that he entered into the independent contractor agreement with GHTC, but he was not provided with a copy of the contract to review before signing the agreement, and he was not given time to review its terms. GHTC instructed him where to sign or initial the contract and where not to. He considered GHTC to be his employer.

         Nikiema testified that, as part of his agreement with GHTC, he paid a set weekly fee to lease the taxicab, and he had an option to purchase the vehicle at the end of the agreement. The taxicab was outfitted with specialized equipment, including a credit-card swiper, stool light, taxi meter, GPS system, and dispatch system. The equipment belonged to GHTC, and GHTC was responsible for the maintenance of the equipment, as well as maintenance and repairs on the vehicle. Nikiema testified that he was responsible for gas, tolls, any traffic tickets, and the cost of oil and transmission changes.

         Nikiema further testified that, before contacting GHTC, he did not have a taxi license, nor did he have any experience driving a taxicab or operating any specialized equipment for taxicabs. He attended a course with GHTC over several days in which he received training on how to operate the specialized taxicab equipment. GHTC instructed him on how to deal with passengers, identified safety precautions to follow while driving, and provided him with study materials to prepare for the taxi license exam. Kargbo also testified during his deposition that Nikiema completed GHTC's business orientation program and a defensive driving course at GHTC.

         In his deposition, Nikiema indicated that, although he was not required to use GHTC's dispatch system, he obtained all, or 99%, of his fares through the company's dispatch system, and he had no customers of his own. GHTC monitored the location of its vehicles, and it would send information about potential fares to drivers based on the driver's proximity to the passenger pick-up location. Nikiema acknowledged that he was free to accept or reject any potential fares generated through the GHTC dispatch system, but he understood that he was expected to accept fares and that it was his "duty" to do so. He stated that GHTC had penalized him on numerous occasions for rejecting fares. If he rejected a fare for an "important customer," or if there were no other available vehicles in the area, GHTC dispatch would call his mobile phone and order him to accept the fare. When he rejected fares under those circumstances, the vehicle's computer system would be shut down and the stool light would deactivate. Nikiema testified that he determined his own shifts, but if the taximeter was off for two or three hours during the shift, GHTC would give him "downtime."

         Nikiema testified in his deposition that he generally was entitled to keep all cash payments and all credit card payments, minus a processing fee, that he received from passengers. He was required to provide receipts to customers, and the receipts were branded with GHTC company information. When he accepted a METROLift account fare, however, he did not receive any payment from the passenger. ...

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