Gleaves v. Checker Cab Transit Corp., Inc.

IN THE SUPREME COURT OF TENNESSEE

AT NASHVILLE FILED

February 22, 2000

Cecil Crowson, Jr.

Appellate Court Clerk

MICHAEL C. GLEAVES, ) FOR PUBLICATION

)

Appellant, ) FILED: February 22, 2000

)

v. ) DAVIDSON COUNTY

)

CHECKER CAB TRANSIT ) HON. HAMILTON V. GAYDEN, JR.,

CORPORATION, INC., ) JUDGE

)

Appellee. ) NO. M1997-00183-SC-R11-CV

For Appellant: For Appellee:

WILLIAM D. LEADER, JR. STEVEN D. PARMAN

JULIE C. MURPHY MATTHEW A. BOYD

Nashville, TN Nashville, TN

OPINION

JUDGMENT OF THE COURT OF APPEALS REVERSED;

JUDGMENT OF THE TRIAL COURT REINSTATED. BIRCH, J.

I

We granted this appeal in order to determine whether §

6.72.210 of the Code of the Metropolitan Government of Nashville

and Davidson County1 (Metro. Code) and the required Taxicab

Liability Insurance Agreement2 (Agreement) impose liability upon

Checker Cab Transit Corporation, Inc. (Checker) for injuries to a

third party caused by the negligence of one of Checker’s contract

drivers who was “off-duty” at the time of the incident. Because we

find that the ordinance and the Agreement impose liability on the

1

A. All taxicab companies shall be required to file a

liability insurance agreement with the taxicab and wrecker

licensing board for each taxicab operated under their franchise.

A copy of such agreement is on file, attached to Ordinance 81-530,

codified in this section.

B. These agreements shall place the vehicles operated under

their franchise in the taxicab company’s complete possession and

control, and the taxicab company shall assume complete liability

for each and every vehicle for which it enters into this agreement.

2

TAXICAB LIABILITY INSURANCE AGREEMENT

CHECKER CAB TRANSIT CORPORATION Taxicab Company, a

CORPORATION, duly licenced by the Taxicab and Wrecker Licensing

Board of the Metropolitan Government of Nashville and Davidson

County, hereby acknowledges, by the signature below of an officer,

partner, or the sole proprietor of the corporation, that the

vehicle(s) described herein is (are) operated under the name,

emblem, color, design and insignia of the above-named company and

said company agrees to the following: MOSLEY. ROBERT J.

1. That the vehicle serial number, year, model, and trade

name are: 1990 CHEVROLET CAPRICE 1G18N54E7A150305 and the same are

operated with the permission of and under the control of the above-

named company, partnership or sole proprietorship.

2. That these vehicles shall be insured either by liability

insurance or indemnity bond with minimum limits of not less than

twenty-five thousand dollars ($25,000) for bodily injury or death

of any one (1) person in any one (1) accident and not less than

fifty thousand dollars ($50,000) for bodily injury or death of any

two (2) or more persons in any one (1) accident and not less than

ten thousand dollars ($10,000) for property damage resulting from

any one (1) accident, or the amount of insurance or bond as

required by the State of Tennessee, whichever is greater.

3. That the above-named taxicab company, partnership or sole

proprietorship shall assume complete liability for each vehicle

being operated under its name, color, emblem, design and insignia

and shall be liable for any personal injuries or property damage to

third parties as the result of the negligent use of these vehicles.

2

taxicab company regardless of the status (on-duty/off-duty) of the

driver, the decision of the Court of Appeals is reversed, and the

judgment entered by the trial court is reinstated.

II

On the day in question, the record shows that Robert J.

Mosley (a driver for Checker) began work at about 5:30 a.m. and

reported “off-duty” by radio at approximately 9:20 p.m. Shortly

after reporting “off-duty,” and while en route home, Mosley’s high

speed attracted the attention of City of Lakewood police officers.

A high speed chase ensued. The chase ended at about 10:05 p.m.

when Mosley collided with a vehicle operated by Michael C. Gleaves.

Gleaves sustained serious injuries.

