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Mcnerney v. Allamuradov

Court of Appeals of Illinois, First District, Fifth Division

June 30, 2017

SUSANNA MCNERNEY, Plaintiff/Appellant and Cross-Appellee,
MUHTAR ALLAMURADOV, Defendant, 303 TAXI, LLC, GRAND TRANSPORTATION, INC., Defendants/Appellees and Cross-Appellants.

         Appeal from the Circuit Court of Cook County No. 2013 L 009759 Honorable Kathy M. Flanagan, Judge Presiding.

          JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Lampkin concurred in the judgment and opinion.


          REYES JUSTICE.

         ¶ 1 After Susanna McNerney (McNerney) contacted 303 Taxi, L.L.C. (303) to arrange transportation, a taxicab marked with 303's logo, telephone number, and distinctive colors arrived at McNerney's residence at the designated time. The taxicab driver, Muhtar Allamuradov (Allamuradov), sexually assaulted McNerney as he drove her to the airport. McNerney filed an action in the circuit court of Cook County against (i) Allamuradov, (ii) 303, a taxicab dispatch company, and (iii) Grand Transportation, Inc. (Grand), which had leased the taxicab to Allamuradov. On appeal, McNerney challenges the grant of summary judgment in favor of 303 and Grand. She also contends that the circuit court erred in not permitting her to supplement the record with certain "newly discovered" evidence, including a license application completed by Allamuradov. In separately-filed cross-appeals, Grand and 303 contend that this Court lacks jurisdiction because the circuit court improperly considered McNerney's late-filed motion contesting the grant of summary judgment. For the reasons set forth below, we find that this Court has jurisdiction, and we reverse the decision of the circuit court granting summary judgment and remand this matter for additional proceedings.

         ¶ 2 I. BACKGROUND

         ¶ 3 Prior to the incident involving McNerney, the defendants had executed two agreements: (1) a dispatch services agreement between Grand and 303; and shortly thereafter, (2) a taxicab lease agreement between Grand and Allamuradov. Pursuant to the dispatch services agreement, 303 provided various dispatch services to Grand, and Grand was permitted to use 303's logo, colors, and contact information on its taxicabs. Pursuant to the taxicab lease agreement, Grand leased a taxicab to Allamuradov. 303 and Allamuradov did not enter into any written agreement.

         ¶ 4 The taxicab lease agreement provided that Allamuradov, at his sole discretion, could utilize services provided by Grand, which included dispatch services through 303; redemption of credit card payments through 303; participation in 303's voucher program; and routine repair and maintenance services from Grand. Grand was required to provide: an operable vehicle equipped with a taxi meter; access to radio/computer dispatching service from 303 and credit card reading equipment; affiliation with 303 and license to use the "303 Taxi" name and service marks for display on the taxicab; and public liability and property damage insurance covering itself and Allamuradov in the amounts prescribed by law. Grand could terminate the agreement without advance notice under specified circumstances, including nonpayment of the lease fee or if Allamuradov's driving record became an unacceptable insurance risk. Allamuradov's responsibilities included: reporting any accident to the proper authorities and to Grand's insurer; prompt payment of parking tickets, traffic citations, and fines; purchase of gasoline and all other operating expenses; and liability for physical damage to the taxicab and equipment beyond the normal wear and tear.

         ¶ 5 The taxicab lease agreement provided that nothing therein created or implied the existence of an employer-employee or principal-agent relationship between Grand and Allamuradov. The agreement referred to Allamuradov as a "self-employed businessperson, free from authority and control" of Grand.

         ¶ 6 After her assault, McNerney initially filed a complaint against 303, Stellar Transportation, Inc. (Stellar), and Allamuradov, individually and as agent and servant of 303 and/or Stellar. McNerney then filed a nine-count amended complaint, which added Grand as a defendant, alleging assault and battery, negligence, and negligent hiring, supervision, and training. Stellar was subsequently dismissed from the action because Grand, and not Stellar, leased the taxicab to Allamuradov.

         ¶ 7 Grand and 303 filed answers to the amended complaint and motions for summary judgment. Grand argued, among other things, that there was no agency relationship between Grand and Allamuradov, that his alleged conduct was not within the scope of any purported agency, that Grand was not a common carrier and thus did not owe any heightened duty of care, and that federal law prohibits vicarious liability for a commercial lessor of a vehicle for the actions of its lessee. Grand further contended that there was no evidence that it negligently hired, supervised, or trained Allamuradov. The attachments to its motion for summary judgment included the deposition testimony of Sergey Rapoport (Rapoport) and McNerney.

