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Danial v. The Industrial Commission of Arizona

Court of Appeals of Arizona, First Division

January 15, 2019

KARDAKH DANIAL, Petitioner Employee,

          Special Action - Industrial Commission ICA Claim No. 20162-080093 Carrier Claim No. E1U7330 Paula R. Eaton, Administrative Law Judge

          Law Offices of Robert E. Wisniewski, Phoenix By Robert E. Wisniewski Counsel for Petitioner Employee

          Industrial Commission of Arizona, Phoenix By Gaetano J. Testini Counsel for Respondent

          Lundmark, Barberich, La Mont & Slavin, PC, Phoenix By R. Todd Lundmark Counsel for Respondents Employer and Carrier

          Judge David D. Weinzweig delivered the opinion of the Court, in which Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.



         ¶1 This case involves an airport taxicab driver who sought workers' compensation benefits for injuries he sustained while driving a taxi he leased from a cab company. The Industrial Commission of Arizona ("ICA") found the injury was non-compensable because the driver was an independent contractor of the cab company rather than an employee for workers' compensation purposes. We affirm.


         ¶2 AAA Cab Services ("AAA") is a transportation business and one of three taxicab companies licensed to operate at Sky Harbor International Airport (the "Airport") by the City of Phoenix. AAA leases taxicabs to its airport drivers under a standard one-year lease agreement that automatically renews unless terminated.

         ¶3 Before leasing a taxicab, AAA requires all drivers to complete a written application, provide their driver's license, undergo a background check and attend an eight-hour defensive driving course. The lease agreement permits AAA drivers to work for other taxicab companies; designates them as independent contractors who are responsible for paying their own taxes; cautions that AAA provides no workers' compensation insurance to drivers; and authorizes drivers to terminate the relationship without cause upon 45 days of notice. AAA can terminate the agreement only for cause.

         ¶4 AAA imposes no minimum hour requirement on airport drivers and conducts no performance reviews of them. Airport drivers set their own work schedule, arrange for replacement drivers when unavailable and purchase their own gasoline. Airport drivers receive no salary or wages from AAA. The drivers instead retain all passenger fares as compensation, while AAA receives fixed, regular lease payments from the drivers for their taxis. Cash transactions are not reported to AAA, but AAA processes all vouchers and credit card payments to airport drivers and deducts a bank service charge. AAA annually issues IRS 1099 forms to airport drivers to report their income. AAA registers, licenses, insures and performs all necessary maintenance and upkeep on the leased taxicabs. AAA maintains its own company rules to ensure safety and facilitate a positive customer experience; for instance, AAA requires drivers to wear seatbelts, observe all traffic laws and clean the vehicles.

         ¶5 Most significant here, the Airport wields extensive control and oversight over the general and minute-to-minute operations of all airport taxicab drivers. The Airport requires a separate application, an independent test, a Department of Transportation physical and a federal background check.

         ¶6 The Airport sets passenger fares. It also imposes and enforces its own detailed set of rules for drivers. For instance, it requires the drivers to use E85 fuel, dress professionally, clean their cabs, be courteous to passengers and refrain from eating, drinking, or smoking in the vehicle. The Airport also leads when disciplinary action is required, not the cab companies. The Airport imposes 95 percent of all disciplinary actions against airport drivers.

         ¶7The Airport restricts the movement and customers of airport drivers. Airport drivers wait in a designated airport parking lot until an airport dispatcher instructs them to retrieve passengers at a particular terminal. The drivers then retrieve the passengers and transport them to their destination before returning to the designated airport lot ...

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