Gleaves filed a lawsuit against Checker, Mosley, the City

of Lakewood, and a City of Lakewood police officer. He sought

damages under the theories of negligent hiring and supervision,

respondeat superior, § 317 of the Restatement (Second) of Torts,

and under § 6.72.210 of the Metro. Code. Checker moved for summary

judgment. The trial court granted summary judgment in favor of

Checker on the common law claims but denied summary judgment to

Checker on the issue of liability under the ordinance. Instead,

the court granted, sua sponte, summary judgment in favor of

Gleaves, ruling that § 6.72.210 imposed liability on Checker for

Mosley’s negligence. The question of Mosley’s negligence was

submitted to a jury, and it determined that Mosley was 70 percent

at fault and the City of Lakewood was 30 percent at fault.

Applying § 6.72.210, the trial court held Checker liable in

accordance with the jury’s apportionment of fault.

3

Checker appealed the trial court’s ruling on the issue of

liability under § 6.72.210, and Gleaves appealed the trial court’s

grant of summary judgment to the defendant on his common law

claims. The Court of Appeals reversed the trial court’s judgment

against Checker and dismissed Gleaves’s complaint but affirmed the

trial court’s judgment in all other aspects. The sole issue on

appeal is whether § 6.72.210 imposes liability upon Checker for

Mosley’s negligence while “off-duty.”3

The Metropolitan Council of Nashville and Davidson County

(Metropolitan Council) closely regulates the taxicab business. In

order to operate a taxicab service within Davidson County, a

taxicab company must first obtain a certificate of public

convenience and necessity from the taxicab licensing board. Metro.

Gov’t. of Nashville and Davidson Co., Tenn. Code ch. 6.72, §

6.72.020.4 Mosley was operating his taxicab under the authority of

a certificate of public convenience and necessity issued to Checker

Cab Transportation Corporation, Inc.

The taxicab company must also “file a liability insurance

agreement with the taxicab and wrecker licensing board for each

3

The Court of Appeals precluded Gleaves from obtaining a new

trial as to his common law claims under the rationale of Samuelson

v. McMurtry, 962 S.W.2d 473 (Tenn. 1998). Based on Samuelson, the

Court of Appeals reasoned that because Gleaves had not appealed the

judgment against the City of Lakewood he was precluded from

obtaining a new trial because the City of Lakewood “would be forced

to expend resources defending itself again in a new trial and it

would encounter the possibility that a jury would assess more

damages to it.” Because this issue was not addressed by either

party at oral argument or in the briefs submitted to this Court, we

shall not address it.

4

No person shall operate or permit a taxicab or motor vehicle

owned or controlled by him, and as defined in Section 6.72.010 as

amended, upon the streets and roads of the metropolitan government

area without having first obtained a certificate of public

convenience and necessity from the taxicab licensing board.

4

taxicab operated under [its] franchise.” Metro. Gov’t. of

Nashville and Davidson Co., Tenn. Code ch. 6.72, § 6.72.210(A).

The liability insurance agreement places “the vehicles operated

under [the company’s] franchise in the taxicab company’s complete

possession and control” and the company must “assume complete

liability for each and every vehicle for which it enters” the

agreement. Id. at ch. 6.72, § 6.72.210(B). A liability insurance

agreement between Checker and its operators makes Checker

“complete[ly] liable for each vehicle being operated under its

name, color, emblem, design and insignia,” and Checker is liable

“for any personal injuries or property damage to third parties as

the result of the negligent use of these vehicles.” Agreement,

supra n.2. Mosley and Checker had entered into the above-described

agreement, and it had been filed.

For the sake of clarity, it is helpful to describe the

relationship between Checker and its drivers. Checker is

essentially a dispatch service. Typically, a customer telephones

Checker, requests a taxicab, and a dispatcher contacts a driver by

radio and directs him or her to the customer. Checker owns none of

the taxicabs which it dispatches. Instead, the owner of the

vehicle is personally responsible for the vehicle’s maintenance,

not Checker. Moreover, Checker does not share directly in any of

the fare income. The only financial obligation an owner has to

Checker is payment of a weekly fee for the use of a meter, a radio,

a top light, Checker’s dispatch service, Checker’s distinctive

paint scheme, Checker’s emblem, Checker’s insignia, and the right

to drive under Checker’s certificate of public convenience and

necessity.

5

III

The construction of the pertinent ordinances controls the

resolution of this case. Gleaves essentially insists that §

6.72.210 imposes complete liability on Checker for the negligence

of the driver of any vehicle for which Checker has filed a

liability insurance agreement. This result is dictated, contends

Gleaves, by the clear and unambiguous language of the ordinance.