         ¶ 8 Although compensated by another company, Rapoport performed work as a manager for Grand, a taxicab leasing company in operation since the beginning of 2012.[1] Rapoport also worked as a driver coordinator for 303. He testified that Allamuradov was referred to Grand by another driver. Other than his driver's license, Allamuradov did not provide any other form of identification at the time he leased the taxicab. Allamuradov did not provide a social security number, and Rapoport was unaware of any alternative name or alias he may have used.[2]Rapoport did not request references nor did he communicate with Allamuradov's prior employers.

         ¶ 9 Grand did not perform a background check on Allamuradov prior to entering into the taxicab lease agreement. Although Allamuradov made payments pursuant to the lease agreement, he was not required to provide a credit card. He paid Grand a fixed weekly fee that was not contingent upon his earnings. Grand did not issue him a 1099 and did not require him to drive the taxicab during any particular hours (or at all), nor did it require that he record or report his fares.

         ¶ 10 Rapoport further testified that the taxicab driven by Allamuradov was "affiliated with" 303, meaning that Grand had purchased dispatch services and licensed 303's trademarks. 303 did not lease vehicles. Although Grand did not have a relationship with dispatch service companies other than 303, individual drivers could utilize the services of other companies. If 303 was contacted by a party requesting a taxicab, it relayed the request to all taxicabs affiliated with 303 whose operators had chosen to "book into" the terminal.

         ¶ 11 Although Allamuradov initially denied any wrongdoing, Rapoport after learning of the incident with McNerney terminated his lease and required the return of the taxicab. In March 2014, Allamuradov met with Rapoport to inquire whether he could again lease a taxicab from Grand. Rapoport denied Allamuradov's request.

         ¶ 12 During his September 2014 deposition, Rapoport testified that Grand leased out between 20 to 30 taxicabs at any given time, some of which were equipped with surveillance systems which were installed by the individual drivers. According to Rapaport, Grand viewed its "customers" as the lessees of the taxicabs, not the passengers in the vehicles. Rapoport also testified that Grand did not market itself as a provider of taxi services to the general public.

         ¶ 13 A portion of McNerney's deposition testimony was appended to Grand's motion for summary judgment. She testified that she began using 303 in 2002, based on the recommendation of her former in-laws. Her former husband also "swore by 303." Prior to her assault, she had used 303 taxicabs exclusively in the Chicagoland area. Although she did not pay attention to the logos on the exterior of 303 taxicabs, she was aware of their white and turquoise colors.

         ¶ 14 On August 22, 2012, McNerney requested a taxicab for the following morning through 303's online ordering website. She subsequently called 303 to change her pick-up time. When Allamuradov arrived at McNerney's residence in Winnetka, Illinois, at 4 a.m. on August 23, 2012, she received a telephone call and a text message from 303. While traveling to the airport, Allamuradov stopped the taxicab in a deserted area of Northbrook, Illinois, and insisted that McNerney move to the front seat. Despite her objections and her attempts to thwart him, he engaged in unwanted sexual and physical contact with her. She was able to surreptitiously record portions of the assault using her mobile telephone. Allamuradov subsequently confessed and pled guilty to battery.

         ¶ 15 McNerney testified that she had not heard of Grand prior to the incident. She further testified that she had no "special relationship" with 303 except that its telephone number was programmed into her telephone. Although she "used to trust it, " 303 never made any representations or guarantees to her. She was not aware that the taxicab drivers who utilized 303 were independent contractors.

         ¶ 16 Like Grand, 303 in its motion for summary judgment argued that it had no employment or agency relationship with Allamuradov and that his actions were outside the scope of any alleged agency. 303 also asserted that it did not hire Allamuradov and that its orientation for Allamuradov regarding the workings of the dispatch system did not constitute negligent training. The attachments to 303's motion included the deposition testimony of Rapoport, McNerney, and Baqthiar Khan (Khan).

