Nev. SC won't consider taxicab company's writ petition

By Jessica M. Karmasek | Oct 6, 2011


CARSON CITY, Nev. (Legal Newsline) - The Nevada Supreme Court, after rehearing a case involving a taxicab company, says it will not "exercise its discretion" to consider a writ petition by the company challenging a denial of summary judgment.

Real party in interest Kelly Encoe alleged he was struck on June 14, 2007 by a taxicab owned by petitioner Yellow Cab of Reno Inc. and driven by Timothy Fred Willis in Reno.

Encoe asserted that Willis was a Yellow Cab employee and that Willis' cab struck Encoe while he was acting in the course and scope of his employment with the company.

Encoe further argued that Yellow Cab was liable for Encoe's injuries under a respondeat superior theory.

Yellow Cab moved the Second Judicial District Court for summary judgment, arguing that NRS 706.473 authorized it to lease the taxicab to Willis, as an independent contractor, and because Willis was an independent contractor, it could not be held liable for the incident under a respondeat superior theory.

The district court entered an order denying Yellow Cab's motion for summary judgment, saying the question of whether a party is an employee or an independent contractor was a question of fact and Willis' status as an employee or independent contractor was a question of fact for the jury to resolve.

However, the court did not address Yellow Cab's NRS 706.473 argument.

Yellow Cab subsequently filed a writ petition challenging the decision.

The state's high court, in an order filed November last year, denied the company's writ petition.

Yellow Cab timely asked for a rehearing, which the Court granted in a summary order in March.

In an Aug. 4 opinion, the Court said it granted the rehearing because it overlooked a material question of law regarding the application of NRS 706.473(1), which authorizes the leasing of taxicabs to independent contractors in counties with populations of less than 400,000.

In particular, the Court examined whether a statutorily recognized independent contractor relationship between a taxicab business and its driver, under NRS 706.473, prevents liability for the taxicab business sued under a respondeat superior theory of liability.

The Court said it first had to consider whether NRS 706.473(1) applied to Washoe County on the date the motor vehicle incident is alleged to have occurred.

Because NRS 706.473 does not define "population" or the date for determining the population of a given county, the Court said it had to look to NRS 0.050, which defines the term as used in various state revised statutes.

The Court said NRS 0.050 directs the application of the U.S. Census rather than any state-produced tables, and at the time of the incident the population of Washoe Count, for purposes of NRS 706.473, was less than 400,000 based on the 2000 Census.

The district court concluded that the nature of the relationship between the taxicab company and the cabdriver was a question of fact for the jury, without addressing NRS 706.473's "potentially dispositive application," the Court said.

The Court, in its opinion, said the district court did not render a "thorough resolution of the issues" before it on summary judgment.

"While we decline here to depart from this court's general policy of not considering writ petitions challenging the denial of summary judgment, and therefore do not order the district court to vacate its denial of summary judgment, we nevertheless note that the district court may wish to reconsider its reasoning for denying summary judgment in light of (the Court's) analysis," Justice James W. Hardesty wrote.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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