Checker, on the other hand, contends that a taxicab operates under

a company’s franchise only when it is actively seeking or

transporting passengers and that the ordinance imposes liability

only when a taxicab is operated under the taxicab company’s

franchise. Thus, according to Checker, no liability should be

imposed upon Checker for a driver’s negligence while “off-duty.”

As the Court of Appeals aptly noted, “[a] cursory review of the

selected provisions [of the ordinances] could lead to either

conclusion.”

IV

“Construction of a statute is a question of law which we

review de novo, with no presumption of correctness.” Myint v.

Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998). The rules of

statutory interpretation are used when interpreting an ordinance.

See Tennessee Mfg. Housing Ass’n. v. Metro. Gov’t. of Nashville,

798 S.W.2d 254, 260 (Tenn. App. 1990); see also Carroll Blake

Constr. Co. v. Boyle, 140 Tenn. 166, 181, 203 S.W. 945, 948 (1918).

A “basic rule of statutory construction is to ascertain

and give effect to the intention and purpose of the legislature.”

6

Carson Creek Vacation Resorts, Inc. v. State Dep’t. of Revenue, 865

S.W.2d 1,2 (Tenn. 1993). In determining legislative intent and

purpose, a court must not “unduly restrict[] or expand[] a

statute’s coverage beyond its intended scope.” Worely v. Weigels,

Inc., 919 S.W.2d 589, 593 (Tenn. 1996)(quoting Owens v. State, 908

S.W.2d 923, 926 (Tenn. 1995)). Rather, a court ascertains a

statute’s purpose from the plain and ordinary meaning of its

language, see Westland West Community Ass’n. v. Knox County, 948

S.W.2d 281, 283 (Tenn. 1997), “without forced or subtle

construction that would limit or extend the meaning of the

language.” Carson Creek Vacation Resorts, Inc., 865 S.W.2d at 2.

When, however, a statute is without contradiction or

ambiguity, there is no need to force its interpretation or

construction, and courts are not at liberty to depart from the

words of the statute. Hawks v. City of Westmoreland, 960 S.W.2d

10, 16 (Tenn. 1997). Moreover, if “the language contained within

the four corners of a statute is plain, clear, and unambiguous, the

duty of the courts is simple and obvious, ‘to say sic lex scripta,

and obey it.’” Id. (quoting Miller v. Childress, 21 Tenn. (2 Hum.)

320, 321-22 (1841)). Therefore, “[i]f the words of a statute

plainly mean one thing they cannot be given another meaning by

judicial construction.” Henry v. White, 194 Tenn. 192, 198, 250

S.W.2d 70,72 (1952).

Finally, it is not for the courts to alter or amend a

statute. See Town of Mount Carmel v. City of Kingsport, 217 Tenn.

298, 306, 397 S.W.2d 379, 382 (1965); see also Richardson v.

Tennessee Bd. of Dentistry, 913 S.W.2d 446, 453 (Tenn. 1995);

Manahan v. State, 188 Tenn. 394, 397, 219 S.W.2d 900,901 (1949).

7

Moreover, a court must not question the “reasonableness of [a]

statute or substitut[e] [its] own policy judgments for those of the

legislature.” BellSouth Telecomms., Inc. v. Greer, 972 S.W.2d 663,

673 (Tenn. Ct. App. 1997). Instead, courts must “presume that the

legislature says in a statute what it means and means in a statute

what it says there.” Id. Accordingly, courts must construe a

statute as it is written. See Jackson v. Jackson, 186 Tenn. 337,

342, 210 S.W.2d 332, 334 (1948).

V

The language of the ordinance is plain, clear, and

unambiguous. It requires that all certified taxicab companies

“assume complete liability” for each vehicle for which it enters

into a liability insurance agreement. Metro. Gov’t of Nashville

and Davidson Co., Tenn. Code ch. 6.72, § 6.72.210(B) (1991)

(emphasis added). The natural and ordinary meaning of complete5 is

“entire” or “total.” Therefore, the ordinance requires that a

taxicab company assume complete and total liability for every

vehicle for which it files a liability insurance agreement. The

ordinance does not distinguish between cases when a driver is “on-

duty” and actively transporting or seeking passengers or “off-

duty.” To read the ordinance as distinguishing between “on-duty”

and “off-duty” would improperly dilute the meaning of the language

and unduly restrict the ordinance’s intended scope.