         ¶ 17 Khan testified that he was employed by 303 as a driver coordinator. He explained that certain vehicles that utilized 303's dispatch services were operated by the owners of the vehicles. Other affiliates which utilized 303's dispatch services owned multiple vehicles. Khan's responsibilities included introducing drivers to 303's affiliates, including Grand. ¶ 18 In his testimony Khan provided that 303 handles dispatch services in the suburbs of Chicago, and a "sister company" provides services in Chicago. When a customer calls for a taxicab, 303 checks the location. If certain taxicabs are licensed for a particular municipality, they are prioritized for that pick-up. Pursuant to the dispatch services agreement, 303 had established requirements regarding the vehicles used by Grand, i.e., a four-door, full-sized, air-conditioned taxicab, painted certain colors to represent 303, with a toplight, a calibrated meter, and a functioning radio receiver. Khan confirmed that "[t]he cab itself says that the cab is an affiliate of 303 Taxi but owned by someone else." According to Khan, the logos on the taxicabs are required by the city and/or state.

         ¶ 19 Khan further testified that the drivers are independent contractors. 303 does not dictate how many hours the driver works and does not require that the driver provide trip logs or work in a particular geographic location. 303 neither pays the driver nor withholds taxes. 303 also does not provide for repairs nor limits whether the driver may use the taxicab for personal purposes. A driver such as Allamuradov may choose to log into or out of the 303 terminal, and may otherwise solicit passengers in whatever legally-permissible manner he chooses.

         ¶ 20 According to Khan, Grand periodically met with drivers at 303's offices and Allamuradov went to 303's office in June 2012 with a friend who was already driving for Grand. At this initial meeting, Allamuradov provided an information sheet, his driver's license, his social security number, and a driving abstract from the State of Illinois that would have listed any moving violations. Approximately one week later, Allamuradov returned to the office to lease a taxicab from Grand.

         ¶ 21 Although not mandated by 303, most municipalities require a background check. Khan testified that the municipalities accepted background checks performed by a company called Accurate Biometrics. 303 initially provided Allamuradov with a form for Accurate Biometrics, and a 303 employee subsequently verified that Allamuradov had completed the background check-which was "clean"-and was fingerprinted, per the municipal requirements. 303 only informs an affiliate, such as Grand, if a background check reveals a red flag.

         ¶ 22 303 did not require references, an employment history, or verification that he lived at the address listed on his driver's license. Apart from the municipal requirements, 303 did not require that he disclose any prior criminal convictions.

         ¶ 23 303 provided training to Allamuradov pertaining to the operation of the taxi meter and the dispatch equipment. 303 also instructs drivers regarding customer service issues, i.e., how to be courteous so as to maximize tips. Although drivers are advised to not discuss religion, politics and sex, 303 provides no training to minimize the likelihood of sexual violence. ¶ 24 After the incident involving McNerney, the Northbrook police contacted 303 regarding Allamuradov's whereabouts. 303 ceased providing service to Allamuradov and informed him of his termination. Khan testified that he was unaware of any changes to 303's policies or procedures after the incident. He was also not aware of any sexual assaults committed by taxicab drivers prior to the assault on McNerney, but testified that another driver was subsequently accused of sexual assault.

         ¶ 25 Khan testified that if a customer calls regarding an issue with a vehicle, 303 contacts the driver to "tell them to stop by and we need to take a look at the [vehicle]." If a complaint is received regarding a driver, a notation on the 303 system is occasionally made. 303 has terminated dispatch services to repeatedly poor drivers. If dispatch services are terminated, a driver is nevertheless able to use the meter, pick up passengers, and take any other actions permitted by his license.

         ¶ 26 In her responses to the motions for summary judgment, McNerney included the affidavit of a purported common carrier expert, Ned Einstein (Einstein). Einstein averred that taxicabs "have a significantly higher standard of care" than personal occupancy vehicles (i.e., everyday drivers) and transit national companies (TNCs) such as Uber and Lyft, which "merely sell a 'tool' " (an "app") that enables passengers to directly contact drivers. According to Einstein, operators of taxicab services within the Chicago metropolitan area, like 303 and Grand, are "proscribed by law from failing to monitor their drivers." Einstein also averred that state-of-the-art taxi systems contain GPS-oriented technology which enables a dispatcher to digitally track a taxicab's movement on and off routes.

         ¶ 27 Einstein opined that 303 and Grand are both common carriers and thus held to the highest duty and standard of care. According to Einstein, 303 and Grand controlled Allamuradov's conduct and performance as a taxicab driver during the incident, which occurred in the course and scope of his duty.

         ¶ 28 McNerney also submitted her own affidavit, which was executed after her deposition. McNerney averred that for 12 years she exclusively ordered taxicabs from 303 and had relied on 303 to keep her safe when using its services. She stated that she fully trusted 303's reputation for safety. McNerney assumed the driver was employed by ...

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