Similarly, the liability insurance agreement does not

limit a taxicab company’s liability for the negligence of its

5

Webster’s Third New International Dictionary of the English

Language 465 (1971).

8

drivers. The agreement requires taxicab companies to “assume

complete liability for each vehicle being operated under its name,

color, emblem, design and insignia.” Agreement, supra n.2.

(emphasis added). Additionally, the agreement makes taxicab

companies “liable for any personal injuries or property damage to

third parties as the result of the negligent use of” the vehicles.

Id. Reading the ordinance and the required liability insurance

agreement in pari materia, it appears that the Metropolitan Council

intended an expansive scope of liability for taxicab companies.

Not only must these companies assume “complete liability” for each

of their vehicles, but also they must assume liability for any

personal injury or property damage negligently caused by their

drivers.

Chapter 6.72 of the Metro. Code further suggests that the

Metropolitan Council intended to impose an expanded scope of

liability on taxicab companies. Under § 6.72.020 “[n]o person

shall operate or permit a taxicab or motor vehicle owned or

controlled by him . . . upon the streets and roads of the

metropolitan government area without having first obtained a

certificate of public convenience and necessity.” Metro. Gov’t. of

Nashville and Davidson Co., Tenn. Code ch. 6.72, § 6.72.020 (1991).

The requirement that a certificate be obtained before a taxicab can

operate in the metropolitan area is not limited to when a driver is

“on-duty,” the taxicab is actually carrying fare-paying passengers,

or when an “on-duty” driver is actively seeking fare-paying

passengers. A certificate is required at all times. Furthermore,

§ 6.72.010 defines a taxicab as a “vehicle regularly engaged in the

business of carrying passengers for hire.” Metro. Gov’t. of

Nashville and Davidson Co., Tenn. Code ch. 6.72, § 6.72.010

9

(1991).6 The ordinance does not limit the definition of a taxicab

to a vehicle which is seeking passengers or a vehicle that always

carries passengers for hire. Rather, a vehicle is a taxicab if it

is “regularly engaged” in carrying passengers for hire, regardless

of the vehicle’s activities at a given moment. As the Court of

Appeals noted, “a vehicle ‘regularly engaged in the business of

carrying passengers for hire’ is a ‘taxicab’ twenty-four hours per

day, whether or not passengers are being carried or solicited.”

Chapter 6.72 of the Metro. Code suggests, therefore, that

the Metropolitan Council intended to regulate the taxicab industry

at all times regardless of the activities of a taxicab at a given

moment. Read in light of the whole Chapter, we believe that the

Metropolitan Council intended, under § 6.72.210, to make taxicab

companies liable for the negligence of their drivers regardless of

whether the driver is “on-duty” or “off-duty.”

VI

When presented with a clear and unambiguous ordinance so

that “there is no room for interpretation” this Court is “not at

liberty to depart from the words of the [ordinance].” Hawks, 960

S.W.2d at 16. Both Metro. Code § 6.72.210 and the required Taxicab

Liability Insurance Agreement clearly and unambiguously impose

liability on a taxicab company for the negligent acts of its

drivers regardless of whether the driver is “on-duty” or “off-

duty,” carrying passengers, actively searching for a passenger to

6

“Taxicab” means a motor vehicle regularly engaged in the

business of carrying passengers for hire, donation, gratuity or any

other form of remuneration, having a seating capacity of less than

ten persons and not operated on a fixed route.

10

carry, or otherwise. Therefore, we reverse the decision of the

Court of Appeals and reinstate the trial court’s decision. If the

Metropolitan Council did not intend for the ordinance to create the

extent of liability that we have found here today it is up to the

Council, not this Court, to clarify the scope of liability under

the ordinance. It is not for this Court to substitute its own

“policy judgments for those of the legislature.” BellSouth

Telecomms., Inc. v. Greer, 972 S.W.2d at 673.

Costs of this appeal are taxed to Checker Cab Transit

Corporation, Inc.

______________________________

ADOLPHO A. BIRCH, JR., Justice

CONCUR:

Anderson, C.J.

Drowota, Holder, Barker, JJ.

11